H-2B Employer Compliance: Avoiding DOL Violations

October 2026 is the start of the Winter 2026-2027 employment period for H-2B workers — the cohort whose employers filed in the July 3-5, 2026 window and were placed in DOL's FY 2027 first-half assignment groups (published July 8, 2026), then filed petitions before USCIS reached the FY 2027 first-half cap on September 4, 2026. For employers, this is not just a moment of relief after months of recruitment and processing. It's the start of a compliance window that demands precision. The Department of Labor's Wage and Hour Division enforces H-2B employer obligations with real consequences: back wages, civil money penalties, and debarment from the program for one to five years.

This post walks through the employer obligations that matter most during the active employment period — the rules that, if missed, trigger DOL violations. We cover wage requirements, the three-fourths guarantee, transportation and visa-fee reimbursement, recordkeeping, and the separation-notice process. If you're bringing H-2B workers on-site this month, this is your compliance checklist.

The Legal Framework: What You Agreed To

When the Department of Labor certified your temporary labor certification application, you signed on to a set of binding assurances codified in 20 CFR 655.20. These obligations apply to every H-2B worker named on your petition and to every U.S. worker in "corresponding employment" — anyone doing substantially the same work during the job-order period.

The Wage and Hour Division has enforced H-2B compliance since January 18, 2009. Violations are not theoretical. Employers face investigations, back-wage orders, and program debarment. The stakes are higher when workers are already on-site: a mid-season compliance failure can leave you short-staffed with no legal path to replace the workforce.

Employers should confirm all compliance specifics with their immigration attorney. This guide synthesizes the regulatory text — it does not substitute for legal advice tailored to your operation.

Wage Requirements: More Than Minimum Wage

The offered wage in your job order must equal or exceed the highest of four benchmarks: the prevailing wage for the occupation in your area, the federal minimum wage, the state minimum wage, or the local minimum wage. You must pay at least the offered wage, free and clear, during the entire period covered by the certification (20 CFR 655.20(a)(1)).

Piece Rates and Productivity Standards

If you pay on a piece-rate basis, the average hourly earnings each workweek must result in an amount at least equal to the offered wage. If a worker's piece-rate earnings fall short in any given week, you must supplement their pay at that time so the worker receives at least what they would have earned at the offered hourly rate for each hour worked (20 CFR 655.20(a)(4)). This is not an end-of-season true-up — it happens weekly.

Productivity standards are permitted only when they are normal and usual for non-H-2B employers in the same occupation and area. If you require minimum productivity as a condition of job retention, those standards must be specified in the job order (20 CFR 655.20(a)(3)).

Wages Paid Free and Clear

The regulation at 20 CFR 655.20(b) requires wages to be paid "free and clear" — in cash or negotiable instrument payable at par, finally and unconditionally. Unauthorized deductions, kickbacks, or arrangements where the worker "owes you back" for something reduce the wage below the required minimum and violate the program.

Permitted deductions under 20 CFR 655.20(c) are limited to: those required by law (taxes, court-ordered payments), the reasonable cost or fair value of board, lodging, and facilities you furnish, and amounts authorized to be paid to third persons for the worker's account and benefit through voluntary assignment or a collective bargaining agreement. Every deduction not required by law must be specified in the job order. If it wasn't disclosed, it's prohibited.

Pay Frequency and Pay Stubs

You must pay workers at least every two weeks, or more frequently if that is the prevailing practice in your area for the occupation, and the frequency must be stated in the job order (20 CFR 655.20(h)). On or before each payday, you must furnish a written statement showing, for each workweek in the pay period: total earnings, hourly rate and/or piece rate, hours of employment offered to the worker (separated into hours offered under the three-fourths guarantee versus additional hours), hours actually worked, itemized deductions and additions, units produced daily if piece rates are used, the pay-period dates, and your name, address, and FEIN (20 CFR 655.20(i)(2)).

That "hours offered" line is not optional. It is what the worker — and a DOL investigator — will use to verify compliance with the three-fourths guarantee.

The Three-Fourths Guarantee: What You Owe When Work Is Slow

Under 20 CFR 655.20(f), you must guarantee to offer each worker employment for a total number of work hours equal to at least three-fourths of the workdays in each 12-week period (or each 6-week period if the period of employment covered by the job order is less than 120 days). The guarantee runs from the first workday after the worker's arrival at the place of employment or the advertised first date of need, whichever is later, through the expiration date in the job order and any extensions.

