Frequently Asked Questions
H2B workers will be issued a wage from the wage determination given by the Department of Labor. These wages are determined per county and job code. You can find your specific counties wages here.
H2A workers wages will be determined by the determined AEWR wage for each state. You can find the list of wages here.
DOL will classify the work you do into specific job codes. They are countless of job codes to look through, but there can only be ONE job code per application.
FOR EXAMPLE: if you own a hotel and you need housekeepers, dishwashers, and an outdoor maintenance crew, you would need to file three separate applications for those three very different jobs.
Each job code has different wages, and with each application, we have to explain the seasonality and need for the occupation within your business. It would be impossible to put three very different types of jobs onto one singular application.
You can search various occupational codes here.
Department of Labor (Wage and Hour Division) has a regulation concerning “corresponding employment.” This means that any non-H2 worker employed by an employer that has a certified application who performs substantially the same work as the foreign worker have at least the same protections and benefits as those offered or provided to an H2 worker.
You can see the full explanation here.
In short, yes, any current, domestic workers you have doing the same work as the foreign workers have to make at least the same wage.
Foreign workers are required to fill out an I-9 Form, and W-4 Form. Foreign workers are required to pay the same taxes as your U.S workers.
Here’s a list of obligations all H2 employers are required to abide by:
- Must provide/reimburse the worker for transport/subsistence from the worker’s home to the worksite You are required to pay for inbound and outbound transportation, daily subsistence, and lodging for the time workers (U.S. and Foreign) are traveling to the starting worksite location from their home. On average, it is a 3-day traveling timeframe. The subsistence rate is updated intermittently throughout the program (currently $12.26 per day, up to $51.00 per day with receipts). You are only required to pay for the most reasonable and economic mode of transportation and housing. Transportation/subsistence/necessary lodging AND visa, visa processing, border crossing fees (not including passport) are to be prearranged/paid for OR reimbursed via check no later than the first workweek.
- This is also true for outbound transportation: if the worker has no immediate plans to work for another H2 employer, then the employer must provide transport and subsistence back to the workers original starting location. Read more here that further goes into detail about these expenses.
- 3/4 guarantee: Beginning on the first day the worker arrives, the worker is guaranteed work hours equal to at least 75% of the workdays in each 12-week period (6 weeks for a short season of less than 120 days) and ending on your certified end date. Read more here further explains the 3⁄4 guarantee.
Keep accurate records in regards to pay and earnings: Each worker must be given a pay stub showing hours offered, hours actually worked, hourly rate and/or piece-rate of pay, and, if piece-rates are used, the number of units produced daily. The pay stub must also indicate total earnings for the pay period and all deductions from wages.
These must be provided to workers without charge or deposit: all tools, supplies, and equipment required to perform the duties assigned. This means that you cannot charge workers for uniforms or any of the tools required for the job.
The employer must post a DOL-provided poster in English detailing H-2B and corresponding workers’ rights and protections in a conspicuous location at each worksite. The employer must post additional posters if a significant portion of workers are not fluent in English and if DOL provides the poster translated into their language. The key to this is CORRESPONDING EMPLOYMENT. Anything that is provided to an H2B worker must also be provided to the US worker doing the same/similar duties.
Click here for current English poster.
Click here for current Spanish poster.
Record Retention: All documents must be kept for at least 3 years! Click here to read more on record retention from DOL.
The FULL LIST is available on DOL’s website here.
These are just the obligations that come with the most questions.
You are not required to provide outbound transport and subsistence if the worker abandons the job completely before the end of the period of employment certified on the application. However, if they are fired, dismissed, or quit WITHOUT abandonment, you are still required to pay for the travel back to their point of recruitment (typically their home).
Unfortunately, this program, like most things, isn’t perfect, and you will always have people try to take advantage of a good opportunity. If you have a worker that is no longer showing up to work, has not contacted you, and you have no idea where they are, it is your duty as the employer to report them to both the Department of Homeland Security and the Department of Labor.
If this happens to you, please reach out to us. We can get you the appropriate templates and contact information for the respective government agencies to report to.
Depending on when the worker absconds, we could potentially bring in another worker to fill that spot. However, if too much time has passed and you have no other visas available, we may not be able to replace the worker at all.
Yes, you are required to house the workers at no cost to the foreign workers and the workers in corresponding employment who cannot reasonably return home at the end of the day. H-2A employers are also required to provide three meals per day or to furnish free and convenient cooking/kitchen facilities where meals can be prepared.
Learn more here.
H2B (all industries other than forestry/carnival)
No, you are not required to provide housing, but you must assist in helping them find housing. Whether that be setting up hotels or a space they can rent, the workers will likely need assistance finding somewhere to live. Unlike H-2A, you do not have to provide meals or a kitchen.
Yes, all forestry and carnival type employers are required to pay housing throughout the duration of the job because it is seen as a benefit to the employer due to the nature of a mobile workforce. These employers are not required to cover or provide meal costs during the duration of the job like an H2A employer would.
Lean more here on page 117.
No, the workers cannot work for you year-round. The H2 programs are roughly 9-10-month SEASONAL programs. We absolutely must be able to prove you have a definitive peak load, true seasonal, a one-time occurrence, or intermittent need during the time frame in which you are requesting workers. This is a process you do have to repeat each year that you want to receive visas.
Here are the different definitions in regards to the 4 different ways you can be seasonal:
- Seasonal employers typically have a definitive off-season where there is absolutely no work being done and is dictated by specific weather patterns and recurrent in nature.
EXAMPLE: A landscaper owns a business in North Dakota. During the spring and summer months, his crew mows both residential and commercial properties until the end of October. His business is completely shut down from November through the end of February due to snow. He will begin mowing again in the spring (March) when the snow has melted.
- Peak Load employers are typically those that are open all 12 months of the year. There is a spike, or a peak, in the employer’s season where it becomes extremely busy compared to the downtime. Workers can only be requested during this peak time.
EXAMPLE: A landscaper owns a business in North Dakota. During the spring and summer months, his crew mows both residential and commercial properties until the end of October. This time of year, generates the most revenue for his business. He continues to perform snow removal throughout the winter and he has laid off a majority of his spring staff. A smaller, integral crew remains on for the winter to perform snow removal duties and whatever else might pop up. He will begin mowing again in the spring (March) when the snow has melted and all his laid off workers will return to work.
- Intermittent employers are rare in this program. To qualify an employer as having an intermittent need, they must not have employed permanent or full-time workers to perform the service or labor, but occasionally needs temporary workers to provide that service or labor for a short period of time.
EXAMPLE: a company produces limited edition porcelain ware to commemorate a special event, but only from time to time and not on a fixed schedule.
- A One-Time Occurrence employer would require you to show that you have not employed workers to perform the services or labor in the past, and the petitioner will not need workers to perform this in the future, or there is an employment situation that is otherwise permanent, but a temporary event of short duration has created a need for temporary workers.