I. Introduction

The H-2B temporary non-agricultural worker visa programs has traditionally been the “go to” visa option for employers seeking to hire foreign nationals coming to the United States to fill non-professional or non-degreed occupations. H-2B’s require considerable investment, as the procedure to obtain these visas can involve as many as five different state and federal governmental agencies and they are the only nonimmigrant work visas which require an employer to first obtain a temporary foreign labor certification after the employer conducts a test of the labor market. As a result, the H-2B visa program has slowly entered the menu of work visa options when sponsoring foreign national employees. Over the years, this has changed as the H-2B visa program has become increasingly necessary to fill employers’ temporary labor demands.

Many factors contribute to their growing usage: the H-1B cap blackout leaving employers with limited visa work options for skilled workers or positions requiring degrees; the loss of essential workers in the labor force due to increased I-9 worksite enforcement; and the growing labor needs of employers in states facing some of the lowest rates of unemployment in years. We are also facing a generational crisis where young people no longer want or need to take summer jobs, with other extracurricular opportunities becoming available to them, and families having more disposable income to finance these activities. As a result, in the H-2B context, where there is an annual cap of 66,000 visas of which half is released on October 1 and the remaining half is released on April 1, the H-2B visa numbers have consistently run out before the end of the fiscal year for each of the past five years. This trend is expected to continue even though the H-2 programs are only available to nationals of certain countries.

The H-2B program is not limited to landscaping and hospitality. We are experiencing more and more diverse industries now seeing the benefits of the H-2B program, including door-to-door sales (pest control, home security, solar), manufacturing, large national chain restaurants, accounting firms, and more.

A. What is the Temporary Need to Qualify under H-2B Visa Program?

While the definition in the Immigration regulations defines temporary need as up to one year or less, the U.S. Department of Labor (DOL) has established a de facto practice that any request for employment over 10 months exceeds the temporary threshold, unless it is a case of a one- time occurrence. An employer can establish temporary need under any one of the following scenarios:

• One-time occurrence - The employer must show one of the following situations: (1) the employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future; or, (2) the employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. This one-time need may last up to three years.
• Seasonal need – The services or labor are traditionally tied to a season of the year, by a temporary event or pattern, and are of a recurring nature. The employment is not seasonal if the period during which the services or labor are needed is unpredictable or subject to change, or is considered a vacation period for the employer’s permanent employees.
• Peakload need – The employer regularly employs permanent workers to perform the service or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands, with temporary employees who will not become a part of the regular operations.
• Intermittent need – The employer 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 for short periods.

H-2B employment can consist of any type of employment, as long as it is not for agricultural labor or services, and must be full-time and no less than 35 hours a week. There is an annual cap of 66,000 visas each fiscal year. The numbers are divided between two periods: 33,000 are reserved for employment period from October 1 through March 31, and 33,000 for April 1 through September 30. This is to ensure employers, no matter when their temporary need occurs, have an opportunity for H-2B visa numbers.

II. H-2B Filing Process - Timelines and Strategies

Employers must be aware of strict deadlines, filing procedures and delays involved in processing an H-2B visa through the Department of Labor, U.S. Citizenship and Immigration Services (USCIS) and the Department of State.

ETA 9141 Request for Prevailing Wage Determination

The DOL regulations require that employers request and obtain a Prevailing Wage Determination from the National Prevailing Wage Center for the H-2B position prior to the filing of the H-2B application with the DOL. Under current provisions, employers can expect the Prevailing Wage Request to be pending for at least 30-60 days. Upon receipt of the Prevailing Wage Determination, ideally only 30-60 days later, employer would then be right up to the 90-day mark before the start date, which is why an employer should be advised that the very least amount of time the H-2B procedures may be accomplished would be in a 150-day time frame, but ideally the employer should budget an additional 30 to 60 days to that, equaling 180 to 210 days, or 6 to 7 months, to begin preparation on the first steps of an H-2B filing.

The 90- and 75-Day Filing Deadlines

Once an ETA 9141 Prevailing Wage Determination is received, the ETA 9142B may be submitted to the Chicago National Processing Center via the U.S. Department of Labor’s FLAG portal, along with supporting documentation.

The ETA 9142 must be filed between 90 and 75 days prior to the listed start date on the ETA 9142B. If possible, the ETA 9142B should be prepared and ready for filing on the 90-day mark in order to timely process through the Department of Labor and before USCIS. Employers should keep in mind that for cap-subject H-2B employees, a timely filing on the 90-day mark might be a crucial component to the employer’s future acceptance under the I-129 USCIS H-2B cap.

