Today’s article will discuss the H-2B visa worker, common problems (including unpaid wages) H-2B workers face, and legal rights for those workers.

The H-2B visa is for short-term or seasonal workers in non-agricultural positions, such as landscape, cleaning, construction, hotel, and restaurant workers.

Some H-2B employers unlawfully seek fees from H-2B workers, fail to provide them required wages, or in some cases commit fraud.

If you are an H-2B worker subject to exploitation, or know such a worker, we hope this post will help inform you of your legal rights.

What Are the Employer’s Obligations to the H-2B Temporary Employee?

Job and Wage

If you are an H-2B temporary employee, you have the following rights regarding your job and wages:

• Your job must be full-time work, i.e. minimum of 30 hours per week, unless state or local law defines a full-time job as fewer hours.
• You cannot be put to work outside the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department of Labor (DOL).
• You must be paid at least once a month.
• You should not be charged fees for being recruited or for costs related to labor certification, including legal fees.
• The employer cannot deduct for transportation or visa fees if they bring the wage below the minimum wage.
• The employer must pay for your return transportation home if you are dismissed before the end of your employment period.
• Your offered wage must be guaranteed. An H-2B worker cannot be paid based on commissions, bonuses, or other methods, unless the H-2B employer guarantees those payments will exceed the required wage amount, as discussed below.
• You must be paid the required wage as set by the U.S. government. The required wage is the highest of the following wage rates:

a. The Federal minimum wage rate, which was $7.25 per hour effective July 24, 2009, and had been $6.55 per hour for work performed from July 24, 2008 to July 23, 2009 (you can see if the minimum wage rate has increased by checking the DOL webpage here);

b. The minimum wage in your state or locality (you can find the state minimum wage at this website);

c. The prevailing hourly wage rate. To determine the prevailing wage rate in your location contact your State Workforce agency, which can be found on DOL’s webpage here.

Example: Unpaid Wages & Rights

For a hypothetical example, say an H-2B employee started work for an employer in Atlantic City, NJ as a housekeeper for the summer season for 17 weeks from May 1, 2009 to August 28, 2009. The employer made the H-2B worker pay a $5,000 fee for her recruitment and labor certification before starting work.

The employer told the worker she would be paid $6.50 per hour.

During this season, the employee worked 40 hours per week, and was paid $6.50 per hour.  Thus, the total wages paid were 17 weeks x 40 hours/week x $6.50 per hour = $4420 .00

The federal minimum wage in effect during this summer period, according to DOL’s webpage here was $6.55 per hour for the time worked between May 1, 2009 to July 23, 2009 (@12 weeks), and $7.25 per hour from July 24, 2009 to August 28, 2009 (5 weeks).

The New Jersey minimum wage as of that date, according to this website was $7.15 and $7.25 per hour for the two periods above.

The prevailing hourly wage rate, according to the Foreign Labor Certification Data Center for Atlantic City, NJ for the time periods above was $7.47 hour (the FLC Data Center can be used as a gauge for the State Workforce Agency determination of the prevailing wage).

The highest of these rates is the prevailing wage, $7.47 per hour; thus, that is the H-2B worker’s required wage.

The H-2B worker, at a minimum, should have been paid the required wage at fulltime hours for the 17 weeks she worked.  So, the H-2B worker in this example should have been paid at least 17 weeks x 40 hours/week x $7.47/hour = $5,079.60.

The H-2B worker is thus owed underpaid wages of $659.60, as this is the difference between his paid wages ($4420.00) and required wages ($5,079.60) described above.  Also, the H-2B worker should also be refunded the $5,000 for the fee the employer unlawfully made her pay for recruitment and labor certification.  Thus, the total amount owed to the worker is $5,659.60.

H-2B Employee’s Right to Documents

As a way to intimidate and control their employees, H-2B employers may confiscate your passport and visa, or worse, destroy them. Your employer cannot take your passport from you. By law, most governments declare passports to be their property, meaning the employer has no right to take possession of it.

What Can You Do If Your Employer Is Violating Your Rights?

If your employer is not paying you, or underpaying you, you have the power to take action. You may have several options, among them, you can possibly file a complaint with the State Workforce Agency or federal DOL office near you or possibly file a lawsuit in court. Which strategy is best for you depends on your situation. You should seek advice from a competent attorney to learn the benefits and disadvantages of each of the options for complaining against your employer.

Government Penalties Faced By the Employer

If an employer violates his H-2B obligations, the Department of Labor may impose penalties of up to $10,000 and/or debarment from the H-2B program for up to three years, in addition to being required to pay back wages to the employee.

In addition, an employer who knowingly provides false information on the labor certification forms faces felony charges under 18 U.S.C. 1001 punishable by up to a $250,000 fine and/or up to five years in prison.

Will I Be Deported If I Complain?

If you complain about your employer’s violation of your rights, the law provides for the possibility to change to another visa status, if you are otherwise eligible. To apply for a change of status and to remain in the United States, though, you will still need an employer sponsor or some other means to apply for a visa, such as through family. An attorney can help you determine the best strategy for enforcing your rights and accomplishing your goals to stay and work in the United States, or going back home with the option of remaining eligible for a visa to return again.

Additional Information

Here are some blog posts with other information relevant to H-2B workers:

• Handy Government Guide to Employee Rights; Download and Keep It With You
• Three Words You Should Never Say in an Employment Dispute
• New Database Gives State-by-State Round Up of Immigration Laws

For information about Employee Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

Tags: H-2 Employee Rights, h-2 worker rights, H-2B, H-2B rights, seasonal worker, temporary worker