H-2B · Employer Compliance
An H-2B program lives or dies on a 33,000-visa lottery and a recruitment file you cannot reconstruct after the fact.
Pre-filing, cap-window filing, in-season payroll discipline, audit window, and post-cycle records retention — Mendoza Immigration runs the entire H-2B compliance lifecycle for landscaping, hospitality, seafood, and construction employers so the season's labor doesn't depend on the next OFLC letter.
- DOL OFLC · WHD · USCIS · DOS · OSHA
- Cap-cycle filings, year-round counsel
- Audit defense on standby
What non-compliance costs
Most H-2B penalties don't start with a bad intent. They start with a recruitment file that does not match the certified job order.
OFLC does not need to prove the employer meant to displace U.S. workers. It needs to read the recruitment report. The same is true for the temporary-need narrative, the prevailing wage payment, the offered-work guarantee, and the transportation reimbursement. Every one of these obligations runs on a paper trail the employer is presumed to have built — and every one carries a penalty stack that compounds the moment the trail goes thin.
The eight findings that produce most H-2B enforcement actions
Temporary-need mismatch
The narrative claims seasonal need but the operating calendar shows year-round activity. OFLC denies; the I-129 has nothing to attach to.
Prevailing wage understatement
Paying below the NPWC determination because a SOC reclassification or a level adjustment slipped through. Triggered the $126,000 Atlanta landscaping example below.
Thin recruitment file
Missing former-U.S.-worker contact log, missing Sunday newspaper ad, undated SWA job order. OFLC infers non-compliance and revokes the certification.
Defective job order
Vague duties, copied SOC narrative, or duties drift in-season. Each instance is a per-worker violation under 20 CFR § 655.18.
Three-fourths guarantee breach
Season ends early, no impossibility documentation filed; every hour below the 12-week three-fourths threshold becomes back-pay liability per worker under 20 CFR § 655.20(f).
Transportation reimbursement miss
Inbound transportation not paid at the contract midpoint, outbound not paid at conclusion under 20 CFR § 655.20(j). Per-worker violation, lookback-wide.
Improper deductions
Tools, uniforms, equipment fees, or housing rent dropping the worker's net pay below the certified prevailing wage. WHD treats every period as its own violation.
Records-retention failure
20 CFR § 655.56 requires three years of recruitment, payroll, transportation, and arrival/departure records. A thin file shifts the audit's burden of proof onto the employer.
How a single finding compounds
When DOL Wage and Hour identifies one violation, the dollars do not stop at the underpayment. The penalty stack is statutory and stacks per worker per pay period:
- 1Back wages — the underpaid amount, per worker, every pay period in the lookback window.
- 2Liquidated damages — equal to back wages. The cash exposure doubles automatically.
- 3Civil money penalty — up to ~$11,940 per violation per worker (non-willful), several multiples for willful or repeat under 29 CFR § 503.23.
- 43-year H-2B program debarment — of the employer and any successor entity. The cash is recoverable. The program access is not.
Landscaping · wage-level underpayment
$2.10/hour, 18 workers, 12 pay periods
An Atlanta-area landscaping employer accepted an NPWC determination one wage level too low and paid $2.10/hour below the corrected rate for the whole season. WHD audited 18 H-2B workers across 12 pay periods. The math:
- Back wages: $56,000
- Liquidated damages: $56,000
- Civil money penalty: $14,000
- Cash exposure: $126,000
- 3-year H-2B debarment — lost the next 3 cap cycles. Sold the operation.
The trigger was an unchallenged wage-level classification, not bad faith. The penalty stack does not care.
Source: WHD public enforcement database (NAICS 561730, Landscaping Services); penalty stack per 29 CFR § 503.16(f) (back wages, liquidated damages) and 29 CFR § 503.23 (CMP and 3-year debarment).
Hospitality · misclassification + recruitment fees
$124,999 stack, 64 H-2B workers, NH resort (2016–2017)
The NASWA Resort in Laconia, New Hampshire was investigated by WHD for the 2016 and 2017 H-2B seasons. The job advertisement promised 35 weekly hours, but the actual averages were 48 and 45. Workers were placed in classifications outside the approved application and paid less than the required wages. A recruiter charged 44 of the 64 H-2B workers registration and processing fees. Visa fees, travel reimbursement, and housing charges were also off-spec. WHD's settlement:
- Back wages (64 workers): $64,449
- Civil money penalty: $60,550
- Cash exposure: $124,999
- Debarment outcome: not announced in the WHD release. The CMP this size on a single program user signals where the next ladder rung sits if the same findings recur.