The Selection Process

The U.S. Department of Labor will randomly establish the order in which applications will be assigned to DOL analysts for processing. Applications received during the initial three calendar days of the statutory filing period will be randomly ordered for processing. For example, for employers requesting an April 1, 2025, start date, which is the earliest start date possible under the second half of the FY2025 cap, DOL will randomly order for processing all applications received between January 1, 2025, and January 4, 2025.

On the next day following the three-day window, using a computer-generated process for randomly generating values in a data set, DOL will generate and assign a unique random number to each application. DOL will then select and assign applications to analysts for processing based on Group A, Group B, or Group C, etc. DOL will first process all cases assigned to Group A until a Notice of Acceptance or Notice of Deficiency is issued for all Group A applications. Processors will then move on to the subsequent groups. DOL has stated the ETA 9142B petitions assigned to Group A will alone meet the 33,000 statutory cap.

In past years, there has been a sufficient number of visas reserved for Group A to meet the initial visa cap of 33,000. Group A and Group B have the best chance of getting workers under the initial cap. Any group assignments later than Group B will fall under the supplemental H-2B cap provisions.

Although each case is unique, and there is never certainty predicting the future, based on experience from the supplemental distribution last year, some Group B, C, and D applications could receive supplemental returning worker visas. Groups through G may be able to receive country-specific visas. However, processing times at the U.S. Department of Labor may vary, the visa distribution has changed some from last year (5,000 visas reallocated from May 15 date), and there are additional countries eligible for the country-specific allocation. Also note that workers currently in the U.S. in H-2B status transferring from another employer are exempt from the visa cap.

The April 1 or later supplemental H-2B visas were divided into the following allocations for the 2024 season:

• For start dates of April 1 to May 14: There are 19,000 visas limited to returning workers regardless of country of nationality. (Returning workers received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years).
• For start dates of May 15 to Sept. 30: There are 5,000 visas limited to returning workers regardless of country of nationality.
• There are 20,000 visas available for all of FY2024 for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador or Costa Rica, regardless of whether they are returning workers. These can be filed 15 days after the initial H-2B cap is reached.

Employers assigned to Group A will receive a Notice of Acceptance (NOA) or Notice of Deficiency (NOD) in mid-January 2025. Once the NOA is issued, there will be U.S. worker recruitment obligations. If an NOD is issued, additional documentation may be needed.

Those employers who want to file petitions under the supplemental visa release, must be prepared to demonstrate they are suffering irreparable harm, or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition. There also may be additional recruitment required, such as placing an updated job order with the State Workforce Agency (SWA), soliciting the return of former workers, contacting a bargaining representative or posting notice of the job opportunity, notifying current workers, seeking assistance from the local career center, making a website posting, and notifying the local union if the position is customarily unionized.

Notice of Deficiency – Response Deadline

Upon receipt of the Notice of Deficiency (NOD), employer is given 10 business days to respond to the NOD. Response may be uploaded directly through the FLAG account, or sent via email to tlc.chicago@dol.gov.

Many times in a NOD, an employer, and most likely a new-to-H-2B employer, will be asked to further substantiate the seasonal, peak load, intermittent or one-time need by providing additional financial documentation, such as payroll summaries, production summaries, and federal quarterly tax filings.

Notice of Acceptance – Recruitment Deadlines

Upon receipt of the Notice of Acceptance (NOA), the employer has several important recruitment deadlines that must be followed. The standard NOA will require:

• In November 2019 USCIS and DOL published a rule, Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States, eliminating the newspaper posting requirement. Under the new rule, DOL automatically posts the job order on a new national website.
• The employer is to post notice to its employees in two conspicuous locations at the place of employment for 15 business days. For many employers, this totals a full three-week time period.
• The SWA is also instructed to place the job order; however, contact with your SWA representative may indicate backlogs affecting the SWA’s ability to timely place the job order. The DOL has stated employers are not required to follow up with SWA regarding its job order once the NOA is issued.
• Submission of a recruitment report in accordance with the deadline on the NOA.

USCIS I-129 H-2B Petition Timeline

An employer should be prepared to pay several government fees in connection with their H-2B filing, some of which are based on the size of the employer.

With a request for Premium Processing, the employer can expect to receive either an approval notice or a request for evidence by the 15th calendar day after submission of the I-129.

III. H-2B Compliance Files, Audits, and Post-Filing Reporting Requirements

H-2B petitioners must provide notification to ETA and DHS within two work days when an H-2B worker fails to report to work within five work days of the employment start date on the H-2B petition; the temporary labor or services for which the H-2B workers were hired is completed more than 30 days early; or; the H-2B worker absconds from the worksite or is terminated prior to the completion of the temporary labor or services for which he or she was hired.

