Admission of H–2C nonimmigrant workers

(a)

Admission of H–2C nonimmigrant workers

(1)

In general

Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by adding at the end the following:

219A.

Admission of H–2C nonimmigrant workers

(a)

Definitions

In this section:(1)

Department

Except as otherwise specifically provided, the term Department means the Department of Homeland Security.(2)

Eligible occupation

The term eligible occupation means an eligible occupation described in subsection (e)(3).(3)

Employer

(A)

In general

The term employer means any person or operational unit of a for-profit or nonprofit entity that is operating independently in a county or metropolitan statistical area and who hires an individual for employment in the United States.(B)

Treatment of single employer

For purposes of determining the number of employees or United States workers employed by an employer, a single entity shall be treated as 1 employer.(4)

Enduring job opening

The term enduring job opening refers to a job opening that—(A)remains unfilled on the first day of the month for 3 consecutive months; or(B)is unfilled for more than 60 days in a period of 90 consecutive days.(5)

Full employment area

The term full employment area refers to any county or metropolitan statistical area where the unemployment rate during the fiscal quarter during which an application is submitted by an employer is equal to or less than 4.9 percent.(6)

H–2C nonimmigrant

The term H–2C nonimmigrant means an alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(ii)(c).(7)

H–2C nonimmigrant status

The term H–2C nonimmigrant status means status granted to an alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(ii)(c).(8)

Initial H–2C nonimmigrant

The term initial H–2C nonimmigrant means an alien—(A)issued an H–2C-nonimmigrant visa by the Secretary of State authorizing the admission of that alien to the United States for the first time as an H–2C nonimmigrant; and(B)does not include an alien on or after the date the alien commences employment in H–2C nonimmigrant status with a registered employer in a registered position.(9)

Lay off

The term lay off—(A)means to cause a worker to lose employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; and(B)does not include any situation in which the worker is offered and refused to accept, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged.(10)

Metropolitan statistical area

The term metropolitan statistical area means a geographic area designated as a metropolitan statistical area by the Director of the Office of Management and Budget.(11)

Registered employer

The term registered employer means an operational business unit of a nonagricultural employer that is operating independently in a full employment area and is designated by the Secretary as a registered employer under subsection (d).(12)

Registered position

The term registered position means a position designated as a registered position under subsection (e).(13)

Scarcity recruitment fee

The term scarcity recruitment fee refers to a payment equal to 5 percent of an H–2C immigrant’s estimated annual compensation that a registered employer remits to the Secretary as part of the employer’s application for a registered position in order to demonstrate said employer’s inability to recruit a United States worker for the position.(14)

Secretary

Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security.(15)

Single entity

The term single entity means any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986.(16)

Small business

The term small business means an employer that employs 50 or fewer full-time equivalent employees.(17)

United states worker

The term United States worker means an individual who is—(A)lawfully employed or seeking employment in the United States; and(B)(i)a national of the United States;(ii)an alien lawfully admitted for permanent residence; or(iii)any other alien authorized to work in the United States with no limitation as to the alien’s employer.(18)

Zone 1 occupation

The term zone 1 occupation means an occupation that requires little or no preparation and is classified as a zone 1 occupation on—(A)the Occupational Information Network Database (O*NET) on the date of the enactment of this section; or(B)such Database or a similar successor database, as designated by the Secretary of Labor, after the date of the enactment of this section.(19)

Zone 2 occupation

The term zone 2 occupation means an occupation that requires some preparation and is classified as a zone 2 occupation on—(A)the Occupational Information Network Database (O*NET) on the date of the enactment of this section; or(B)such Database or a similar successor database, as designated by the Secretary of Labor, after the date of the enactment of this section.(20)

Zone 3 occupation

The term zone 3 occupation means an occupation that requires medium preparation and is classified as a zone 3 occupation on—(A)the Occupational Information Network Database (O*NET) on the date of the enactment of this section; or(B)such Database or a similar successor database, as designated by the Secretary of Labor, after the date of the enactment of this section.(b)

Admission into the United States

An alien is eligible to be admitted as an H–2C nonimmigrant if the alien—(1)has received an offer of employment from a registered employer; and(2)otherwise meets the requirements of this section.(c)

H–2C nonimmigrants

(1)

Application

An alien seeking to be an H–2C nonimmigrant shall submit an application to the Secretary.(2)

Attestation

Each application submitted under paragraph (1) for an alien shall include an attestation as follows:(A)That the H–2C nonimmigrant will report to such nonimmigrant’s initial employment in a registered position not later than 14 days after such nonimmigrant is admitted.(B)That the H–2C nonimmigrant will accept only registered positions and abide by all terms and conditions of H–2C nonimmigrant status.(C)That the H–2C nonimmigrant will not bring a family member to the United States in violation of any provision of this Act.(3)

Application review

The Secretary shall adjudicate an application submitted under paragraph (1) not later than 45 days after the receipt of such application.(4)

Fees

(A)

In general

Each application submitted under paragraph (1) shall include a fee in the amount determined by the Secretary adjudicating such application to be necessary to cover the cost of adjudicating the application within 45 days.(B)

