[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4381 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 4381

          To reform the H-2B program, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 16, 2009

  Ms. Zoe Lofgren of California (for herself and Mr. George Miller of 
 California) 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 reform the H-2B 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 Program Reform Act of 2009''.

SEC. 2. PROTECTING UNITED STATES AND H-2B WORKERS.

    (a) In General.--Section 212(o) of the Immigration and Nationality 
Act (8 U.S.C. 1182(o)) is amended to read as follows:
    ``(o) Requirements for Admission of H-2B Workers.--
            ``(1) Certification of alien.--Any alien who seeks to enter 
        the United States for the purpose of performing temporary labor 
        or services under section 101(a)(15)(H)(ii)(b) is inadmissible 
        unless the Secretary of Labor has determined and certified to 
        the Secretary of State and the Secretary of Homeland Security 
        that--
                    ``(A) there are not sufficient United States 
                workers who are able, willing, qualified, and who will 
                be available at the time and place needed, to perform 
                such temporary labor or services; and
                    ``(B) the employment of the alien in such labor or 
                services will not adversely affect the wages and 
                working conditions of workers in the United States 
                similarly employed.
            ``(2) Registration of h-2b employer.--
                    ``(A) Registered h-2b employers.--Except as 
                provided in paragraph (5), any employer who seeks to 
                employ an H-2B nonimmigrant in an occupational 
                classification must file with the Secretary of Labor an 
                application for registration stating the following:
                            ``(i) A specification of the number of H-2B 
                        nonimmigrants sought to be employed, the 
                        occupational classifications and locations in 
                        which such H-2B nonimmigrants will be employed, 
                        and the anticipated period of employment 
                        (including the expected beginning and 
                        termination dates).
                            ``(ii) Evidence that--
                                    ``(I) the employer needs such 
                                workers to address temporary, 
                                predictable, and recurring needs for 
                                labor or services directly resulting 
                                from climatic, environmental, or other 
                                natural conditions related to certain 
                                seasons of the year; and
                                    ``(II) labor, geographic, or other 
                                conditions substantially prevent the 
                                employer from meeting such needs for 
                                labor or services with workers in the 
                                United States.
                            ``(iii) Each instance in which the employer 
                        has been found, within the last 3 years, to 
                        have violated any foreign worker program or any 
                        Federal, State, or local employment-related law 
                        or regulation.
                    ``(B) Exclusion of certain employers.--
                            ``(i) Labor contracting entities.--An 
                        employer may not be registered under this 
                        paragraph if the employer--
                                    ``(I) contracts labor or services 
                                on a temporary basis to one or more 
                                entities, which are not affiliates, 
                                branches, or subsidiaries of the 
                                employer; and
                                    ``(II) will not exercise 
                                supervision or control in the 
                                performance of the labor or services to 
                                be performed by the H-2B nonimmigrant 
                                (other than the hiring, paying, or 
                                firing of workers).
                            ``(ii) Construction entities.--At the 
                        beginning of each registration period described 
                        in subparagraph (C)(i), the Secretary of Labor 
                        shall issue a certification of the average 
                        national unemployment rate for wage and salary 
                        workers in the experienced labor force in the 
                        construction occupations for the preceding 12 
                        months. An employer may not be registered under 
                        this paragraph to employ H-2B nonimmigrants in 
                        any construction occupation unless the 
                        unemployment rate in such certification is less 
                        than 6 percent. Any registration issued 
                        pursuant to this clause shall be revoked if the 
                        unemployment rate in a subsequent certification 
                        is greater than 7 percent.
                    ``(C) Adjudication by secretary of labor.--
                            ``(i) Registration period.--The Secretary 
                        of Labor shall establish a registration period, 
                        of at least 90 days, during which employers may 
                        submit applications for registration under 
                        subparagraph (A). The Secretary shall 
                        adjudicate such applications not later than 30 
                        days after the end of the registration period.
                            ``(ii) Adjudication.--For each registered 
                        employer, the Secretary of Labor shall set the 
                        number of H-2B nonimmigrant positions that such 
                        employer is approved to use. Registration under 
                        this paragraph shall not expire until the end 
                        of the third fiscal year beginning after the 
                        date of registration.
