H.R. 4238 — Introduced in House

I 113th CONGRESS 2d Session H. R. 4238 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. 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. 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: 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. .