Amends the Immigration and Nationality Act with respect to a returning H-2B alien (temporary nonagricultural worker) who has already been counted toward the annual numerical limitation. Exempts such an alien from that limitation unless he or she leaves the United States for more than one year and has not been counted toward the limitation in any of the three years before his or her departure.
Sets forth H-2B employer requirements regarding: (1) petitions, (2) transportation costs, (3) displacement of U.S. workers, (4) wages, (5) housing, and (6) an incentive for an employer to report absconding H-2B workers.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4238 Introduced in House (IH)]
113th CONGRESS
2d Session
H. R. 4238
To amend the Immigration and Nationality Act to provide for
requirements for employers of H-2B nonimmigrants, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 13, 2014
Mr. Harris introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to provide for
requirements for employers of H-2B nonimmigrants, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. H-2B NUMERICAL LIMITATIONS.
(a) In General.--Section 214(g)(9)(A) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended to read as follows:
``(A)(i) Except as provided in clause (ii), and
subject to subparagraphs (B) and (C), an alien who has
already been counted toward the numerical limitation of
paragraph (1)(B) shall not again be counted toward such
limitation. Such an alien shall be considered a
returning worker.
``(ii) An alien who has already been counted toward
the numerical limitation of paragraph (1)(B) shall
again be counted toward such limitation if such alien
departs the United States for a period of time that is
greater than one year, and has not been counted toward
such limitation in any of the 3 years prior to such
departure.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect as if enacted on January 1, 2013.
SEC. 2. ADDITIONAL REQUIREMENTS FOR H-2B NONIMMIGRANT EMPLOYERS.
(a) In General.--Chapter 2 of title II of the Immigration and
Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after
section 218 the following:
``SEC. 218A. REQUIREMENTS FOR H-2B EMPLOYERS.
``(a) Petition Process.--
``(1) In general.--An employer who seeks to employ an H-2B
nonimmigrant shall submit a petition to the Secretary of
Homeland Security in accordance with this subsection.
``(2) Contents.--A petition submitted under paragraph (1)
shall include each of the following:
``(A) The number of named and unnamed H-2B
nonimmigrants the employer is seeking to employ during
the applicable period of employment, and the
anticipated dates of entry (which may be staggered).
``(B) The geographic area of intended employment
for the H-2B nonimmigrants, except that for itinerant
industries that do not operate in a single fixed-site
location, an employer may provide a list of anticipated
work locations, which--
``(i) may include an anticipated itinerary;
and
``(ii) may be subsequently amended by the
employer, with notice to the Secretary of
Homeland Security.
``(C) The anticipated period during which such
employees will be needed, including expected beginning
and ending dates.
``(D) The written disclosure of employment terms
and conditions which will be provided to the proposed
H-2B nonimmigrant beneficiary of the petition before
the date on which the H-2B nonimmigrant files a visa
application.
``(E) Evidence that the employer made efforts to
recruit available, qualified, willing, and able United
States workers for any position for which the employer
seeks an H-2B nonimmigrant worker, which the employer
shall be deemed to have satisfied if the employer--
``(i) not later than 60 days before the
employer's date of need for an H-2B
nonimmigrant, submits the written disclosure of
employment terms and conditions for such worker
to the local office of the State workforce
agency where the job is located, or in the case
of an itinerant employer, where the job is to
begin, and authorizes the posting of the
written disclosure on the appropriate
Department of Labor Electronic Job Registry for
a period of 45 days, except that nothing in
this clause shall require the employer to file
an interstate job order under section 653, of
title 20, Code of Federal Regulations; and
``(ii) keeps a record of all eligible,
able, willing, and qualified United States
workers who apply for employment with the
employer for the job for which an H-2B
nonimmigrant is sought.
``(3) Review.--
``(A) In general.--The Secretary of Homeland
Security shall establish a procedure to process
petitions filed under this subsection, and shall review
each petition submitted by an employer under this
subsection for completeness or obvious inaccuracies.
``(B) Acceptance of petitions.--Not later than 7
days after an employer files a petition, the Secretary
of Homeland Security shall--
``(i) accept the petition unless the
Secretary determines that the petition is
incomplete or obviously inaccurate;
``(ii) submit to the petitioner notice of
acceptance or non-acceptance of the petition
using electronic or other means assuring
expedited delivery; and
``(iii) in the case of an accepted
petition, submit to the United States consulate
notice of acceptance of the petition using
electronic or other means assuring expedited
delivery, if the petitioner has indicated that
the alien beneficiary or beneficiaries will
apply for a visa to the United States at such
consulate.
``(4) Number of positions not reduced by hiring united
states worker.--The Secretary of Homeland Security may not
reduce the number of positions that the Secretary accepts for
an employer pursuant to a petition under this subsection
because the employer hires a United States worker before date
on which the employer indicated it needed workers on the
petition the employer submitted under this subsection.
``(b) Transportation Costs.--
``(1) Transportation to the place of employment.--Not later
than the date on which an H-2B nonimmigrant completes 50
percent of the work period set forth in the petition, an
employer who hires an H-2B nonimmigrant shall reimburse the H-
2B nonimmigrant for the cost of transportation of the most
economic and reasonable common carrier, including documented
and reasonable subsistence costs during the period of travel,
for that H-2B nonimmigrant, from the United States consulate
issuing the visa to the H-2B nonimmigrant or previous worksite
in the United States, if any, to the place of such
nonimmigrant's employment, unless the H-2B nonimmigrant has
been so reimbursed by another employer.