                            ``(iii) Fees.--
                                    ``(I) Application for 
                                registration.--In addition to any other 
                                fees authorized by law, the Secretary 
                                of Labor shall impose a $100 fee, to be 
                                deposited in the Treasury in accordance 
                                with section 286(w), on an employer 
                                that submits an application for 
                                registration.
                                    ``(II) Worker positions 
                                requested.--The Secretary shall also 
                                impose a fee, to be deposited in the 
                                Treasury in accordance with section 
                                286(v), on an employer for each H-2B 
                                worker position requested in such 
                                application. The additional fee shall 
                                be $100 for each H-2B worker position 
                                requested.
            ``(3) Labor certification application.--Except as provided 
        in paragraph (5), any employer who seeks to employ an H-2B 
        nonimmigrant in an occupational classification must be 
        registered under paragraph (2) and must file with the Secretary 
        of Labor, not later than 60 days before the first date that 
        such employer requires the labor or services of the H-2B 
        nonimmigrant, an application containing the following 
        assurances:
                    ``(A) A specification of the number of H-2B 
                nonimmigrant positions requested, the occupational 
                classifications and locations in which such workers 
                will be employed, the wage rate and conditions under 
                which they will be employed, and the expected start and 
                end dates of employment.
                    ``(B) The employer--
                            ``(i) if the job opportunity is covered by 
                        a collective bargaining agreement, is offering 
                        and will offer during the period of authorized 
                        employment to H-2B nonimmigrants wages as set 
                        forth in the collective bargaining agreement;
                            ``(ii) if the job opportunity is not 
                        covered by a collective bargaining agreement, 
                        is offering and will offer during the period of 
                        authorized employment to H-2B nonimmigrants 
                        wages that are at least--
                                    ``(I) the actual wage level paid by 
                                the employer to all other individuals 
                                with similar experience and 
                                qualifications for the specific 
                                employment in question; or
                                    ``(II) the wage level for the 
                                occupational classification in the area 
                                of employment;
                        whichever is greater, based on the best 
                        information available as of the time of filing 
                        the application; and
                            ``(iii) will provide working conditions for 
                        such nonimmigrants that will not adversely 
                        affect the working conditions of workers 
                        similarly employed.
                    ``(C) There is not a strike or lockout in the 
                course of a labor dispute in the occupational 
                classification at the place of employment.
                    ``(D) The employer did not displace and will not 
                displace a United States worker employed by the 
                employer within the period beginning 90 days before the 
                start date and ending on the end date for which the 
                employer requests the services of an H-2B nonimmigrant 
                on an application for labor certification under this 
                subsection.
                    ``(E) The employer has--
                            ``(i) taken, and will continue to take, 
                        good faith steps to recruit United States 
                        workers in the United States, using the 
                        procedures described in paragraph (4) and 
                        offering compensation, benefits and working 
                        conditions that are at least as great as that 
                        required to be offered to H-2B nonimmigrants 
                        under subparagraph (B), for the job for which 
                        the nonimmigrant or nonimmigrants is or are 
                        sought; and
                            ``(ii) offered the job to any United States 
                        worker who applies and is qualified for the job 
                        for which the nonimmigrant or nonimmigrants is 
                        or are sought.
                    ``(F) If the job opportunity is not covered by the 
                State workers' compensation law, the employer will 
                provide, at no cost to its workers, insurance covering 
                injury and disease arising out of, and in the course 
                of, the worker's employment which will provide benefits 
                at least equal to those provided under the State's 
                workers' compensation law for comparable employment.
                    ``(G) The employer will comply with all Federal, 
                State, and local employment-related laws and 
                regulations.
                    ``(H) The employer--
                            ``(i) will offer an H-2B nonimmigrant the 
                        same benefits and working conditions provided 
                        to United States workers similarly employed in 
                        the same occupational classification at the 
                        same place of employment; and
                            ``(ii) has not made an offer to a United 
                        States worker or H-2B nonimmigrant that imposed 
                        restrictions or obligations that are greater 
                        than those that will be imposed on any other 
                        person offered employment for the same job.
                    ``(I) The stated requirements applicable to the job 
                represent the actual minimum requirements for such job, 
                and the H-2B employer will not hire an H-2B 
                nonimmigrant to perform the job who does not meet these 
                requirements.
