The H-2A visa and H-2B visa is intended to help US employers find temporary foreign workers to fill needed posts in the US. However, the USCIS has special provisions to ensure that workers on these visas are not charged unfair fees in exchange for the right to work in the US.
As a result, under 8 C.F.R. 214.2(h)(5)(xi)(A) and 214.2(h)(6)(i)(B), some types of fees cannot be collected from H-2A and H-2B employees. It is important to consider this at this time of year, since delays in petitions can affect time-sensitive jobs, especially during the approaching harvest time. To prevent delays, employers looking to hire workers on an H-2A visa or H-2B visa need to ensure that their petitions are complete. The applications should include details of any fees collected from H-2A visa and H-2B visa holders as well as recruitment efforts undertaken by the employer to find US workers for the position. The USCIS also suggests that employers petitioning for H-2A visa and H-2B visa workers read U.S. Department of Labor (DOL) guidelines. These guidelines detail the responsibilities that employers have to not charge specific fees to H-2A and H-2B employees.
When applying for H-2A and H-2B employees, employers need to file Form I-129 (Petition for a Nonimmigrant Worker). Section 3 of the H Classification Supplement to that form asks about fees in questions 7-9. Employers need to be aware H-2A and H-2B employees cannot be charged the following types of fees:
- fees banned under DOL regulations
- petition fees
- lawyer and legal fees
- recruitment fees
- costs that are conditional for employment (including any costs and fees collected indirectly).
In addition to these fees, other fees may also be prohibited for H-2A and H-2B employees. Based on the answers given on Form I-129, the USCIS may determine the admissibility of any fees charged. Therefore, it is a good idea to include additional documentation or information about any fees described in the H Classification Supplement, although additional information is not strictly required.
Employers also need to keep in mind that their Form I-129 may also be rejected if they used any recruiter, employment service, facilitator, or other service that did charge prohibited fees to H-2A and H-2B workers. Therefore, it is important to work with services and recruiters that have transparent practices. It is useful if an employer has made reasonable inquiries about any fees charged by recruiters or employment services to H-2A or H-2B workers. Including this documentation with Form I-129 is not required but does show that the employer has taken all due steps to protect H-2A and H-2B from unfair fees.