H-2B workers are authorized to work only for the specific employer listed in the approved petition, and only in the positions and location described in that petition. A Naples resort that wants to assign H-2B workers to duties outside the scope of the certified position, or to a different property under the same ownership, may need to file an amended petition before making that change. Using H-2B workers for unauthorized employment is a violation of their visa status and exposes the employer to potential debarment from the program.
The employer's wage obligation under the H-2B program does not flex with business conditions. If occupancy drops during the authorized employment period and the resort reduces its staffing needs, it cannot simply reduce the H-2B workers' hours below the level that would prevent them from earning the equivalent of the prevailing wage. Employers in this situation face a choice between paying the required wage floor regardless of hours actually worked or initiating an early termination process that includes notifying USCIS and providing workers with return transportation under certain conditions. Brodzki Jacobs advises Naples resort employers on the correct procedures for managing these situations so that the resort's compliance record remains intact for future H-2B seasons.
