II 

115TH CONGRESS 

1ST SESSION S. 792 

To amend the Immigration and Nationality Act to establish an H–2B 

temporary non-agricultural work visa program, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 30, 2017 

Mr. TILLIS (for himself, Mr. KING, Mr. THUNE, Ms. COLLINS, Mr. ROUNDS, 

Mr. CORNYN, Ms. MURKOWSKI, and Mr. BLUNT) introduced the following 

bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to establish 

an H–2B temporary non-agricultural work visa program, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Save Our Small and 

5 Seasonal Businesses Act of 2017’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) CONDITIONAL APPROVAL.—The term ‘‘con9 ditional approval’’ means, with respect to a petition 


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1 for admission of H–2B nonimmigrants, the Sec2 retary has determined that such petition has met all 

3 the conditions under paragraphs (2) and (6) of sec4 tion 214.2(h) of title 8, Code of Federal Regulations 

5 (or similar successor regulation), and is approved 

6 subject to determining whether visas are available 

7 for such nonimmigrants within the statutory cap. 

8 (2) FINAL APPROVAL.—The term ‘‘final ap9 proval’’ means, with respect to a petition for admis10 sion of H–2B nonimmigrants, the Secretary has de11 termined that such petition has met all the condi12 tions under section 655.11 of title 20, Code of Fed13 eral Regulations (or similar successor regulation), 

14 and that visas are available for such nonimmigrants 

15 within the statutory cap. 

16 (3) H–2B NONIMMIGRANT.—The term ‘‘H–2B 

17 nonimmigrant’’ means a nonimmigrant described in 

18 section 101(a)(15)(H)(ii)(b) of the Immigration and 

19 Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)). 

20 (4) PREMIUM PROCESSING PETITION.—The 

21 term ‘‘premium processing petition’’ means a peti22 tion for an H–2B nonimmigrant for which the peti23 tioner pays a premium fee pursuant to section 

24 286(u) of the Immigration and Nationality Act (8 

25 U.S.C. 1356). 


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1 (5) SECRETARY.—Except as otherwise specifi2 cally provided, the term ‘‘Secretary’’ means the Sec3 retary of Homeland Security. 

4 (6) STATUTORY CAP.—The term ‘‘statutory 

5 cap’’ means the maximum number of aliens who 

6 may be issued visas or otherwise provided non7 immigrant status during any fiscal year under sec8 tion 214(g)(1)(B) of the Immigration and Nation9 ality Act (8 U.S.C. 1184(g)(1)(B)). 

10 SEC. 3. RETURNING WORKERS. 

11 (a) IN GENERAL.—Section 214(g)(9)(A) of the Im12 migration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) 

13 is amended to read as follows: 

14 ‘‘(A)(i) Except as provided in clause (ii), and subject 

15 to subparagraphs (B) and (C), an alien who has already 

16 been counted toward the numerical limitation under para17 graph (1)(B) shall not be counted again toward such limi18 tation during the fiscal year and shall be considered a re19 turning worker. 

20 ‘‘(ii) An alien who has already been counted toward 

21 the numerical limitation under paragraph (1)(B) shall be 

22 counted again toward such limitation if such alien— 

23 ‘‘(I) departs the United States for a period 

24 longer than 1 year; 


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1 ‘‘(II) was not counted toward such limitation in 

2 any of the 3 most recent fiscal years; or 

3 ‘‘(III) violated his or her status during the au4 thorized period of stay.’’. 

5 (b) EFFECTIVE DATE.—The amendment made by 

6 subsection (a) shall take effect as if enacted on January 

7 1, 2017. 

8 SEC. 4. H–2B TEMPORARY NON-AGRICULTURAL WORK VISA 

9 PROGRAM. 

10 (a) ADMISSION OF TEMPORARY H–2B NON11 IMMIGRANTS.—Chapter 2 of title II of the Immigration 

12 and Nationality Act (8 U.S.C. 1181 et seq.) is amended 

13 by inserting after section 218 the following: 

14 ‘‘SEC. 218A. ADMISSION OF TEMPORARY H–2B NON15 IMMIGRANTS. 

16 ‘‘(a) DEFINITIONS.—In this section: 

17 ‘‘(1) BEST INFORMATION AVAILABLE.—The 

18 term ‘best information available’, with respect to de19 termining the prevailing wage for a position, 

20 means— 

21 ‘‘(A) a controlling collective bargaining 

22 agreement that sets wages for work performed 

23 by H–2B nonimmigrants and in which the em24 ployer is a signatory; 


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1 ‘‘(B) absent a controlling collective bar2 gaining agreement described in subparagraph 

3 (A), the applicable Federal, State, or local pre4 vailing wage laws for any time period during 

5 which the H–2B nonimmigrant performs work 

6 on a governmental project for which payment of 

7 such wages is required by such laws or ordi8 nances if the employer has signed a contract 

9 agreeing to pay such wages on such project; or 

10 ‘‘(C) absent a controlling collective bar11 gaining agreement described in subparagraph 

12 (A) or the performance of work by the H–2B 

13 nonimmigrant that is governed by a prevailing 

14 wage law described in subparagraph (B)— 

15 ‘‘(i) the wage level commensurate with 

16 the experience, training, and supervision 

17 required for the job based on Bureau of 

18 Labor Statistics data; or 

19 ‘‘(ii) a private wage survey of the 

20 wages paid for such positions in the geo21 graphic area in which the H–2B non22 immigrant will be employed. 

