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).