H-2B Compliance After Workers Arrive and the Mistakes That Trigger Debarment

Attorney Answer

Once workers arrive, the compliance load is continuous. Complete I-9s (an H-2B worker's I-94 and passport are List A documents) and track authorization end dates; keep workers within the approved job, worksites and dates (§ 214.2(h)); pay the offered wage and overtime; keep hours, payroll, recruitment records and the required notices for three years from certification and produce them within 72 hours of a Wage and Hour request (20 C.F.R. § 655.56). Extensions and employer changes require qualifying filings; portability (8 C.F.R. § 214.2(h)(2)(i)(I)) covers only a worker already in H-2B status who has not worked without authorization, and it ends if the petition is denied. Workers may be admitted up to 10 days early and stay up to 30 days after the petition ends, but may not work outside the petition's validity (§ 214.2(h)(6)(vii)(A)). Notify USCIS of early departures and provide return transportation. Utah's E-Verify statute does not apply to H-2B workers you petitioned for (Utah Code § 13-47-201(2)), though public or federal contracts may impose their own requirements.

The three-fourths guarantee remains in the regulation (§ 655.20(f)): the employer must offer at least three-fourths of the workdays in each 12-week period. For fiscal 2026 the appropriations rider barred DOL from enforcing it and the corresponding-employment definition (P.L. 119-75, div. B, tit. I, § 111); the rider has been renewed every year since 2016 but must be re-checked for fiscal 2027 after October 1, 2026, and DOL's position is that the duty exists even where enforcement is defunded.

What triggers Wage and Hour audits and debarment: underpaying the offered wage or overtime; charging workers prohibited fees; unlawful deductions; skipping required travel reimbursement; misstating temporary need or duties; unapproved worksites; unlawfully rejecting qualified U.S. workers; poor records; and retaliation. The debarment regulation's own list matches almost item for item (29 C.F.R. § 503.24(a)). A violation does not automatically debar: the standard is willful misrepresentation or a 'substantial failure' that is willful and a significant deviation (§ 503.19), and debarment runs 'not less than 1 year or more than 5 years' (§ 503.24(c)).