Job Offers and Employer Obligations
1. What is the difference between a job offer and a job order?
A job offer is the offer made by an employer or potential employer of H-2B workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits. A job order is a State- specific document containing material terms and conditions of employment relating to wages, hours, working conditions, worksite(s) and other benefits, including assurances, in accordance with 20 CFR 655.18 that is posted by a State Workforce Agency on its job clearance system.
2. What are the employer’s obligations under the 2015 H-2B Interim Final Rule?
The 2015 H-2B Interim Final Rule (IFR) expands and clarifies employer assurances and obligations. In accordance with 20 CFR 655.20, the following summary generally describes the obligations that apply to all employers filing their H-2B applications under the 2015 H-2B IFR:
a. Payment of the offered wage, which equals or exceeds
the highest of the prevailing wage or Federal, State or
local minimum wage, free and clear at least every two
weeks during the entire certified period of
employment. Alternative payment arrangements such
as piece-rate, commissions, or bonuses are only
permissible if the employer guarantees a weekly wage
that equals or exceeds the offered wage. Any piece-
rate must be no less than the normal rate paid by non-
H-2B employers in the same occupation and area of
b. Deductions from wages must be made if they are
required by law; al lother deductions must be
specifically disclosed in the job order and may only
include the reasonable cost or fair value of board,
lodging, and facilities furnished; and deductions of
amounts authorized to be paid to third persons for the
worker’s benefit through his/her voluntary assignment
or deductions that are authorized through a collective
c. Offer of full-time employment of at least 35 hours per
week, with a single week being used for wage
d. Disclosure of job qualifications and requirements which
must be bona fide and consistent with the normal and
accepted job qualifications and requirements of non-H-
2B employers in the occupation and area of intended
e. Offer to each worker employment for a total number of
work hours equal to at least three-fourths of the
workdays of each 12-week period (6-week period if
the job order is less than 120 days), unless the
certified period of employment is shortened by the
contracting officer due to unforeseeable circumstances
outside the employer’s control;
f. Payment or reimbursement of transportation and
subsistence for workers to the place of employment
after the worker completes 50 percent of the period of
employment covered by the job order, if the employer
has not previously reimbursed such costs;
g. Payment of return transportation and subsistence if
the worker completes the job order period or is
h. Payment or reimbursement of visa, border
crossing and related government- mandated fees in
the first workweek;
i. Provision of all tools, supplies and equipment;
j. Provision of accurate earnings statements to
employees each pay period with all deductions and
reimbursements clearly itemized and hours worked
and hours offered listed;
k. Requirement that employers provide workers with
copies of the job order no later than the time at
which the worker applies for the visa, if the worker is
departing directly from his or her home country, and
display a poster describing employee rights and
protections in English and, if necessary and made
available by the Department, another language
common to a significant portion of the workers at the
l. Prohibition of retaliation (such as by intimidation,
threats, coercion, blacklisting, discharge or other
discrimination) against employees who complained
against violations, including through filing or
participating in legal actions or seeking assistance
from third parties;
m. Prohibition against: passing on of fees associated
with the H-2B applications or employment, such as
application/petition costs, attorney fees, recruitment
fees or other related fees (and employers must
contractually prohibit agents and recruiters from
seeking or receiving such fees from employees);
n. Prohibition against: treating H-2B workers more
favorably than U.S. workers; discriminating in hiring
based on race, color, national origin, age, sex,
religion, disability or citizenship; and laying off U.S.
workers within the 120-day period before the start
date of work through the end of the period of
o. Prohibition against: placing workers into uncertified
employment or geographic area; and using the H-2B
program if there is a strike or lockout in the area of
intended employment at the time of application;
q. Continuing to consider and hire all qualified U.S.
workers who apply for thej ob opportunity until 21
days before the start date of need;
r. Notifying DOL when a worker abandons the job or is
terminated for cause (and DHS if the person is an H-
s. Complying with all applicable Federal, State, and
local employment-related laws; and
t. Disclosing the identity of all foreign labor recruiters
and their employees as well as pertinent agreements
related to the recruitment of foreign workers.