The triggers were a job-advertisement weekly-hours figure that did not match payroll, and a recruiter that quietly charged the workers. Neither requires bad faith. Both are visible in the recruitment file the moment WHD asks for it.
Source: U.S. DOL Wage and Hour Division News Release 19-1419-BOS (Dec. 18, 2019). Dollar figures shown above are the exact totals from the release. Underlying authorities: 20 CFR Part 655, Subpart A; 29 CFR Part 503.
The debarment ladder, and what sits above it
Most H-2B enforcement actions follow a predictable sequence. Each rung makes the next one more likely:
OFLC notice of deficiency → audit finding → civil money penalty → 3-year program debarment → successor-entity debarment under 29 CFR § 503.24.
What sits above the ladder — outside the H-2B program but reachable from the same audit file — is the part most employers underestimate:
- I-9 cross-referral to Homeland Security Investigations and ICE.
- Criminal referral under INA § 274 (knowingly hiring or harboring unauthorized workers) when the recruitment file is silent on U.S. workers who applied.
- State labor commissioner exposure for unpaid wages, deductions, and rest-break violations on top of the federal back-pay finding.
- OSHA cross-referral if the worksite or employer-provided housing surfaced safety findings during the WHD interview.
The H-2B compliance lifecycle
H-2B is not a one-shot filing. The obligations begin 90 days before the workers arrive and continue three years past the last paycheck. The work organizes into five phases, with the cap window pulling everything earlier than employers expect.
Pre-filing
Temporary-need analysis, NPWC PWD request 60+ days ahead, multi-step recruitment plan, layoff-list reconstruction
Filing
ETA-9142B + recruitment report inside 75–90-day TLC window, I-129 packet ready for cap-window day one
In-season
Prevailing wage payroll audit each pay period, offered-work-guarantee accounting, transport reimbursement at midpoint
Audit window
OFLC integrity-review and WHD audit response, document production, debarment defense if needed
Post-cycle
Three-year retention package per 20 CFR § 655.56, lessons-learned debrief, next cap-cycle calendar
The wage rules in operational terms
An H-2B employer pays the prevailing wage determined by the National Prevailing Wage Center for the SOC code, geographic area, and skill level on the certified TLC, every pay period. The NPWC determination is appealable to BALCA — a misclassified SOC or wage level can mean the difference between a $19/hr and a $26/hr position. Once the TLC is certified at a wage, the employer is locked in for the entire contract period; there is no ratchet down if the labor market softens.
The temporary-need narrative
Under 8 CFR § 214.2(h)(6)(ii) the employer's need must be one-time, seasonal, peakload, or intermittent. The narrative has to align with the operating calendar, the prior year's payroll, and the SOC duties on the job order. A landscaping company that bills 12 months a year cannot claim seasonal need — it has to file peakload and document the permanent baseline against the surge with prior-year payroll. A hospitality employer cannot claim peakload that mirrors the regular workforce's schedule. The most common single-cause TLC denial is a temporary-need narrative the operating calendar does not support.
Multi-step U.S.-worker recruitment compliance
Five steps under 20 CFR § 655.40 et seq. before the recruitment report is due: SWA job order with the certified prevailing wage; two newspaper ads (one Sunday); union notification if the position is unionized; contact with every former U.S. worker laid off in the last twelve months; and worksite posting. Each step needs date, source, and applicant disposition. The most common single failure is the former-U.S.-worker contact — employers without a layoff list cannot prove they reached out, and OFLC reads silence on that step as non-compliance and revokes the certification. The recruitment report itself is filed before TLC certification is final, so the file has to be complete on the day it is signed.
OFLC and Wage and Hour audit defense
Two enforcement bodies, two different postures. OFLC integrity review focuses on the certification record itself — the recruitment file, the prevailing wage source, the temporary-need narrative — and the consequence of a thin file is revocation of the TLC. Wage and Hour focuses on payment after certification — prevailing wage paid every period, offered-work-guarantee hours met, transportation reimbursed at midpoint and conclusion, deductions limited to permitted categories — and the consequence is back wages, liquidated damages, civil money penalty, and 3-year debarment. Counsel on the call within 24 hours of either contact, and a pre-paginated audit packet on the shelf, are what move the case from "finding" to "warning letter" instead of "finding" to "debarment recommendation."
