Employment Law Guide

Work Authorization for Non-U.S. Citizens: Temporary Nonagricultural Workers (H-2B Visas)

Updated: December 2016

Sections 101(a)(15)(H)(ii)(b) and 214(c)(1),(c)(14), and (g)(1) and (g)(9) of the Immigration and Nationality Act of 1952, (INA)as amended and 20 CFR Part 655 Subpart A, 29 CFR Part 503 and 8 CFR Part 214.2(h)

Who is Covered

These regulations apply to employers who wish to import temporary nonagricultural workers to work in temporary jobs in the United States when U.S. workers are not available. The INA requires the Department of Homeland Security (DHS) to consult with appropriate government agencies to determine eligibility for the H-2B program, and DHS has determined that effective administration of the H-2B program requires consultation with the Department of Labor (DOL) to advise whether U.S. workers capable of performing the temporary services or labor are available before determining whether any worker can be admitted. The INA also provides that the number of aliens during any fiscal year who can be issued visas or provided nonimmigrant status cannot exceed 66,000.

Basic Provisions/Requirements

Regulations of the U.S. Citizenship and Immigration Services (USCIS) require that employers who file H-2B petitions with USCIS (except for temporary employment on Guam) must include a temporary labor certification from DOL stating that qualified workers are not available in the U.S. and that the foreign worker's employment will not adversely affect wages and working conditions of similarly employed U.S. workers.

The employment for which certification is requested must, absent a one-time occurrence, be for no longer than 9 months. The need for the service or labor can be a one-time occurrence, seasonal need, peak load need, or intermittent need. Other detailed information may also be found on the H-2B Certification for Temporary Nonagricultural Work page of the Employment and Training Administration's Office of Foreign Labor Certification (OFLC) website.

Note: The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 ("2016 DOL Appropriations Act"), provides that for Fiscal Year 2016, employment for which certification is requested generally must be for no longer than one year, absent a one-time occurrence.

For those employers who file an ETA Form 9142B on or after April 29, 2015, the regulations at 20 CFR 655 Subpart A and 29 CFR 503 apply. These regulations state that employers must register prior to filing the applications for certification of temporary nonagricultural jobs. This registration is good for 3 years as long as the job, dates of need, and number of workers do not change significantly (OFLC will announce in the Federal Register when the registration process will commence). The employer must obtain a prevailing wage by filing ETA Form 9141 with ETA's National Processing Center. The employer must then initiate the required recruitment at the same time it files the application for certification of the temporary nonagricultural job, which must be filed no fewer than 75 calendar days and no more than 90 calendar days before the employer's date of need. Required recruitment includes submitting a job order to the State Workforce Agency (SWA) serving the area of intended employment; publishing two print advertisements, one of which must be on a Sunday; contacting its former U.S. workers, including those laid off in the last 120 days, employed in the same occupation at the same location; and, if there is a union, contacting the local bargaining representative or, if no union is present, posting a job notice in 2 conspicuous locations for 15 consecutive business days. The job order must be posted at the SWA until 21 days prior to the date of need.

The employer will prepare a recruitment report summarizing the results of the effort. The employer must sign the report and include, among other items, the following information:

• Identification of each recruitment source by name
• The name and contact information for each U.S. worker who applied for the job
• Explanation of the lawful job-related reasons for not hiring each U.S. worker

If OFLC denies certification, the employer may appeal to the Board of Alien Labor Certification Appeals.

Employee Rights

An employer who files an application for temporary foreign labor certification pursuant to the H-2B regulations must meet many specific conditions, including those concerning recruitment, wages, transportation, tools and supplies, certification and recruitment fees, labor disputes, and other conditions.

Workers who believe that their rights under the H-2B regulations were violated may file their complaints with their local Wage and Hour Division office (https://www.dol.gov/agencies/whd/contact/local-offices).

Many of the H-2B program's worker protections also extend to other workers in the employer's workforce, including U.S. workers hired in response to the requirement recruitment, and those who are found to be in corresponding employment. Workers may file complaints about non-compliance with H-2B labor standards with a local Wage and Hour Division office.