Premium processing

The Secretary and the Secretary of State shall create an expedited process to review an application submitted under paragraph (1) for an additional fee, in an amount determined by such Secretaries.(5)

Eligibility for H–2C nonimmigrant status

No alien may be admitted as an H–2C nonimmigrant if the alien—(A)is inadmissible under this Act;(B)fails to pass a criminal background check or a national security background check;(C)is from a country determined by the Secretary of State to have repeatedly provided support for acts of international terrorism pursuant to—(i)section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or successor statute);(ii)section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)); or(iii)section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)); or(D)has not received an offer of employment from a registered employer in a registered position.(6)

Employment

(A)

Initial employment

(i)

Reporting to employment

An initial H–2C nonimmigrant shall report to such nonimmigrant’s initial employment in a registered position not later than 14 days after such nonimmigrant is admitted to the United States.(ii)

Reporting to the Secretary

An initial H–2C nonimmigrant shall maintain contact with the Secretary after such H–2C nonimmigrant is admitted to the United States but before reporting to the initial employment at an interval that is determined by the Secretary, but not less than every 7 days.(B)

Periods of unemployment

An H–2C nonimmigrant—(i)may be unemployed for a period of not more than 45 consecutive days of presence in the United States; and(ii)shall depart the United States if such H–2C nonimmigrant is unable to obtain employment during such period.(7)

Initial period of authorized presence

An H–2C nonimmigrant may be physically present in the United States for an initial period of not more than a total of 36 months.(8)

Renewal

An H–2C nonimmigrant may renew his or her H–2C nonimmigrant status for not more than 2 additional consecutive periods of authorized presence.(9)

Travel

An H–2C nonimmigrant may travel outside the United States and be readmitted to the United States.(10)

Penalties

If an H–2C nonimmigrant fails to comply with any other term or condition of H–2C nonimmigrant status or remains in the United States for 10 days after the date of the expiration of his or her period of authorized presence without status under the immigration laws, then the Secretary shall mandatorily—(A)subject such nonimmigrant to the revocation of employment authorization; and(B)initiate and pursue removal under section 237(a)(1)(C)(i).(d)

Registered employer

(1)

Application

An employer seeking to be a registered employer may submit an application to the Secretary. Each such application shall include the following:(A)Documentation to establish that the employer is a bona fide employer operating in a full employment area.(B)Evidence that the employer is current in payment of payroll taxes.(C)The employer’s Federal tax identification number or employer identification number issued by the Internal Revenue Service.(D)The number of H–2C nonimmigrants the employer estimates the employer will seek to employ annually.(2)

Referral for fraud investigation

The Secretary may refer an application submitted under paragraph (1) or subsection (e)(1)(A) to the Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services for potential investigation if there is evidence of fraud particular to such application.(3)

Ineligible employers

(A)

In general

Notwithstanding any other applicable penalties under law, the Secretary shall deny an employer’s application to be a registered employer if the Secretary determines, after notice and an opportunity for a hearing, that the employer submitting such application—(i)has, in such application (including any attestations required by law)—(I)knowingly misrepresented a material fact;(II)knowingly made a fraudulent statement; or(III)knowingly failed to comply with the terms of such attestations;(ii)failed to cooperate in the process established pursuant to subsection (m);(iii)has been convicted of an offense under chapter 77 of title 18, United States Code, any conspiracy to commit such an offense, or any human trafficking offense under State or territorial law;(iv)has, within 2 years prior to the date of the application—(I)been finally adjudicated as having committed any hazardous occupation orders violation resulting in injury or death under the child labor provisions contained in section 12 of the Fair Labor Standards Act of 1938 (29 U.S.C. 212) or any pertinent regulation;(II)received a final adjudication assessing a civil monetary penalty for a pattern and practice of willful violation of the minimum wage provisions of section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206); or(III)received a final adjudication assessing a civil monetary penalty for a pattern and practice of willful violation of the overtime provisions of section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) or any regulations thereunder; or(v)has, within 2 years prior to the date of application, received a final adjudication for a willful violation involving injury or death—(I)of section 5 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654);(II)of any standard, rule, or order promulgated pursuant to section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655); or(III)of a plan approved under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667).(B)

Length of ineligibility

(i)

Temporary ineligibility

An employer described in clause (i) or (ii) of subparagraph (A) whose application is denied shall not be eligible to be a registered employer for a period that is not less than 1 year or a time period determined by the Secretary, whichever is greater, and not more than 2 years.(ii)

Permanent ineligibility

An employer described in clause (iii), (iv), or (v) of subparagraph (A) shall be permanently ineligible to be a registered employer.(4)

Term of registration

The Secretary may approve an application only for a term, beginning on the date of approval, and ending on the later of—(A)the date that is 3 years thereafter; or(B)the date that is 3 months after the date on which the employer has no registered positions.(5)

Renewal

(A)

In general

An employer may submit an application to renew the employer’s status as a registered employer for additional periods under paragraph (4).(B)

Attestation

An application for renewal under subparagraph (A) shall include an attestation described in paragraph (7)(A).(6)