3. Where can I get more information about the enforcement of employer assurances and obligations under the 2015 H-2B IFR?
The Department’s Wage and Hour Division (WHD) is responsible for the enforcement of H-2B assurances and obligations under the 2015 H-2B IFR. WHD maintains a helpful Web site including a variety of Fact Sheets to assist employers with understanding and complying with the assurances and obligations under the 2015 H-2B IFR. To learn more, please visit: index.htm.
4. I prefer to hire workers with 6 months of experience, but have found that workers with 3 months of experience can generally perform the job in a satisfactory manner. May I list 6 months of experience as the required qualification on my Application for Temporary Employment Certification and job order?
The 2015 H-2B IFR requires an employer to identify its actual minimum education and experience requirements on the Application for Temporary Employment Certification (ETA Form 9142B) and job order. It further requires that each job qualification and requirement be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment. In this scenario, the employer may only impose a 6-month experience requirement if 6 months of experience is minimally required for the workers to perform the job and if the 6 months of experience is consistent with the normal and accepted qualifications and requirements for the job imposed by non-H-2B employers in the same occupation and area of intended employment.
Important Note: Please remember that the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any job qualification and/or experience requirement that does not appear to meet this standard of review based on the information available to the Certifying Officer during the consideration of the application.
5. How will the Chicago National Processing Center (NPC) determine whether a minimum job requirement or qualification I listed on my Application for Temporary Employment Certification and job order is “bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment”?
When reviewing an Application for Temporary Employment Certification and related job order, the Chicago NPC evaluates each of the employer’s listed minimum job requirement(s) and qualification(s) on an individual basis. The Chicago NPC will use a variety of information sources to evaluate whether a job requirement or qualification is consistent with the normal and accepted regulatory standard and, therefore, is appropriate for testing the U.S. labor market. For example, the Chicago NPC uses the Occupational Information Network (O*NET), available at as a baseline for identifying normal and accepted qualifications (such as experience requirements) for specific occupations. For other qualifications and requirements not addressed by the O*NET (e.g., criminal background checks, licensing requirements, or drug tests), the Chicago NPC relies on its own historical experience with case-by-case application review as well as information received from outside sources (e.g., information on non-H-2B job requirements and qualifications available to the State Workforce Agency, other employers in the industry or occupation, or interest groups with knowledge of the industry or occupation) to identify job requirements and qualifications that do not appear consistent with the regulatory standard.
6. Why is the Department requiring that the daily subsistence rates under the H- 2A program be used for the H-2B program?
The requirement that an H-2B employer pay or reimburse a worker for the reasonable cost of transportation and daily subsistence (which includes meals and, if required, lodging costs incurred on the employer’s behalf along the way) is a new requirement in the 2015 H-2B Interim Final Rule. However, this requirement has existed in the H-2A program for decades and the Department publishes annually the minimum and maximum daily meals amount for workers traveling to and from the place of employment. Because the Department has already determined the minimum amount of money required to provide reasonably adequate and nutritious meals per day under the H-2A program, the Department is extending this amount to the H-2B program. Accordingly, in the H-2B program, the amount of daily subsistence required to be provided for meals must be at least the amount permitted to be charged when the employer provides meals under the H-2A program.
To obtain the most current minimum and maximum amounts that workers will receive for daily meals, please visit the OFLC website at
7. Am I required to provide workers with daily transportation to the worksite?
No. The employer is not required to provide or pay for daily transportation from the workers’ living quarters to the worksite, or transportation from designated pick-up points to the worksite. However, where the employer chooses to offer or provide daily transportation to H-2B workers, the employer also must offer the benefit to U.S. workers and must disclose the benefit, and if applicable, any associated costs to the worker, including related deductions, in the job order and advertisements for the job opportunity.
8. Is the employer required to provide on-the-job training?
No. The employer is not required to provide on-the-job training. However, where the employer chooses to offer or intends to offer on-the-job training to H-2B workers, the employer must extend at least the same offer to U.S. workers and must disclose the offer in the job order and advertisements for the job opportunity. The employer may not offer any less in terms of benefits, wages and working conditions to U.S. workers than the employer is offering to H-2B workers.
