[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3918 Introduced in House (IH)]

<DOC>






114th CONGRESS
  1st Session
                                H. R. 3918

    To modify the provisions of the Immigration and Nationality Act 
          relating to nonimmigrant visas issued under section 
       101(a)(15)(H)(ii)(b) of such Act, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            November 4, 2015

 Mr. Chabot (for himself, Mr. Goodlatte, Mr. Harris, and Mr. Boustany) 
 introduced the following bill; which was referred to the Committee on 
the Judiciary, and in addition to the Committee on Ways and Means, 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 modify the provisions of the Immigration and Nationality Act 
          relating to nonimmigrant visas issued under section 
       101(a)(15)(H)(ii)(b) of such Act, 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 ``Strengthen Employment And Seasonal 
Opportunities Now (SEASON) Act''.

SEC. 2. 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) Subject to subparagraphs (B) and (C), an alien who has 
already been counted toward the numerical limitation of paragraph 
(1)(B) during 1 of the 3 fiscal years preceding a fiscal year shall not 
again be counted toward such limitation during that fiscal year. Such 
an alien shall be considered a returning worker.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect as if enacted on January 1, 2015.

SEC. 3. H-2B TEMPORARY NON-AGRICULTURAL WORK VISA PROGRAM.

    (a) Definition.--Section 214(g)(9) of the Immigration and 
Nationality Act (8 U.S.C. 1184(g)(9)) is amended by adding at the end 
the following:
    ``(D) For purposes of section 101(a)(15)(H)(ii)(b), the term `other 
temporary service or labor' means that an employer's need for labor 
will last not more than 1 year and is a seasonal, peak load, or 
intermittent need, unless it is a one-time occurrence lasting not 
longer than 3 years. For purposes of the preceding sentence, a 
`seasonal' need for labor is a need for labor that lasts not longer 
than 10 months.''.
    (b) Admission of Temporary H-2B Workers.--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. Admission of temporary H-2B workers
    ``(a) Definitions.--In this section:
            ``(1) The term `H-2B worker' means a nonimmigrant described 
        in section 101(a)(15)(H)(ii)(b).
            ``(2) The term `United States worker' means any worker who 
        is--
                    ``(A) a citizen or national of the United States; 
                or
                    ``(B) 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 to be 
                employed.
            ``(3) The term `displace' means to lay off a worker from a 
        job that is essentially equivalent to the job for which an H-2B 
        worker is sought. A job shall not be considered to be 
        `essentially equivalent' to another job unless the job--
                    ``(A) involves essentially the same 
                responsibilities as such other job;
                    ``(B) was held by a United States worker with 
                substantially equivalent qualifications and experience; 
                and
                    ``(C) is located in the same area of employment as 
                the other job.
            ``(4) The term `layoff'--
                    ``(A) means to cause a 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 subsection (b)(2)(G)); 
                and
                    ``(B) 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.
            ``(5) The term `full time' means 30 or more hours per week, 
        except that where a State or an established practice in an 
        industry has developed a definition of full-time employment for 
        any occupation that is less than 30 hours per week, that 
        definition shall have precedence.
            ``(6) The term `prevailing wage' means--
                    ``(A) if the job opportunity is covered by a 
                collective bargaining agreement that was negotiated at 
                arms' length between the union and the employer, the 
                wage rate set forth in the collective bargaining 
                agreement;
                    ``(B) If the H-2B worker is a professional athlete 
                whose job opportunity is covered by professional sports 
                league rules or regulations, the wage set forth in 
                section 212(p)(2);
                    ``(C) if subparagraphs (A) and (B) do not apply, at 
                the employer's option--
                            ``(i) the wage rate provided by the 
                        Department of Homeland Security that reflects 
                        the mean wage of workers similarly employed at 
                        the skill level in the area of employment based 
                        on Bureau of Labor Statistics data; or
                            ``(ii) the wage rate indicated by a wage 
                        survey prepared by an entity other than the 
                        Federal Government where--
                                    ``(I) the survey data was collected 
                                within 24 months;
                                    ``(II) the survey was published 
                                within the prior 24 months;
                                    ``(III) the employer's job 
                                description adequately matches the job 
                                description in the survey;
                                    ``(IV) the survey reflects the area 
                                of intended employment, if there are 
                                substantially comparable jobs in the 
                                area of intended employment;
                                    ``(V) the survey is across 
                                industries that employ workers in the 
                                occupation;
                                    ``(VI) the wage determination 
                                reflects the mean wage of workers 
                                similarly employed (and, at the 
                                employer's discretion, at the same 
                                skill level) in the area of intended 
                                employment; and
                                    ``(VII) the survey identifies a 
                                statistically valid methodology that 
                                was used to collect the data.
    ``(b) Petitions.--
            ``(1) In general.--An employer that seeks to employ an 
        alien as an H-2B worker shall file with the Secretary of 
