We hope that this Pabian Law H-2B Visa Quarterly Update finds you well. We are excited to share the Pabian Law Quarterly Update for March 2025, serving as an educational update on government and regulation changes, trends, alerts, and other pertinent information.
Please read on for information about the following topics:
- Winter-season H-2B visa petition work is starting for the 2025-2026 Season!
- The road to compliance goes through H-2B job descriptions
- Punitive housing security deposits
- USCIS plans to ask noncitizens for social media handles
- 2.0 of Pabian BOOM! is going to blow the minds of H-2B visa filers across country
Winter-Season H-2B Visa Petitions work is starting for the 2025-2026 Season!
With the arrival of spring comes the start of work on winter-season H-2B visa petitions!
Pabian Law has already started internal work on our clients’ winter-season H-2B visa petitions for the 2025-2026 season and will be reaching out to clients starting the week of March 17th.
It may seem hard to believe as many of our winter-season clients in south Florida, southern Arizona and California, and our ski area (or ski area adjacent) locations are still very much in the midst of their busy seasons, but now is the time to start work on your 2025-2026 H-2B visa petitions.
It is more important than ever to be proactive in planning, due to:
- Risks of less contract labor and legal foreign national workers being available due to Trump Administration policies;
- The anticipated increase in H-2B visa demand nationwide;
- The increase in the number of winter-season H-2B visa petitions; and
- The immense need to work with an experienced H-2B visa immigration law firm due to the heightened compliance measures and the punitive effects for running afoul of immigration laws.
We are excited to start work on petitions for next winter-season with our amazing clients. We are anticipating a great and successful filing season! Please reach out to us right away if you are interested in working together as delays in starting the process can lead to missing the opportunity to file altogether due to looming government deadlines.
The Road to Compliance goes through H-2B Job Descriptions
We often receive questions about what H-2B visa workers are allowed to do once they arrive at a client’s property for the season. The answer lies in the Job Description that was filed with the H-2B visa petition.
The Job Description is the foundation of the entire H-2B process. It needs to include everything a worker needs to know about the position by clearly defining specific job duties, experience requirements, wages, deductions, housing information, location(s) of work, hours, and benefits offered. As a key component of the H-2B visa petition process, the job description should be finalized early on in the process because every subsequent filing step builds on and uses the job description.
One of the most crucial factors for employers to understand is that the job description must be detailed and accurate because H-2B workers will be strictly held to performing only the duties explicitly listed in the job description. The H-2B workers cannot perform any additional tasks beyond what is stated even if those tasks are to alleviate employee burnout or compensate for reduced hours.
Additionally, workers can only receive the wage listed in the job description. To create flexibility for workers, we recommend having a wage range listed in the job description (assuming the client utilizes wage ranges for roles) so if there is ever a raise in a worker’s wage it will still be in accordance with what is listed in the job description. Any deductions made or benefits offered also must be clearly stated in the job description. This includes 401k offerings, health care, and any complimentary offerings such as meals or weekend shuttles provided for employee downtime.
With the implementation of new H-2B visa rules in January, compliance regulations have become more stringent and consequences for non-compliance have become very severe. United States Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), and Immigration and Customs Enforcement (ICE) are likely to continue conducting audits on H-2B employers and penalties for violations may be severe. Site visits and interviews with workers may also become more frequent. During an audit or site visit, employers will be held strictly to many of the disclosures made in the H-2B application, including (but not limited to) the job duties, wage/wage range listed, and the types and amounts of deductions from pay. To maintain compliance, it is important that employers thoroughly document all job-related requirements and offerings in the job description. Additionally, employers can actively ensure that H-2B workers are not performing duties outside of those explicitly stated by regularly checking in with senior management to ensure ongoing compliance.
If you have questions regarding the Job Description, audits, and compliance, please feel do not hesitate to reach out to us.