Fee

At the time an employer’s application to be a registered employer is approved, such employer shall pay a fee of $500, and shall pay such fee every 3 years thereafter while the employer remains a registered employer.(7)

Continued eligibility

(A)

Attestation

Each registered employer shall attest to the Secretary each year—(i)that the registered employer has provided the wages and working conditions the registered employer agreed to provide to its H–2C nonimmigrant employees under paragraph (5)(B);(ii)that the registered employer remains a bona fide employer operating in a full employment area; and(iii)to the number of H–2C nonimmigrants the employer employed the prior year.(B)

No longer a full employment area

An employer is ineligible to file an application for a new permit or to renew an existing permit if the unemployment rate in the county or metropolitan statistical area where the business said employer operates rises so that the area is no longer designated as a full employment area.(8)

Notice of failure of H–2C nonimmigrant to appear

An employer shall inform the Secretary if an H–2C nonimmigrant does not appear for employment with the employer during the time period specified in subsection (c)(6)(A)(i).(e)

Registered positions

(1)

In general

(A)

Application

Each employer may submit with an application or renewal under subsection (d) for adjudication to the Secretary an application to designate a registered position for which the employer is seeking to hire an H–2C nonimmigrant at any time during the year without regard to the date the employer needs each position to be filled.(B)

Attestation

An application submitted under subparagraph (A) shall include a general description of each such position and an attestation to each of the following:(i)The number of full-time equivalent employees of the employer.(ii)The occupational category, as classified by Bureau of Labor Statistics, for which each registered position is sought.(iii)That the wages to be paid to H–2C nonimmigrants employed by the employer in each registered position will be the greater of—(I)the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or(II)the prevailing wage level for the occupational classification of the position in the metropolitan statistical area of the employment, based on the best information available as of the time of filing the application.(iv)That the employer has carried out the recruiting activities required by paragraph (2)(B).(v)That, subject to subparagraphs (B) and (C) of paragraph (2)—(I)there is no equally or better qualified United States worker who has applied for the position and who is ready, willing, and able to fill such position; or(II)such position qualifies as an enduring job opening.(vi)That there is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the H–2C nonimmigrant will be employed. If such strike, lockout, or work stoppage occurs following submission of the application, the employer will provide notification in accordance with all applicable regulations.(vii)(I)The employer has not laid off and will not lay off a United States worker during the period beginning 45 days prior to and ending 45 days after the date the employer files an application for designation of a position for which the H–2C nonimmigrant is sought or hires such H–2C nonimmigrant, unless the employer has made a reasonable effort to contact and offer such United States worker the position, or documented the legitimate reasons that such United States worker is not qualified or available for the position.(II)A United States worker is not laid off for purposes of this clause if—(aa)at the time such worker’s employment is terminated, such worker is not employed in the same occupation and in the same metropolitan statistical area where the registered position is located. A United States worker is not laid off for purposes of this clause if, in the 45 calendar days before the hiring of an H–2C nonimmigrant, the employer adds another United States worker so that the total number of United States workers employed by such employer in the same occupation as such H–2C nonimmigrant and in the same metropolitan statistical area where the registered position is located has not decreased; or(bb)in the 45 calendar days after the hiring of an H–2C nonimmigrant, the employer adds another United States worker within 5 business days after laying off a United States worker so that the total number of United States workers employed by such employer in the same occupation as such H–2C nonimmigrant and in the same metropolitan statistical area where the registered position is located has not decreased.(C)

Definitions

(i)

Best information available

In subparagraph (B)(iii)(II), the term best information available, with respect to determining the prevailing wage for a position, means—(I)a controlling collective bargaining agreement, to which the employer is a signatory and which sets wages for work performed by H–2C nonimmigrants;(II)if there is no controlling collective bargaining agreement as set forth in subclause (I), the local, State, or Federal prevailing wage laws or ordinances, for any time period during which the H–2C 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(III)if there is no controlling collective bargaining agreement as set forth in subclause (I) and the H–2C nonimmigrant is not performing work on a project governed by a prevailing wage law or ordinance as set forth in subclause (II)—(aa)the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or(bb)a legitimate private wage survey of the wages paid for such positions in the metropolitan statistical area.(ii)

Legitimate private wage survey

In this paragraph, the term legitimate private wage survey means, in the case of an application under subparagraph (A), a survey of wages by an entity other than the Federal Government—(I)for which the data has been collected during the 2-year period immediately preceding the date of the application;(II)that, if a published survey, has been published during the 2-year period immediately preceding the date of the application;(III)that is of the industry or occupation of intended employment;(IV)in which the employer job description is similar to the survey job description;(V)that is across industries that employ workers in the occupation;(VI)for which the wage determination is based on a weighted or straight average of the relevant wages, or another valid measure of central tendency determined by the Secretary of Labor of relevant wage levels; and(VII)that identifies a statistically valid methodology that was used to collect the data.(D)

Permit

The Secretary shall provide each registered employer whose application submitted under subparagraph (A) is approved with a permit that includes the number and description of such employer’s approved registered positions at the time of such approval.(E)

Registry of registered positions

(i)