What we run for you, by stage
Pre-filing
- Temporary-need diagnostic — one-time / seasonal / peakload / intermittent — mapped to your prior 24 months of payroll.
- NPWC prevailing wage request 60+ days ahead, with SOC and skill-level argument prepared for any redetermination.
- ETA-9142B drafting with surgical job-order duties (no "and other duties as assigned").
- Multi-step recruitment plan — SWA, dated newspaper outlets, union notice if applicable, layoff-list contact log, worksite posting.
- Layoff-list reconstruction from prior 12 months of separations so the former-U.S.-worker step is defensible.
- Cap-window calendaring tied to the April 1 / October 1 selection cycle.
Filing
- Recruitment report filed inside the 75–90-day TLC window with date-stamped evidence for every step.
- I-129 petition packet ready to file the first day of the cap-window selection so a random pull does not cost the season.
- Consular cable to the post (typically Monterrey, Mexico City, Kingston, San Pedro Sula).
- Pre-flight communication with the workers' DS-160 status and document tracker.
In-cycle compliance program
- Prevailing wage payroll audit every pay period against the certified NPWC determination.
- Offered-work-guarantee accounting kept current to the pay period under 20 CFR § 655.20(f).
- Inbound transportation reimbursement at the contract midpoint, outbound at conclusion, both documented.
- Deduction review (uniforms, tools, housing rent if employer-provided) so net pay never dips below prevailing wage.
- Recruitment-file maintenance kept inspection-ready through the 3-year retention window.
Audit window + post-cycle
- Audit-response packet kept on standby with recruitment, payroll, transportation, and arrival/departure records pre-paginated.
- Counsel on the call within 24 hours of any OFLC or WHD contact.
- Debarment defense, including successor-in-interest analysis under 29 CFR § 503.24.
- Three-year records retention package handed back to operations at cycle end (20 CFR § 655.56).
- Lessons-learned debrief and the next cap cycle's calendar built before the current one closes.
How we run an H-2B program: custom software, not spreadsheets
We built our own compliance and execution platform around the H-2B lifecycle. It tracks every regulator, every cap-cycle deadline, every recruitment step, and every worker on a single live audit file — so the record OFLC or WHD would ask for is the record we're already maintaining.
DOL OFLC, WHD, USCIS, DOS, OSHA, state labor commissioners — every applicable rule mapped to the action it triggers, with version history when the regs change between cap cycles.
PWD request window, TLC filing window, I-129 cap-day open, recruitment report due date, audit response clock, three-year retention countdown — all calculated from your dates of need, not remembered by hand.
Landscaping growing seasons, hospitality convention surges, seafood harvest windows, ski-season hiring waves — the platform models how a real non-ag operation moves, not a generic project plan.
Each worker carries their own record: certified job order, wage statements, hours against the offered-work guarantee, transportation reimbursements, and any incident notes — pulled instantly when an investigator asks.
The same evidence we'd hand an OFLC integrity reviewer or a WHD investigator on day one is already assembled and time-stamped. No 30-day scramble to reconstruct the recruitment file from memory.
Most firms write you a memo and wish you luck. We run the calendar, the recruitment file, the filings, the records, and the audit defense on the same system — so nothing falls between the lawyer and the operations team.
Run the 4-minute H-2B compliance self-check
Five questions across temporary need, NPWC wage, recruitment, offered-work guarantee, and records retention. No email required. Tells you which compliance area is most exposed before the next cap cycle opens.
Red flags we resolve before filing
Some operational facts make a clean H-2B cycle harder before the TLC is even drafted. We surface and resolve these in intake — silent on the petition, they become the audit's opening exhibits.
- Year-round operating calendar paired with a seasonal-need narrative — the temporary need test fails before recruitment even opens.
- Prior H-2B program debarment of the entity, of a successor-in-interest, or of a controlling principal under 29 CFR § 503.24.
- Prior H-2B denials in the last three years — particularly TLC denials and post-RFE I-129 denials.
- Pending NPWC determination at a SOC or wage level the operation cannot sustain — challenge before the TLC clock starts.
- Layoffs of U.S. workers in the last twelve months without a contact log — silent recruitment file becomes a per-applicant violation.
- Pending Wage and Hour, OSHA, or state Labor Commissioner matters that cross-reference into the H-2B file.