``(2) Transportation from the place of employment.--If an
H-2B nonimmigrant completes the work period set forth in the
petition, and is not traveling to another worksite in the
United States, not later than the time the H-2B nonimmigrant
departs from the worksite, the employer who hired an H-2B
nonimmigrant for that work period shall pay for the cost of
transportation of the most economic and reasonable common
carrier, including an allowance for reasonable subsistence
costs during the period of travel, for that H-2B nonimmigrant,
from the place of employment to the United States consulate
that issued the visa to the H-2B nonimmigrant.
``(c) No Displacement of United States Workers.--
``(1) In general.--An employer may not displace a United
States worker employed by the employer, other than for good
cause, during the period of employment of the H-2B nonimmigrant
and for a period of 30 days preceding such period in the
occupation and at the location of employment for which the
employer seeks to employ an H-2B nonimmigrant.
``(2) Labor dispute.--An employer may not employ an H-2B
nonimmigrant for a specific job for which the employer is
requesting an H-2B nonimmigrant because the former occupant of
the job is on strike or being locked out in the course of a
labor dispute.
``(d) Wages.--The wages to be paid to H-2B nonimmigrants shall be
the greater of--
``(1) the actual wage level paid by the employer to other
employees with similar experience and qualifications for such
position in the same location; or
``(2) the prevailing wage level for the occupational
classification of the position in the geographic area in which
the H-2B nonimmigrant will be employed, based on the best
information available at the time of filing the petition.
``(e) Housing.--An employer is not required to provide housing or a
housing allowance to an H-2B nonimmigrant employee. If an employer does
provide housing or a housing allowance to an H-2B nonimmigrant
employee, the employer may take a wage deduction or credit in an amount
that is equal to the fair value of such housing in accordance with the
Fair Labor Standards Act of 1938.
``(f) Incentive for an Employer To Report an Absconding H-2B
Nonimmigrant Employee.--If an H-2B nonimmigrant terminates employment
prior to the end of the work period set forth in the job order, and the
employer provides timely notice of this termination to the Secretary of
Homeland Security, the Secretary of Homeland Security shall promptly
notify the Secretary of State, and the Secretary of State shall make
available to the employer one additional visa for each such terminating
nonimmigrant in order for the employer to hire a replacement H-2B
nonimmigrant for the same job opportunity without filing an additional
petition.
``(g) Definitions.--In this section, the following definitions
apply:
``(1) The term `H-2B nonimmigrant' means an alien admitted
to the United States pursuant to section 101(a)(15)(H)(ii)(B).
``(2) The term `United States worker' means an employee
who--
``(A) is a citizen or national of the United
States;
``(B) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207 of this title, is granted asylum under
section 208, or is an immigrant otherwise authorized,
by this Act or by the Secretary of Homeland Security,
to be employed; or
``(C) an individual who is not an unauthorized
alien (as defined in section 274A(h)(3)) with respect
to the proposed occupation of the H-2B nonimmigrant.
``(3) The term `best information available', with respect
to determining the prevailing wage for a position, means--
``(A) a controlling collective bargaining
agreement, where the employer is a signatory to a
collective bargaining agreement that sets wages for
work performed by H-2B nonimmigrants;
``(B) if there is no controlling collective
bargaining agreement as set forth in subparagraph (A),
the local, State, or Federal prevailing wage laws or
ordinances, for any time period during which the H-2B
nonimmigrant performs work on a project for which
payment of such wages is required by such laws or
ordinances, and the employer has signed a contract
agreeing to pay such wages on that project; or
``(C) if there is no controlling collective
bargaining agreement as set forth in subparagraph (A)
and the H-2B nonimmigrant is not performing work
governed by a prevailing wage law or ordinance as set
forth in subparagraph (B)--
``(i) the wage level commensurate with the
experience, training, and supervision required
for the job based on Bureau of Labor Statistics
data; or
``(ii) a legitimate private wage survey of
the wages paid for such positions in the
geographic area in which the H-2B nonimmigrant
will be employed.
``(4) The term `legitimate private wage survey' means, in
the case of a petition under subsection (a), a survey of wages
by an entity other than the Federal Government where--
``(A) the data has been collected during the 2-year
period immediately preceding the date of the petition;
``(B) if a published survey, the survey has been
published during the 2-year period immediately
preceding the date of the petition;
``(C) the employer job description is similar to
the survey job description;
``(D) the survey is across industries that employ
workers in the occupation;
``(E) the wage determination is based on a weighted
or straight average of the relevant wages or the median
of relevant wage levels; and
``(F) the survey identifies a statistically valid
methodology that was used to collect the data.
``(h) Rule of Construction.--The benefits and wages provided to an
H-2B nonimmigrant, the services an H-2B nonimmigrant provides to the
employer, the employment opportunities afforded to an H-2B nonimmigrant
by the employer, including those employment opportunities that require
a United States worker or an H-2B nonimmigrant to travel or relocate in
order to accept or perform employment, and other terms or conditions of
the employment of an H-2B nonimmigrant provided for under this section
are for the mutual benefit of the H-2B nonimmigrant and the employer.
``(i) Exclusive Rulemaking Authority.--The Secretary of Homeland
Security shall have the exclusive authority to make rules to implement
this section.''.
(b) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act is amended by inserting after the item relating to
section 218 the following:
``218A. Requirements for H-2B Nonimmigrant Employers.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Immigration and Border Security.
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