Maintenance of registry

The Secretary shall develop and maintain a registry of registered positions.(ii)

Availability on website

Such registry shall be accessible on a website maintained by the Secretary.(iii)

Availability on State workforce agency websites

Each workforce agency of each State shall be linked to such registry.(iv)

Conditions of availability on website

(I)

Registered positions

Each registered position shall be included in the registry of registered positions maintained by the Secretary and shall remain available for viewing on such registry throughout the period of approval under paragraph (5).(II)

Availability and eligibility

The Secretary shall ensure that the registry indicates whether each registered position in the registry is filled or unfilled.(2)

Requirements

(A)

Eligible occupation

Each registered position shall be for a position in an eligible occupation as described in paragraph (3).(B)

Recruitment of united states workers

(i)

Requirements

A position may not be a registered position unless the registered employer—(I)advertises the position for a period of 30 days, including the wage range, location or locations, and proposed start date—(aa)on the Internet website maintained by the Secretary of Labor for the purpose of such advertising; and(bb)with the workforce agency of the State where the position will be located; and(II)except as provided for in subsection (f)(4)(A)(ii), carries out not less than 3 of the recruiting activities described in subparagraph (C).(ii)

Duration of advertising

The 30-day periods required by items (aa) and (bb) of clause (i)(I) may occur at the same time.(C)

Recruiting activities

Recruiting activities described in this subparagraph shall take place no earlier than 60 days before an employer files an application for a permit to hire an H–2C nonimmigrant and may be concurrent with the requirements of subsection (e)(2)(B). A recruiting activity is any of the following:(i)Advertising such position at a job fair.(ii)Advertising such position on the employer’s external website.(iii)Advertising such position on a job search Internet website.(iv)Advertising such position using a presentation or posting at a vocational school, career technical school, community college, high school, or other educational or training site.(v)Posting such position with a trade association.(vi)Utilizing a search firm to seek applicants for such position.(vii)Advertising such position through a recruitment program with a placement office at a vocational school, career technical school, community college, high school, or other educational or training site.(viii)Advertising such position with a local library, journal, or newspaper.(ix)Seeking a candidate for such position through an employee referral program with incentives.(x)Advertising such position on radio or television.(xi)Advertising such position through an advertising, posting, or presentation with a newspaper, Internet website, job fair, or community event targeted to constituencies designed to increase employee diversity.(xii)Advertising such position through a career day presentation at a local high school or community organization.(xiii)Providing in-house training for such position.(xiv)Providing third-party training for such position.(xv)Advertising such position through recruitment, educational, or other cooperative programs offered by the employer and a local economic development authority.(xvi)Advertising such position twice in a Sunday edition in a primary daily circulation newspaper.(3)

Eligible occupation

(A)

In general

An occupation is an eligible occupation if the occupation—(i)is a zone 1 occupation, a zone 2 occupation, or zone 3 occupation; and(ii)is not an excluded occupation under subparagraph (B).(B)

Occupations requiring college degrees

An occupation that is listed in the Occupational Outlook Handbook published by the Bureau of Labor Statistics (or similar successor publication) that is classified as requiring an individual with a bachelor’s degree or higher level of education may not be an eligible occupation.(C)

Publication

The Secretary of Labor shall publicize the eligible occupations, designated as zone 1 occupations, zone 2 occupations, or zone 3 occupations, on an ongoing basis on a publicly available Internet website.(4)

Filling of vacancies

If an H–2C nonimmigrant terminates employment in a registered position or is terminated from such employment by the registered employer, such employer may fill that vacancy by hiring an H–2C nonimmigrant other than an initial H–2C nonimmigrant.(5)

Period of approval

(A)

In general

Except as provided in subparagraph (B), a registered position shall be approved by the Secretary for a period that begins on the date of such approval and ends on the earliest of—(i)the date the employer’s status as a registered employer is terminated;(ii)3 years after the date of such approval;(iii)240 days after the date of such approval if such position has not been filled by an H–2C nonimmigrant at any point during such time; or(iv)upon termination of the registered position by the employer.(B)

Renewal

An approval under subparagraph (A) shall be renewed for not more than 2 additional periods at the request of the registered employer as provided in this subparagraph if such registered employer fulfills the requirements of paragraphs (1)(C) and (2).(C)

Renewing employer exemption

Renewals of registered positions by employers shall not be counted toward the limits established under paragraph (1)(A) or (2)(D) of subsection (f) or counted for the purposes of a numerical limitation under subparagraph (B) or (C) of subsection (f)(2).(D)

Secretary authority to terminate registered position

The Secretary shall terminate a registered position if the Secretary determines—(i)that an employer has purposefully allowed a registered position to be used for an alien to gain admission to the United States as an H–2C nonimmigrant with no intention of such alien working for such registered employer; or(ii)that there exists a pattern and practice of initial H–2C nonimmigrants failing to report in accordance with the time period specified in subsection (c)(6)(A)(i).(6)

Fees

(A)

Registration fee

(i)

In general

At the time an application to register a position is approved and after each renewal of such position, each registered employer shall pay a fee in an amount determined by the Secretary.(ii)