If your job order states 40 hours per week across 5 workdays, a 12-week period contains 60 workdays at 8 hours each — 480 hours total. You must offer at least 360 hours (75 percent) across those 12 weeks. Hours the worker actually worked count toward the guarantee. Hours you offered and the worker declined (up to the daily hours in the job order) also count. Hours the worker was ready to work but you sent them home for lack of work do not count as offered.

If you fall short of the guarantee in any 12-week (or 6-week) period, you must pay the worker the amount the worker would have earned had the worker in fact worked for the guaranteed number of days. The guaranteed hours are owed whether or not there was work.

Enforcement Caveat

Since FY 2016, Congress's annual DOL appropriations rider has barred DOL from spending funds to enforce the three-fourths guarantee. The obligation remains in the regulation and in every certified job order — DOL states it "remain[s] in effect, thus imposing a legal duty on H-2B employers" — but the Wage and Hour Division will not investigate a three-fourths-guarantee complaint as such. This does not mean you can ignore it. The guarantee is part of the certified job order, and failing to meet it damages your reputation and your ability to recruit returning workers in future seasons.

Transportation, Subsistence, and Visa-Fee Reimbursement

The employer provides, advances, or reimburses the worker's inbound transportation and daily subsistence from the place the worker came from to work for you (home country, or the previous worksite for an in-country transfer) to your place of employment — once the worker completes 50 percent of the period of employment covered by the job order, not counting extensions (20 CFR 655.20(j)(1)(i)). The transportation amount must be no less than the most economical and reasonable common carrier charge for the distance involved. All transportation and subsistence costs you will pay must be disclosed in the job order.

For the 2026 rates (effective April 7, 2026), daily subsistence is reimbursed at a minimum of $16.78 per day without receipts, or up to $68.00 per day with receipts, with lodging required during the trip reimbursed on top, up to $110.00 per day with receipts. DOL republishes these subsistence amounts every year — check the current annual notice before you budget or quote them.

Visa and related fees — the visa application fee (currently $205 for petition-based visas), visa-processing fees, border-crossing fees, and other government-mandated charges incurred by the worker — must be paid or reimbursed in the first workweek (20 CFR 655.20(j)(2)). Passport expenses and other charges primarily for the worker's benefit are not reimbursable.

If the worker completes the job order or you dismiss them before the end and they have no immediate subsequent H-2B employment, you must provide or pay for return transportation and daily subsistence at the time of departure. If the worker voluntarily abandons the job (quits before the end of the period), you owe no outbound transportation or subsistence — but you must file the separation notice (see below) to document the abandonment and end your liability.

Keep detailed records: the costs the worker incurred, the amounts reimbursed, and the dates of reimbursement. These records must be retained for three years from the date the application was certified.

Recordkeeping: What DOL Will Ask For

You must keep accurate and adequate records for three years from certification, including: the job order and application, all recruitment evidence and the recruitment report, recruiter and agent agreements, earnings and hours records (offered and worked), transportation and subsistence reimbursement records, and separation notices. DOL can require you to produce these records within 72 hours of a request.

The earnings records required by 20 CFR 655.20(i)(1) must show: the nature, amount, and location of the work performed; the number of hours offered each day (broken out by hours offered under the three-fourths guarantee versus additional hours); the hours actually worked each day; if the worker worked fewer hours than offered, the reason; the time the worker began and ended each workday; the rate of pay (hourly and/or piece rate); the worker's earnings per pay period; the worker's home address; and the amount of and reasons for any deductions or additions.

This is not a light lift. If you are managing H-2B workers without a payroll system that tracks hours offered versus hours worked by workweek, you are not in compliance. The pay stub the worker receives must contain this information. If it doesn't, you have a gap.

Separation Notices: The Two-Workday Rule

If a worker abandons the job (five consecutive workdays without the employer's consent) or you terminate them before the end of the job order, you must notify both DOL's Office of Foreign Labor Certification in writing and USCIS within two work days of discovering it (20 CFR 655.20(y); 8 CFR 214.2(h)(6)(i)(F)). Filing this notice is what ends your three-fourths-guarantee and return-transportation liability for that worker and protects your petition history.