Punitive Housing Security Deposits
On January 17, 2025, the new H-2B “modernization” rule went into effect. This rule contained some significant new benefits for H-2B employers and workers, as well as some additional compliance risks. Perhaps the main focus of the rule from the compliance side is the prevention of prohibited fees charged to workers. One of the specifically mentioned fees in the rule is “breach of contract” penalties – for example, charging a worker a fee for ending employment early.
In recent discussions with clients regarding breach of contract fees, a question has been raised regarding whether a security deposit for housing which is refundable only if the worker completes the employment period could be viewed as a breach of contract penalty. Importantly, the immigration regulations do not further define the clause “fee or penalty for breach of contract.” However, the language is broad, stating: “no job placement fee, fee or penalty for breach of contract, or other fee, penalty, or compensation (either direct or indirect), related to the H-2B employment (collectively, “prohibited fees”) may be collected at any time.”
Because the question of whether retention of a security deposit is a nuanced question involving the specific details of how the security deposit is structured in the housing contract and because it intersects with landlord/tenant law and both state and federal employment law, we are unable to provide legal advice regarding whether such a provision would be legally enforceable or compliant. Additionally, because the rule is so new, it is impossible to predict the approach the government would take in an audit situation. With that being said, it is certainly worthwhile to be aware of the risk.
If you have specific questions regarding security deposits like these, we recommend contacting your employment lawyer. However, given the strong focus on prevention of the prohibited fees in the modernization rule, if there is any uncertainty regarding the compliance of these deposits, the safest approach is to avoid retaining such fees.
USCIS Plans to ask Noncitizens for Social Media Handles
On March 5, 2025, U.S Citizenship and Immigration Serviced (USCIS) issued a proposal that plans to examine social media accounts for any noncitizen trying to enter the U.S. as well as for anyone applying for immigration benefits.
This USCIS proposal stems from an executive order Trump signed on January 20th directing top federal officials to ensure that noncitizens who are already present in the U.S. “do not bear hostile attitudes towards its citizens, culture, government, institutions, or founding principles.”
Please note that this proposed rule is not going into effect immediately, as the public will have sixty (60) days to comment on the USCIS proposal. Therefore, while we think it is likely to be enacted, it is not a certainty.
Regardless, this proposal underscores the need for compliance. H-2B workers cannot work in any non-approved job or work for any company other than the employer who sponsored their H-2B visa. If this new law gets enacted, and a worker has social media posts that show work at a secondary place of employment (or posts their occupation or job duties that do not match the H-2B visa job), this could create red flags and potential denials in future visa applications. This also applies to any other post with violent, dangerous, hostile, or potentially illegal statements or behavior.
If the proposal is enacted, it is very important to communicate with your H-2B workers about their social media postings.
Version 2.0 of Pabian BOOM! is going to blow the minds of H-2B Visa Filers across the Country
Exciting news – Pabian BOOM! version 2.0 is here! Pabian Law’s proprietary H-2B software, Pabian BOOM!, just got an upgrade! The all-new Pabian BOOM! 2.0 launches this month, delivering a more intuitive, streamlined, and user-friendly experience while maintaining the powerful functionality you know and trust.
With Pabian BOOM! 2.0, H-2B visa employers can:
- Track petition progress in real-time with our brand-new progress bar. No more guessing—you will always know exactly where your property stands in the H-2B visa petition process.
- Easily upload documents for in-country H-2B workers – or invite them to upload their own! This ensures the Pabian Law team can review documents faster and keep your process moving forward efficiently.
- Access exclusive client resources in the Document Library, including webinars, client alerts, and key documents to help you stay compliant and informed.
Pabian BOOM! 2.0 makes the H-2B visa petition process smoother, faster, and more efficient than ever before. Get ready to experience the next level of H-2B visa management with Pabian BOOM! 2.0! This amazing software is only available to Pabian Law clients (and will continue to be a complimentary service offered to our clients).
Closing
We hope that you enjoyed this Quarterly Update. Please do not hesitate to contact us with any questions about the topics listed above or any other immigration-related topics.
Warm regards,
Keith Pabian and your friends at Pabian Law