H2B Program Compliance

h2b program complianceThe H2B guest worker program allows service employers (hotels, restaurants, landscapers, etc.) to request temporary or seasonal foreign workers to fill positions that they are unable to fill with U.S. workers.  If you are an employer who participates in the H2B program you know how complicated the filing requirements can be.  What you might not know is how strictly the regulations of the program are enforced by the Wage and Hour Division of the U.S. Department of Labor.  That agency is responsible for conducting investigations of H2B employers to determine if they are in compliance with all aspects of the program as outlined on their Temporary Employment Certification Form 9142.

Labor Brain employees conducted numerous investigations of H2B employers during their time as federal investigators. They did investigations on landscaping, snow removal, trucking, and construction companies as well as hotels and restaurants. Due to the complexity of the H2B regulation and how it interacts with other federal statutes like the Fair Labor Standards Act, not once did any of those investigations result in a finding of no violation. The Labor Brain can help your company to understand the H2B regulations and help you come into compliance in all aspects of the program. For an H2B employer the cost of non-compliance is high because of fines associated with the program. For each violation the fine begins at about $6,000. And not paying an individual employee correctly constitutes its own violation. The total amount of fines owed in an investigation can easily exceed $100,000.

It’s difficult to pick the most common violations that occur under H2B because there so many potential problem areas but here are several that we’ve seen time and time again:

  • Misrepresenting the number of workers needed or time period for which they are needed.
  • Not doing proper recruitment of U.S. workers (purposefully not hiring U.S. workers in order to get more H2B workers)
  • Not including all the perks of a job in the advertisement used to recruit U.S. workers.
  • Having H2B workers work in jobs that aren’t included in the job description.
  • Not paying the correct prevailing wage to H2B workers.
  • Having H2B workers work outside the place of intended employment as listed on the certification.
  • Requiring workers to pay all or part of their visa fee or other program fees that must be borne solely by the employer or employer’s agent.
  • If employees are covered by the minimum wage law of the Fair Labor Standards Act  – not reimbursing employees for transportation costs (from home), hotel costs, etc. to the extent that it takes them below minimum wage in the first week.

The Labor Brain Inc. was created to get employers the information they need to stay in compliance. Almost all H2B program violations occur as a result of employer ignorance, not employer malice.  Please contact us if you would like some help navigating the H2B program.  And check out our special service for H employers: The H Audit. The consequences of being found out of compliance can be devastating to employers and employees alike.

The Labor Brain Inc. is not a law firm and its employees do not practice law or provide legal services.  The information provided on our website,  in email correspondence with representatives of The Labor Brain, and at outreach events is for informational and educational purposes only.  The information provided is not a substitute for the advice of an attorney.