If you’re an H-2B temporary worker, particularly at a landscape company, construction company or a racetrack, there’s a new development that can and will affect you: the problems of H-2B fraud due to a recent investigation of a company that processes large amounts of H-2B visas for the above industries. As a direct result of the seizure of files of this company by both the Department of Labor (DOL) and ICE, if your employer is in the process of filing for an H-2B extension for you or for a new H-2B, call your employer now and ask him to check to make sure that all is well with those who are preparing this most important H-2B application.

What is this H-2B application and why the concern? H-2B visas are a very special type of limited non-immigrant visas, one of the very few non-immigrant visas available to non-professional workers who wish to enter the U.S temporarily. Only 66,000 H-2B visas are allocated annually, during two periods: April 1 and October 1. If an employer misses filing during these periods, that’s it for the entire H-2B fiscal year and the employer is without H-2B workers. Even if an employer files timely, there’s a good chance that most of these H-2B visas will be gobbled up and gone for the season. Why? For two reasons: the great need for H-2B workers that exceeds the supply of available H-2Bs and gluttony—employers requesting more H-2Bs than they really need. For instance, if company A knows that it will need 10 workers but just to be sure asks for 15, 5 of the precious H-2B numbers will be used and another hopeful H-2B employer will be left in the cold, without numbers for its intended H-2B workers.

There’s another abuse of the H-2B system: promising to pay workers the DOL mandated prevailing wage and either not paying them at all or paying under this prevailing wage. How does this happen?

An understanding of how an H-2B visa is obtained is required in order to answer this question.  H-2B visas are granted after three processing steps. The first, the filing of the H-2B application with the U.S. DOL, Form ETA750A, requires the H-2B employer to demonstrate that its business requires workers on a temporary, seasonal, or “peak load” basis. That means that the job can almost never be a full-time, year around job unless it is a one time year “deal” such as a medical company that sells an expensive piece of medical equipment to a hospital and needs the skilled technician from the medical company’s overseas office to install the new machine in the U.S. and teach others in the hospital to maintain and correctly use it. In this initial DOL application the H-2B employer describes the job skills needed, the rate of pay promised and advertises, under the supervision of the DOL, to demonstrate that there are no U.S. workers who want the job and are capable of performing the tasks set forth in the DOL application. As noted above, the employer tells the DOL how many workers it wants, with the understanding that the names of those workers be provided at a later date.

Next, the employer files an H-2B petition with the USCIS showing that it is capable of paying the prevailing wage, a set wage determined by the DOL, to that H-2B worker and provides USCIS with the names of the intended workers. The employer must pay the promised wage and cannot charge the foreign national for any legal or other fees that will cause the wage paid to the H-2B employee to fall below the prevailing wage. Many employers either haven’t figured this out yet or assume that they can get away without paying the prevailing wage, without any repercussions. They can’t and shouldn’t for this not only fraud but a violation of DOL’s wage and hour laws.

Finally, the H-2B worker must apply for his/her H-2B visa at the U.S. consulate abroad. It is at this point that the any immigration violations come to light, especially illegal entries and overstays in the U.S.  Remember: when the temporary, seasonal or peak load employment is done, the foreign national H-2B worker must go home. If he or she doesn’t return home and instead overstays his/her H-2B visa he/she will in violation of the immigration laws and not permitted to return to the U.S.

ICE and DOL are, understandably, concerned about potential abuses of this much needed H-2B program and, as noted above, there are many. Thus, the files of this one large H-2B processing company have been seized and remain in the custody of the federal government. If you are an H-2B worker your paperwork may be caught up in this investigation and if so, your case will not be proceeding. So, check with your employer now to make sure that your paperwork is proceeding as necessary for it’s better to be safe than sorry!