        Homeland Security a petition (and shall not be required to make 
        any additional filings with the Secretary of Labor).
            ``(2) Contents.--In the petition, the employer shall 
        include the following:
                    ``(A) The number of named and unnamed H-2B workers 
                the employer is seeking to employ.
                    ``(B) The reason for the employer's temporary 
                (consistent with section 214(g)(9)(D)) and full time 
                need for the H-2B workers and the occupations sought.
                    ``(C) The area of employment and worksites of the 
                H-2B workers, except that for itinerant industries that 
                do not operate in a single fixed-site location, an 
                employer shall provide a list of work locations.
                    ``(D) The time period during which the H-2B workers 
                will be needed (the `work period'), including whether 
                actual entry will be staggered.
            ``(3) Attestations.--In the petition, the employer shall 
        attest to the following:
                    ``(A) The employer's need for nonagricultural 
                services or labor is temporary (consistent with section 
                214(g)(9)(D)), and full-time.
                    ``(B) The work period, reason for temporary need, 
                and number of positions being requested have been truly 
                and accurately stated in the petition.
                    ``(C) The employer is offering terms and working 
                conditions normal to U.S. workers similarly employed in 
                the area of intended employment.
                    ``(D) The employer will provide to each H-2B worker 
                covered by the petition, prior to the submission of the 
                H-2B worker's visa application, written disclosure of 
                the terms and conditions of their employment.
                    ``(E) The employer conducted recruitment for United 
                States workers consistent with paragraph (4) before 
                filing the petition and was unsuccessful in locating 
                sufficient qualified United States workers for the job 
                opportunity for which the H-2B workers are sought.
                    ``(F) The employer will provide or reimburse 
                transportation expenses to an H-2B worker consistent 
                with the following rules:
                            ``(i) If an H-2B worker completes 50 
                        percent of the work period set forth in the 
                        petition, the employer shall pay the H-2B 
                        worker for the reasonable costs (including 
                        daily subsistence) incurred by the worker for 
                        transportation from the United States consulate 
                        that issued their visa, or, if already lawfully 
                        present in the United States in H-2B status or 
                        otherwise, from their previous place of 
                        residence in the United States, to the place of 
                        their employment as an H-2B worker.
                            ``(ii) In addition to an employer's 
                        obligations under section 214(c)(5)(A), if an 
                        H-2B worker completes the work period set forth 
                        in the petition, and is leaving the United 
                        States, the employer shall pay the H-2B worker 
                        for the reasonable costs (including daily 
                        subsistence) incurred by the worker for 
                        transportation from the place of their 
                        employment as an H-2B worker to the United 
                        States consulate that issued their visa.
                    ``(G) The employer has not and will not displace 
                United States workers employed by the employer during 
                the period of employment of the H-2B workers and for a 
                period of 60 days preceding such period in the 
                occupation and at the area of employment set forth in 
                the petition.
                    ``(H) The specific job opportunity that is the 
                subject of the petition is not vacant because the 
                former workers in that specific job are on strike or 
                locked out in the course of a labor dispute.
                    ``(I) The employer shall pay the H-2B workers, and 
                any United States worker hired in response to the 
                recruitment required by subparagraph (E), the greatest 
                of--
                            ``(i) the actual wage level paid by the 
                        employer to all other individuals with similar 
                        experience and qualifications for the specific 
                        employment in question;
                            ``(ii) the applicable Federal, State, or 
                        local minimum wage, whichever is greatest, or;
                            ``(iii) the prevailing wage level for the 
                        occupational classification in the area of 
                        employment.
                    ``(J) The employer will notify the Secretary of 
                Homeland Security within 2 work days of--
                            ``(i) an H-2B worker failing to report for 
                        work within 5 work days after the employment 
                        start date stated on the petition;
                            ``(ii) the labor or services for which the 
                        H-2B worker was hired being completed more than 
                        30 days early; or
                            ``(iii) the employer discovering that an H-
                        2B worker has failed to report for work at the 
                        regularly scheduled time for 5 or more 
                        consecutive working days without the consent of 
                        the employer.
                    ``(K) The employer--
                            ``(i) has not collected and will not 
                        collect any job placement fee, payment for any 
                        activity related to preparing or filing the 
                        petition, or other compensation from a 
                        beneficiary of an H-2B petition as a condition 
                        of an offer of employment or a condition of H-
                        2B employment (other than any government-
                        mandated passport, visa, or inspection fees);
