FULL HOUSE: Zoom in on Compliance: Navigating H2B Visa Program
HUMPDAY ZOOM CALL WEDNESDAY
We are limited to only 100 guests on our zoom account at any point in time, so if you are joining us for our once a month zoom call, held at 12 noon central time (1:00 Eastern, 11:00 Mountain, 10:oo am Pacific) then try to log on about 10 minutes early to make sure you have a space.
This Wednesday I will be speaking about the FY25 Supplemental Visa Release, and related topics. Typically I talk and then open the floor to questions and answers. We look forward to hitting our maximum number of guests again this month!!
Make sure you have downloaded or set up the zoom app on your computer, tablet or smartphone. The link is:
Please mute yourself when you join the meeting to keep the background noise to a minimum.
ABSCONDED: To leave hurriedly and secretly, typically to avoid detection.
We use the term “absconded worker†and “absconded worker letter†to cover a wide range of separation scenarios.
It is NOT JKJ Workforce’s responsibility to report absconded workers to any agency. It is the employer’s legal responsibility. As a service to our clients, if the basic information is reported to our office via email, we do our best to compile the proper documents and submit to the proper agencies in an effort to assist our clients with compliance.
Not to go on a tirade as to which agencies of the Federal Government were given authority to adjudicate the H-2B program, I will simply say that in keeping with the complexity of the program, both US Department of Labor and US Department of Homeland Security require the reporting of workers who separate from the employment you are offering. The two different departments have different definitions of what workers need to be reported – when and how they need to be reported – etc.
For the US Department of Labor. The employer must notify DOL if any H2B or corresponding worker separates from employment with your company at any point in time before the end of the job order.
What the heck is a ‘corresponding worker’?? Any worker that performs essentially the same job with your company as an H2B worker. Right now we have been able to insert language into the DOL appropriations bills from having the DOL enforce the corresponding worker provisions. So right now we can worry just about H2B workers.
The notification must be made in writing and no later than 2 days after the separation is discovered by the employer.
If an H2B worker is no longer employed by you – and stops being employed by you – even if they leave only one day before the end of the job order / visa; then the worker must be reported to US DOL in writing within 2 work days. 20 CFR 655.20(y)
This must be done if the worker absconds, is terminated, goes home at the end of the season, is ported to another employer or the same employer in a different job category.
Abandonment or Abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer.
According to the USCIS (USDHS), the employers must notify USCIS within 2 workdays if any of the following occur:
No show: The H2B worker fails to report to work within 5 worker days of the latter of:
The employment start date on the H-2B petition; or
The start date established by the employer (Date of scheduled arrival);
Abscondment: The H-2B worker leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
Termination: The H-2B worker is terminated before completing the H-2B labor or services for which he or she was hired; or
Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.
The notice must include the following information in the notification:
1) Reason for the notification (no show, abscond, termination or early completion);
2) The reason for any sort of untimely notification;
3) US DOL Case Number of the Underlying Labor Certificate;
4) The USCIS receipt number of the approved H-2B petition;
5) The employer’s: Business Name, responsible party name, address, telephone number, & the Employer Identification Number (FEIN).
6) H-2B Worker’s information: Full legal name, date of birth, place of birth, last known physical address and phone number, social security number (if available), copy of visa.
So provide us with the correct information in a timely and complete manner so we can strive to file the proper reports to assist you in compliance with the rules.
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