Compliance

If your business is hiring and employing foreign national workers, you have a responsibility to comply with immigration and labor laws. Investigations of any employer may be performed by several U.S. federal agencies.

Following are some of the common regulations your business needs to be in compliance with, in order to participate in the H-2A and H-2B programs. This is not a fully comprehensive list.

Recruitment of U.S. Workers

Employers must demonstrate their need for the requested number of foreign workers. The purpose of this is to ensure that there are no U.S. workers who are willing, able, available, and qualified to fill the positions needed and that the employment of foreign workers will not adversely affect the working conditions and wages of U.S. workers who are employed in similar positions. Employers must also participate in active recruitment efforts such as contacting former employers, posting job notices with a State Workforce Agency, placing ads in local newspapers.

Rates of Pay

Employers are required to pay their employees at least the wage rate outlined in the provided job order. This wage rate must be at least the highest of the following:

• The Adverse Effect Wage Rate (AEWR)
• The prevailing wage obtained from the Employment and Training Administration (ETA)
• The Federal or State minimum wage

Written Disclosure

Employers are required to provide a copy of the work contract or approved DOL job order to each employee, in the language understood by the worker. In the absence of The work contract must be provided no later than:

• At the time the H-2 worker applies for a visa outside of the U.S.
• The time the employer makes a job offer to a worker already in the U.S.

Three-Fourths Guarantee

Employers are required to guarantee to offer employment to each worker for a total amount of hours equal to at least 75% of a contract period’s workdays. If an employer fails to offer enough work hours to meet this minimum, they are required to pay the employees for the amount that they would have been paid, had they worked the guaranteed three-fourths of the contract period.

Housing

Employers must provide housing to H-2 workers and workers in corresponding employment, at no cost to the workers. If the employer decides to use rental housing for their workers, they must pay all costs related to this housing.

Daily Transportation

Transportation to work sites from employees’ housing must be provided by the employer for all covered employees, with no charge to the employees.

Inbound and Outbound Expenses

In most cases, employers are required to provide or reimburse workers for transportation from the place of recruitment (the location from which the worker is coming to begin work for the employer) and subsistence during their travels. This must be reimbursed by the time the worker has completed half of the work period covered by the job order.

At the end of the work contract period, the employer must provide transportation and subsistence back to the place an employee originally came from. This outbound transportation must be provided to workers who complete the work contract period and to workers who are dismissed prior to the job order ending.

How We Can Help

Youngblood & Associates is experienced in guiding H-2A and H-2B employers through these programs and the specific regulations. Our team will help you make sure your business is complying with all applicable laws and regulations, provide counsel on remediation and best practices should any violations have taken place, and provide representation in immigration-related investigations and appeals.