Guest Worker Laws: What Every Employer Should Know

Considering hiring guest workers to fill temporary or seasonal positions in your company? Navigating the complex rules and regulations for hiring US guest workers can be daunting. Guest workers are a complex (and somewhat contentious) topic, so there’s a lot to learn and consider. Below is a brief summary of the H-2 guest worker programs, how employers apply and qualify for guest workers, and what employers should know about employing guest workers.

What is a Guest Worker?

A guest worker is a temporary worker who comes from a foreign country to fill a short-term need. There are different guest worker programs and visa types, including H-1B visas for specialty fields and L-1 visas for intra-company transfers within international companies. The largest programs, however, are the H-2 programs, which are described below.

The H-2 Programs

There are two H-2 programs, which are very similar overall when it comes to rules and regulations: the H-2A program and H-2B program.

• The H-2A program is for agricultural guest workers. For example, an apple orchard might bring in guest workers to help pick or process fruit during peak harvest season.
• The H-2B program is for non-agricultural guest workers. For instance, a beach or ski resort might need more staff during peak vacation seasons.

The H-2 programs allow companies to apply for temporary labor certification so that they may hire guest workers in these fields. In both programs, positions are short-term (less than a year) and full-time (at least 35 hours per week). H-2B visas are capped at 66,000 per year for the entire US, but there is no cap for the agricultural H-2A visa. In 2016, there were over 130,000 H-2A visas issued, and this number typically increases each year.

Applying for Temporary Labor Certification

The first question to ask yourself is whether or not you have any qualified positions. It’s not enough that you have unfilled temporary or seasonal positions. You have to demonstrate that these positions can’t be filled by US workers. This means you’ll need evidence that you’ve tried to actively recruit US workers. You’ll also have to show that offering the position to guest workers won’t “adversely affect the wages and working conditions of similarly employed US workers.” So what does this mean? First of all, you can’t use guest workers as a cheap labor pool to undercut US workers. You can’t replace striking US workers with guest workers or lay off US workers to hire guest workers for the same position. You also can’t offer better terms or conditions to guest workers than to US workers for the same position. Finally, you’ll have to show that the job you’re offering meets all of the many, many requirements of the program.

So how do you show that you meet these qualifications? With a highly regulated process and a slew of paperwork. Generally speaking, there are 3-4 major initial filings you’ll have to submit to different government agencies:

• an application for “prevailing wage determination” (to the National Prevailing Wage Center)
• a job offer (to the appropriate State Workforce Agency)
• an Application for Temporary Employment Certification (to the Department of Labor)
• a Petition for Nonimmigrant Worker (to US Citizenship and Immigration Services)

The application for prevailing wage determination is a requirement primarily aimed at the H-2B program. To ensure you don’t set your wage too low, you’re required to fill out an application (ETA Form 9141) describing the job’s duties and geographic location. The NPWC then provides you with an appropriate wage and how long the wage is valid for. You can’t offer a wage lower than the prevailing wage determination.

Between 60-75 days before the start date of the job, you then have to submit a job offer to the State Workforce Agency (SWA) for the geographic area where the employment will be. H-2A employers use a specific form provided by the Department of Labor. This form (ETA Form 790) essentially helps you create a job advertisement that includes all the required information. The H-2B program doesn’t have a specific form, but the DOL has a content checklist to ensure you include all required information.

Afterwards, you file a copy of your job offer and an Application for Temporary Employment Certification (as well as Appendix A for the H-2A program and Appendix B for the H-2B program) with the Department of Labor.

Once accepted, the DOL requires employers to engage in active recruitment. There are specific requirements, including publishing a newspaper advertisement with the job description and directions on how to contact the SWA. You’ll also have to maintain a recruitment report outlining your efforts and contacts, which will be due on a date specified by the DOL in their acceptance notice. And if any qualified US workers apply, you’ll have to hire them before any guest workers.

Once you have sufficient guest worker applications, you have to submit a Petition for Nonimmigrant Worker (Form I-129) to USCIS. This form requires specific information about your guest worker applicants, such as names and addresses. You can typically use a single form for all your guest workers in the same position, assuming start and end dates are the same. The filing fee for this form is a bit steep—the base fee is $460 and H-2B petitions require an additional $150 fee. Once this form is approved, your guest workers can apply for visas.

Employer Responsibilities

As an employer of US workers, you’re probably familiar with the usual paperwork and regulations for hiring and maintaining employees. Once you add in guest workers, however, be prepared for a long list of additional regulations. While many requirements are spelled out in the instructions or content checklists for creating your initial job order, many others are spread out amongst the Code of Federal Regulations, Department of Labor policies and USCIS procedures. It can be difficult to get a handle on it all and may require the assistance of an attorney.

Generally speaking, however, it can help to think of these regulations as falling into two broad categories: responsibilities to your guest worker employees and responsibilities to government agencies.

Responsibilities to your guest worker employees

In addition to all the usual federal, state, and local employment laws, there are specific requirements and legal obligations for employers of guest workers that may come as a surprise to those hiring guest workers for the first time.