                    ``(J) The employer has provided or shall provide to 
                an H-2B nonimmigrant, not later than on the day work 
                commences, a copy of the job offer containing the 
                assurances listed in this paragraph. If the employer 
                has used or is using a foreign labor contractor, the 
                employer has provided or shall provide a copy of the 
                job offer to such contractor by the time of 
                recruitment.
        Each application filed under this paragraph shall be 
        accompanied by a copy of the job offer describing the wages and 
        other terms and conditions of employment of the H-2B 
        nonimmigrant. Nothing in subparagraph (E) or (I) shall be 
        construed to prohibit an employer from using legitimate 
        selection criteria relevant to the job that are normal or 
        customary to the type of job involved, so long as such criteria 
        are not applied in a discriminatory manner.
            ``(4) Recruitment of united states workers.--Not later than 
        14 days before filing the application under paragraph (3), and 
        except as provided in paragraph (5)(B), any employer who seeks 
        to employ an H-2B nonimmigrant shall take the following steps 
        to recruit United States workers for which the alien is sought:
                    ``(A) The employer shall submit a copy of the job 
                offer, including a description of wages and other terms 
                and conditions of employment, to the State workforce 
                agency that serves the area of employment in the State 
                in which the employer is located. The State workforce 
                agency shall provide the employer with an 
                acknowledgment of receipt of such documentation in 
                accordance with this paragraph.
                    ``(B) The employer shall authorize the State 
                workforce agency to post the job opportunity on the 
                Internet, with State and local job banks, with other 
                State workforce agencies, and with unemployment 
                agencies and other labor referral and recruitment 
                sources pertinent to such job opportunity.
                    ``(C) The employer shall authorize the State 
                workforce agency to provide notification of the job 
                opportunity to--
                            ``(i) the central office of the State 
                        Federation of Labor in the State in which the 
                        job is located; and
                            ``(ii) the office of the local union which 
                        represents the employees in the same or 
                        substantially equivalent job classification, if 
                        applicable.
                    ``(D) The employer shall--
                            ``(i) provide notice of the job opportunity 
                        to the bargaining representative (if any) of 
                        the employer's employees in the occupational 
                        classification and area for which the employer 
                        is seeking a worker, or
                            ``(ii) if there is no such bargaining 
                        representative, post the availability of the 
                        job opportunity for which the employer is 
                        seeking a worker in conspicuous locations at 
                        the place or places of employment or in some 
                        other manner that provides reasonable 
                        notification to all employees in the 
                        occupational classification and in the same 
                        area of intended employment for which H-2B 
                        nonimmigrants are sought.
                    ``(E) The employer shall advertise the availability 
                of the job opportunity for which the employer is 
                seeking a worker in one or more publications in the 
                labor market that is likely to be patronized by 
                potential applicants (as determined by the State 
                workforce agency). Such advertisement, at a minimum, 
                shall--
                            ``(i) describe the job opportunity and term 
                        of employment;
                            ``(ii) state the wage rate to be offered;
                            ``(iii) summarize the employer's minimum 
                        job requirements;
                            ``(iv) offer training if the job 
                        opportunity is the type for which employers 
                        normally provide training; and
                            ``(v) be posted for 3 consecutive days, one 
                        of which must be a Sunday, during the first 
                        half of the 21-day recruitment period.
                    ``(F) If the job involved in the application 
                requires a particular skill or an advanced degree, and 
                a professional or trade journal normally would be used 
                to advertise the job opportunity, the local job service 
                may require the employer to place an advertisement in 
                the journal most likely to bring responses from able, 
                willing, and qualified United States workers.
                    ``(G) In no event shall the employer advertise such 
                job opportunity to United States workers using wages or 
                other terms and conditions of employment which are less 
                favorable for United States workers than those to be 
                offered to an H-2B nonimmigrant of similar 
                qualifications.
