Updates on H-2B Visas and Workplace Enforcement

Tips to help companies remain in compliance and make the most of this valuable seasonal guest worker program.

Both large and small companies that need to hire seasonal workers in order to satisfy demand often use the H-2B program to bring in workers from other countries. However, filling out the paperwork and making sure that your company doesn’t violate any immigration or employment laws can be an unnecessary stress on you and your business.

The H-2B process can be very frustrating, for sure. It is difficult to keep up with all the changes in regulations. However, a good attorney can make the process easier and faster.

If you have never used the H-2B process before, and struggle to find enough seasonal workers for your company, it is a good idea to consider the possibility. The cost of participating in the program is certainly less than the risk one takes in potentially hiring undocumented workers or U.S. workers that may quit without notice. A good lawyer with H-2B expertise can work with you to give you a total estimate of cost, as well as to recruit workers.

Be careful who you work with

One important thing to keep in mind is that there is a difference between an H-2B lawyer and an H-2b agent.

Officials at International Labor Management, one of the largest H-2B agents in the country, have been charged with visa fraud, as reported by the Washington Post on 2/20/14. This is just another example of H-2B agents who have taken advantage of employers and workers for their own financial gains.

Unlike attorneys who are regulated by state bar associations and have undergone rigorous education, ethics and testing requirements, H-2B agents are not regulated by any institution, and there are no requirements for someone to claim to be an H-2B agent.

It is very important to know who is filing your H-2B petition. You are signing legal documents and can be held liable for what is contained in them. Anyone can be an H-2B agent, but you are assured that attorneys have the training and expertise to interpret the complex laws and regulations to make a legal argument to win the case for you and prevent unnecessary delays.

What you must pay your H-2B workers

When a company petitions for H-2B workers, the Department of Labor (DOL) issues a Prevailing Wage Determination, which is the wage that the employer must pay the workers for the duration of the H-2B visa. Recent federal litigation has forced the DOL to make changes to the way it issues Prevailing Wage Determinations.

As many of you know, last year, these changes caused the wages to increase dramatically, on average by about $3-4 per hour. One way you could avoid the new increased wages is to hire an immigration attorney to request a private wage survey for your business. An attorney in most cases will be able to lower the prevailing wage by several dollars. If your company is interested in requesting a private wage survey, it is best to get started at least six months before your date of need to avoid delays at the DOL.

Workplace enforcement and discrimination actions

Additionally when hiring, whether or not you are using the H-2B process, all employers must ensure that their I-9 employment form is correctly filled out and maintained on file with the correct documents. Under the Immigration Reform and Control Act (IRCA) of 1986, all employers are required to verify the identity and work authorization of all individuals hired after November 6, 1986.

The I-9 form has a list of acceptable means of identification, which must be correctly followed. Employers must also ensure that the form itself is completed thoroughly. There are many common mistakes that employers make with regards to the I-9s, such as not maintaining copies for enough years, using the wrong version of the I-9, not recording enough documents or perhaps recording too many, and accepting suspect documents.

The Obama administration has publicly stated that they will continue to aggressively pursue employers as a primary means of immigration enforcement. This means an increase in I-9 audits and workplace enforcement. The Associated Press reported that “Audits of employer forms increased from 250 in fiscal year 2007 to more than 3,000 in 2012. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.” Given the increase in I-9 enforcement, it is more important than ever to take the steps needed to ensure that your company is following the law.

One way to ensure that your company is following proper procedures is to do an internal I-9 audit. A good lawyer, such as the Law Office of Michele Contreras, can review all I-9s on file and educate your staff on how to properly fill out and maintain I-9 records. This is an especially valuable service for larger landscaping companies, who are a likely target of I-9 audits.

Michele Contreras, Esq. is ready to help with you with the H-2B process and your internal I-9 audit. Contact her at info@h-2visas.com or 215-208-4450, or visit mcontreraslaw.com.