The H-2B visa allows United States 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 nature. This visa, like many other employment visas, requires employer sponsorship. The employer must not only meet specific requirements before bringing nonimmigrant workers to the United States, but also must continue to meet ongoing obligations once the workers arrive. Compliance is key!
Over the past few years, there has been a gradual increase in employers encountering labor shortages and turning to the H-2B program. In Fiscal Year 2022, there were 14,401 H2B applications processed, requesting 267,986 workers.[1] By FY 2023, this increased to 15,502 applications, requesting 274,037 workers, and FY 2024 saw an increase to 17,674 applications, requesting 301,881 workers.
Applications requesting a start date of April 1 saw a slight dip in the number of applications, with an increase in the number of total workers this year. In FY 2025, 8,759 H-2B applications covering 149,953 worker positions were submitted with a start date of April 1. In FY 2024, 8,817 applications covering 138,847 worker positions were submitted for an April 1 start date. By any metric, the statutory visa limit of 66,000 visas per year is insufficient, and these numbers highlight the critical importance of visa cap relief provided by the United States Congress.
With the increased number of applications, and the new employers beginning to use the program, along with the renewed focus on compliance, it is more important than ever to review the compliance obligations and responsibilities associated with the program.
Basic Requirements to Participate
In order to participate in the H-2B program, employers must meet basic criteria for the position offered.
- The job offer is for a temporary position (seasonal, intermittent, peak load, one-time occurrence).
- There are no qualified and willing U.S. workers available for the position (accept applications up to 21 days prior to need).
- The position is for full-time employment, which is defined as at least 35 hours per week.
- The employer agrees to pay H-2B workers in accordance with the government’s prevailing wage for the area of intended employment and job description involved.
Employer Obligations Under H-2B
Employers must comply with extensive requirements regarding U.S. worker recruitment, recordkeeping, wages, deductions and more. Key obligations include:
- Transportation: The employer covers inbound and outbound transportation and subsistence expenses and visa-related expenses.
- Meal reimbursement: subsistence of $16.28/day or up to $68/day with receipts.
- No Worker Payments: Employers, agents, attorneys and employees may not seek or receive payments of any kind from the worker related to obtaining certification or employment. Employers provide all tools, supplies and equipment required to perform the duties assigned without charge or deposit charge.
- Termination of Workers: report any workers terminated, or that otherwise depart, within two business days to the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS).
- Documentation: Post and maintain DOL worker protection posters at worksite. Retain H-2B recruitment report, resumes and advertising for three years.
- Job Order: Must meet certain requirements and include certain information, like employer-provided housing assistance. Payroll deductions that are not disclosed in the job order are prohibited. Provide job order to H-2B workers no later than when the worker applies for a visa, and to U.S. workers hired under the application no later than the day work begins.
- Restrictions: There are restrictions on layoffs and against intimidating, threatening, restraining or discriminating against workers.
- Three-Fourths Guarantee: Offer a total number of work hours equal to ¾ of the workdays in each 12-week period (limitations on enforcement currently).
- Work Area/Description: Employers may not place H-2B workers outside the area of intended employment or in a job classification not listed.
Payroll, Recordkeeping, and Reporting
- Wages: Employers pay the highest of the prevailing wage or state/federal minimum wage.
- Withholdings: Employers make all deductions required by law (local, state, federal payroll taxes, Social Security, etc.).
- Pay statements/earnings records: Employers must issue pay statements/earnings records and pay periods must be at least every two weeks. Written pay statements include:
- Employer’s name, address and FEIN, pay period dates, rate of pay, hours offered and worked, deductions, total earnings
Key 2025 H-2B Updates
The Government Shutdown’s Impact on Immigration Agencies Related to H-2B:
- U.S. Citizenship and Immigration Services (USCIS): Generally, remains operational as applications are fee-based.
- State Workforce Agencies: open, but reduced workload
- Department of Labor Office of Foreign Labor Certification (OFLC): OFLC halts operations, affecting labor-certification applications, prevailing wage requests, certifications and system access.
- Department of State (DOS): Visa and passport operations continue, but delays could occur if the shutdown is prolonged.
H-2 Modernization Rule Changes
Effective Jan, 17, 2025, the final rule from the Department of Homeland Security (DHS) concerning H2A and H2B visa programs took effect, adding the following:
- Fee prohibition, certain mandatory denial periods, USCIS authority to conduct compliance reviews and whistleblower protections
- 10-day pre-validity grace period and 30-day post-validity grace period
- Permanent residence flexibility
- Portability flexibility
- Removal of the eligible country list
- 60-day reset period for three-year period of stay/Removal of interrupted stay calculations
Consulate Interview Waiver
Oct. 1, 2025, Department of State updated the categories eligible for a waiver of the nonimmigrant visa interview. Nonimmigrant visa applicants will generally require an in-person interview with a consular officer
Premium Processing Timeline
April 2024 – USCIS changed the premium processing timeline from 15 calendar days to 15 business days.
The Anatomy of a DOL Wage and Hour Investigation
H-2B investigations and audits can arise randomly or from worker complaints. Typical stages include:
Common Violations
- Notice of Investigation (WH-56) – specifying timeframes and documents
- Desk Audit – submission of records (three-year retention requirement)
- On-site Review – investigator interviews and inspections
- Findings and Resolution – potential outcomes include restitution, penalties or debarment
Best Practices for Employers
- Maintain organized electronic and paper records for at least three years.
- Conduct pre-season internal audits.
- Document reimbursements, worker communications and other compliance steps.
- Train and communicate with staff regarding application requirements.
- Designate a Wage and Hour Response Team (HR + legal counsel).
Conclusion
Compliance with H-2B program requirements is vital to success and long-term participation in the program. To obtain the benefits of the program, it is important to become familiar with the obligations as well. The H-2B program requires proactive management, documentation efforts and awareness of nearly constant changes to the regulatory structure or agency priorities. Employers who implement strong internal controls and regular self-audits will be best positioned to avoid costly penalties and protect their workforce in the long-term.
For guidance on navigating the H-2B process or responding to a DOL audit, please contact attorney Jarrod Sharp, Senior Counsel in our Immigration Practice Group, at (518) 701-2783 and jsharp@harrisbeachmurtha.com, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.
For more immigration law insights, visit Harris Beach Murtha Immigration Practice and subscribe to our Immigration Blog.
[1] https://www.dol.gov/agencies/eta/foreign-labor/performance