Three anonymized outcomes
Clean cap cycle
Mid-Atlantic landscaping company, 28 H-2B workers
PWD requested 78 days before TLC filing, NPWC determination accepted at the right level on the first pass. Recruitment file complete with dated SWA order, two newspaper ads, layoff-list contact log, and worksite posting. TLC certified without RFE. I-129 filed day-one of the April cap window — 28 of 28 selected. Workers consular-processed in Monterrey on schedule. Zero in-cycle WHD contacts.
NPWC challenge won
Coastal hotel group, BALCA appeal of wage level
NPWC determination came back at SOC 35-2014 Level 2 ($24.18/hr), $5/hr above what the line-cook position warranted. Filed a redetermination request with the actual job duties, supervisory chain, and skill requirements. NPWC corrected to Level 1 ($19.05/hr). Saved the operation roughly $260,000 across the contract period for 22 workers — and made the position economically viable.
Audit closed at warning
Gulf Coast seafood processor, WHD audit
WHD opened on a worker complaint about transportation. Audit packet — recruitment, payroll, transportation reimbursement, deductions — was on the shelf already, pre-paginated and Bates-stamped. Counsel on the call within 18 hours. Two minor reimbursement timing issues were cured proactively. Audit closed at a warning letter; no civil money penalty, no debarment recommendation.
Transparent fee structure
H-2B engagements are priced as flat fees, not hourly. The recurring compliance program is the difference between a one-shot filing that survives the cap lottery and a cycle that closes without OFLC or WHD contact.
Quote tied to industry, worker count, state, and prior compliance posture. Sent within one business day of intake.
Start an H-2B intake
H-2B compliance — answered
What is H-2B and which industries actually use it?
H-2B is the temporary, non-agricultural worker visa under INA § 101(a)(15)(H)(ii)(b), governed by 20 CFR Part 655 Subpart A and 8 CFR § 214.2(h). Five industries dominate the program: landscaping and groundskeeping (the single largest user, roughly 40% of certifications), hospitality (hotels and resorts — housekeepers, line cooks, banquet staff), seafood processing (Maryland blue crab, Alaska, Gulf shrimp), construction (specialty trades during seasonal weather windows), and amusement/recreation (theme parks, ski resorts, summer camps). Each has its own seasonal pattern, prevailing wage source, and recruitment file that has to match.
What is the H-2B cap and how does the April 1 / October 1 cycle actually work?
Statutory cap is 66,000 visas per fiscal year, split 33,000 for first-half (October 1 start dates) and 33,000 for second-half (April 1 start dates). USCIS opens the I-129 acceptance window roughly 75 days before each start date, and historically the cap is hit on day one with a random selection. The supplemental allocation (administrative, set annually by DHS in consultation with DOL) typically adds 64,716 more — released in tranches with worker-eligibility carve-outs (returning worker, Northern Triangle, Haiti). A petition that misses the random selection waits six months for the next half. Operationally that means the TLC has to be certified, in hand, and ready to attach to the I-129 the moment the window opens.
What does the H-2B temporary need test require?
Under 8 CFR § 214.2(h)(6)(ii), the employer's need must be one of four kinds: one-time occurrence, seasonal, peakload, or intermittent. Seasonal means tied to a season of the year by an event or pattern — landscape maintenance correlates to growing season; ski resort to winter. Peakload means supplementing permanent staff during a recurring high-volume period — a hotel during a regional convention. The agency reads the need narrowly. A landscaping company that operates twelve months a year cannot file a seasonal need; it has to use peakload and document the regular permanent baseline against the surge. The most common denial reason is a temporary-need narrative that does not match the employer's actual operating calendar.
What is multi-step H-2B recruitment and where do employers most often fail?
Under 20 CFR § 655.40 et seq., the H-2B employer must complete five recruitment steps before the recruitment report is due: a state workforce agency (SWA) job order, two newspaper advertisements (one of which must be Sunday), contact with the union if the position is unionized, contact with former U.S. workers laid off in the last twelve months, and posting at the worksite. Every step has to be documented with date, source, and applicant disposition. The most common failure is the former-U.S.-worker contact: employers do not keep a layoff list, so they cannot prove they reached out, and the recruitment report's silence on that step lets DOL infer non-compliance and revoke the certification.
What is the NPWC prevailing wage determination and why do challenges matter?
