[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4238 Introduced in House (IH)]

113th CONGRESS
  2d Session
                                H. R. 4238

      To amend the Immigration and Nationality Act to provide for 
    requirements for employers of H-2B nonimmigrants, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 13, 2014

  Mr. Harris introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
      To amend the Immigration and Nationality Act to provide for 
    requirements for employers of H-2B nonimmigrants, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. H-2B NUMERICAL LIMITATIONS.

    (a) In General.--Section 214(g)(9)(A) of the Immigration and 
Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended to read as follows:
                    ``(A)(i) Except as provided in clause (ii), and 
                subject to subparagraphs (B) and (C), an alien who has 
                already been counted toward the numerical limitation of 
                paragraph (1)(B) shall not again be counted toward such 
                limitation. Such an alien shall be considered a 
                returning worker.
                    ``(ii) An alien who has already been counted toward 
                the numerical limitation of paragraph (1)(B) shall 
                again be counted toward such limitation if such alien 
                departs the United States for a period of time that is 
                greater than one year, and has not been counted toward 
                such limitation in any of the 3 years prior to such 
                departure.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect as if enacted on January 1, 2013.

SEC. 2. ADDITIONAL REQUIREMENTS FOR H-2B NONIMMIGRANT EMPLOYERS.

    (a) In General.--Chapter 2 of title II of the Immigration and 
Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after 
section 218 the following:

``SEC. 218A. REQUIREMENTS FOR H-2B EMPLOYERS.

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

``218A. Requirements for H-2B Nonimmigrant Employers.''.
                                 <all>