DOL Initiative Finds H-2B Visa Program Violations

The U.S. Department of Labor's (DOL's) Wage and Hour Division (WHD) recently announced that it recovered over $1 million in back wages for H-2B visa program violations. Between October 2019 and March 2022, the WHD conducted 73 separate H-2B investigations in eight states. In a similar WHD investigation involving immigrant workers in April 2022, three companies were hit with a total of $2 million in penalties for illegal pay practices.

Overview of the H-2B Visa Program

The Immigration Reform and Control Act of 1986 (IRCA), which also introduced the Employment Eligibility Verification Form I-9, divided the then-existing H-2 visa program for immigrant workers into two programs. The H-2A program was created for agricultural workers, while the H-2B program serviced nonagricultural workers. The H-2B program allows U.S. employers agents who meet specific regulatory requirements to bring foreign nationals into the United States to fill nonagricultural jobs or temporary services. Specifically, temporary services include those that are a one-time occurrence on a seasonal, peak load, or intermittent basis. Before employers can be approved to request guest workers under the H-2B program, they must apply with the DOL stating that:

• an insufficient number of U.S. employees are qualified and available to work; and
• the employment of nonimmigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Investigations Into H-2B Visa Program Violations

The investigations are part of an ongoing federal initiative focusing on employers in the southeastern United States. The DOL’s initiative enforces federal laws protecting temporary nonimmigrant workers' employment under the H-2B visa program. From October 2019 through March 2022, the WHD investigated H-2B visa program violations in eight states. These included Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Among the H-2B visa program violations uncovered during the 73 investigations, investigators commonly found the following:

• a failure to hire or rehire qualified U.S. workers,
• an offer of more favorable working conditions or separate restrictions and obligations for H-2B workers that were not applied or offered equally to U.S. workers,
• employers that did not pay a proposed wage for hours worked because of illegal deductions or not including all hours in the pay period, and
• a failure to pay for H-2B workers' travel and subsistence expenses.

Penalties for Violating the H-2B Visa Program

As a result of the WHD’s investigations, the DOL recovered more than $1 million in back wages for almost 1,000 workers under the H-2B visa program. Additionally, the WHD assessed more than $650,000 in associated civil money penalties. Finally, the WHD debarred four southeastern U.S. employers and labor contractors for their H-2B visa program violations. In other words, these employers may no longer participate in either the H-2A or H-2B employment programs.