            ``(5) Exception to registration requirement.--
                    ``(A) In general.--An employer that seeks to employ 
                an H-2B nonimmigrant but is not registered under 
                paragraph (2) may file an application under paragraph 
                (3) to employ H-2B nonimmigrants if the employer 
                demonstrates to the Secretary of Labor that:
                            ``(i) the failure to hire such workers to 
                        address a temporary need for labor or services 
                        would directly result in the loss of jobs for 
                        United States workers and would deprive the 
                        impacted community of a substantial economic 
                        benefit (as certified by a State or regional 
                        economic development authority, including 
                        consultation with any relevant union); and
                            ``(ii) labor, geographic, or other 
                        conditions substantially prevent the employer 
                        from meeting such need for labor or services 
                        with workers in the United States.
                    ``(B) Hiring hall applications.--Any employer who 
                seeks to hire an H-2B nonimmigrant under subparagraph 
                (A) may file an application with the Secretary of Labor 
                in accordance with this subparagraph instead of 
                complying with paragraphs (3) and (4) if--
                            ``(i) the employer has signed a labor 
                        agreement with a labor organization (as defined 
                        in section 2(5) of the Labor-Management 
                        Relations Act (29 U.S.C. 152(5))) under which 
                        the labor organization is responsible for 
                        referring applicants for employment to the 
                        employer under a procedure commonly known as a 
                        `hiring hall' or `referral hall';
                            ``(ii) the application is accompanied by a 
                        written statement prepared by the labor 
                        organization attesting that--
                                    ``(I) the labor organization 
                                operates a hiring hall that, pursuant 
                                to contractual agreement and actual 
                                practice, is a source of employees in 
                                the same or substantially equivalent 
                                occupational classification in which 
                                the employer seeks to employ an H-2B 
                                nonimmigrant;
                                    ``(II) the labor organization does 
                                not have a sufficient number of 
                                qualified applicants available for 
                                referral in the same or substantially 
                                equivalent occupational classification 
                                in which the employer seeks to employ 
                                an H-2B nonimmigrant;
                                    ``(III) the labor organization has 
                                advertised the availability of the job 
                                opportunity for which the employer is 
                                seeking to employ an H-2B nonimmigrant 
                                in one or more publications in the 
                                labor market that is likely to be 
                                patronized by potential applicants;
                                    ``(IV) the employer is 
                                contractually obligated to pay all 
                                employees, in the same or substantially 
                                equivalent occupational classification 
                                in which the employer seeks to employ 
                                an H-2B nonimmigrant, wages and 
                                benefits set forth in a labor agreement 
                                with the labor organization, which 
                                equals or exceeds the higher of the 
                                actual or predominant wage rate the 
                                employer would be obligated to pay; and
                                    ``(V) the H-2B nonimmigrants whom 
                                the employer seeks to employ will be 
                                paid not less than the same wages and 
                                benefits and be subject to the same 
                                terms and conditions of employment set 
                                forth in the employer's labor agreement 
                                with the labor organization.
            ``(6) Certification by secretary of labor.--
                    ``(A) Adjudication deadline.--The Secretary of 
                Labor shall adjudicate an application described in 
                paragraph (3) or (5)(B) not later than 30 days after 
                the date on which the application is filed.
                    ``(B) Notice of deficiencies.--The employer shall 
                be notified in writing within seven days of the date of 
                filing if the application does not meet the standards 
                for approval. Such notice shall include a description 
                of the deficiency, and the Secretary shall provide an 
                opportunity for the prompt resubmission of a modified 
                application.
                    ``(C) Fees.--In addition to any other fees 
                authorized by law, the Secretary of Labor shall impose 
                a fee, to be deposited in the Treasury in accordance 
                with section 286(w), on an employer that submits an 
                application described in paragraph (3) or (5)(B) on or 
                after the date that is 30 days after the date of the 
                enactment of the H-2B Program Reform Act of 2009. The 
                fee shall be set at a level the Secretary of Labor 
                determines will ensure recovery of the full costs of 
                carrying out labor certification activities under this 
                subsection and will recover any additional costs 
                associated with the administration of the fees 
                collected.
            ``(7) Assignment of h-2b positions by secretary of homeland 
        security.--
                    ``(A) In general.--Upon the approval of an 
                application described in paragraph (6)(A), an employer 
                may petition the Secretary of Homeland Security for H-
                2B nonimmigrant positions up to the number approved by 
                the Secretary of Labor.
