H-2B employer obligations are written into the job order and attested to on Form ETA-9142B, and they run for the whole season. You must pay at least the prevailing wage, offer at least three-fourths of the promised hours, reimburse visa and travel costs on a set schedule, keep careful records, and give U.S. workers doing the same job at least the same terms. DOL’s Wage and Hour Division enforces each of these, and it does not need a complaint to open an investigation. Our H-2B compliance and petition team reviews these duties with employers before the season starts, because most violations are set up in the planning, not the execution.

Wages: the prevailing wage and the highest-of rule

Pay every H-2B worker at least the highest of the prevailing wage on your DOL determination or the applicable federal, state, or local minimum wage. Pay at least every two weeks, or more often if that is the local practice. Each pay statement must show hours offered, hours worked, the rate of pay, piece-rate units if any, and every deduction.

Unlike most farm work, most H-2B jobs are covered by the overtime rules of the Fair Labor Standards Act, so hours above 40 in a workweek generally earn time and a half unless a specific exemption applies. Piece rates are allowed, but piece-rate earnings must at least equal the required hourly wage for each pay period. Deductions must be lawful, disclosed in the job order, and cannot cut into the required wage for costs that primarily benefit the employer.

The three-fourths guarantee

For each 12-week period of the certification, or each 6-week period if the certification covers fewer than 120 days, the employer must offer each worker employment for at least three-fourths of the workdays’ hours stated in the job order. The first period starts on the later of the worker’s first workday after arrival or the advertised start date.

If the employer offers fewer hours, it pays the difference. Hours the worker was offered but did not work count toward the guarantee. Weather, slow business, and a late season do not excuse the shortfall; the guarantee shifts that risk to the employer. If a worker abandons the job or is fired for cause and the employer gives timely notice, the guarantee stops for that worker.

Visa fees, travel, and return transportation

The H-2B rules set three separate reimbursement duties:

Visa, visa processing, border crossing, and related fees: reimbursed in the first workweek
Inbound transportation and daily subsistence from the place of recruitment: reimbursed when the worker completes 50 percent of the employment period, or earlier if those costs drop the first week’s pay below the federal minimum wage
Return transportation and subsistence: provided if the worker completes the period of employment or is dismissed early by the employer

Tools, supplies, and equipment needed for the job are provided at no cost. The H-2B program does not impose the general housing duty that applies to farm employers in the H-2A program, a difference our H-2A vs H-2B comparison covers in more detail. If you do provide housing, any charge must be lawful and disclosed.

Recruitment fees and foreign recruiters

No worker may be charged a recruitment fee. The employer must contractually forbid any foreign labor recruiter or agent from charging fees, and it must disclose those recruiters to DOL. A worker who paid a recruiter is a red flag at the consulate and in a later investigation. Workers must also receive a copy of the job order, in a language they understand, no later than the time they apply for the visa.

U.S. workers and corresponding employment

The employer must accept qualified U.S. applicants until 21 days before the date of need, and it may not lay off similarly employed U.S. workers in the occupation and area from 120 days before the date of need through the end of the certification, unless it first offers the H-2B positions to the laid-off workers and they decline or are rejected for lawful, job-related reasons. U.S. workers doing substantially the same work as the H-2B crew generally must receive at least the same wages and working conditions. The definition of corresponding employment has been the subject of appropriations riders and litigation, so check the current rule when U.S. and H-2B staff overlap in the same roles.

Notices, records, and cooperation

If a worker fails to report for five consecutive working days without consent, the employer must notify DOL and DHS within two business days. Keep payroll records, hours offered and worked, recruitment records, and reimbursement records for at least three years. Post the Wage and Hour Division’s H-2B worker rights poster where workers can see it. Do not retaliate against anyone who complains or cooperates with an investigation.

When enforcement comes

Wage and Hour investigations typically start with payroll, guarantee calculations, and reimbursement records. Findings can lead to back wages, civil money penalties, revocation of the certification, and debarment from the program for future seasons. Our risk management and legal compliance work focuses on the records that answer those questions before they are asked. For how each obligation fits the filing calendar, see our guide to the H-2B process for employers, and for what happens when a filing goes wrong, see why H-2B applications get delayed or denied.

If you employ H-2B workers and want your wage, guarantee, and reimbursement practices reviewed before the season, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2B employer obligations and compliance page or schedule a consultation.