Sec. 582. Recruitment of United States workers
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Section 212 of the Immigration and Nationality Act ( 8 U.S.C. 1182 ) is amended— in subsection (p)(3), by striking (a)(5)(A), (n)(1)(A)(i)(II), and inserting (n)(1)(A)(i)(II) ; by redesignating subsection
(t)(as added by section 1(b)(2)(B) of Public Law 108–449 ) as subsection (u); and by adding at the end the following: Except as provided under paragraph (5), an employer that seeks to employ an alien described in section 101(a)(15)(H)(ii)(b) (referred to in this subsection as an H–2B nonimmigrant ) shall take the following steps to recruit United States workers for the position for which the alien is sought not later than 14 days before filing an application under paragraph (3): The employer shall submit a copy of the job offer, including a description of the 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 (referred to in this subsection as the SWA ). The SWA shall provide the employer with an acknowledgment of receipt of such documentation in accordance with this paragraph. The employer shall authorize the SWA to post the job opportunity on the Internet through the website for America’s Job Bank , with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to such job opportunity. The employer shall authorize the SWA to provide notification of the job opportunity, and the SWA shall designate that these are job opportunities for which H–2B visas have been requested, to— the central office of the State Federation of Labor in the State in which the job is located; and the office of the local union which represents the employees in the same or substantially equivalent job classification, if applicable. The employer shall post the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see. The employer shall advertise the availability of the job opportunity for which the employer is seeking a worker in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker for at least 5 consecutive days. Based on recommendations by the local job service, the employer shall advertise the availability of the job opportunity in professional, trade, or local minority and ethnic publications that are likely to be patronized by a potential worker. An employer that seeks to employ an H–2B nonimmigrant shall— first offer the job to any eligible United States worker who— applies; is qualified for the job; and is available at the time of need; and maintain, for at least 3 years after the employment relation is terminated, documentation of recruitment efforts and responses conducted and received before filing an application with the Department of Labor, including— resumes; applications; and tests of United States workers who applied and were not hired for the job the employer seeks to fill with a nonimmigrant worker, if applicable. An employer that seeks to hire an H–2B nonimmigrant shall submit an application to the Secretary of Labor that includes a certification, under penalty of perjury, that— the employer has not made a job offer to a United States worker, which imposed restrictions or obligations that will not be imposed on an H–2B nonimmigrant; the employer has complied with the recruitment requirements under paragraph (1); the employer will offer an H–2B nonimmigrant not less than the same benefits and working conditions provided to United States workers similarly employed in the same occupational classification at the same actual place of employment in addition to paying an H–2B nonimmigrant a prevailing wage rate not less than the wage rate offered to United States workers; there is currently no strike, lockout, or labor dispute (as defined in section 2(9) of the Labor-Management Relations Act ( 29 U.S.C. 152(9) )), at the same place of employment, which affects employees in the same occupational classification in which an H–2B nonimmigrant will be employed; the employer will comply with all applicable laws and regulations relating to the right of workers to join or organize a union (including rights protected under section 7 of the Labor-Management Relations Act ( 29 U.S.C. 157 )); the employer has— provided notice of the filing of an application to the bargaining representative of employees, if any, working in the same occupational classification at the place of employment as an H–2B nonimmigrant who the employer intends to employ; or if there is no such bargaining representative, posted notice of filing such application in conspicuous locations at the place of employment for all employees to see for not fewer than 14 business days; and the requirements applicable to the job, which the employer intends to hire an H–2B nonimmigrant to perform, represent the actual minimum requirements applicable to that job and the employer will not hire an H–2B nonimmigrant to perform the job who has less training or experience than the employer’s other employees. An employer that applies to hire an H–2B nonimmigrant shall hire any qualified United States worker who applies for the job for which such nonimmigrant was intended to be employed if such United States worker applies before the date that is 30 days before the date on which the last such H–2B nonimmigrant is scheduled to begin work for such employer. The Secretary of Labor, through the workforce agency of a State, as appropriate, shall provide information about applications for H–2B nonimmigrants, including information about domestic workers who apply for jobs but are not hired, to a United States worker, nonprofit organization, or union not later than 48 hours after such worker, organization, or union requests such information. .
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- Pub. L. 108-449
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Sec. 582
Recruitment of United States workers
Pub. L.Pub. L. 108-449
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