Labor Department Stepping Up Investigations of H-2B Visa Users

Labor Department Stepping Up Investigations of H-2B Visa Users

The Wage and Hour division of the US Department of Labor announced earlier this month that it was planning a campaign of inspections and investigations targeting employers who use the H-2B seasonal guest worker visa program to hire temporary employees from other countries. Billed as an “education and enforcement initiative,” the campaign will target hotels and landscapers, the two industries that rely most heavily on the H-2B visa, “providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program,” according to the Labor Department’s statement:

A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. “Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first,” said Bryan Jarrett, Wage and Hour Division Acting Administrator. “This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions.”

Last year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the hotel industry.

The H-2B is a six-month visa that allows foreigners to work for a US employer temporarily and is most commonly used in the hospitality and landscaping industries to fill labor shortages in the high-demand summer season. In a historically tight market for American workers, employers in these industries have grown more dependent on the H-2B program to keep up with seasonal demand and grow their businesses. The policies of President Donald Trump, who has tasked his administration with reducing the number of both legal and undocumented immigrants entering the US, have exacerbated the labor market challenges of many employers who rely on guest worker visa programs like the H-1B and H-2B.

Both last year and this year, the US Department of Homeland Security authorized the issuing of an additional 15,000 H-2B visas on top of the 66,000 provided for by Congress, and the spending bill passed by Congress earlier this year expanded DHS’s authority to raise the cap further. At the same time, however, the Trump administration has been subjecting visa applications to greater scrutiny and rejecting them at higher rates.

The president and other critics of these programs contend that the labor shortages these visas are meant to address are overstated, and that employers should be more diligent in seeking out US citizens to fill these roles. Seasonal industries have been behaving like labor is in short supply, however: Seasonal workers this summer were able to demand an unusual degree of flexibility and employers had to work harder to attract them. In comments to SHRM’s Roy Maurer, associations representing the industries affected by the Labor Department’s new initiative insist that they have been trying to hire citizens but simply can’t find enough Americans to meet their needs:

As for investigations and audits, the H-2B Workforce Coalition stated, “We are confident any such investigations will not discover any more incidences of wage and hour noncompliance by H-2B employers than in the general employer pool. In fact, given that H-2B employers are more highly regulated, it is likely there is lower noncompliance.”

[Andrew Bray, vice president of government relations at the National Association of Landscape Professionals,] added that with remarkably low unemployment, there just aren’t enough U.S. workers to do the jobs that are needed. “These companies have been out there trying to find U.S. workers,” he said. “They go to community colleges, colleges, high schools, post the jobs everywhere you can imagine, thinking outside the box, but the workers aren’t there. It’s also important to understand that not every person is physically able to do some of the demanding manual labor that is required in landscaping.”

This post is published for informational purposes only and does not constitute legal advice or an opinion on the legal matters discussed within. Employers should consult their general counsel whenever they have questions pertaining to laws, regulations, or potential liabilities.