H-2B Returning Worker Exception Act of 2021
This bill modifies the H-2B (temporary nonagricultural workers) nonimmigrant visa program, including by exempting certain workers from an annual numerical limit on such visas and requiring civil penalties for program violations.
Under this bill, if a worker seeking a H-2B visa has been counted toward the 66,000 annual cap on such visas in one of the three preceding fiscal years, that worker shall not be counted against the cap again.
Furthermore, the Department of Homeland Security (DHS) must impose a civil monetary penalty on an employer for (1) failing to meet requirements related to an H-2B visa petition, or (2) making a willful misrepresentation of material fact in such a petition.
DHS must also ensure the establishment of an electronic platform (1) for employers to submit and request approval of an H-2B petition, and (2) to act as a single point of access for applicants and the relevant government agencies. The Department of Labor must maintain a publicly available online database of all job orders by H-2B employers.
Furthermore, Labor may take certain actions to enforce program requirements, such as imposing penalties and seeking injunctions.
The bill provides statutory authority for the current practice of limiting the program to workers who are nationals of countries approved by DHS. DHS may make exceptions to this limitation in individual cases if it is in the U.S. interest to do so. DHS shall select approved countries based on various factors, such as the rate of overstay by H-2B visa holders from each country.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3897 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3897
To make improvements to the H-2B nonimmigrant worker program, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 15, 2021
Mr. Cuellar (for himself, Mr. Joyce of Ohio, Mr. Keating, Mr. Chabot,
Ms. Pingree, and Mr. Harris) introduced the following bill; which was
referred to the Committee on the Judiciary, and in addition to the
Committee on Education and Labor, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To make improvements to the H-2B nonimmigrant worker program, 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. SHORT TITLE.
This Act may be cited as the ``H-2B Returning Worker Exception Act
of 2021''.
SEC. 2. DEFINITIONS.
For purposes of this Act:
(1) The term ``H-2B'', when used with respect to a worker
or other individual, refers an alien admitted or provided
status as a nonimmigrant described in section
101(a)(15)H)(ii)(b) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(ii)(b)). Such term, when used with
respect to a petition, procedure, process, program, or visa,
refers to a petition, procedure, process, program, or visa
related to admission or provision of status under such section.
(2) The term ``job order'' means the document containing
the material terms and conditions of employment, including
obligations and assurances required under this Act or any other
law.
(3) The term ``United States worker'' means any employee
who is--
(A) a national of the United States (as defined in
section 101(a)(22) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(22))); or
(B) an alien lawfully admitted for permanent
residence, is admitted as a refugee under section 207
of such Act (8 U.S.C. 1157), is granted asylum under
section 208 of such Act (8 U.S.C. 1158), or is an
immigrant otherwise authorized by the immigration laws
(as defined in section 101(a)(17) of such Act (8 U.S.C.
1101(a)(17))) or the Secretary of Homeland Security to
be employed.
SEC. 3. H-2B CAP RELIEF.
(a) H-2B Numerical Limitations.--Section 214(g)(9)(A) of the
Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended--
(1) by striking ``fiscal year 2013, 2014, or 2015'' and
inserting ``1 of the 3 preceding fiscal years''; and
(2) by striking ``fiscal year 2016'' and inserting ``a
fiscal year''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect on October 1, 2021. If this section is enacted after such
date, the amendment made by subsection (a) shall take effect as if
enacted on such date.
SEC. 4. INCREASED SANCTIONS FOR WILLFUL MISREPRESENTATION OR FAILURE TO
MEET THE REQUIREMENTS FOR PETITIONING FOR AN H-2B WORKER.
Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184)
is amended--
(1) in subsection (c)(13)(B), by striking ``$150'' and
inserting ``$350''; and
(2) in subsection (c)(14)(A)(i), by striking ``may, in
addition to any other remedy authorized by law, impose such
administrative remedies (including civil monetary penalties in
an amount not to exceed $10,000 per violation)'' and inserting
``shall impose civil monetary penalties in an amount of not
less than $1,000 but not to exceed $10,000 per violation, in
addition to any other remedy authorized by law, and may impose
such other administrative remedies''.
SEC. 5. REDUCTION OF PAPERWORK BURDEN.
