H-2B Temporary Worker Program is Under Fire from USDOL | Missouri & Illinois Immigration Attorney Jim Hacking

With the holidays right around the corner, plenty of stores are hiring seasonal workers for the upcoming busy weeks. Included in these workers are immigrants eligible under the H-2B temporary worker program. Companies are cautioned to ensure that the hiring process is done with great care and compliance with the program requirements as the Department of Labor Wage and House Division (USDOL) audits the H-2B program users.

Requirements of the H-2B Program

In order to be eligible to employ H-2B temporary workers, an employer must be able to show the USDOL the following: The job is seasonal, peak-load, intermittent need or a one-time occurrence No U.S. workers are available to fill the job positions Wages and working conditions with not adversely affect U.S. workers The USDOL has increased the number of audits in the past six months and an average audit entails showing earnings records for U.S. workers and temporary workers, copies of agreements with foreign labor contractors etc. Those who do not provide the proper documentation are subject “for up to two years, revocation of an H-2B certification, and/or debarment from participation in the program for up to five years. Employers are required to retain H-2B documents for a three year period.”

Consequences of the H-2B Program

If the USDOL receives a complaint or decides to audit a company, a standard procedure follows that requires a company to show all the necessary documents to prove the validity of their employees. This law is primarily concerned with ensuring that U.S. citizens have priority over immigrants jobwise. There are several critics of this program who claim the stipulations are too harsh and narrow for employers, but civil activists and immigrant groups are in favor of the audits occurring. The H-2B program makes it more difficult for businesses to exploit foreign workers by requiring documentation of wages, hours, and reasons why a certain person is not hired for a job. Critics of the audits say the process is being slowed down as employers are stuck putting together various papers for each employee which is time consuming.

Since this type of program mostly applies to small businesses during busy seasons, this causes long delays since they do not have the staff to take the time to stop business as the USDOL does an audit of the entire firm. One of the standard procedures requires employers to consult formally with the State Workforce Agencies to prove that they could not find any Americans to take the job. In the end, the rules are intended to ensure that jobs are accessible first to American workers and to protect immigrant workers.

If you have questions regarding the immigration laws about hiring temporary workers, contact us at 314-961-8200 or visit our contact page.