Effective March 26, 2009, the Department of Labor has withdrawn its interpretation that the Fair Labor Standards Act does not require employers to reimburse workers under the H–2A and H–2B nonimmigrant visa programs for relocation expenses, even when such costs result in the workers being paid less than the minimum wage.

FLSA regulations prohibit an employer from either deducting from an employee’s pay or imposing an expense upon an employee for costs that are primarily for the benefit of the employer, if to do so results in an employee receiving less than the minimum wage. According to the DOL, during the first workweek, workers must be compensated at a rate that would bring their wages up to minimum wage, taking into account pre-employment expenses that primarily benefit the employer.

In December 2008, the DOL published final regulations which interpreted that the inbound travel expenses of H–2A and H-2B workers do not primarily benefit their employers. This interpretation is now withdrawn, and the DOL says that it “may not be relied upon as a statement of agency policy.”