(a) Streamlined H-2B Platform.--
(1) In general.--Not later than 12 months after the date of
the enactment of this Act, the Secretary of Homeland Security,
in consultation with the Secretary of Labor, the Secretary of
State, and the Administrator of the United States Digital
Service, shall ensure the establishment of an electronic
platform through which employers may submit and request
approval of an H-2B petition. Such platform shall--
(A) serve as a single point of access for employers
to input all information and supporting documentation
required for obtaining labor certification from the
Secretary of Labor and the adjudication of the petition
by the Secretary of Homeland Security;
(B) serve as a single point of access for the
Secretary of Homeland Security, the Secretary of Labor,
the Secretary of State, and State workforce agencies
concurrently to perform their respective review and
adjudicatory responsibilities in the petition process;
(C) facilitate communication between employers and
agency adjudicators, including by allowing employers
to--
(i) receive and respond to notices of
deficiency and requests for information;
(ii) receive notices of approval and
denial; and
(iii) request reconsideration or appeal of
agency decisions; and
(D) provide information to the Secretary of State
and the Secretary of Homeland Security necessary for
the efficient and secure processing of H-2B visas and
applications for admission.
(2) Objectives.--In developing the platform described in
paragraph (1), the Secretary of Homeland Security, in
consultation with the Secretary of Labor, the Secretary of
State, and the Administrator of the United States Digital
Service, shall make an effort to streamline and improve the H-
2B process, including by--
(A) eliminating the need for employers to submit
duplicate information and documentation to multiple
agencies;
(B) reducing common petition errors, and otherwise
improving and expediting the processing of H-2B
petitions;
(C) ensuring compliance with H-2B program
requirements and the protection of the wages and
working conditions of workers; and
(D) eliminating unnecessary government waste.
(3) Enhancement of existing platform.--If the Secretary of
Homeland Security, the Secretary of Labor, the Secretary of
State, or the State workforce agencies already have an
electronic platform with respect to the H-2B process on the
date of the enactment of this Act, they shall enhance it as
necessary so as to ensure that adjudication of an H-2B petition
may be conducted electronically as specified in this section.
(b) Online Job Registry.--The Secretary of Labor shall maintain a
publicly-accessible online job registry and database of all job orders
submitted by H-2B employers. The registry and database shall--
(1) be searchable using relevant criteria, including the
types of jobs needed to be filled, the dates and locations of
need, and the employers named in the job order;
(2) provide an interface for workers in English, Spanish,
and any other language that the Secretary of Labor determines
to be appropriate; and
(3) provide for public access of job order certifications.
SEC. 6. WORKPLACE SAFETY.
(a) Worksite Safety and Compliance Plan.--If the employer is
seeking to employ an H-2B worker pursuant to this Act and the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), the employer
shall maintain an effective worksite safety and compliance plan to
ensure safety and reduce workplace illnesses, injuries and fatalities.
Such plan shall--
(1) be in writing in English and, to the extent necessary,
any language common to a significant portion of the workers if
they are not fluent in English; and
(2) be posted at a conspicuous location at the worksite and
provided to employees prior to the commencement of labor or
services.
(b) Contents of Plan.--The Secretary of Labor shall establish by
regulation the minimum requirements for the plan described in
subsection (a). Such plan shall include measures to--
(1) protect against sexual harassment and violence, resolve
complaints involving harassment or violence, and protect
against retaliation against workers reporting harassment or
violence; and
(2) contain other provisions necessary for ensuring
workplace safety.
SEC. 7. FOREIGN LABOR RECRUITING; PROHIBITION ON FEES.
(a) Foreign Labor Recruiting.--If an employer has engaged any
foreign labor contractor or recruiter (or any agent of such a foreign
labor contractor or recruiter) in the recruitment of H-2B workers, the
employer shall disclose the identity and geographic location of such
person or entity to the Secretary of Labor in accordance with the
regulations of the Secretary.
(b) Prohibition Against Employees Paying Fees.--Neither the
employer nor its agents shall seek or receive payment of any kind from
any worker for any activity related to the H-2B petition process,
including payment of the employer's attorneys' fees, application fees,
or recruitment costs. An employer and its agents may receive
reimbursement for costs that are the responsibility, and primarily for
the benefit, of the worker, such as government-required passport fees.
(c) Third Party Contracts.--The employer shall contractually forbid
any foreign labor contractor or recruiter (or any agent of a foreign
labor contractor or recruiter) who the employer engages, either
directly or indirectly, in the recruitment of H-2B workers to seek or
receive payments or other compensation from prospective employees. Upon
learning that a foreign labor contractor or recruiter has collected
such payments, the employer shall terminate any contracts with the
foreign labor contractor or recruiter.
SEC. 8. PROGRAM INTEGRITY MEASURES.