Use of fee

Except as otherwise provided in this section, a fee collected under clause (i) shall be used to fund any action to carry out this section, except for subsection (q) and subsection (p)(2).(B)

Prohibition on other fees

A registered employer may not be required to pay an additional fee other than any fees specified in this Act.(7)

Initial review of applications

(A)

In general

For applications filed and considered under paragraph (1)—(i)unless the Secretary determines that the application is incomplete, facially invalid, or obviously inaccurate, the Secretary, not later than 10 business days after the date on which such application was filed, shall either approve or reject the application and provide the applicant with notice of such action by means ensuring same or next day delivery; and(ii)if the Secretary determines that the application is incomplete, facially invalid, or obviously inaccurate, the Secretary shall—(I)not later than 10 business days after the date on which such application was filed, notify the applicant of the deficiencies to be corrected by means ensuring same or next day delivery; and(II)not later than 10 business days after receipt of the corrected application, approve or deny the application and provide the applicant with notice of such action by means ensuring same or next day delivery.(B)

Premium processing

The Secretary shall establish a process for expedited processing of applications under this section, subject to the payment of an additional fee, as determined by the Secretary.(C)

Fee reduction

The Secretary shall reduce the registration fee under paragraph (6) by 5 percent for each day the application is delayed beyond the required review periods under subparagraph (A).(8)

Expedited review

Not later than 1 year after the date of enactment of the Workforce for an Expanding Economy Act, the Secretary shall promulgate regulations to provide for an expedited procedure for the review of a denial of an application under this section by the Secretary.(f)

Numerical limitation

(1)

Registered positions

Subject to paragraphs (3), (4), and (5), the maximum number of registered positions that may be approved by the Secretary for a fiscal year is as follows:(A)For the first full fiscal year after the effective date of the Workforce for an Expanding Economy Act that aliens are admitted as H–2C nonimmigrants, 65,000.(B)For each fiscal year after that first fiscal year, the level calculated for that fiscal year under paragraph (2).(2)

Subsequent fiscal years

(A)

Definition of current fiscal year and preceding fiscal year

In this paragraph:(i)

Current fiscal year

The term current fiscal year means the fiscal year for which the calculation of the numerical limits under this paragraph is being performed.(ii)

Preceding fiscal year

The term preceding fiscal year means the fiscal year immediately preceding the current fiscal year.(B)

Numerical limitation

Subject to subparagraph (D), the maximum number of registered positions that may be approved by the Secretary for a fiscal year after the first fiscal year referred to in paragraph (1)(A) shall be equal to—(i)65,000 for the first fiscal year in which the program is implemented; and(ii)in any subsequent fiscal year—(I)if the total number of registered positions allocated for that fiscal year are allotted within the first quarter of that fiscal year, then an additional 20 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 20 percent of the original allocated amount in the prior fiscal year;(II)if the total number of registered positions allocated for that fiscal year are allotted within the second quarter of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 15 percent of the original allocated amount in the prior fiscal year;(III)if the total number of registered positions allocated for that fiscal year are allotted within the third quarter of that fiscal year, then an additional 10 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year;(IV)if the total number of registered positions allocated for that fiscal year are allotted within the last quarter of that fiscal year, then the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year; and(V)with the exception of the first subsequent fiscal year to the fiscal year in which the program is implemented, if fewer registered positions were allotted the previous fiscal year than the number of registered positions allocated for that year and the reason was not due to processing delays or delays in promulgating regulations, then the allocated amount for the following fiscal year shall decrease by 10 percent of the allocated amount in the prior fiscal year.(C)

Minimum and maximum levels

Notwithstanding the number of registered positions calculated under subparagraph (B), the number of registered positions made available for a fiscal year under this paragraph may not be less than 45,000 or more than 85,000.(D)

Subsequent allocations

(i)

In general

Subject to the limitations under subparagraph (C)—(I)the maximum number of registered positions available for the current fiscal year calculated under subparagraph (B) may be increased for the 6-month period beginning on the first day of the current fiscal year by 5 percent of the maximum number of registered positions allocated for that 6-month period under subsection (h)(1), if all such allocated registered positions have been approved prior to the 6th month of that 6-month period; and(II)the maximum number of registered positions available for the current fiscal year calculated under subparagraph (B) may be increased for the 6-month period ending on the last day of the current fiscal year by 5 percent of the maximum number of registered positions allocated for that 6-month period under subsection (h)(2), if all such allocated registered positions have been approved prior to the 6th month of that 6-month period.(ii)

Lottery allocation

Additional registered positions made available under clause (i) during a 6-month period shall be allocated 3 weeks prior to the last day of that 6-month period by lottery among registered employers that submit applications in accordance with this section for such positions.(3)

Special allocations of registered positions

(A)

