Dear Pabian Law Summer-Season Clients,
We hope you are doing well and that preparations for the season are progressing smoothly.
Due to significant processing delays at the U.S. Department of Labor (DOL) this year, we have been receiving many questions about when H-2B employees are legally permitted to begin work. To help provide clarity, we wanted to share this helpful overview regarding work authorization timing for H-2B workers.
The answer depends primarily on the type of petition and the worker’s specific situation, as outlined below.
But first and most importantly, there are extreme consequences of having workers start work before legally authorized
We understand the pressures many of you are facing to get H-2B visa workers working and how the DOL delays have caused disruptions to your operations. However, in the current immigration environment we are in, it is more important than ever that workers do not begin working until they have received their work authorization from U.S. Citizenship and Immigration Services (USCIS) (Note: we always counsel and caution you to abide by immigration laws, but operating in this environment carries more risk than in prior times). The risks are just too high for both workers and employers.
For workers, working before authorization is a major violation under U.S. immigration law. If the U.S. government were to find out, workers would be forbidden from ever receiving immigration benefits again, including visas, status extensions, and even green card eligibility in the future. In short, they would never be able to return to the United States again in any capacity. Furthermore, it would open the risk for them to be detained, placed in immigration detention centers, and ultimately deported.
For employers, the risks are also disastrous. Allowing workers to start working before they receive work authorization could result in civil and criminal penalties, as well as petition denials, as outlined below:
- Civil penalties (monetary fines) are significant and increasing. Since the current Administration took office, I-9 fines have increased multiple times, with them now being thousands of dollars per violation. That does not count immigration monetary penalties that would almost certainly be charged on top of the I-9 fines. For many organizations, such immigration violations could easily result in penalties reaching the hundreds of thousands to even millions of dollars.
Besides the financial impacts, employers could also face consequences with future immigration filings, where H-2B visa petitions and other immigration applications could be discretionarily denied of filings due to the government considering prior violations when reviewing petitions. Additionally, employers could be banned from filing H-2B visa and other immigration petitions.
- Criminal penalties are also a very real risk. In the Administration’s second term, they have announced that they are prioritizing criminal prosecutions involving immigration violations. Employers who knowingly violate immigration laws are being scrutinized more heavily, and the government has made clear that it intends to impose harsh penalties in these situations.
We know how frustrating and difficult the DOL delays have been. We understand the pressure many of you are under to have your workers working for the starts of your seasons, especially with Memorial Day arriving earlier this year. But, allowing your workers to begin work prior to them having employment authorization is just not worth it. There are so many ways the government can uncover unauthorized employment, either through paper audits, unannounced site visits, or employee reporting. Now more than ever, compliance matters. Therefore, we strongly urge you to wait until workers have received authorization before allowing them to begin working.
Out-of-Country Petitions
For out-of-country petitions, the rule is generally straightforward: workers may begin work as soon as they arrive in the United States, provided it is on or after your certified start date.
When completing the I-9 process, employers should always carefully review each worker’s documentation — particularly the I-94 Arrival Record issued by U.S. Customs and Border Protection (CBP) — to confirm that all information is accurate. In most cases, however, workers are authorized to begin work immediately upon arrival.
The timing of a worker’s arrival is driven largely by when we receive final approval from U.S. Citizenship and Immigration Services (USCIS). As a reminder, USCIS filing cannot occur until:
- The DOL issues the Notice of Acceptance (NOA);
- The mandatory 15-day recruitment period is completed;
- The Recruitment Report is filed; and
- The DOL certifies the H-2B application.
Assuming each step is filed at the earliest available opportunity (which we always strive to do), USCIS approval is typically received approximately 5–7 weeks after the DOL issues the NOA. Workers are then often able to arrive in the United States within 1–2 weeks after USCIS approval, although timing varies depending on visa appointment availability and processing times at the U.S. Embassy or Consulate in the worker’s home country.
In-Country Petitions
For most in-country petitions, workers may begin employment once USCIS issues the physical Receipt Notice (Form I-797C) for the H-2B petition.
This is permitted under the H-2B Portability Rule, which allows eligible workers whose extension petitions were timely filed to begin working upon issuance of the Receipt Notice rather than waiting for final petition approval.
The I-797C Receipt Notice is typically issued approximately 1–2 weeks after the petition is filed with USCIS. As noted above, however, USCIS filing cannot occur until the DOL process is completed, including issuance of the NOA, completion of recruitment, filing of the Recruitment Report, and labor certification approval.
As a result, workers can generally begin work approximately 5–6 weeks after the DOL issues the NOA, assuming each step is filed at the earliest possible date.
One question that we often are asked is why clients need the physical I-797C notices to allow H-2B visa holders to work when USCIS sends electronic receipts (e-receipts) by email. The answer lies in how the I-9 and employment verification laws are written, as well as the language on the e-receipts. The I-9 laws mandate that employers need official documentation from USCIS that the petition has been received. On the e-receipt, though, the government clearly states that the email is not an official document. Therefore, employers need to have the physical notice in hand to allow workers to begin employment rather than relying on the e-receipt.
Important Exception – Nunc Pro Tunc Requests
Due to this year’s DOL delays, some workers’ current immigration status may expire before the H-2B petition can be filed with USCIS. In these situations, it may still be possible to request that USCIS excuse the untimely filing through what is known as a Nunc Pro Tunc request.
However, because these petitions are not considered “timely filed,” the workers are not eligible to begin working under the Portability Rule. Instead, they must wait until USCIS formally approves the petition before they are authorized to begin work.
In most cases, this adds approximately 5–10 additional days to the timeline for work authorization. Please note that if USCIS issues a Request for Evidence (RFE), the approval timeline — and therefore work authorization — may be delayed further.
We hope this overview helps clarify the timing surrounding when H-2B workers may legally begin employment. As always, if you have any questions about your specific case or situation, please do not hesitate to reach out to our team.
Thank you,
Keith and the Pabian Law Team