Please note: The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 ("2016 DOL Appropriations Act"), provides that the Department of Labor ("Department") may not use any funds to enforce the definition of corresponding employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition found in 20 CFR 655.20, or any reference thereto. See Sec. 113. However, the 2016 DOL Appropriations Act did not vacate these regulatory provisions, and they remain in effect, thus imposing a legal duty on H-2B employers, even though the Department will not use any Fiscal Year 2016 funds to enforce them.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

The employer must post a DOL-provided poster in English detailing workers' rights and protections under the H-2B program in a conspicuous location at each worksite. In addition, the employer must post additional posters if a significant portion of workers are not fluent in English and DOL provides the poster translated into that language. The poster is currently available in Spanish.

Recordkeeping

Employers certified under H-2B must retain for three years the H-2B Registration, job order, Application, Appendix B, H-2B Petition (DHS Form I-129), and supporting documents. Employers must also retain proof of recruitment efforts, including the job order; advertising; contact with former U.S. workers; contact with bargaining representative(s) or a copy of the posting of the job opportunity, whichever is applicable; and additional employer-conducted recruitment efforts directed by the Certifying Officer, if applicable.

Employers must also keep a copy of the final recruitment report and any supporting resumes and contact information; evidence of contact with U.S. workers who applied for the job opportunity, including documents demonstrating that any rejections of U.S. workers were for lawful, job-related reasons; and evidence of required contact with any former U.S. worker in the occupation and place of employment, including documents demonstrating that the U.S. worker had been offered the job opportunity and either refused it or was rejected for lawful, job-related reasons.

The employer must keep records of each worker's earnings, hours offered and worked, and the location(s) of work performed. Records of when and how much the employer reimbursed workers for transportation and subsistence costs must also be kept. Employers must keep written contracts with agents or recruiters, including the written contract prohibiting an agent or recruiter from receiving prohibited payments, and the list of identities and locations of persons working for the agent or recruiter, and these entities' agents or employees (which was provided to DOL at the time of application).

Employers must keep the written notice provided to and informing ETA and USCIS that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment certified in the Application. Employers must keep any collective bargaining agreement, individual employment contract, or payroll records used to substantiate any claim that certain incumbent U.S. workers are not included in corresponding employment.

Reporting

Each worker must be provided a wage statement showing total earnings for each workweek in the pay period; hourly rate and/or piece rate; if piece rates are used, the daily units produced by the worker; itemized deductions made from the worker's wages; the number of hours of employment offered to the worker; hours actually worked by the worker in each workweek of the pay period; beginning and ending dates of the pay period; and the employer's name, address, and Federal Employer Identification Number (FEIN).

Employees must be paid at least every other week, or according to the prevailing practice in the area of intended employment, whichever is more frequent.

The employer must provide a copy of the job order to the H-2B worker no later than the time at which the worker applies for the H-2B visa (or at the time of the job offer if the H-2B worker is already in the U.S.) and to a worker in corresponding employment no later than on the day the work commences. The job order must be provided in a language understood by the worker, as necessary or reasonable.

Penalties/Sanctions

The Wage and Hour Division has a primary role in investigation and enforcing the terms and conditions of employment under the H-2B program. The Wage and Hour Division may assess civil money penalties and recover unpaid wages for violations of the terms and conditions of employment under the H-2B program. Administrative proceedings may be instituted to compel compliance with an employer's obligations to workers under the H-2B program.

ETA and the Wage and Hour Division may debar an employer (and their successors in interest), attorneys, or agents from filing labor certifications for a period of no more than five years for substantial violations. ETA may also revoke an approved labor certification for substantial violations.

Relation to State, Local, and Other Federal Laws

Various federal, state, and local labor standards, such as the Fair Labor Standards Act, may apply to the employment of H-2B workers in the U.S.

Compliance Assistance Available

Employers may obtain information on how to apply for a temporary nonagricultural labor certification, including application forms and directives that contain prescribed procedural requirements, from the national office of the OFLC.

DOL provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Wage and Hour Division's immigration webpage.

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

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