Authority to make available

In addition to the number of registered positions made available for a fiscal year under paragraphs (1) and (3), the Secretary shall make additional registered positions available, up to the maximum number of registered positions specified in paragraph (3)(C), for the fiscal year for a specific registered employer as described in this paragraph, if—(i)(I)the maximum number of registered positions available under paragraph (2)(B) have been approved for the fiscal year and none remain available for allocation; or(II)such registered employer is located in a full employment area;(ii)such registered employer has paid a scarcity recruitment fee; or(iii)in the case of registered employers with 50 or fewer employees, such registered employer has carried out not less than 7 of the recruiting activities described in subsection (e)(2)(C) and posts the position, including the wage range, location, and initial date of employment, for not less than 30 days—(I)on the Internet website maintained by the Secretary of Labor for the purpose of such advertising; and(II)with the workforce agency of the State where the position will be located.(B)

Recruitment

(i)

Limitation for initial H–2C nonimmigrants

Except as provided in clause (ii), an initial H–2C nonimmigrant may only enter the United States for initial employment pursuant to a special allocation under this paragraph if the registered employer has carried out at least 7 of the recruiting activities described in subsection (e)(2)(C) or has paid a scarcity recruitment fee.(ii)

Exception

A registered employer may register a position pursuant to a special allocation under this paragraph by conducting at least 3 of the recruiting activities described in subsection (e)(2)(C), however a position registered pursuant to this clause may not be filled by an initial H–2C nonimmigrant.(iii)

Advertising the position

(I)

Requirement

Any registered employer registering any position under the special allocation authority shall post the position, including the wage range, location or locations, and initial date of employment, for not less than 30 days—(aa)on the Internet website maintained by the Secretary of Labor for the purpose of such advertising; and(bb)with the workforce agency of the State where the position will be located.(II)

Timing

The 30-day periods required by items (aa) and (bb) of subclause (I) may occur at the same time.(4)

Unfilled positions

If an H–2C nonimmigrant has not been employed in registered position during any portion of the 240-day period after the date of the approval of the position, the registered position shall be terminated and added to the number of positions made available for the next 6-month allocation period under paragraph (1) or (2) of subsection (i).(g)

Federal public benefits

(1)

In general

H–2C nonimmigrants—(A)are not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986;(B)shall be subject to the rules applicable to individuals who are not lawfully present as set forth in subsection (e) of such section; and(C)shall not be allowed any credit under section 24 or 32 of the Internal Revenue Code of 1986, and, in the case of a joint return, no credit shall be allowed under either such section if both spouses are H–2C nonimmigrants.(2)

Employer fee

For purposes of subsections (a)(2), (b)(1)(B), and (c)(2)(A) of section 4980H of the Internal Revenue Code of 1986, the H–2C nonimmigrant shall be treated as a full-time employee certified as having enrolled in a qualified health plan with respect to which an applicable premium tax credit or cost-sharing reduction is allowed or paid with respect to the employee.(h)

Allocation of registered positions

(1)

In general

(A)

First 6-month period

The number of registered positions available under paragraph (2) of subsection (f) (except those made available under subparagraph (E) of such paragraph) for the 6-month period beginning on the first day of a year is 50 percent of the maximum number of registered positions available for such year under paragraph (1)(A)(i) or (2)(B) of subsection (f). Such registered positions shall be allocated as described in this subsection.(B)

Second 6-month period

The number of registered positions available under paragraph (2) of subsection (f) (except those made available under subparagraph (E) of such paragraph) for the 6-month period ending on the last day of a year is the maximum number of registered positions available for such year under paragraph (1)(A)(i) or (2)(B) of subsection (f) minus the number of registered positions approved during the 6-month period referred to in subparagraph (A). Such registered positions shall be allocated as described in this subsection.(2)

Small businesses

(A)

In general

The Secretary shall reserve not less than one quarter of the number of registered positions initially allocated for each 6-month period under subsection (f)(2)(B) only for a registered employer that is a small business unless—(i)any such registered positions are not approved in the first 4 months of each 6-month period; or(ii)less than one quarter of the registered positions initially allocated for the 6-month period remain available after the first month.(B)

Condition met

If a condition referred to in clause (i) or (ii) of subparagraph (A) is met, any remaining registered positions shall be available for any registered employer.(i)

Portability

(1)

Nonimmigrant portability

An H–2C nonimmigrant who is employed in a registered position may—(A)be employed at any worksite if the registered employer advertised such location under subsection (e)(2)(B)(i)(I) or (f)(3)(B)(iii);(B)terminate such employment at any time, for any reason; and(C)seek and accept employment with another registered employer in any other registered position within the terms and conditions of the H–2C nonimmigrant visa.(2)

Employer portability

A registered employer who employs an H–2C nonimmigrant may—(A)employ such nonimmigrant at any worksite if the registered employer advertised such location under subsection (e)(2)(B)(i)(I) or (f)(3)(B)(iii);(B)terminate such employment at any time for any reason if such reason is lawful for United States workers; and(C)seek and hire another H–2C nonimmigrant in accordance with subsection (e)(4).(3)

At-will employment

Notwithstanding any other provision of law, employment pursuant to this section shall be considered at-will unless specified by a contract agreed to by the H–2C nonimmigrant and the registered employer.(j)

Promotion

A registered employer may promote an H–2C nonimmigrant if the H–2C nonimmigrant has been employed with that employer for a period of not less than 12 months. Such a promotion shall not increase the total number of registered positions available to that employer.(k)