The National Prevailing Wage Center issues a wage determination for the SOC code, geography, and skill level the employer requests — and the certified TLC must pay at or above that rate. The determination is appealable to BALCA. A landscaping employer in a high-cost metro that gets pushed into the wrong skill level (Level 2 instead of Level 1, or a higher SOC) sees the wage jump $4–$8/hour, blowing the operation's margin and forcing a withdrawal. The fix is to file the prevailing wage request with the right SOC, the right skill level, and the right geographic scope on day one — and to challenge any determination that misclassifies the position before the TLC clock starts.
What happens if our H-2B TLC is denied or audited by OFLC?
Denial means there is no I-129 to file and the season is lost — the same outcome as H-2A. OFLC also runs supervised recruitment and integrity-review audits on a portion of certifications each year; selection can be random or triggered by a pattern (high prior denial rate, complaint from a former worker, mismatched SOC). An audit response is roughly the same packet as a Wage and Hour audit — the TLC, the recruitment file, payroll, the temporary need narrative — but the time pressure is shorter (often 30 days from the request) and the consequence of a thin file is revocation of the certification, not just back wages.
What does Wage and Hour enforcement look like for an H-2B employer?
WHD has independent enforcement authority over H-2B under 29 CFR Part 503. Audits look for: payment at or above the certified prevailing wage every pay period, the three-fourths guarantee under 20 CFR § 655.20(f) (work hours equal to at least three-fourths of the workdays in each 12-week period of the contract, or six-week periods if the certified period is fewer than 120 days), permitted deductions only, transportation reimbursement at the contract midpoint and at completion, and worksite housing standards if the employer chose to provide housing. The penalty stack is the same shape as H-2A: back wages, liquidated damages, civil money penalty per violation per worker, and 3-year program debarment.
What is the H-2B three-fourths guarantee and how does it differ from H-2A's?
Under 20 CFR § 655.20(f) and 29 CFR § 503.16(f), the H-2B employer must guarantee work hours equal to at least three-fourths of the workdays in each 12-week period of the certified job order (six-week periods if the certified period is fewer than 120 days). If the actual season is shorter — a hotel cancels a wing remodel, a landscape contract slips — the employer still owes the unworked portion below the three-fourths threshold. The narrow contract-impossibility exception exists, but only with timely OFLC notification and documentation. Operationally the failure mode is the same as H-2A: a season that ends two weeks early without the impossibility paperwork turns the uncovered hours into back-pay liability per worker.
Are housing and transportation required for H-2B the way they are for H-2A?
Different from H-2A in a critical way. H-2B does not require the employer to provide housing — but if the employer does provide housing, the housing must satisfy 29 CFR § 1910.142 (OSHA) and any applicable state standard, and rent cannot reduce the worker's pay below the certified prevailing wage. Daily transportation is not categorically required, but inbound and outbound transportation must be paid by the employer at the contract midpoint and at the contract conclusion under 20 CFR § 655.20(j). Visa, border crossing, and consular processing fees the employer cannot pass to the worker.
What records do we have to keep after the H-2B contract ends?
Three years from the date of certification under 20 CFR § 655.56 and 29 CFR § 503.17. The package includes the certified TLC and job order, the prevailing wage determination, every recruitment step documented with date and disposition, the recruitment report, payroll showing prevailing wage compliance every pay period, transportation reimbursement records, the temporary need narrative and supporting documentation, and the worker-by-worker arrival and departure log. WHD can audit any pay period within those three years — and OFLC can revoke retroactively if the recruitment file does not hold up.
What is the penalty stack for an H-2B underpayment finding?
Back wages (the underpaid amount, per worker, per pay period in the lookback). Liquidated damages equal to the back wages. Civil money penalty up to roughly $11,940 per violation per worker for non-willful — substantially higher for willful or repeat. And the centerpiece consequence: a 3-year debarment from the H-2B program for the employer and any successor entity. The dollars are recoverable; the program access is not. A landscaping or hospitality operation that loses three full H-2B seasons typically does not survive.
What does engagement look like across an H-2B cycle?
Pre-filing: temporary need analysis, NPWC prevailing wage request 60+ days ahead, multi-step recruitment plan, layoff-list reconstruction. Filing: ETA-9142B and recruitment report inside the 75–90-day TLC window, I-129 packet ready to file the first day of the cap window. In-season: prevailing wage payroll audit each pay period, offered-work-guarantee accounting, transportation reimbursement at the midpoint and conclusion. Audit window: stand-by audit response, document production, on-the-record posture with OFLC and WHD. Post-cycle: three-year retention package handed back to operations. Like H-2A, the relationship is annual, not transactional.