The Quiet Work That Protects You

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Good compliance is quiet. It happens in the middle of a season, in a payroll file nobody opens, in a note somebody writes down at the end of a long day because they have a feeling it might matter later. It never feels like the important work. And then one morning an envelope turns up with a Department of Labor return address, and it turns out the quiet work was the only work that counted.

We have sat with clients on both sides of that envelope, and the pattern is almost always the same. The employer was running a clean program. They paid the right wage, they offered the hours, they reimbursed the travel. What they could not always do was show it, in writing, from the time it happened. An audit is not really a test of whether you followed the rules. It is a test of whether you kept the proof.

There are two letters the Department of Labor can send you. They come from different offices, they ask for different things, and knowing which one you are holding changes what you do in the first hour.

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The letter that comes from the certification side

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The first comes from the Office of Foreign Labor Certification, the same people who process your application. It arrives after your case has been adjudicated, and it is about the filing itself — your temporary need, your recruitment, your job order, and whether you truly considered the U.S. workers who came to the door.

You have thirty calendar days, and both programs read the same way. The regulations at 20 CFR 655.70 for H-2B and 20 CFR 655.180 for H-2A each let the Certifying Officer set a deadline no more than thirty calendar days "from the date the audit letter is issued."

That phrase matters more than anything else in this article. The clock starts when the letter is issued, not when you open it. If it sat in a mailbox over a long weekend, or went to an old address, or landed on the desk of someone who was out in the field for a week, those days are gone. We have seen more good employers get into trouble over that single detail than over anything they actually did wrong.

As for who gets picked, the Certifying Officer has sole discretion. Some audits are genuinely random. Others are not — an unusual filing, a complaint, or a pattern across your past applications can put you on the list.

If you do not respond fully, the consequences are real. In H-2B, the Department can require assisted recruitment on every future application for up to two years, which means your recruitment happens on their schedule rather than yours, for two seasons running. It can also revoke the certification and debar you from H-2B and from every other foreign labor certification program the Department administers. In H-2A, the outcome is revocation or debarment. And in both programs the Certifying Officer can hand what they find to the Department of Homeland Security, to the Wage and Hour Division, or to the Department of Justice. Which is how one letter becomes the other.

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The letter that comes after your workers arrive

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The second comes from the Wage and Hour Division, and it is the serious one. It is not about what you filed. It is about what you actually paid and did once people were on the ground.

Investigators will look at the wages you paid against the adverse effect wage rate or prevailing wage on your certification, and at the hours you offered and the hours worked against the three-quarters guarantee. They will look at how you reimbursed inbound and outbound travel and daily subsistence, and at every deduction that came out of a paycheck. In H-2A they will look at housing and at the vehicles that move people to and from the job. They will compare the work people actually did against the job you advertised, and they will want to know who applied, who was turned away, and why.

They will also look at your domestic crew. Corresponding employment is the piece employers forget most often, and it is the reason a wage question about your H-2 workers rarely stays confined to your H-2 workers.

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What it can cost

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These are the current civil money penalties, effective January 16, 2026 and unchanged from the year before.

Penalties are assessed per violation, and violations multiply by worker and by pay period. Back wages come on top of all of it. For a sense of scale, in August of 2025 a federal court ordered a large California carrot grower to pay $207,456 in back wages and $220,000 in penalties — $427,456 in all — after the Wage and Hour Division found it had failed to pay the correct adverse effect wage rate to H-2A workers and U.S. workers alike, along with housing, transportation and disclosure violations.

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The record almost nobody keeps

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If you take one operational thing away from this, let it be this one.

Both programs guarantee hours offered, not simply hours worked. H-2A guarantees three-quarters of the workdays across the contract period. H-2B guarantees three-quarters of the workdays in each twelve-week period, or each six-week period when the job order runs under 120 days. And in both, hours you offered count toward the guarantee even when the worker turned them down.

That rule is written in your favor. It only helps you if somebody wrote the offer down the day it happened.

Nearly every payroll system in the country tracks hours worked. Almost none of them track hours offered and declined. When an investigator runs your guarantee and comes up short, "we offered the work and they didn't take it" is not a defense without a record made at the time. A simple daily log will do it — date, worker, hours offered, hours worked, and a line if the worker declined. Two minutes at the end of a shift. It is the difference between a file that closes and an assessment that doesn't.

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What to have in the file

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Both programs require you to hold records for three years from the date your application was certified, or denied, or withdrawn. Build the file while the season is running. Nobody has ever built one well in the thirty days after a letter arrives.

• The job order, the approved application, the I-129 petition and everything filed in support
• Documentation of your temporary need
• All of your recruitment evidence — postings, advertisements, tear sheets, and your contact with former U.S. workers along with their responses
• The recruitment report, and the resumes and contact information behind it
• Every U.S. applicant you contacted, with a written and lawful reason for each rejection
• Payroll showing earnings, hours offered, hours worked, and work locations
• Transportation and subsistence reimbursement records
• Pay stubs exactly as they went to workers
• Written contracts with any agent or foreign recruiter, including the required prohibition on charging workers fees
• Notices of worker separation filed with OFLC
• Proof of workers' compensation coverage, for H-2A
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If a letter shows up

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1. Write the deadline on the front page. Count thirty calendar days from the date of issue, put it on a calendar, and set a reminder a week ahead of it.
2. Call us and call your attorney the same day, not the week the response is due. If the letter came from Wage and Hour, bring counsel in before you produce anything at all.
3. Produce what exists. Do not build documents after the fact. Recreating a record and presenting it as contemporaneous turns a wage question into something far worse. If a record does not exist, say so.
4. Answer exactly what was asked. An audit response is not the place for volume; extra material invites extra questions.
5. Keep a copy of everything you send, in a way that proves the date you sent it.
6. If the deadline is genuinely out of reach, ask early. A request on day ten lands very differently than silence until day thirty-one.

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We would rather do this with you

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Audits are survivable, and most of them close quietly without consequence. What turns a routine audit into a debarment is almost never the underlying conduct. It is a deadline that passed, a file that was never built, or a recruitment report that nobody can stand behind.

All of which is to say the work that protects you happens months before the letter, in the ordinary middle of a season, and it is exactly the kind of work we would rather be doing alongside you than reconstructing under a clock. If you want a set of eyes on your recordkeeping before the Department puts theirs on it, reach out. That is a far better conversation to have, and it is one we are always glad to take.

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