23 ‘‘(2) DISPLACE.—The term ‘displace’ means to 

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1 sentially equivalent to the job for which an employer 

2 seeks an H–2B nonimmigrant. 

3 ‘‘(3) ESSENTIALLY EQUIVALENT.—A job shall 

4 be considered ‘essentially equivalent’ to another job 

5 offered by an employer if the job— 

6 ‘‘(A) involves the same essential respon7 sibilities as such other job; 

8 ‘‘(B) is held by a United States worker 

9 with substantially equivalent qualifications and 

10 experience; and 

11 ‘‘(C) is located in the same area of employ12 ment as the other job. 

13 ‘‘(4) FULL-TIME.—The term ‘full-time employ14 ment’ means— 

15 ‘‘(A) 30 or more hours of work per week; 

16 or 

17 ‘‘(B) for any occupation in which a State 

18 or an established industry practice defines full19 time employment as less than 30 hours per 

20 week, the number of weekly work hours estab21 lished by the State or industry. 

22 ‘‘(5) H–2B NONIMMIGRANT.—The term ‘H–2B 

23 nonimmigrant’ means a nonimmigrant described in 

24 section 101(a)(15)(H)(ii)(b). 

25 ‘‘(6) LAYOFF.—The term ‘layoff’ means— 


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1 ‘‘(A) to cause a United States worker’s 

2 loss of employment before the scheduled ces3 sation of the employer’s need, other than 

4 through a discharge for inadequate perform5 ance, violation of workplace rules, cause, vol6 untary departure, voluntary retirement, or the 

7 expiration of a grant or contract (other than a 

8 temporary employment contract entered into in 

9 order to evade a condition described in sub10 section (b)(3)(G)); and 

11 ‘‘(B) does not include any situation in 

12 which the worker is offered, as an alternative to 

13 such loss of employment, a similar employment 

14 opportunity with the same employer at equiva15 lent or higher compensation and benefits than 

16 the position from which the employee was dis17 charged, regardless of whether the employee ac18 cepts the offer. 

19 ‘‘(7) OTHER TEMPORARY SERVICE OR LABOR.— 

20 The term ‘other temporary service or labor’ means 

21 that an employer’s need for particular labor will 

22 last— 

23 ‘‘(A) if peak load or intermittent, for not 

24 more than 1 year, unless it is a one-time occur25 rence lasting no longer than 3 years; or 


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1 ‘‘(B) if the employer’s need is seasonal, for 

2 not more than 10 months. 

3 ‘‘(8) PRIVATE WAGE SURVEY.—The term ‘pri4 vate wage survey’ means, in the case of a petition 

5 under subsection (b), a survey of wages by an entity 

6 other than the Federal Government for which— 

7 ‘‘(A) the data has been collected during the 

8 2-year period immediately preceding the date of 

9 the petition; 

10 ‘‘(B) if a published survey, the survey has 

11 been published during the 2-year period imme12 diately preceding the date of the petition; 

13 ‘‘(C) the job description for the position 

14 being offered by the employer is similar to the 

15 job description for which the survey was con16 ducted; 

17 ‘‘(D) the survey is across industries that 

18 employ workers in the job description; 

19 ‘‘(E) the wage determination is based on a 

20 weighted or straight average of the relevant 

21 wages or the median of relevant wage levels; 

22 and 

23 ‘‘(F) a statistically valid methodology that 

24 was used to collect the data is identified. 


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1 ‘‘(9) UNITED STATES WORKER.—The term 

2 ‘United States worker’ means any worker who is— 

3 ‘‘(A) a national of the United States; or 

4 ‘‘(B) an alien who is— 

5 ‘‘(i) lawfully admitted for permanent 

6 residence; 

7 ‘‘(ii) admitted as a refugee under sec8 tion 207; 

9 ‘‘(iii) granted asylum under section 

10 208; or 

11 ‘‘(iv) is an immigrant otherwise au12 thorized to be employed under this Act. 

13 ‘‘(10) WORK PERIOD.—The term ‘work period’ 

14 means the time period during which the H–2B non15 immigrants will be needed by an employer. 