JOB OFFERS, ASSURANCES AND OBLIGATIONS
1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite?
The regulations require the employer to provide housing only for those workers who are not reasonably able to return to their residence the same day. Any workers who are reasonable able to return to their home each day do not need to be provided housing. Any workers who are referred by the state workforce agency or the H-2A workers we provide you will need to be provided housing. With Workforce-Advantage, we provide you deep insights on what will or will not meet the requirements of housing inspections for the purposes of using the visa program and obtaining workers. As our staff consists of former inspectors who have specialized in this process, Workforce-Advantage has in depth knowledge of how state workforce agencies work and can function as your advocate and council when determining if your available housing will meet the requirements of the program.
2. How much do I have to pay the workers and what is an AWER?
SWAs receive grants from the Employment and Training Administration to perform all of the duties necessary under the Office of Foreign Labor Certification's (OFLC) programs, including conducting housing inspections in a timely manner. The regulations now permit employers to request the housing inspections well in advance of the date of need. If a SWA refuses to conduct the housing inspection, employers should contact the Chicago National Processing Center. September 15, 2015
3. Does public rental housing need to be inspected by the SWA?
No, as long as the public rental housing meets applicable local, state or federal standards. The employer must provide documentation to the satisfaction of the Certifying Officer that the housing complies with the applicable standard. At a minimum, the employer must provide a written assurance that the public rental housing provided meets all local, State, and Federal standards for such accommodations.
1. When do I need to submit proof of workers' compensation insurance coverage?
Pursuant to 20 CFR 655.122(e)(2), the employer is required to submit proof of workers' compensation insurance coverage before certification. The employer is encouraged to include the documentation when submitting its application. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by a Notice of Acceptance to submit the documentation by a specific date before certification may be granted.
September 15, 2010
2. What documentation should I submit as evidence of workers' compensation insurance coverage?
The employer must submit documentation that adequately demonstrates that it has the required workers' compensation insurance coverage for the entire period of need requested on the application. (See 20 CFR 655.122(e))
The documentation submitted must demonstrate that the employer's workers' compensation insurance coverage is in compliance with State law and covers injury and disease arising out of and in the course of the worker's employment. In addition, the documentation submitted must contain the name of the insurance carrier, the insurance policy number, and proof of insurance for the period of need stated on the application, or, if appropriate, proof of State law coverage.
Examples of acceptable documentation of workers' compensation insurance coverage include, but are not limited to, the following:
September 15, 2010
Association for Cooperative Operations Research and Development (ACORD) Certificate of Insurance
State Workers' Compensation Fund Certificate or equivalent
Certificate of Insurance indicating worker's compensation coverage (copy of policy
3. My workers' compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?
If the employer's current workers' compensation insurance
coverage will expire before the end date of need requested
on the application, the employer must submit a signed and
dated written statement showing its intent to renew and maintain coverage for entire period of need requested on the application. The written statement must be submitted in addition to the documentation of the employer's current
coverage described above. Also, the employer must retain the proof of renewed coverage in its file and be prepared to submit such documentation if requested.
1. Under the 2010 Final Rule the employer is required to
provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?
An employer providing three meals a day to its worker must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition to theworkers three times a day. The Department advise employers to consult the United States Departmentof Agriculture's Dietary Guidelines for Americans 2005 repor (in effect until the publication of the new report in 2010. In addition, the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food. This amount may not exceed the amoun specified in 20 CFR 655.173, currently set at $10.64 for three meals a day, absent a successful petition for a higher meal charge.
TRANSPORTATION & DAILY SUBSISTENCE
1. What is the definition of daily subsistence for
purposes of travel payments/reimbursement?
Daily subsistence includes, but is not limited to, the reasonable cost of food and lodging incurred during the worker's inbound trip from the point of recruitment to the employer's worksite, notwithstanding any unauthorized detours, and during the worker's outbound trip from the employer's worksite to the worker's home or subsequent employment, notwithstanding any unauthorized detours, whichever is applicable.