(a) Enforcement Authority.--With respect to the H-2B program, the
Secretary of Labor is authorized to take such actions against
employers, including imposing appropriate penalties and seeking
monetary and injunctive relief and specific performance of contractual
obligations, as may be necessary to ensure compliance with--
(1) the requirements of this Act and the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.); and
(2) the applicable terms and conditions of employment.
(b) Complaint Process.--
(1) Process.--With respect to the H-2B program, the
Secretary of Labor shall establish a process for the receipt,
investigation, and disposition of complaints alleging failure
of an employer to comply with--
(A) the requirements of this Act and the
Immigration and Nationality Act (8 U.S.C. 1101 et
seq.); and
(B) the applicable terms and conditions of
employment.
(2) Filing.--Any aggrieved person or organization,
including a bargaining representative, may file a complaint
referred to in paragraph (1) not later than 2 years after the
date of the conduct that is the subject of the complaint.
(3) Complaint not exclusive.--A complaint filed under this
subsection is not an exclusive remedy and the filing of such a
complaint does not waive any rights or remedies of the
aggrieved party under this law or other laws.
(4) Decision and remedies.--If the Secretary of Labor
finds, after notice and opportunity for a hearing, that the
employer failed to comply with the requirements of this Act,
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), or
the terms and conditions of employment, the Secretary of Labor
shall require payment of unpaid wages, unpaid benefits,
damages, and civil money penalties. The Secretary is also
authorized to impose other administrative remedies, including
disqualification of the employer from utilizing the H-2B
program for a period of up to 5 years in the event of willful
or multiple material violations. The Secretary is authorized to
permanently disqualify an employer from utilizing the H-2B
program upon a subsequent finding involving willful or multiple
material violations.
(5) Disposition of penalties.--To the extent provided in
advance in appropriations Acts, civil penalties collected under
this subsection shall be used by the Secretary of Labor for the
administration and enforcement of the provisions of this
section.
(6) Statutory construction.--Nothing in this subsection may
be construed as limiting the authority of the Secretary of
Labor to conduct an investigation in the absence of a
complaint.
(7) Retaliation prohibited.--It is a violation of this
subsection for any person to intimidate, threaten, restrain,
coerce, blacklist, discharge, or in any other manner
discriminate against, or to cause any person to intimidate,
threaten, restrain, coerce, blacklist, or in any manner
discriminate against, an employee, including a former employee
or an applicant for employment, because the employee--
(A) has disclosed information to the employer, or
to any other person, that the employee reasonably
believes evidences a violation of the immigration laws
relating to the H-2B program, or any rule or regulation
relating to such program;
(B) has filed a complaint concerning the employer's
compliance with the immigration laws relating to the H-
2B program, or any rule or regulation relating to such
program;
(C) cooperates or seeks to cooperate in an
investigation or other proceeding concerning the
employer's compliance with the immigration laws
relating to the H-2B program, or any rule or regulation
relating to such program; or
(D) has taken steps to exercise or assert any right
or protection under the provisions of this section, or
any rule or regulation pertaining to this section, or
any other relevant Federal, State, or local law.
(c) Interagency Communication.--The Secretary of Labor, in
consultation with the Secretary of Homeland Security, Secretary of
State and the Equal Employment Opportunity Commission, shall establish
mechanisms by which the agencies and their components share
information, including by public electronic means, regarding
complaints, studies, investigations, findings and remedies regarding
compliance by employers with the requirements of the H-2B program and
other employment-related laws and regulations.
SEC. 9. PROGRAM ELIGIBILITY.
(a) In General.--A petition filed by an employer under subsection
(c)(1) initially to grant an alien nonimmigrant status under section
101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)), or to extend or change to such status, may be
approved only for nationals of countries that the Secretary of Homeland
Security has designated as participating countries, with the
concurrence of the Secretary of State, in a notice published in the
Federal Register, taking into account for each such country factors,
including--
(1) the fraud rate relating to petitions under section
101(a)(15)(H)(ii) of such Act (8 U.S.C. 1101(a)(15)(H)(ii))
filed for by nationals of the country and visa applications
under such section filed by nationals of the country;
(2) the denial rate of visa applications under such section
101(a)(15)(H)(ii) filed by nationals of the country;
(3) the overstay rate of nationals of the country who were
admitted to the United States under such section
101(a)(15)(H)(ii);
(4) the number of nationals of the country who were
admitted to the United States under such section
101(a)(15)(H)(ii) and who were reported by their employers to--
(A) have failed to report to work within 5 workdays
of the employment start date on the petition or within
5 workdays of the date on which the worker is admitted
into the United States pursuant to the petition,
whichever is later; or
(B) have not reported for work for a period of 5
consecutive workdays without the consent of the
employer;
(5) the number of final and unexecuted orders of removal
against citizens, subjects, nationals, and residents of the
country; and
(6) such other factors as may serve the United States
interest.
