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On April 26, 2012, the Temporary Non-agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented.

The Office of Management and Budget has approved the Department's request to extend the ETA Form 9142, Appendices A.2 and B.1 and associated instructions which were previously set to expire on April 30, 2012. The new expiration date for these forms is October 31, 2012.

As of the date of this announcement, future H-2A applications should be filed using the extended ETA Form 9142 and Appendix A.2 which reflect the October 31, 2012 expiration date.

DOL page with revised Frequently Asked Questions on the Temporary Agricultural H-2A Program regarding Federal tax withholding applicable to H-2A workers available at OFLC website under the heading H-2A Program & subheading Job Offers, Obligations & Assurances/Rates of Pay.

What federal tax withholdings are applicable to H-2A workers?

Questions regarding the taxation and Federal withholding from H-2A workers fall under the jurisdiction of the Internal Revenue Service (IRS). IRS guidance states that foreign agricultural workers temporarily admitted into the United States on H-2A visas are exempt from Federal Unemployment Tax, U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H-2A visa. Additionally, IRS guidance states that compensation paid to H-2A workers for services performed in connection with the H-2A visa is not considered to be “wages” for purposes of Federal income tax withholding, and is therefore not subject to mandatory withholding.

The IRS requires an employer to begin backup withholding if the H-2A worker does not have a Social Security Number or Individual Taxpayer Identification Number and the aggregate annual payments made to the worker are $600 or more. For more information on Federal withholdings for H-2A workers, see the IRS website at http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html. Employers should consult the IRS website to ensure that the IRS has not updated their guidance in regards to this issue.

An H-2A worker may request voluntary Federal income tax withholding. Such a request must be evidenced by a signed form W-4 provided by the worker to the employer. Note: Only Federal income tax is to be withheld. Withholding for Social Security or Medicare is not permitted, and the employer may be held responsible for reimbursement of improperly withheld amounts (see below).

Since State income tax law varies, the employer should consult with the appropriate State tax authorities to determine whether the wages of H-2A workers are subject to state income taxes.

It is important to remember that the H-2A regulations at 20 CFR 655.122(m) and 655.122(p) require the H-2A employer to pay wages when due and to ensure that all wage payments to H-2A workers are received free and clear of any improper deductions. Wages either improperly withheld or withheld based on a voluntary agreement but not remitted to the appropriate agency may be considered improper deductions.

If Federal income tax or U.S. Social Security and Medicare taxes have been improperly withheld from H-2A workers and remitted to the appropriate government agency, the Wage and Hour Division will take into consideration employer reimbursement or assistance provided to the workers to recapture such amounts in determining violations and potential penalties. The employer can evidence reimbursement to H-2A workers and the employer may seek a refund of over reported amounts using Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund (see http://www.irs.gov/pub/irs-pdf/f941x.pdf). An alternate method exists in which the employer provides documented assistance to H-2A workers in completing Form 843, Claim for Refund and Request for Abatement (see www.irs.gov/pub/irs-pdf/f843.pdf); however, the IRS indicates that workers will need to provide copies of their W-2, H-2A visa, I-94 (indicating date of arrival/departure), and a statement indicating that the withheld taxes need to be returned (either from the employer or employee, who would indicate that this was requested of the employer but not provided).

Additionally, the National Taxpayer Advocate and Low Income Taxpayer Clinics are potential sources of targeted assistance to the worker regarding proper tax withholding, as indicated per http://www.irs.gov/advocate/index.html?portlet=110

[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Rules and Regulations]
[Pages 28764-28765]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11859]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB58

The OFLC is pleased to announce the expansion of the H-2A Ombudsman Program to include the H-2B Program community. The Ombudsman Program is here to facilitate the fair and equitable resolution of concerns that arise within the H-2A and H-2B filing communities, by conducting independent and impartial inquiries into issues related to the administration of these programs.

In a continued effort to assist H-2A employers with preparing their agricultural job orders and applications, the Department has revised the H-2A Filing Tips to alert employers to common filing mistakes which can delay the processing of an H-2A application. The H-2A Filing Tips may be found on the H-2A program page under Factsheets and Filing Tips.