                    ``(B) Numerical limits.--The total number of aliens 
                who may be issued visas or otherwise provided 
                nonimmigrant status during any fiscal year under 
                section 101(a)(15)(H)(ii)(b) may not exceed 66,000, 
                except that 1,000 of such number shall be reserved for 
                employers filing applications pursuant to paragraph 
                (5).
                    ``(C) Fair distribution system.--The Secretary of 
                Homeland Security shall apportion H-2B nonimmigrant 
                positions for initial use in each quarter of the fiscal 
                year in proportion to the demand in each quarter (as 
                determined by the expected start dates for the 
                employment of H-2B nonimmigrants by employers 
                registered under paragraph (2)).
            ``(8) Limitations on employment.--
                    ``(A) Duration of employment.--Certification of an 
                H-2B nonimmigrant for employment with an employer in 
                the United States shall be limited to a maximum of 10 
                months. The Secretary of State and Secretary of 
                Homeland Security shall allow admission of the H-2B 
                nonimmigrant into the United States for additional 
                periods, of no more than 20 days in the aggregate, to 
                allow for travel to and from the worksite.
                    ``(B) Transfer of h-2b nonimmigrants between 
                employers.--
                            ``(i) In general.--An H-2B nonimmigrant may 
                        not accept employment from any employer in the 
                        United States other than an employer with an 
                        approved H-2B petition filed on behalf of such 
                        nonimmigrant. An employer may not--
                                    ``(I) trade, transfer, or otherwise 
                                provide an H-2B nonimmigrant to any 
                                other employer for employment in the 
                                United States; or
                                    ``(II) assess any fee to an H-2B 
                                nonimmigrant with respect to such 
                                trade, transfer, or provision.
                            ``(ii) Construction.--Nothing in this 
                        paragraph prohibits an H-2B nonimmigrant in the 
                        United States from accepting new employment 
                        with a new employer upon approval of a petition 
                        filed by such employer on the H-2B 
                        nonimmigrant's behalf.
                    ``(C) Availability of united states worker.--An 
                employer shall be required to offer employment to any 
                able and qualified United States worker if such worker 
                applies for employment in a job to be filled by an H-2B 
                nonimmigrant at least 14 days before commencement of 
                the H-2B nonimmigrant's employment.
            ``(9) Compliance and statistics.--
                    ``(A) Public examination.--The Secretary of Labor 
                shall make available for public examination, including 
                by posting over the Internet, the following:
                            ``(i) within 60 days of the close of the 
                        registration period under paragraph (2), a list 
                        of all employers registered under such 
                        paragraph;
                            ``(ii) upon the filing of an application by 
                        an employer under paragraph (3), a copy of such 
                        application, except that the Secretary shall 
                        redact any proprietary information from such 
                        application; and
                            ``(iii) a list (by employer, location and 
                        occupational classification), compiled on a 
                        current basis, of the applications filed under 
                        this subsection. Such list shall include the 
                        wage rate, number of aliens sought, period of 
                        intended employment, and dates of need.
                    ``(B) Maintenance of documentation.--The employer 
                shall maintain for at least 3 years after the filing of 
                the application or the employment relationship is 
                terminated, whichever is later, documentation 
                evidencing compliance with the conditions in paragraph 
                (3) and recruitment efforts in paragraph (4).
            ``(10) Complaints and investigations.--
                    ``(A) In general.--The Secretary of Labor shall 
                establish a process for the receipt, investigation, and 
                disposition of complaints (which may be filed by any 
                aggrieved person or organization) respecting an 
                employer's compliance with this subsection. The 
                Secretary, either pursuant to this complaint process or 
                otherwise, may investigate employers as necessary to 
                determine such compliance.
                    ``(B) Penalties.--If the Secretary of Labor finds, 
                after notice and an opportunity for a hearing, a 
                substantial failure to meet any of the conditions of 
                the application described under paragraph (2) or (3), a 
                misrepresentation of a material fact in such 
                application, or a violation of subparagraph (C)--
                            ``(i) the Secretary of Labor 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) as the Secretary 
                        of Labor determines to be appropriate; and
                            ``(ii) the Secretary of Labor may not 
                        approve applications filed with respect to that 
                        employer under this subsection during a period 
                        of at least 1 year but not more than 5 years 
                        for aliens to be employed by the employer.