                            ``(ii) has contractually forbidden any 
                        agent, attorney, facilitator, recruiter, or 
                        similar employment service from collecting such 
                        fees; and
                            ``(iii) shall ensure that the fees are 
                        reimbursed in full, if at any point the 
                        employer learns or has reason to know that any 
                        agent, attorney, facilitator, recruiter, or 
                        similar employment service has been paid such 
                        fees.
            ``(4) Effect of notice.--An employer who notifies the 
        Secretary of Homeland Security in accordance with paragraph 
        (3)(J) may designate an eligible alien to replace an H-2B 
        worker who fails to report for work notwithstanding the 
        numerical limitation in section 214(g)(1)(B).
            ``(5) Recruitment.--
                    ``(A) In general.--The recruitment required by 
                paragraph (3)(E) is satisfied if the employer--
                            ``(i) prior to filing the petition, placed 
                        a local job order with the State workforce 
                        agency serving the local area or areas where 
                        the work will be performed (or in the case of 
                        an itinerant employer, where the job is to 
                        begin), 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. The State 
                        workforce agency shall post the job order on 
                        its official agency website for a minimum of 30 
                        days and not later than 3 days after receipt 
                        using the employment statistics system 
                        authorized under section 15 of the Wagner-
                        Peyser Act (29 U.S.C. 49l-2);
                            ``(ii) offered or will offer United States 
                        workers not less than the same benefits, wages, 
                        and working conditions that the employer is 
                        offering, intends to offer, or will provide to 
                        H-2B workers;
                            ``(iii) does not impose on recruited United 
                        States workers any restrictions or obligations 
                        which will not be imposed on the employer's H-
                        2B workers; and
                            ``(iv) has offered or will offer the job 
                        for which the H-2B worker(s) are sought, unless 
                        the employer has a lawful, job-related reason 
                        not to do so, to any eligible United State 
                        worker who--
                                    ``(I) applies;
                                    ``(II) is qualified for the job; 
                                and
                                    ``(III) will be available at the 
                                time and place of need.
                    ``(B) Termination.--The requirement to offer a job 
                to a United States worker ceases to apply as of the 
                date the petition is approved.
    ``(c) Application Process.--
            ``(1) Acceptance of petitions.--An employer may file a 
        petition during the period that begins on the 90th day, and 
        ends on the 51st day, before the first date the employer 
        requires the labor or services of a petitioned-for H-2B worker.
            ``(2) Adjudication of petitions.--The Secretary of Homeland 
        Security--
                    ``(A) shall approve the petition if the Secretary 
                determines that the employer--
                            ``(i) has established that the need for the 
                        nonagricultural services or labor to be 
                        performed is temporary in nature and that the 
                        number of worker positions being requested is 
                        justified and represents bona fide job 
                        opportunities;
                            ``(ii) made the attestations required in 
                        subsection (b); and
                            ``(iii) has complied with all other 
                        requirements of this section; and
                    ``(B) shall submit notice to the petitioner of 
                approval or nonapproval not later than the later of 45 
                days prior to the first date the employer requires the 
                labor or services of a petitioned-for H-2B worker, or 
                21 days following the date the employer files a 
                petition for the H-2B worker.
            ``(3) Expedited administrative appeals.--The Secretary of 
        Homeland Security shall promulgate regulations to provide for 
        an expedited procedure for the review of a denial of a petition 
        under this section by the Secretary, which may include, at the 
        petitioner's request, a de novo administrative hearing 
        regarding the denial of a petition at which new evidence may be 
        introduced.
    ``(d) Admission of an H-2B Worker.--An H-2B worker shall be 
admitted to the United States for the duration of the work period in 
the petition, plus a period of up to 10 days before the work period 
begins and 10 days after the work period ends. An H-2B worker is not 
authorized to be employed except during the work period set forth in 
the petition.
    ``(e) Limitation on an H-2B Worker's Stay in Status.--An H-2B 
worker who has spent 3 years in the United States under section 
101(a)(15)(H) and (L) may not seek extension of stay, change status, or 
be readmitted to the United States pursuant to these provisions of such 
section unless the alien has resided and been physically present 
outside the United States for the immediately preceding 3 months. This 
limitation shall not apply to aliens who did not reside continually in 
the United States and whose employment in the United States was 
seasonal or intermittent or was for an aggregate of 6 months or less 
per year.
    ``(f) Housing.--An employer is not required to provide housing or a 
housing allowance to an H-2B worker.''.
    (c) Enforcement.--Section 214(c)(14) of the Immigration and 
Nationality Act (8 U.S.C. 1184(c)(14)) is amended--
            (1) by striking subparagraph (B); and
            (2) by redesignating subparagraphs (C) and (D) as 
        subparagraphs (B) and (C), respectively.
    (d) 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. Admission of temporary H-2B workers.''.