First of all, hiring guest workers involves quite a few costs beyond the paperwork filing fees. For instance, employers are legally obligated to provide the following to guest workers:

• Food and housing: In the H-2A program, housing must be provided at no cost. Housing should be ready 30 days prior to the job start date as the SWA may need to perform an inspection. In the H-2A program, you’ll also need to provide three meals a day (or a kitchen where workers can prepare their own meals). The Department of Labor has guidelines for meal charges, and you can’t charge more than they specify. With some exceptions, employers don’t typically have to provide food and housing for H-2B guest workers, but you can include these options in your job offer.
• US entry and exit: You have to pay or reimburse guest workers for visa expenses and border-crossing expenses. This includes daily subsistence during travel and reasonable transportation costs into the country (whether that means a bus ticket from Mexico or a flight from Andorra) and back home again after the job is over.
• Transportation: You have to provide free transportation for your guest workers to and from the work site.

In addition to costs, there are also extra regulations regarding the contracts and wages of guest workers.

Contracts: By day one of work, you’ll need to provide a work contract describing the terms and conditions of employment. Note that this contract must be in a language your worker understands. There are numerous specific points that must be included, such as contract dates, work hours, pay rates, and information on housing, meals, transportation, deductions, workers’ compensation and more. You’ll also have to provide a copy of the job order that was approved by the Department of Labor.

Wage rates: While most employers are familiar with minimum wage, some may be surprised that you can’t simply pay guest workers minimum wage. Instead, guest workers must be paid the highest of the following:

• the local, state or federal minimum wage
• the agreed-upon collective bargaining rate (if applicable)
• the prevailing wage
• (for H-2A workers) the adverse effect wage rate

As mentioned earlier, to find out the prevailing wage for a specific job and location, you have to submit a request to the National Prevailing Wage Center. The adverse effect wage rate is essentially a minimum wage for agricultural workers and is set by the Department of Labor each year. The adverse effect wage rate varies by state. For instance, the 2019 rate in Florida is $11.24 per hour. Note that you’ll have to pay both H-2A and H-2B workers at least every 2 weeks.

Wage guarantee: Guest worker wages are subject to what is known as the “three-fourths guarantee.” Imagine you have a guest worker contract that lists a normal workweek as 5 days a week, 8 hours a day. In a 12-week period, this would add up to 480 total hours. However, imagine there turns out to be much less work needed than you anticipated. Even if there’s not enough work to do, you have to guarantee payment of at least 75% of the total contracted hours—in this case, the equivalent of 360 hours of work.

While costs, contracts and wages make up some of the biggest legal differences between employing US workers and guest workers, this of course doesn’t cover everything. There are plenty of other rules as well—many of which may seem obvious, as they basically boil down to treating guest workers humanely and ethically.

For instance, you can’t confiscate passports or immigration paperwork. You can’t charge guest workers for tools they need to do their job or nickel and dime them with surprise deductions or fees. You can’t provide sub-standard housing or transportation. You can’t retaliate against a guest worker for filing a complaint. Essentially, guest workers should be treated like US workers—and they shouldn’t be subject to restrictions or rules that aren’t imposed on US employees.

Responsibilities to government agencies

Employing guest workers means you’ll be working more closely with a few specific government agencies, such as the Department of Labor. The DOL oversees foreign labor certification. The DOL approves your Application for Temporary Employment Certification and provides many useful resources—for instance, their Wage and Hour Division provides posters you’ll need to hang up on your work site for your employees. The WHD also investigates any guest worker complaints regarding wages and hours.

Another key agency you’ll work with is US Citizenship and Immigration Services (USCIS), a part of the Department of Homeland Security. In addition to submitting your Form I-129 to USCIS, there are also USCIS reporting requirements for several situations you may encounter as an employer. For instance, if your guest worker doesn’t show up for work within 5 days of their start date or misses 5 consecutive days of work, you must notify USCIS. Likewise, if you terminate a guest worker early or if a worker successfully finishes their work more than 30 days early, you must report it to USCIS. Additionally, guest workers are prohibited from paying fees to recruiters. If you discover a guest worker has made or promised such a payment, you’re also required to notify USCIS.

Other Considerations

While hiring guest workers can be a practical way to fulfill the needs of your business, it’s important to realize that guest worker programs have long been the subject of contentious debate. To cut to the chase, they’re controversial. There are arguments for and against guest worker programs from both sides of the political spectrum. Some common concerns are that guest workers may be exploited, that their positions should be filled by US workers instead, that workers aren’t vetted thoroughly enough or that workers may fail to return to their home countries once their visas have expired. Although the policies and procedures for applying for and supporting guest workers specifically aim to minimize these risks, it would be naive to ignore the existence of public debate on this topic.

Overall, employing guest workers requires employers to make sense of a number of unique procedures and regulations, take on new responsibilities to a variety of government agencies, and ensure that guest workers receive fair treatment and all the provisions required by law. Employers should at the very least familiarize themselves with these general responsibilities and procedures for employing guest workers well before starting the application process.