                    ``(C) Back wages.--If the Secretary of Labor finds, 
                after notice and an opportunity for a hearing, that 
                recovery of back wages, travel costs, or other fees or 
                costs is necessary to address a violation of this 
                subsection or any other law, the Secretary of Labor may 
                administratively recover such back wages, fees or costs 
                on behalf of the worker.
                    ``(D) Discrimination or retaliation prohibited.--It 
                is a violation of this subparagraph for an employer who 
                has filed an application under this subsection to 
                intimidate, threaten, restrain, coerce, discharge, or 
                in any other manner discriminate or retaliate against 
                an employee (including a former employee or an 
                applicant for employment) because the employee--
                            ``(i) has disclosed information to the 
                        employer, or to any other person, that the 
                        employee reasonably believes evidences a 
                        violation of this subsection, or any rule or 
                        regulation pertaining to this subsection; or
                            ``(ii) seeks legal assistance or counsel 
                        related to any such violation, or cooperates, 
                        or seeks to cooperate, in an investigation or 
                        other proceeding concerning the employer's 
                        compliance with the requirements of this 
                        subsection, or any rule or regulation 
                        pertaining to this subsection.
                    ``(E) Authority to ensure compliance.--The 
                Secretary of Labor is authorized to take other such 
                actions, including issuing subpoenas and seeking 
                appropriate injunctive relief and specific performance 
                of contractual obligations, as may be necessary to 
                assure employer compliance with the terms and 
                conditions of employment under this subsection. The 
                rights and remedies provided to workers by this Act are 
                in addition to, and not in lieu of, any other 
                contractual or statutory rights and remedies of such 
                workers, and are not intended to alter or affect such 
                rights and remedies.
            ``(11) Other protections.--
                    ``(A) Program violators.--An employer may not be 
                registered under this section if, within the last 3 
                years, the Secretary has found a substantial failure by 
                the employer to comply with any foreign worker program 
                or the employer has been found to have willfully, 
                recklessly or repeatedly violated any Federal, State, 
                or local employment-related law or regulation, where 
                the result of such violation was the payment of a fine, 
                backpay damages, or any other type of penalty in the 
                amount of $5,000 or more.
                    ``(B) Established wages.--If an employer seeks to 
                appeal a decision of the Secretary of Labor concerning 
                the wages required to be paid under this section, 
                United States workers and their representatives shall 
                be given reasonable opportunity to submit contrary 
                evidence.
                    ``(C) Access to legal services corporation.--
                Notwithstanding any other provision of law, the Legal 
                Services Corporation and recipients of its funding may 
                provide legal services on behalf of an alien admitted 
                or provided status as a nonimmigrant described in 
                section 101(a)(15)(H)(ii)(B), except that this 
                subparagraph shall not be construed to affect section 
                292.
                    ``(D) Transportation costs.--The employer shall pay 
                the transportation costs, including reasonable 
                subsistence costs during the period of travel, for the 
                H-2B nonimmigrant from the place of recruitment to the 
                place of employment and from the place of employment to 
                such worker's place of permanent residence or a 
                subsequent worksite.
                    ``(E) Cause of action for wage discrepancies.--An 
                H-2B nonimmigrant who fails to receive compensation 
                under the terms described in the job offer for work 
                provided by the employer may commence a civil action to 
                seek back wages in an appropriate district court of the 
                United States, which shall have jurisdiction over such 
                an action without regard to the amount in controversy 
                or citizenship of the parties. In a civil action under 
                this subparagraph, the court may award such 
                nonimmigrant reasonable attorney's fees, including 
                litigation expenses, and costs.
            ``(12) Definitions.--For purposes of this subsection:
                    ``(A) Area of employment.--The term `area of 
                employment' means the area within normal commuting 
                distance of the worksite or physical location where the 
                work of the H-2B nonimmigrant is or will be performed. 
                If such worksite or location is within a Metropolitan 
                Statistical Area, any place within such area shall be 
                deemed to be within the area of employment.
