H - 2B WORKERS
The H-2B nonimmigrant program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time such as a one-time occurrence, seasonal need, peakload need or intermittent need.
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The H-2B temporary non-agricultural program permits employers who meet the program requirements to hire nonimmigrant workers to temporarily come to the U.S. and perform non-agricultural services or labor based on the employer's temporary need.
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To fully understand the H-2B process please click here to read the USCIS website: H-2 Program
Granted H-2B Registration
The employer has requested and been granted H-2B Registration by DOL (upon announcement in the Federal Register of the transition period).
The employer must pay at least the offered wage indicated on the Application, which equals or exceeds the highest of the prevailing wage or Federal minimum wage, State minimum wage, or local minimum wage, for all hours worked during the entire period of the job order, and must pay those wages free and clear.
If workers are paid based on piece-rates, commissions, bonuses, or other incentives, the employer guarantees a wage earned every workweek that equals or exceeds the offered wage.
The employer must make all deductions from workers' paychecks required by law. Other additional deductions must be reasonable and must be disclosed in the job order. Deductions that are not disclosed are prohibited.
The job opportunity is a bona fide, full-time, temporary position of at least 35 hours per workweek. The qualifications and requirements for the job must be listed in the job order and must be consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and geographic area.
The employer must include in the job order any minimum productivity standard which the workers must meet in order to retain the job. Any such standard must be normal and usual for non-H-2B employers for the same occupation and geographic area.
Number of Work Hours
The employer must guarantee to offer the workers employment for a total number of work hours equal to at least 75% of the workdays in each 12-week period (or each 6- week period if the job order is less than 120 days).
If, before the end of the job order, the services of a worker are no longer required for unforeseeable reasons beyond the control of the employer (for example, fire, weather, other Act of God, or similar, man-made catastrophic events), the employer may terminate the job order with approval of the Certifying Officer.
Records of Workers
The employer must keep accurate records of workers' earnings, hours of work offered, and hours actually worked. On or before each payday (which must occur at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent), each worker must be given a pay stub showing hours offered, hours actually worked, hourly rate and/or piece-rate of pay, and, if piece-rates are used, the number of units produced daily.
Visa and Transportation Expenses
Requirements related to visa expenses and transportation/subsistence costs:
(1) The employer must either advance all visa, border crossing, and visa-related expenses to H-2B workers, pay for them directly, or reimburse all such expenses in the first workweek. (2) The employer must disclose how it will provide inbound transportation and subsistence costs (lodging incurred on the employer's behalf and meals) in the job order. The employer will either advance all transportation and subsistence expenses to workers traveling to the employer's worksite, pay for them directly, or reimburse the expenses no later than the time workers complete 50 percent of the period covered by the job order. The employer may be obligated under the FLSA to reimburse workers for their inbound transportation during the first workweek to the extent that the travel costs they incurred would bring workers below the Federal minimum wage. This provision applies to H-2B workers and to workers in corresponding employment who travel from far enough away to the worksite that it is not reasonable for them to return home every day. (3) The employer must pay for the return transportation and daily subsistence (if the workers have no immediate subsequent H-2B employment) for any workers who work until the end of the job order or are dismissed from employment for any reason before the end of that period. (5) All employer-provided transportation must comply with all applicable Federal, State, or local laws and regulations.
All H-2B and corresponding workers must be provided with a copy of the job order. H-2B workers located abroad must receive the job order no later than when they apply for a visa. H-2B workers already in the country must receive the job order no later than when the job offer is made. Corresponding workers must receive the job order no later than the day work starts.
Poster in English
The employer must post a DOL-provided poster in English detailing H-2B and corresponding workers' rights and protections in a conspicuous location at each worksite. The employer must post additional posters if a significant portion of workers are not fluent in English and if DOL provides the poster translated into their language.
The employer must not (and must not cause another person to) discharge or discriminate against any person who participates in any protected activity such as filing a complaint; testifying; consulting with a workers' center, community organization, labor union, legal assistance program or attorney; or exercising or asserting any right or protection under the INA, DHS regulations, or DOL regulations. For more on this topic, see "Fact Sheet #78H: Retaliation Prohibited under the H-2B Program".
The employer and its attorney, agents and/or employees must not seek or receive payment of any kind from the H-2B worker for any activity related to obtaining employment certification, including but not limited to payment of the employer's attorney or agent fees, application or DHS petition fees, or recruitment costs. Payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor.
The employer must contractually forbid in writing any agent or recruiter (or any employee of such agent or recruiter) whom the employer engages, directly or indirectly, in international recruitment of H-2B workers to seek or to receive payments or other compensation from prospective workers. The employer and its attorney and/or agent must provide the Department: 1. a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H-2B workers, and 2. the identity and location of all persons or entities hired by or working for the agent or recruiter, and any of their agents or employees, to recruit prospective foreign workers for the H-2B job opportunities offered by the employer.
Terms, Wages and Working Conditions
The employer must not offer terms, wages, and working conditions to U.S. workers that are less favorable than what the employer offers or provides to H-2B workers. Also, the employer must not impose restrictions or obligations on U.S. workers that are not imposed on H-2B workers.
Qualified and Available Workers
In order to find qualified and available U.S. workers to perform the labor in the job order, the employer must conduct all required recruitment activities according to the regulations. The employer must also continue to accept State Workforce Agency referrals and hire all qualified and eligible U.S. workers who apply for the job until 21 days before the job order starts. For more on this topic, including a complete list of required recruiting activities, see "Fact Sheet #78B: Recruiting Requirements under the H-2B Program".
Open to all Qualified US Workers
The job opportunity must be open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship. U.S. workers who apply for the job may be rejected only for lawful, job-related reasons, and the employer must retain records of all rejections.
No Strike or Lockout
There must be no strike or lockout at any of the employer's worksites within the area of intended employment for which the employer is requesting an H-2B certification.
The employer must not lay off any similarly-employed U.S. worker in the occupation and area of intended employment from 120 days before the start of the job order through the end of the job order, unless all H-2B workers are laid off first.
Area of Intended Employment
The employer must not place any H-2B workers outside the area of intended employment or in an occupation not listed on the approved Application, unless the employer obtains a new approved Application from DOL.
The employer must notify DOL if any H-2B or corresponding worker separates from the job for any reason before the end of the job order. The notification must be made in writing and no later than 2 days after the separation is discovered by the employer. Similarly, the employer must also notify DHS of such separation of an H-2B worker.
Federal, State and Local Employment-Related Laws and Regulation
During the period of employment certified on the Application, the employer must comply with applicable Federal, State and local employment-related laws and regulations including, but not limited to, employment-related health and safety laws. In addition, the employer and its agents and attorneys are prohibited from knowingly holding, destroying, or confiscating workers' passports, visas, or other immigration documents pursuant to 18 U.S.C. 1592(a).
Cooperation with Secretary of labor
The employer must cooperate with any agent of the Secretary of Labor who is exercising or attempting to exercise DOL's authority pursuant to 8 U.S.C. 1184(c).
Retain all Documents
The employer must retain all documents pertaining to the Application and Registration, the recruitment-related documents, the payroll records, and related documents for 3 years. For more on this topic, see "Fact Sheet #78I: Records Retention Requirements under the H-2B Program".