The petitioner must retain evidence of the notification filed with DHS for a one-year period beginning from the date of the notification. The petitioner must include the following information in the notification:

• The reason for the notification;
• The reason for late notification, if applicable;
• The USCIS receipt number of the approved H-2B petition;
• The petitioner's name, address, telephone number and employer identification number (EIN);
• The employer's name, address and telephone number, if it is different from that of the petitioner;
• The name of the applicable H-2B worker;
• The date and place of birth of the subject H-2B worker; and
• The last known physical address and telephone number of the subject H-2B worker.

If all of the above information is not available, the employer must provide as much complete information as possible.

Notices from employers should be provided to USCIS by e-mail. If the H-2B petition was approved by California Service Center: CSC-X.H-2BABS@dhs.gov. If the H-2B petition was approved by Vermont Service center: VSC-X.H-2BABS@dhs.gov.

Employers must retain documentation of H-2B recruitment efforts for three years from the date of certification, date of adjudication if denied, or date DOL receives withdrawal letter. The employer will be required to provide this documentation in response to requests for additional information by the Certifying Officer (CO) before certification, or by ETA pursuant to an audit, or in the course of an investigation by the Wage and Hour Division (WHD) after a determination on the application has been issued.

Post-adjudication audits were introduced as a way to ensure program compliance and quality. Audits will be conducted on adjudicated applications meeting certain undisclosed criteria and on randomly-selected applications. During an audit, the employer will be required to provide information supporting the attestations made on Form 9142. Failure to meet the required standards or provide the information in the audit may result in an adverse finding on the application, Department-supervised recruitment on future applications, and penalties.

IV. Employer Obligations Under the H-2B Program

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

A. Wage Requirements

DOL regulations require you to employ workers on a full-time basis, which the DOL 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 six-week period if job order is less than 120 days), unless prevented by unforeseeable circumstances outside employer’s control.

B. 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.

C. Payroll Records

Employers 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, 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 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.

D. 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 is required. The current subsistence rate for meals is $15.88 per day without receipts or $59/day with proper receipts.

Payment of return transportation and subsistence is 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 from their hometown and any incurred lodging costs, to the U.S. Consulate for their visa processing, as well as transportation and lodging to the worksite in the United States.

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.

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 United States and back home
• If you have arranged travel for the worker, keep a copy of invoices and receipts from transportation company

Visa Processing Costs: Payment or reimbursement of visa, border crossing and related government mandated fees are required in the first work week. Current Consular Processing Fee is $205. Agent fees very based on location, but generally range between $75 to $300 per worker.

DOL prohibits 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.

You should maintain documentation in your file confirming you have either paid or reimbursed workers for H-2B related costs.

E. 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.

F. 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.

G. Termination/Early Departure of Workers

You must notify DOL and USCIS when a worker abandons the job or is terminated for cause (and USCIS/Department of Homeland Security (DHS) if the person is an H-2B worker.)

You must report the termination or departure of any H-2B workers for cause and abandonment to both the USCIS and DOL in writing within 2 business days of the termination, or discovering abandonment. Emails are to be sent to the DOL at tlc.chicago@dol.gov, or by facsimile to (312) 886-1688, Attention H-2A Abandonment and Termination.

Form petitions filed with the USCIS Vermont Service Center, you may notify USCIS by email at VSC.H2BABS@dhs.gov. For California Service Center filings, you may provide notice to CSC-X.H-2BABS@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

H. 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).

I. Notification of Requirement to Leave the United States. After Employment Ends

Employers are required to formally advise H-2B workers of the requirement that they leave the United States at the end of the employment term. This should be done in writing and signed by the employee confirming they received this notification.

J. 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. They are available at https://www.dol.gov/agencies/whd/posters

• Signed statement confirming the poster was displayed for the full season

K. Housing

While most H-2B employers are not required to provide housing under the DOL regulations, it is expected that employers will assist workers in locating and securing housing. Generally, H-2B workers do not have the resources to arrange their own housing. We strongly encourage employers to confirm, in advance, potential workers housing arrangements with basic amenities. Workers, however, are always free to secure their own housing. If you do provide free housing, or charge workers rent for housing, the specific terms must be disclosed on your job order and application.

L. 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.

Conclusion

While imperfect, controversial, unstable and complex, the H-2B visa program is extremely important to the U.S. economy. It serves as a lifeline to U.S. employers allowing them to sponsor essential workers no matter their skills or education.