                    ``(B) Displace.--In the case of an application with 
                respect to one or more H-2B nonimmigrants by an 
                employer, the employer is considered to `displace' a 
                United States worker from a job if the employer lays 
                off the worker from a job that is essentially the 
                equivalent of the job for which the nonimmigrant or 
                nonimmigrants is or are sought. A job shall not be 
                considered to be essentially equivalent of another job 
                unless it involves essentially the same 
                responsibilities, was held by a United States worker 
                with substantially equivalent qualifications and 
                experience, and is located in the same area of 
                employment as the other job.
                    ``(C) Construction occupation.--The term 
                `construction occupation' means any occupation listed 
                as a construction or extraction occupation in the 
                Department of Labor's Standard Occupational 
                Classification, except that it shall not include any 
                occupation listed in such classification as an 
                extraction worker occupation.
                    ``(D) Foreign worker program.--The term `foreign 
                worker program' means any program to employ 
                nonimmigrants described in subparagraphs (H), (J), (L), 
                (O), or (P) of section 101(a)(15).
                    ``(E) H-2B nonimmigrant.--The term `H-2B 
                nonimmigrant' means an alien admitted or provided 
                status as a nonimmigrant described in section 
                101(a)(15)(H)(ii)(b).
                    ``(F) Lays off.--
                            ``(i) In general.--The term `lays off', 
                        with respect to a worker--
                                    ``(I) means to cause the worker's 
                                loss of 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 (other than a 
                                temporary employment contract entered 
                                into in order to evade a condition 
                                described in paragraph (1)(E)); but
                                    ``(II) does not include any 
                                situation in which the worker is 
                                offered, 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, regardless 
                                of whether or not the employee accepts 
                                the offer.
                            ``(ii) Construction.--Nothing in this 
                        subparagraph is intended to limit an employee's 
                        rights under a collective bargaining agreement 
                        or other employment contract.
                    ``(G) Registered h-2b employer.--The term 
                `registered H-2B employer' means an employer that has 
                been registered by the Secretary of Labor under 
                paragraph (2) to employ an H-2B nonimmigrant.
                    ``(H) State workforce agency.--The term `State 
                workforce agency' means the agency designated or 
                authorized under section 4 of the Wagner-Peyser Act (29 
                U.S.C. 49 et seq.) to carry out the State 
                responsibilities under that Act.
                    ``(I) Substantial failure.--The term `substantial 
                failure' means the repeated, reckless or willful 
                failure to comply with the requirements of this section 
                that constitutes a significant deviation from the terms 
                and conditions of this section.
                    ``(J) United states worker.--The term `United 
                States worker' means an employee who--
                            ``(i) is a citizen or national of the 
                        United States; or
                            ``(ii) is an alien who is lawfully admitted 
                        for permanent residence, is admitted as a 
                        refugee under section 207, 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.''.
    (b) Conforming Amendments.--
            (1) Section 101(a)(15)(H)(ii)(b) of the Immigration and 
        Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) is amended by 
        striking ``unemployed''.
            (2) Section 214(c) of the Immigration and Nationality Act 
        (8 U.S.C. 1184(c)) is amended--
                    (A) by striking ``or 101(a)(15)(H)(ii)(b)'' from 
                paragraph (5)(A); and
                    (B) by striking paragraphs (13) and (14).
            (3) Section 214(g) of the Immigration and Nationality Act 
        (8 U.S.C. 1184(g)) is amended--
                    (A) in paragraph (1)--
                            (i) by striking subparagraphs (A) and (B); 
                        and
                            (ii) by striking ``(beginning with fiscal 
                        year 1992)--'' and inserting ``under section 
                        101(a)(15)(H)(i)(b) may not exceed 65,000.''; 
                        and
                    (B) by striking paragraph (10).

SEC. 3. ESTABLISHED WAGE LEVEL.

    Section 212(p) of the Immigration and Nationality Act (8 U.S.C. 
1182(p)) is amended by adding at the end the following:
    ``(5) Notwithstanding the other provisions of this subsection, in 
computing the established wage level for an occupational classification 
in an area of employment for purposes of subsection (o)(3)(B)(ii)(II) 
of this section, the established wage level shall be determined in 
accordance as follows:
    ``(A) If the job opportunity is covered by a collective bargaining 
agreement between a union and the employer, the established wage level 
shall be the wage rate set forth in the collective bargaining 
agreement.