2. For the purposes of travel related payments/reimbursements, what costs are the employer's responsibility?
When an employer is unable to find sufficient workers locally
to perform the work it requires, bringing a worker to the
employer's worksite benefits the employer and, therefore, the costs associated with the worker's travel to the employer's
worksite are the employer's responsibility. By regulation, an
employer is responsible for providing, paying in advance, or
reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract, return costs.Â Where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department has interpreted the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those cases where it is necessary, lodging. If not provided by the employer, the amount an employer must pay for transportation and, where required, lodging must be no less than (and is not required to be more than) the most economical and reasonable costs. Moreover, the employer is responsible for those costs
necessary for the worker to travel to the worksite if the
worker completes 50 percent of the work contract period, but
is not responsible for unauthorized detours or unnecessary
costs, and if the worker completes the contract, return
transportation and subsistence costs. For example:
The employer is not responsible for the cost of a worker's lodging when the worker chooses to arrive earlier than required for a visa appointment at the U.S. Consulate. If the appointment is so early in the morning, that the worker could not reasonably be expected to travel to the consulate that same day, the employer will be liable for the cost of lodging the night before the appointment.
The employer is responsible for the cost of a worker's lodging where, after the worker attends a required appointment at the U.S. Consulate, the worker must remain nearby overnight while waiting for the U.S. Consulate to issue the visa.
The employer is responsible for the cost of aworker's lodging from the time the worker leaves the U.S. Consulate to the time he arrives at the worksite. The employer is also responsible for the worker's return transportation and subsistence costs upon the worker completing the work contract.
The amount an employer must pay for food is at least as much as the employer would charge the worker for providingthe worker with three meals a day during employment and no more than a maximum amount established annually based on the standard rate for the Continental United States (CONUS) for meals and incidental expenses as published by General Services Administration (GSA). The current minimum and maximum amounts for meals and incidental expenses are available on the OFLC website (link below). Please note that the FLSA applies independently of H-2A and imposes obligations on employers regarding the payment of wages.
RATES OF PAY
1. Will I have to pay for the worker's daily subsistence
before the worker begins his or her inbound trip to my
No. The employer is only responsible for the cost of the worker's daily subsistence from the time the worker departs the place from which the worker has come to work for the employer (generally, the worker's home or place from which the worker was recruited) until the time the worker arrives at the employer's worksite
2. Will the employer be required to pay the AEWR?
Yes, if the AEWR is the highest applicable wage rate. In most cases the published AEWR will be the correct baseline wage. However, sometimes the prevailing wage for the crop and
location or the CBA wage rate or the Federal or State
minimum wage rates will be higher than the AEWR, in which case the employer must pay the higher rate. If an employer wishes to pay a piece-rate, it must nevertheless guarantee that workers will be paid a minimum equal to the appropriate hourly wage.
3. May an employer require productivity standards if the work is paid on a piece-rate basis?
Yes. If the employer pays by the piece rate and specifies the productivity standard in the job offer. Any productivity standard required by an employer may be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for an H-2 temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time the employer filed its first application.
4. Will employers subject to the 2010 Final Rule be
obligated to adjust the approved wage rate if the
wage rates increase during the contract period?
Yes. All employers in the H-2A program are required to offer,
recruit at and pay the highest applicable wage rate. An H-2A employer who has filed an application under the 2010 Final
Rule will be required to adjust to a higher wage at any time
between the date on which it submits its job order to the
SWA and/or signs a work contract (whichever is earlier) until
the end of the contract period. This applies only to the applications filed under the 2010 Final Rule. Employers who filed applications under the 2008 Final Rule will continue to apply that rule's wage rates and principles (i.e. must pay thewage rate at the time of recruitment). If the Department
publishes a new AEWR and the new AEWR is higher than the
approved wage rate listed on the employer's job order and/or work contract, the employer will be required to adjust the offered wage to the higher AEWR. Similarly, if an applicable
prevailing wage is increased during the contract period and the Department notifies employers of the increase, all employers whose approved wage rate (listed on the job orde and/or work contract) is lower than the new prevailing wage will be required to adjust to the higher prevailing wage rate. The Department's notification will state the effective date of the wage increase upon which all affected employers will be required to adjust to the higher wage.