2022 H-2B PROGRAM OVERVIEW

& COMPLIANCE REQUIREMENTS

The H-2B visa allows United States seasonal employers who anticipate a shortage of domestic workers to bring
nonimmigrant foreign workers to the United States to perform non-agricultural labor or services of a temporary or
seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must
meet several requirements before actually bringing non-immigrant workers to the United States. If the employer meets
the requirements, they may bring a non-immigrant worker into the country for a maximum of 10 months (in practice,
however, the DOL has been imposing a 9-month limit in recent months). During that time, the nonimmigrant worker is
guaranteed certain rights, which are outlined below.
Explanation of “Fiscal Year” for purposes of H-2B Cap Count
H-2B Cap is set at 66,000, which is split between 2 Seasons:
• October 1 (1st Half of FY)
• April 1 (2nd Half of FY)
October 1, 2020 = FY 2021
April 1, 2020 = FY 2020
Fiscal Year is designated by the calendar year in which it ends:
• 1st Half of FY = October 1 to March 31
• 2nd Half of FY = April 1 to September 30

What is a “Temporary Need”?

The Department of Labor defines “temporary need” as “Services where the petitioner’s need for the duties to be
performed, rather than the job itself, is temporary. It is the nature of the employer’s need, not the nature of the “duties”,
that is controlling.”
The nature of the employer’s temporary need for H-2B employment must be seasonal, peak load, intermittent, or a one-
time occurrence as defined in 8 CFR 214.2(h)(6)(ii).
1. One-Time Occurrence
The petitioner must establish that the employer:
• Has not employed workers to perform the services or labor in the past and that it will NOT need workers to
perform the services or labor in the future; or
• Has an employment situation that is otherwise permanent, but a temporary event of short duration has created
the need for a temporary worker
2. Seasonal Need
The petitioner must establish that the services or labor are:
• Traditionally tied to a season of the year by an event or pattern; and
• Of a recurring nature
3. Peak Load Need
The petitioner must establish that:
• The employer regularly employs permanent workers to perform the services or labor at the place of employment;
• The employer needs to supplement its permanent staff at the place of employment on a temporary basis due to a
seasonal or short-term demand; and
• The temporary additions to staff will not become part of the petitioner’s regular operation
4. Intermittent Need
The petitioner must establish that it has not employed permanent or full-time workers to perform the services or
labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Employer Obligations
The below checklist is provided to assist you in making sure that you are in compliance with Department of Labor, H-2B
regulations and that you have an understanding of what your obligations are as an H-2B employer. The H-2B program
authorized temporary/seasonal employment for no more than 10 months.

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2022 H-2B PROGRAM OVERVIEW
& COMPLIANCE REQUIREMENTS

I. Wage Requirements
DOL regulations require that you employ workers on a full-time basis, which the Department of Labor defines as at
least 35 hours per week. You are required to pay all workers the prevailing wage rate listed on the application for all
hours up to 40 hours per week. Under the Fair Labor Standards Act, for any hours over and above 40 per week, you
must pay workers the overtime rate.
Please note that DOL will expect you to pay ALL workers in the same occupational classification the same hourly rate
of pay unless you can offer a legally valid reason for a difference in pay rate for workers performing the same duties.
This issue has come up in recent DOL H-2B Audits. You would need to be able to justify any differences in wage
rates among similar employees.
You are required to offer to each worker employment for a total number of work hours equal to at least ¾ of
the workdays of each 12-week period (6 week period of job order is less than 120 days), unless prevented by
unforeseeable circumstances outside employer’s control.
II. Payroll/Tax Withholding Issues
Deductions from wages MUST be made if they are required by law. All other deductions must be specifically
disclosed in the job order and may only include the reasonable cost or fair value of board, lodging, and facilities
furnished.
According to IRS regulations, you are required to pay all regular local, state and federal payroll taxes, including Social
Security and unemployment (FICA, FUTA and SUTA). You are also responsible for assisting your workers in obtaining
Social Security cards upon their arrival.
Offer to each worker employment for a total number of work hours equal to at least ¾ of the workdays of each 12-
week period (6 week period of job order is less than 120 days), unless prevented by unforeseeable circumstances
outside employer’s control.
• You must provide Workers’ Compensation Insurance for all workers.
III. Payroll Records
You are required to provide ALL workers, even if not on the H-2B visa program, with weekly pay statements/earnings
records identifying all deductions and reimbursements clearly itemized, and hours worked AND hours offered.
These pay statements should include the following information and distinguish between H-2 and domestic workers:
• Employer name, address, phone number and FEIN Number
• Dates covered by payment
• Basis of payment (hourly, salary, etc)
• Start and end dates for each temp worker hired through the H-2B recruitment and employed during the period
of need
• Worker’s name and home address (the address should be a foreign address)
• Number of hours offered each day
• Number of hours actually worked each day
• Rate of pay (regular and overtime)
• Gross wages
• Any deductions from wages
• Net wages
• Allowances or credits (meals, uniforms, etc)
• Total earnings for each temp H-2B and domestic worker per pay period
• Amount of and reasons for any and all deductions taken from worker’s pay
Earnings records should be broken down by pay period, for each temporary worker (both H-2B and domestic) for
the temporary position for the entire period of H-2B certification.
According to IRS regulations, you are required to pay all regular local, state and federal payroll taxes, including Social
Security and unemployment (FICA, FUTA and SUTA). You are also responsible for assisting your workers in obtaining
Social Security cards upon their arrival.

