H-2B Best Practices for Businesses

H-2B employers must start the application process six to seven months before their need date to secure visas. Best practices include rigorous recruitment of U.S. workers, strict adherence to prevailing wage laws, and the maintenance of detailed records of all travel reimbursements and payroll.

Navigating the H-2B visa program requires careful timing, financial transparency, and strict adherence to U.S. Department of Labor (DOL) regulations. Implementing these best practices will ensure compliance and operational success.
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Strategic Timing and Preparation

• Start Early: The H-2B process is highly time-sensitive. Begin preparing your “Statement of Temporary Need” six to seven months before the date you need the workers.
• Submit Complete Applications: Ensure Form ETA-9142B is accurate and all dates, worker counts, and worksite locations match between the application and the job order.
• Monitor Cap Limits: Stay informed about statutory H-2B visa caps and potential supplemental visa allocations released by the government.

Recruitment and U.S. Worker Protections

• Conduct Good Faith Recruitment: You must actively attempt to hire U.S. workers before securing H-2B labor. You’ll be required to post a job order through the South Dakota Department of Labor and Regulation (DLR) and conduct localized recruitment as required.
• DLR has an established self-service system (SDWORKS) that allows agents and law firms to write a job order and view all necessary information.
• Each business will need an employer account. (See SDWORKS Employer Accounts for details)
• If using an agent or immigration attorney, they will need to create a Third-Party Agent (TPA) account and add all applicable employers to be authorized, along with uploading proof of authorization (G-28 or authorization statement/contract) for each employer.
• If technical assistance is needed for account creation or job order writing, email the state’s Foreign Labor Certification Office at FLC@state.sd.us.
• Maintain Recruitment Records: Thoroughly document all U.S. worker applicants, reasons for disqualification, and recruitment outcomes in case of DOL audits.

Financial and Expense Compliance

• Handle Visa and Travel Costs: You are required to advance or reimburse all visa and border crossing fees, typically in the first work week.
• Transportation and Subsistence: Detail how inbound transportation and daily subsistence will be provided or reimbursed in the job order. You must also pay for return transportation if workers complete the period of need or are dismissed early.
• Pay Prevailing Wages: Ensure you pay the highest of the prevailing wage, applicable federal minimum wage, state minimum wage, or local minimum wage for the duration of employment.

Record-Keeping and Transparency

• Keep Detailed Records: Maintain all employment documentation, earnings records, and transportation reimbursements for at least three years after certification.
• Provide Itemized Pay Statements: Provide all workers (both domestic and H-2B) with detailed weekly pay statements that clearly show hours offered, hours worked, regular/overtime rates, and gross/net wages.
• Separation from Employment: If an H-2B worker leaves before the certified end date, you must notify both the Employment and Training Administration and U.S. Citizenship and Immigration Services.

Utilize Official Resources

• Refer to the official DOL H-2B Program Overview for comprehensive fact sheets and requirements.
• Access the DOL FLAG portal to manage H‑2B applications and certifications.

QUICK LINKS

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