Assessing the Impact of the H–2C Program

(1)

Study

The Director of the Bureau of the Census, jointly with the Secretary, the Secretary of Energy, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of the Interior, the Secretary of Labor, the Secretary of Transportation, the Secretary of the Treasury, and the Attorney General, shall undertake a study examining the impacts of this section as well as a possible future permanent H–2C program on the infrastructure of, and quality of life in, the participating metropolitan statistical areas and counties.(2)

Report

Not later than 3 years after the date of the enactment of the Workforce for an Expanding Economy Act, the Director of the Bureau of the Census shall submit to Congress a report on the findings of the study required by paragraph (1), including the following information:(A)An estimate of legal and illegal immigrants in participating counties and metropolitan statistical areas, the estimated change in those populations since commencement of the program, and the estimated change to the number of United States workers in such counties and metropolitan statistical areas.(B)The impact of H–2C nonimmigrants on employment and wage rates for United States workers in State labor markets affected by worker inflows into the full employment areas where the program operates. The study should pay particular attention to the industries and services in which H–2C nonimmigrants are concentrated. It should take into consideration equilibrating labor flows in and out of said full employment areas, and it should consider associated costs and benefits, including those related to public services, infrastructure maintenance, business startups, investment, and overall economic activity.(C)The impact of H–2C nonimmigrants on home ownership rates, housing prices, and the demand for low-income and subsidized housing in participating counties and metropolitan statistical areas and the public expenditures required to maintain current median standards in these areas and the degree to which those standards will deteriorate if such expenditures are not forthcoming.(D)The impact of H–2C nonimmigrants on access to quality health care in participating counties and metropolitan statistical areas, on the cost of health care and health insurance, and an estimate of the public expenditures required to maintain current median standards and the degree to which those standards will deteriorate if such expenditures are not forthcoming.(E)The impact of H–2C nonimmigrants on the criminal justice system in participating counties and metropolitan statistical areas, and an estimate of associated public costs.(F)The impact of permitting non-seasonal low skilled workers that currently do not qualify for H–2C nonimmigrant status to qualify for H–2C nonimmigrant status or of creating a new program to provide nonimmigrant status for such non-seasonal low skilled workers, including—(i)any impact on United States workers;(ii)any impact on employers that are utilizing H–2C nonimmigrants;(iii)any impact on employers that do not qualify to employ H–2C nonimmigrants; and(iv)any impact on H–2C nonimmigrants.(l)

H–2C nonimmigrant protections

(1)

Waiver of rights prohibited

(A)

In general

An H–2C nonimmigrant may not be required to waive any substantive rights or protections under this Act.(B)

Construction

Nothing in this paragraph may be construed to affect the interpretation of any other law.(2)

Prohibition on treatment as independent contractors

(A)

In general

Notwithstanding any other provision of law—(i)an H–2C nonimmigrant is prohibited from being treated as an independent contractor under any Federal or State law; and(ii)no person, including any employer, labor contractor, or any person who is affiliated with or contracts with an employer or labor contractor, may treat an H–2C nonimmigrant as an independent contractor.(B)

Construction

Subparagraph (A) may not be construed to prevent registered employers who operate as independent contractors from employing H–2C nonimmigrants.(3)

Payment of fees

A fee related to the hiring of an H–2C nonimmigrant required to be paid by an employer under this Act shall be paid by the employer and may not be deducted from the wages or other compensation paid to an H–2C nonimmigrant.(4)

Tax responsibilities

An employer shall comply with all applicable Federal, State, and local tax laws with respect to each H–2C nonimmigrant employed by the employer.(5)

Whistleblower protection

It shall be unlawful for an employer of an H–2C nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner discriminate against an employee or former employee because the employee or former employee—(A)discloses information to the employer or any other person that the employee or former employee reasonably believes that the employer or other person has committed a violation of this section; or(B)cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of this section.(m)

Enforcement

(1)

Complaint process

The Secretary shall, by rule, establish a process for the receipt, investigation, and disposition of complaints by an aggrieved employee, applicant, or H–2C nonimmigrant respecting a violation of this section.(2)

Filing deadline

No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed not later than 3 months after the date of such violation.(3)

Reasonable basis

The Secretary shall conduct an investigation under this subsection if there is reasonable basis to believe that a violation of this section has occurred. The process established under this subsection shall provide that, not later than 30 days after a complaint is filed, the Secretary shall determine if there is reasonable cause to find such a violation.(4)

Notice and hearing

(A)

In general

Not later than 30 days after the Secretary finds a reasonable basis under paragraph (3), the Secretary shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code.(B)

Hearing deadline

Not later than 60 days after the date of a hearing under this paragraph, the Secretary shall make a finding on the matter.(5)

Attorney’s fees

(A)

Award

A complainant who prevails in an action under this subsection with respect to a claim related to wages or compensation for employment shall be entitled to an award of reasonable attorney’s fees and costs.(B)

Frivolous complaints

A complainant who files a frivolous complaint under this subsection shall be liable for the reasonable attorney’s fees and costs of the person named in the complaint.(6)

