Sec. 4. H–2B temporary non-agricultural work visa program
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/bill/114/s/2225/is/section-4A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
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: In this section: The term best information available , with respect to determining the prevailing wage for a position, means— a controlling collective bargaining agreement that sets wages for work performed by H–2B nonimmigrants and in which the employer is a signatory; absent a controlling collective bargaining agreement described in subparagraph (A), the applicable Federal, State, or local prevailing wage laws for any time period during which the H–2B nonimmigrant performs work on a governmental project for which payment of such wages is required by such laws or ordinances if the employer has signed a contract agreeing to pay such wages on such project; or absent a controlling collective bargaining agreement described in subparagraph
(A)or the performance of work by the H–2B nonimmigrant that is governed by a prevailing wage law described in subparagraph (B)— the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or a private wage survey of the wages paid for such positions in the geographic area in which the H–2B nonimmigrant will be employed. The term displace means to lay off a United States worker from a job that is essentially equivalent to the job for which an employer seeks an H–2B nonimmigrant. A job shall be considered essentially equivalent to another job offered by an employer if the job— involves the same essential responsibilities as such other job; is 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. The term full-time employment means— 30 or more hours of work per week; or for any occupation in which a State or an established industry practice defines full-time employment as less than 30 hours per week, the number of weekly work hours established by the State or industry. The term H–2B nonimmigrant means a nonimmigrant described in section 101(a)(15)(H)(ii)(b). The term layoff means— to cause a United States worker’s loss of employment before the scheduled cessation of the employer's need, 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)(3)(G)); and 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 the employee accepts the offer. The term other temporary service or labor means that an employer’s need for particular labor will last— if peak load or intermittent, for not more than 1 year, unless it is a one-time occurrence lasting no longer than 3 years; or if the employer's need is seasonal, for not more than 10 months. The term private wage survey means, in the case of a petition under subsection (b), a survey of wages by an entity other than the Federal Government for which— the data has been collected during the 2-year period immediately preceding the date of the petition; if a published survey, the survey has been published during the 2-year period immediately preceding the date of the petition; the job description for the position being offered by the employer is similar to the job description for which the survey was conducted; the survey is across industries that employ workers in the job description; the wage determination is based on a weighted or straight average of the relevant wages or the median of relevant wage levels; and a statistically valid methodology that was used to collect the data is identified. The term United States worker means any worker who is— a national of the United States; or an alien who is— lawfully admitted for permanent residence; admitted as a refugee under section 207; granted asylum under section 208; or is an immigrant otherwise authorized to be employed under this Act. The term work period means the time period during which the H–2B nonimmigrants will be needed by an employer. An employer seeking to employ an H–2B nonimmigrant shall file a petition with the Secretary of Homeland Security in accordance with this subsection. A petition filed under this subsection shall include— the reason for the employer’s need for other temporary service or labor and the full time need for the H–2B nonimmigrants and the occupations sought; the number of named and unnamed H–2B nonimmigrants the employer is seeking to employ during the work period; the area of employment and worksites of the H–2B nonimmigrants, except that itinerant employers who do not operate in a single fixed-site location, shall provide a list of work locations that— may include an itinerary anticipated at the time of petitioning; and may be subsequently amended by the employer, with notice to the Secretary of Homeland Security; the anticipated work period, including expected beginning and ending dates and an indication if actual entry or departure will be staggered; and the written disclosure of employment terms and conditions that the employer chooses to provide to each proposed H–2B nonimmigrant before the date on which the H–2B nonimmigrant files a visa application. A petition filed under this subsection shall include an attestation by the employer that— the employer’s need for labor is for other temporary service or labor and for full-time employment; the work period, the reason for temporary need, and the anticipated number of positions needed and being requested have been truly and accurately stated in the petition; the employer is offering terms and working conditions normal to United States workers similarly employed in the area or areas of intended employment; the employer, no later than when the H–2B nonimmigrant presents himself or herself to the consular office, will provide each H–2B nonimmigrant covered by the petition with written disclosure of the terms and conditions of their employment, including individualized expected dates of entry and departure; the employer— conducted recruitment for United States workers in accordance 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 nonimmigrant is sought; the employer 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 H–2B employment or an offer of H–2B employment (other than any Government-mandated charges, such as passport, visa or inspection fees, or other expenses for which reimbursement is not prohibited by the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. )); the employer has contractually forbidden any agent, attorney, facilitator, recruiter, or similar employment service from collecting such fees; and if the employer learns or has reason to know that any agent, attorney, facilitator, recruiter, or similar employment service has been paid such fees, the employer will fully reimburse such fees; the employer has not and will not displace any United States worker employed by the employer as long as an H–2B nonimmigrant is employed for a period of 30 days preceding such period in the occupation and at the area of employment set forth in the petition; and the specific job opportunity that is the subject of the petition is not vacant because the former worker in that job is on strike or locked out in the course of a labor dispute. Not later than 60 days before the