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Note: if applicable, please explain any differences in wages between workers performing the same duties as your H-2B
workers. Please also explain any differences in wages between what was advertised and what was actually paid to workers.
Audit File Tip: Make sure to keep actual pay statements for the temporary Landscape Laborer position for all pay periods
during the H-2B season from the time the worker arrives to the time the worker departs at the end of the season.
IV. Transportation/Subsistence Reimbursement
Payment or reimbursement of transportation and subsistence expenses for workers to the place of employment
after the worker completes 50% of the period of employment in the job order. The current subsistence rate for
meals is $13.17 per day without receipts or $55/day with proper receipts.
Payment of return transportation and subsistence required if the worker completes the job order period or is
dismissed early. DOL Wage and Hour also requires that workers be reimbursed for travel expenses and any
required lodging costs incurred from their hometown, to the U.S. Consulate for their visa processing, as well as
transportation and lodging to the worksite in the U.S.
Under the Fair Labor Standards Act, the U.S. Department of Labor has concluded that employers are required to
pay transportation and visa expenses incurred by H-2B workers. If shifting these costs to the H-2B workers would
depress their pay rate below the required prevailing wage, it is not permitted.
We recommend that you reimburse your workers for transportation costs and visa-related fees in the first work
week to avoid violation the FLSA.
Evidence of travel reimbursement can include the following:
• Itemized list of all reimbursements to workers
• Evidence/receipts of reimbursement for travel from the worker’s hometown all the way to the worksite in the U.S.
and back to their home in their country of origin at end of season
• Evidence/receipts of reimbursement for daily subsistence expenses from their homes all the way to the U.S. and
back home
• If you have arranged travel for the worker, keep copy of invoice and receipt from transportation company
Visa Processing Costs: Payment or reimbursement of visa, border crossing and related government mandated fees
in the first workweek. Current Consular Processing Fee is $190. Agent fees very based on locations, but generally
range between $75 to $300 per worker.
DOL prohibits against passing on fees associated with the H-2B applications or employment, such as application/
petition costs, attorney fees, recruitment fees or other related fees to the H-2B worker.
Audit File Tip: Keep copies of paystubs or reimbursement checks made to the workers in your audit file, along with a signed
statement from the worker acknowledging receipt of the reimbursement. Also include an itemized statement detailing how
the payment was broken down. If you have contracted with an outside transportation vendor to transport the workers to or
from the U.S., keep a copy of your agreement or invoice for such transportation.
You should maintain documentation in your file confirming that you have either paid or reimbursed workers for H-2B
related costs.
V. Tools, Supplies and Equipment
Employers are responsible for providing all tools, supplies and equipment required to perform the job, including
uniforms, shoes, etc. You may not charge workers a fee for these expenses.
VI. Copies of Job Order/Employment Contract to Workers
Employers must provide workers with copies of the job order no later than the time at which the worker applies for
the visa, if the worker is departing directly from his or her home country, and display a poster describing employee
rights and protections in English and, if necessary and made available by the DOL, another language common to
your workers.
VII. Termination/Early Departure of Workers
You must notify DOL and USCIS when a worker abandons the job or is terminated for cause (and USCIS/DHS if the
person is an H-2B worker).