Power of the Secretary

The Secretary may bring an action in any court of competent jurisdiction—(A)to seek remedial action, including injunctive relief;(B)to recover the damages described in subsection (n)(2); or(C)to ensure compliance with terms and conditions described in subsection (l)(5).(7)

Other rights of employees

The rights and remedies provided to H–2C nonimmigrants under this section are in addition to any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.(8)

Compliance

De minimis variations from the registered position’s duties described in the application and related materials or from the position’s general description provided in the attestation or the advertising requirements pursuant to subsection (e), including de minimis work or work incidental to the job, shall be permitted and not be cause for complaint, referral, investigation, audit, or penalties.(n)

Penalties

(1)

In general

If, after notice and an opportunity for a hearing, the Secretary finds a violation of this section, the Secretary may impose administrative remedies and penalties, including requiring the payment of—(A)back wages; and(B)benefits.(2)

Civil penalties

The Secretary may bring an action for a civil monetary penalty—(A)for a violation of this section—(i)in an amount not more than $3,000 for the first violation and $4,000 per violation for each subsequent violation; or(ii)if the violation was committed knowingly, a fine in an amount not more than $5,000 per violation;(B)for intentionally failing to comply with the protections of United States workers required under this section or with the protection of whistleblowers under subsection (l)(5), a fine in an amount not more than $25,000 per violation; or(C)for knowingly failing to materially comply with the terms of other representations made in petitions, applications, certifications, or attestations under this section—(i)a fine in an amount not more than $4,000 per violation; and(ii)upon the occasion of a third offense of failure to comply with representations, a fine in an amount not to exceed $5,000 per violation and designation as an ineligible employer, pursuant to subsection (d)(3)(B)(i).(3)

Criminal penalty

Any H–2C nonimmigrant who intentionally fails to report to a registered position in the time period specified in subsection (c)(6)(A)(i) or a registered employer who knowingly facilitates an H–2C nonimmigrant to intentionally fail to report in the time period specified above shall—(A)for a first offense, be fined in accordance with title 18, United States Code, in an amount up to $5,000, or imprisoned for not more than 90 days; and(B)for each subsequent offense, be fined in accordance with title 18, United States Code, in an amount up to $10,000, or imprisoned for not more than 1 year, or both.(o)

Monitoring

(1)

Electronic monitoring system

(A)

Requirement for system

The Secretary, through U.S. Citizenship and Immigration Services, shall implement an electronic monitoring system to monitor the presence and employment of H–2C nonimmigrants, including a requirement that registered employers update the system when H–2C nonimmigrants start and end employment in registered positions. The system shall be operational not later than 6 months following the date of the publication of the final regulations to carry out this section.(B)

Relationship to SEVIS

Such system shall be modeled on the Student and Exchange Visitor Information System (SEVIS) and SEVIS II tracking system of U.S. Immigration and Customs Enforcement.(C)

Interaction with registry

Such system shall interact with the registry referred to in subsection (e)(1)(E) to ensure that the Secretary designates and updates approved registered positions as being filled or unfilled.(D)

Employer

The employer shall notify such system after offering employment to an H–2C nonimmigrant.(E)

Access for Secretary of State

The Secretary of State shall have access to such system to verify an alien’s offer of employment with a registered employer prior to admission as an H–2C nonimmigrant.(2)

Mandatory E-Verify use

No registered employer may employ an H–2C nonimmigrant without participating in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) or an employment eligibility verification system patterned on such Program’s verification system. Any such system—(A)shall respond to inquiries made by registered employers by providing an employee’s employment eligibility; and(B)shall not be used, subject to a civil monetary penalty determined by the Secretary by rule—(i)by any department, bureau, or other agency of the United States Government, any other public or private entity, or any individual to monitor the movement of United States workers; or(ii)for inquiries related to a United States worker other than—(I)to provide such worker's eligibility for employment in the United States; or(II)to ensure secure, appropriate, and nondiscriminatory use of such system, notwithstanding any other provision of law.(p)

Requirement To comply with biometric entry and exit system

Any alien entering the United States or present in the United States on a visa issued under section 101(a)(15)(H)(ii)(c) shall comply with the requirements of the entry and exit data system required by section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1365b), including the biometric identification requirements, after such requirements are implemented.(q)

Rulemaking

Not later than 1 year after the date of the enactment of the Workforce for an Expanding Economy Act, the Secretary shall, by rule, provide for a means by which any renewal, attestation, or application filed pursuant to this section may be made electronically.

(2)

Table of contents amendment

The table of contents in the first section of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by adding after the item relating to section 219 the following:

Sec. 219A. Admission of H–2C nonimmigrant workers.

(b)

Intention To abandon foreign residence

Section 214(h) of the Immigration and Nationality Act (8 U.S.C. 1184(h)) is amended by inserting (H)(ii)(d), after (H)(i)(b) or (c), .(c)

Prohibition on family members

Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking him; at the end and inserting him, except that the Secretary of State shall not issue a visa under clause (ii)(d) to a spouse or child seeking to enter into the United States under such clause unless such spouse has received an offer of employment by a registered employer as defined in section 219A;.