Do not skip this step. An undocumented separation leaves you on the hook for the guarantee through the end of the job-order period. Your immigration attorney can confirm the current filing method and address for each notice before you need to send one.

What Employers Must Not Do

Under 20 CFR 655.20(n), you may not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has filed a complaint, testified, consulted an attorney or a worker advocacy organization, or exercised any right under the H-2B program. This applies to H-2B workers, U.S. workers in corresponding employment, and former workers.

Retaliation complaints go to the local Wage and Hour Division office (1-866-487-9243) and are kept confidential. A finding of retaliation can result in back wages, civil money penalties, and debarment from H-2B for one to five years.

You also may not lay off similarly employed U.S. workers from 120 calendar days before the date of need through the end of the job order — unless all H-2B workers are laid off first (20 CFR 655.20(w)). And you must continue to accept State Workforce Agency referrals and hire any qualified U.S. applicant who applies until 21 calendar days before the date of need (20 CFR 655.20(t)). Rejections must be for lawful, job-related reasons and documented in your recruitment report.

Compliance Checklist for Active Employment

• Wage compliance: Pay at least the offered wage, free and clear, at least every two weeks. Supplement piece-rate earnings weekly if they fall short of the hourly-wage equivalent.
• Pay stubs: Issue a written statement on or before each payday showing hours offered (separated by guarantee versus additional), hours worked, rates, deductions, pay-period dates, and employer name, address and FEIN.
• Three-fourths guarantee: Track hours offered versus hours worked by workweek. Pay the shortfall if you fall below 75 percent in any 12-week (or 6-week) period.
• Transportation and visa fees: Reimburse visa and related government fees in the first workweek. Provide, advance or reimburse inbound transportation and subsistence no later than the 50-percent point. Arrange or pay for outbound transportation at completion or dismissal.
• Records: Maintain detailed earnings, hours, reimbursement, recruiter-agreement and separation records for three years from certification. Be ready to produce them within 72 hours on DOL request.
• Separation notices: File with OFLC and USCIS within two work days of any abandonment or early termination.
• No retaliation: Do not punish or threaten any worker who asks about their rights, files a complaint, or talks to an attorney.

What Happens When You Get It Wrong

DOL violations can result in back-wage orders for affected workers, civil money penalties, and debarment from the H-2B program for one to five years. Separately, under the regulatory changes effective January 17, 2025, USCIS can deny or revoke a petition where the petitioner or its recruiter, agent or attorney collected or agreed to collect a prohibited fee from a worker, bar new H-2A and H-2B petitions for one year, and bar them for three additional years unless every affected worker is reimbursed in full. USCIS can also deny petitions where the petitioner has committed serious labor law violations in either the H-2A or H-2B program — a violation in one H-2 program affects eligibility in both.

These are not hypothetical consequences. Debarment removes your access to the program at the moment you need it most, and the enforcement apparatus applies during the active employment period — not just at the certification stage.

Why This Matters Now

October 2026 is the on-site compliance moment for the FY 2027 first-half cohort. Workers are arriving. Payroll is starting. The three-fourths-guarantee clock is running. If you are not tracking hours offered versus hours worked by workweek, you are flying blind. If your pay stubs do not show the required detail, you have a gap. If you have not filed a separation notice within two work days of a worker abandoning the job, you are still on the hook for the guarantee and the return ticket.

The regulatory obligations in 20 CFR 655.20 are not suggestions. They are the terms of your labor certification. Confirm how each one applies to your operation with your immigration attorney before the season gets ahead of you.

Need Workers This Season?

Contact JTP Agency — 20+ years of H-2B, H-2A and TN recruitment experience, recruiting since 2006 from 13 source countries, headquartered in Sarasota, Florida, with offices in El Salvador, Jamaica and Mexico City. We support DOL temporary labor certification, coordinate the USCIS petition with your attorney, and handle embassy and consular logistics, worker travel and arrival, and in-country extensions and transfers. We handle the recruitment; you focus on compliance and operations. We are not a law firm and do not provide legal advice — employers confirm compliance specifics with their immigration attorney. Workers never pay fees. Not one dollar.