(b) Limitation.--A country may not be included on the list
described in subsection (a) if the country denies or unreasonably
delays the repatriation of aliens who are subject to a final order of
removal and who are citizens, subjects, nationals or residents of that
country.
(c) Statistics.--The Secretary of Homeland Security shall include
in the notice described in subsection (a), for each country included in
the list of participating countries, the statistics referenced in
paragraphs (1) through (5) of that subsection, if available, for the
immediately preceding fiscal year.
(d) National From a Country Not on the List.--A national from a
country not on the list described in subsection (a) may be a
beneficiary of an approved petition under such section
101(a)(15)(H)(ii) upon the request of a petitioner or potential
petitioner, if the Secretary of Homeland Security, in his sole and
unreviewable discretion, determines that it is in the United States
interest for that alien to be a beneficiary of such petition.
Determination of such a United States interest will take into account
factors, including but not limited to--
(1) evidence from the petitioner demonstrating that a
worker with the required skills is not available from among
foreign workers from a country currently on the list described
in subsection (a);
(2) evidence that the beneficiary has been admitted to the
United States previously in status under such section
101(a)(15)(H)(ii);
(3) the potential for abuse, fraud, or other harm to the
integrity of the visa program under such section
101(a)(15)(H)(ii) through the potential admission of a
beneficiary from a country not currently on the list; and
(4) such other factors as may serve the United States
interest.
(e) Duration.--Once published, any designation of participating
countries pursuant to subsection (a) shall be effective for one year
after the date of publication in the Federal Register and shall be
without effect at the end of that one-year period.
SEC. 10. H-2B EMPLOYER NOTIFICATION REQUIREMENT.
(a) In General.--An employer of one or more H-2B workers shall,
within three business days, make electronic notification, in the manner
prescribed by the Secretary of Homeland Security, of the following
events:
(1) Such a worker fails to report to work within 5 workdays
of the employment start date on the petition or within 5
workdays of the date on which the worker is admitted into the
United States pursuant to the petition, whichever is later.
(2) The labor or services for which such a worker was hired
is completed more than 30 days earlier than the employment end
date stated on the petition.
(3) The employment of such a worker is terminated prior to
the completion of labor or services for which he or she was
hired.
(4) Such a worker has not reported for work for a period of
5 consecutive workdays without the consent of the employer.
(b) Evidence.--An employer shall retain evidence of a notification
described in subsection (a) and make it available for inspection by
officers of the Department of Homeland Security for a 1-year period
beginning on the date of the notification.
(c) Penalty.--The Secretary shall impose civil monetary penalties,
in an amount not less than $500 per violation and not to exceed $1,000
per violation, as the Secretary determines to be appropriate, for each
instance where the employer cannot demonstrate that it has complied
with the notification requirements, unless, in the case of an untimely
notification, the employer demonstrates with such notification that
good cause existed for the untimely notification, and the Secretary of
Homeland Security, in the Secretary's discretion, waives such penalty.
(d) Process.--If the Secretary has determined that an employer has
violated the notification requirements in subsection (a), the employer
shall be given written notice and 30 days to reply before being given
written notice of the assessment of the penalty.
(e) Failure To Pay Penalty.--If a penalty described in subsection
(c) is not paid within 10 days of assessment, no nonimmigrant or
immigrant petition may be processed for that employer, nor may that
employer continue to employ nonimmigrants, until such penalty is paid.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal year 2022 and
each fiscal year thereafter such sums as may be necessary for the
purposes of--
(1) recruiting United States workers for labor or services
which might otherwise be performed by H-2B workers, including
by ensuring that State workforce agencies are sufficiently
funded to fulfill their functions under the H-2B program;
(2) enabling the Secretary of Labor to make determinations
and certifications under the H-2B program in accordance with
this Act and the Immigration and Nationality Act (8 U.S.C. 1101
et seq.), including the operation of the publicly-accessible
online job registry and database of job orders described in
section 5(b) of this Act; and
(3) monitoring the terms and conditions under which H-2B
workers (and United States workers employed by the same
employers) are employed in the United States.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Immigration and Citizenship.
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