    ``(B) If the job opportunity is not covered by such an agreement 
and it is in an occupation that is listed in a wage determination in 
the area issued pursuant to a provision of subchapter IV of chapter 31 
of title 40, United States Code, or the Service Contract Act of 1965 
(41 U.S.C. 351 et seq.), the established wage level shall be at the 
rate required under the statutory determination.
    ``(C) If the job opportunity is not covered by such an agreement 
and it is not in an occupation that is listed in a wage determination 
in the area issued pursuant to a provision of subchapter IV of chapter 
31 of title 40, United States Code, or the Service Contract Act of 1965 
(41 U.S.C. 351 et seq.), the established wage level shall be the median 
of the wage data applicable to such occupation as published in the 
Bureau of Labor Statistics' Occupational Employment Statistics survey.
    ``(D) If the job opportunity is not covered by such an agreement, 
it is not in an occupation that is listed in a wage determination in 
the area issued pursuant to a provision of subchapter IV of chapter 31 
of title 40, United States Code, or the Service Contract Act of 1965 
(41 U.S.C. 351 et seq.), and the employer demonstrates to the 
satisfaction of the Secretary of Labor that the Bureau of Labor 
Statistics' Occupational Employment Statistics survey does not 
sufficiently represent the job opportunity being petitioned, the 
Secretary may provide a wage determination based on the median wage 
level of wage data contained in a published wage survey, or wage data 
contained in a survey that has been conducted or funded by the 
employer, provided the Secretary finds that--
            ``(i) such survey meets generally accepted principles of 
        survey methodology, including reliability and viability;
            ``(ii) the population surveyed in such survey is comprised 
        of at least 51 percent United States workers; and
            ``(iii) such survey meets any other requirements set by the 
        Secretary of Labor pursuant to regulation.''.

SEC. 4. ESTABLISHMENT OF ACCOUNT AND USE OF FUNDS.

    (a) In General.--Section 286 of the Immigration and Nationality Act 
(8 U.S.C. 1356) is amended by adding at the end the following:
    ``(w) Employment Certification Application Fee Account.--
            ``(1) Establishment of account.--There is established in 
        the general fund of the Treasury a separate account, which 
        shall be known as the `Employment Certification Fee Account'. 
        Notwithstanding any other provision of law, there shall be 
        deposited as offsetting receipts into the account amounts from 
        fees and civil penalties collected under section 212(o) (except 
        for fees collected under paragraph (2)(C)(iii)(I) of such 
        section).
            ``(2) Use of fees.--
                    ``(A) Secretary of labor.--Two-thirds of the 
                amounts deposited into the Employment Certification Fee 
                Account shall remain available to the Secretary of 
                Labor until expended for the costs of Federal and State 
                administration, including Federal and State personnel, 
                in carrying out labor certification activities under 
                section 212(o).
                    ``(B) Secretary of homeland security.--One-third of 
                the amounts deposited into the Employment Certification 
                Fee Account shall remain available to the Secretary of 
                Homeland Security until expended for the administration 
                of activities under section 212(o).''.
    (b) Report.--Not later than 1 year after the date of the enactment 
of this Act, the Secretary of Labor shall submit a report to the 
Congress that includes--
            (1) the number of complaints received under section 
        212(o)(9) of the Immigration and Nationality Act, as added by 
        section 2 of this Act;
            (2) the resolution of complaints described in paragraph 
        (1); and
            (3) recommendations, if any, to improve the process for 
        resolving complaints, including whether the rights and 
        obligations enumerated by the amendments made by sections 2 and 
        3 of this Act would be better enforced if aggrieved persons had 
        access to a private civil cause of action to effectuate such 
        enforcement.

SEC. 5. TRANSFER OF FOREST, CONSERVATION, AND LOGGING WORKERS TO THE H-
              2A AGRICULTURAL WORKER PROGRAM.

    Any forest, conservation, or logging occupation (as listed in the 
Standard Occupational Classification) shall be considered agricultural 
labor for the purposes of employing nonimmigrants described in section 
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)(ii)(a)), except that such workers shall continue to be 
considered seasonal agricultural workers under the Migrant Seasonal 
Worker Protection Act (29 U.S.C. 1801 et seq.) notwithstanding any 
other provision of law.
                                 <all>