SEC. 4. ELIGIBILITY FOR FEDERAL PUBLIC BENEFITS AND REFUNDABLE TAX 
              CREDITS.

    (a) Federal Public Benefits.--An H-2B worker (as defined in section 
218A(a)(1) of the Immigration and Nationality Act, as inserted by 
section 3 of this Act)--
            (1) is not entitled to the premium assistance tax credit 
        authorized under section 36B of the Internal Revenue Code of 
        1986;
            (2) shall be subject to the rules applicable to individuals 
        who are not lawfully present set forth in subsection (e) of 
        such section; and
            (3) shall be subject to the rules applicable to individuals 
        who are not lawfully present set forth in section 1402(e) of 
        the Patient Protection and Affordable Care Act (42 U.S.C. 
        18071(e)).
    (b) Refundable Tax Credits.--An H-2B worker (as defined in section 
218A(a)(1) of the Immigration and Nationality Act, as inserted by 
section 3 of this Act) shall not be allowed any credit under section 24 
or 32 of the Internal Revenue Code of 1986. In the case of a joint 
return, no credit shall be allowed under either such section if both 
spouses are such a worker or alien.

SEC. 5. REGULATIONS.

    The Department of Labor H-2B program regulations published at 73 
Federal Register 78020 et seq. (2008) shall be in force for all 
petitions submitted under section 101(a)(15)(H)(ii)(b) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) 
beginning on the date of the enactment of this Act until the effective 
date of regulations implementing this Act. Not later than 12 months 
after the date of the enactment of this Act, the Secretary of Homeland 
Security shall promulgate regulations, in accordance with the notice 
and comment provisions of section 553 of title 5, United States Code, 
to implement the Secretary's duties under this Act. The Secretary of 
Homeland Security shall have the exclusive authority to make rules to 
implement this Act.
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