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2022 H-2B PROGRAM OVERVIEW
& COMPLIANCE REQUIREMENTS

You must report the termination or departure of any H-2B workers for cause and abandonment to both the USCIS
and USDOL in writing within 2 business days of the termination, or discovering abandonment. Emails are to be
sent to the USDOL at tlc.chicago@dol.gov or, or by facsimile to (312) 886-1688, Attention H-2A Abandonment and
Termination.
You may notify USCIS by email at VSC.H2BABS@dhs.gov. You should include the following information with your
notification:
• Reason for notification (absconder, termination, early completion, etc)
• USCIS receipt/case number
• Petitioner name, address, phone number and FEIN
• H-2B worker name, date of birth, place of birth, last known address
VIII. Record Keeping
The employer must retain, for a period of three (3) years, the H-2B recruitment report, resumes (if any), advertising,
and evidence of contact with applicants.
IX. Social Security Numbers
Your workers are eligible to apply for U.S. Social Security numbers with valid H-2B authorization. They may apply at
your local SSA office with evidence of their employment authorization (I-94, Arrival-Departure Record and Passport).
X. Notification of Requirement to Leave the U.S. After Employment Ends
Employers are required to formally advise H-2B workers of the requirement that they leave the U.S. at the end of
the employment term. This should be done in writing and signed by the employee confirming that they received this
notification.
Audit File Tip: Have workers sign an attestation confirming that they understand the requirement that they leave the U.S.
upon the expiration of their visas.
XI. Physical Posting of DOL Worker Rights Posters
Keep in your audit file the following:
• Photograph of the H-2B Worker Rights posters at the worksite available at www.dol.gov/agencies/whd/posters
• Signed statement confirming that the poster was displayed for the full season
XII. I-9 Employment Eligibility Compliance
You should complete Form I-9 for each H-2B worker just as you would for a domestic worker. A list of acceptable
documents to verify employment authorization is provided in the I-9 form instructions.

Filing Procedures
The H-2B application must be filed between 75 and 90 days prior to the date of need. The steps in the H-2B filing
process include:
1. Filing Prevailing Wage Determination (Form ETA 9141) with the U.S. Department of Labor through the DOL’s FLAG
system
This form details the job offer, duties, requirements and location of the position. Within 30-40 days, the U.S.
Department of Labor will issue a formal prevailing wage determination specifying the required wage to be paid to
the worker. This must be completed prior to submission of the H-2B application with DOL.
It is recommended that the Prevailing Wage Determination be filed 5 months prior to need to allow for sufficient
processing time.
2. Filing Form ETA9142 with U.S. Department of Labor and Placing the Job Order with the State Workforce Agency
Once the U.S. DOL issues the prevailing wage determination, the employer must concurrently file a job order with
the state Department of Labor/State Workforce Agency (SWA), which it will include with the formal ETA9142 filing
with the U.S. Department of Labor through the FLAG portal.

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2022 H-2B PROGRAM OVERVIEW
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Starting with the October 1, 2019 filing season, DOL implemented a new processing procedure. See the “2020
Selection Process” section below.
3. Notice of Acceptance and Recruitment
Within 7 days of submission, the U.S. Department of Labor will issue either a Notice of Deficiency or Notice of
Acceptance. DOL will instruct the employer to conduct advertising within 14 days of receipt of the Notice of
Acceptance, which will include newspaper advertising, contacting former U.S. workers in the occupation, placing a
Notice of Filing at the workplace, and conducting additional recruitment directed by the Certifying Officer (CO). The
NOA will direct the employer to submit a recruitment report on a specified date, describing the recruitment steps
completed by the employer and explaining why any U.S. worker applicants were excluded from consideration for the
position.
4. Labor Certification
Once the recruitment report has been submitted, the CO will determine whether to certify or deny the application
and issue a final determination. DOL strives to issue certifications 30 days prior to the employer’s date of need.
5. Employer’s Visa Petition with USCIS
Once the U.S. DOL approves the labor certification application, the employer will file visa petition paperwork with
U.S. Citizenship and Immigration Services on Form I-129. The petition will specify the number of workers needed
and the country in which they will apply for their visas. If the petition is approved, USCIS will notify the consulate in
the alien’s home country.
In most cases, premium processing will be required, since “normal” processing time is approximately 4 months. With
premium processing, USCIS will adjudicate the petition within 15 days.
6. Employee’s Visa Application with the U.S. Consulate
Finally, the worker has to file his or her own visa application with the consulate in the country. It is important to note
that the employer’s petition approval does not guarantee issuance of an H-2B visa to the alien, if, for example, the
alien has reason to be inadmissible to the United States.

Green Card Program

If your business experiences a year-round need for permanent workers, please ask us about available “green card”
programs to secure permanent year-round labor. Given the unpredictability inherent in the H-2B program, a trend
for employer in the seasonal sector has been to transition their seasonal workforce into permanent labor through
participation in the DOL PERM Labor Certification program.
This program essentially mirrors the H-2B process on a much larger scale. An employer needs to conduct a test of the
labor market to determine whether there are any qualified U.S. workers for the position. The employer will then submit
applications to DOL and USCIS seeking permanent resident status for its workers.
If timed correctly, the H-2B workers may continue to enter the U.S. on the H-2B program throughout the green card
process. Usually, upon the second season after beginning the green card process, they are able to stay and complete
the process from within the U.S.
The estimated current time for the green card cycle is approximately 2-3 years.

For the latest updates and developments on H-2B visas and more, subscribe to our Immigration blog and Legal Alerts at
harrisbeach.com/immigration.

Please feel free to contact us with any questions:

Leonard J. D’Arrigo, Partner
ldarrigo@harrisbeach.com
(518) 701-2770