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Employer Ordered to Reimburse H-2A Visa Holders for Immigration, Travel Expenses

Migrant_Worker_by_David_Shankbone.JPGA business that regularly employees H-2A agricultural workers must reimburse them for expenses that they incurred obtaining their visas and traveling from Mexico to the United States, according to a Ninth Circuit Court of Appeals ruling. Rivera v. Peri & Sons Farms, Inc., No. 11-17365, slip op. (9th Cir., Nov. 13, 2013). Department of Labor (DOL) regulations covering the H-2A visa program require employers to reimburse workers for certain expenses and to comply with other federal employment statutes. DOL regulations relating to the Fair Labor Standards Act (FLSA) also require reimbursement of certain employment-related expenses. The court held that both sets of regulations applied to the agricultural workers.

Employers may hire foreign workers for temporary or seasonal agricultural work through the H-2A visa program. The employer must obtain a temporary labor certification from the DOL certifying that not enough qualified and willing U.S. citizens or permanent residents are available for the positions, and that the foreign workers will not adversely affect U.S. workers’ wages or work conditions. 8 U.S.C. § 1188(a).

Nationals of sixty-three countries designated by the Department of Homeland Security are eligible for the H-2A visa programs. The DHS may approve petitions for nationals of other countries if it is determined to be in the national interest. An H-2A visa is valid for whatever period of time is designated on the labor certification, up to a maximum of three years. After three years, the visa holder must leave the U.S. and remain abroad for at least three months before seeking readmission.

Twenty-four farmworkers from Mexico filed suit against their employer for failing to reimburse them for employment-related expenses. They had each incurred expenses exceeding $1,000, including a recruitment fee of $100 to $500, immigration and travel expenses exceeding $400, protective equipment costing at least $10 per week, and about $100 in travel expenses to return to Mexico. They claimed violations of the FLSA, their employment contracts, and Nevada state law. The district court dismissed the lawsuit with prejudice, and the plaintiffs appealed.

The DOL’s H-2A regulations require reimbursement of expenses directly related to immigration and travel to get from the worker’s home country to the employer’s location. 20 C.F.R. § 655.122(h)(1). They also state that an employer may not make deductions from a worker’s paycheck that would violate the FLSA. Id. at (p)(1). Under the FLSA, an employer must reimburse an employee for employment-related expenses, including travel, during a given week if the employee’s wages would otherwise drop below minimum wage. 29 C.F.R. § 531.36.

The employer agreed that it was bound by the DOL’s H-2A regulations, but claimed that applying the FLSA regulations would be superfluous. The Ninth Circuit disagreed, finding that the H-2A regulations required compliance with the FLSA regulations. It reversed the dismissal of the FLSA claims and remanded the case for further district court proceedings.

Immigration attorney Samuel C. Berger represents immigrants currently living in New York and New Jersey, individuals seeking to immigrate to the United States, family members who wish to bring a loved one here, and employers who want to hire talent from abroad. We advise families and businesses on how to petition for immigrants to come to the U.S., and we help immigrants obtain visas and green cards. To schedule a confidential consultation with a member of our legal team, please contact us today online or at (212) 380-8117.

More Blog Posts:

Immigration News for New Jersey Employment-Based Immigrant Visa and Temporary Worker Visa Petitioners, New York & New Jersey Immigration Lawyer Blog, February 5, 2014
H-2B Guest Worker Program Poses Problems for Both Workers and Employers, New York & New Jersey Immigration Lawyer Blog, January 8, 2014
Courts Allow Undocumented Immigrants to Sue for Wages Under FLSA, State Labor Laws, New York & New Jersey Immigration Lawyer Blog, December 17, 2013
Photo credit: By David Shankbone (own work) [CC-BY-2.5], via Wikimedia Commons.