date on which an employer intends to hire an H–2B nonimmigrant, the employer— shall submit a written disclosure of the 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, the local office of the State workforce agency where the job is to begin; and shall authorize the posting of such disclosure on the appropriate electronic job registry of the Department of Labor for a period of 45 days. The Secretary of Labor shall promptly post each such disclosure without requiring the employer to meet any other condition or carry out any other action. For a job opportunity for which an H–2B worker is sought, the employer shall offer any United States worker applying for such job not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to an H–2B nonimmigrant. The job offer may not impose on any United States worker any restrictions or obligations which will not be imposed on the employer’s H–2B nonimmigrants. Unless the employer has a lawful, job-related reason not to do so, the employer shall offer the job for which an H–2B nonimmigrant is sought to any eligible United States worker who— applies; is qualified for the job; and will be available at the time and place and for the duration of need. The employer shall keep 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. H–2B employers may not be required to file an interstate job order under section 653 of title 20, Code of Federal Regulations. An employer is not required to provide housing, a housing allowance, or other facilities to an H–2B nonimmigrant. If an employer does provide housing, a housing allowance, or other facilities to an H–2B nonimmigrant, the employer may take a wage deduction or credit toward satisfying the responsibility to pay prescribed wages in an amount that is equal to the fair value of such housing or other facility in accordance with the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) or other applicable law. If an employer does not provide housing to H–2B nonimmigrants, the employer shall make reasonable efforts to assist the H–2B nonimmigrants to locate appropriate housing. H–2B nonimmigrants shall be paid wages that are not less than the greater of— the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; the applicable Federal, State, or local minimum wage; or the prevailing wage level for the job description 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. Not later than the date on which an H–2B nonimmigrant completes 50 percent of the work period set forth in the petition, the employer shall reimburse the H–2B nonimmigrant for the cost of transportation for that H–2B nonimmigrant from the United States consulate that issued the visa to the H–2B nonimmigrant, or the previous worksite in the United States, if any, to the place of employment of such H–2B nonimmigrant, unless the H–2B nonimmigrant has been previously reimbursed by another employer. The amount of reimbursement under this paragraph shall be not more than the cost incurred through the most economical and reasonable common carrier, and shall include documented and reasonable subsistence costs during the period of travel. If an H–2B nonimmigrant completes the work period set forth in the petition for an employer, and is not traveling to another worksite in the United States, the employer, not later than the time the H–2B nonimmigrant departs from the worksite, shall pay for the cost of transportation for that H–2B nonimmigrant, from the place of employment to the United States consulate that issued the visa to the H–2B nonimmigrant. The cost required to be paid under this paragraph shall be not more than the cost incurred through the most economical and reasonable common carrier, and shall include reasonable subsistence costs during the period of travel. Notwithstanding any other provision of law, an employer shall have no obligation to provide or reimburse any transportation-related costs incurred by an alien seeking to be an H–2B nonimmigrant between the such alien’s home and the consulate or embassy and between the consulate or embassy and such alien’s home. An employer shall notify the Secretary of Homeland Security within 2 work days— of an H–2B nonimmigrant who fails to report for work within 5 work days after the employment's expected start date stated on the petition or the reasonably anticipated start date in the event of exigent circumstances; if the labor or services for which the H–2B nonimmigrant was hired is completed more than 30 days early; or if the employer discovers that an H–2B nonimmigrant has absconded from the worksite by failing to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer. Notwithstanding the numerical limitation under section 214(g)(1)(B), if an employer notifies the Secretary of Homeland Security of a situation described in subparagraph
(A)or
(C)of paragraph (1), the Secretary shall promptly notify the Secretary of State, who shall make available to the employer 1 additional visa for the employer to hire a replacement H–2B nonimmigrant for the same job opportunity, without filing an additional petition, for each H–2B nonimmigrant who fails to report to work or who absconds from work. An H–2B nonimmigrant is authorized to be admitted to the United States up to 10 days before the first day of the work period described in the petition and no later than 10 days after the last day of such work period. An H–2B nonimmigrant is not authorized to be employed except during the work period set forth in the petition. An H–2B nonimmigrant who was present in the United States for 3 years under subparagraph
(H)of section 101(a)(15) may not seek extension of stay, change of status, or be readmitted to the United States pursuant to such subparagraph 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 for 3 years and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. Subject to paragraph (2), if an employer files a petition for H–2B nonimmigrants and that petition is granted, the employer may bring the H–2B nonimmigrants for which the petition was granted into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition. An employer may not bring H–2B nonimmigrants into the United States under paragraph
(1)after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer— completes a new assessment of the local labor market by— publishing notice of the job offer in a local newspaper in not less than 2 Sunday editions of such newspaper; and posting the job opportunity on the appropriate electronic job registry of the Department of Labor pursuant to subsection (b)(4)(A) and at the employer's place of employment; and offers the job to an equally or better qualified United States worker who will be available at the time and place and for the duration of need and who applies for the job. The Secretary of Labor shall not consider an employer who brings H–2B nonimmigrants into the United States during the 120-day period specified in paragraph
(1)to be staggering the date of need in violation of any applicable provision of law. . 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 nonimmigrants. .
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