16 ‘‘(b) PETITIONS.— 

17 ‘‘(1) REQUIREMENT FOR PETITIONS.—An em18 ployer seeking to employ an H–2B nonimmigrant 

19 shall file a petition with the Secretary of Homeland 

20 Security in accordance with this subsection. 

21 ‘‘(2) CONTENTS.—A petition filed under this 

22 subsection shall include— 

23 ‘‘(A) the reason for the employer’s need for 

24 other temporary service or labor and the full 


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1 time need for the H–2B nonimmigrants and the 

2 occupations sought; 

3 ‘‘(B) the number of named and unnamed 

4 H–2B nonimmigrants the employer is seeking 

5 to employ during the work period; 

6 ‘‘(C) the area of employment and worksites 

7 of the H–2B nonimmigrants, except that 

8 itinerant employers who do not operate in a sin9 gle fixed-site location, shall provide a list of 

10 work locations that— 

11 ‘‘(i) may include an itinerary antici12 pated at the time of petitioning; and 

13 ‘‘(ii) may be subsequently amended by 

14 the employer, with notice to the Secretary; 

15 ‘‘(D) the anticipated work period, including 

16 expected beginning and ending dates and an in17 dication if actual entry or departure will be 

18 staggered; and 

19 ‘‘(E) the written disclosure of employment 

20 terms and conditions that the employer chooses 

21 to provide to each proposed H–2B non22 immigrant before the date on which the H–2B 

23 nonimmigrant files a visa application. 


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1 ‘‘(3) ATTESTATION.—A petition filed under this 

2 subsection shall include an attestation by the em3 ployer that— 

4 ‘‘(A) the employer’s need for labor is for 

5 other temporary service or labor and for full6 time employment; 

7 ‘‘(B) the work period, the reason for tem8 porary need, and the anticipated number of po9 sitions needed and being requested have been 

10 truly and accurately stated in the petition; 

11 ‘‘(C) the employer is offering terms and 

12 working conditions normal to United States 

13 workers similarly employed in the area or areas 

14 of intended employment; 

15 ‘‘(D) the employer, not later than the date 

16 on which the H–2B nonimmigrant presents 

17 himself or herself to the consular office, will 

18 provide each H–2B nonimmigrant covered by 

19 the petition with written disclosure of the terms 

20 and conditions of their employment, including 

21 individualized expected dates of entry and de22 parture; 

23 ‘‘(E) the employer— 


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1 ‘‘(i) conducted recruitment for United 

2 States workers in accordance with para3 graph (4) before filing the petition; and 

4 ‘‘(ii) was unsuccessful in locating suf5 ficient qualified United States workers for 

6 the job opportunity for which the H–2B 

7 nonimmigrant is sought; 

8 ‘‘(F)(i) the employer has not collected and 

9 will not collect any job placement fee, payment 

10 for any activity related to preparing or filing 

11 the petition, or other compensation from a ben12 eficiary of an H–2B petition as a condition of 

13 H–2B employment or an offer of H–2B employ14 ment (other than any Government-mandated 

15 charges, such as passport, visa or inspection 

16 fees, or other expenses for which reimbursement 

17 is not prohibited by the Fair Labor Standards 

18 Act of 1938 (29 U.S.C. 201 et seq.)); 

19 ‘‘(ii) the employer has contractually forbid20 den any agent, attorney, facilitator, recruiter, 

21 or similar employment service from collecting 

22 such fees; and 

23 ‘‘(iii) if the employer learns or has reason 

24 to know that any agent, attorney, facilitator, re25 cruiter, or similar employment service has been 


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1 paid such fees, the employer will fully reimburse 

2 such fees to the H–2B nonimmigrant; 

3 ‘‘(G) the employer has not and will not dis4 place any United States worker employed by 

5 the employer as long as an H–2B non6 immigrant is employed for a period of 30 days 

7 preceding such period in the occupation and at 

8 the area of employment set forth in the peti9 tion; and 

10 ‘‘(H) the specific job opportunity that is 

11 the subject of the petition is not vacant because 

12 the former worker in that job is on strike or 

13 locked out in the course of a labor dispute. 

14 ‘‘(4) RECRUITMENT REQUIREMENTS.— 

15 ‘‘(A) WRITTEN DISCLOSURE.— 

16 ‘‘(i) IN GENERAL.—Not later than 60 

17 days before the date on which an employer 

18 intends to hire an H–2B nonimmigrant, 

19 the employer— 

20 ‘‘(I) shall submit a written disclo21 sure of the employment terms and 

22 conditions for such worker to— 

23 ‘‘(aa) the local office of the 

24 State workforce agency where the 

25 job is located; or 


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1 ‘‘(bb) in the case of an 

2 itinerant employer, the local of3 fice of the State workforce agen4 cy where the job is to begin; and 

5 ‘‘(II) shall authorize the posting 

6 of such disclosure on the appropriate 

7 electronic job registry of the Depart8 ment of Labor for a period of 45 

9 days. 

10 ‘‘(ii) POSTING BY SECRETARY OF

11 LABOR.—The Secretary of Labor shall 

12 promptly post each such disclosure without 

13 requiring the employer to meet any other 

14 condition or carry out any other action. 

15 ‘‘(B) BENEFITS, WAGES, AND WORKING

16 CONDITIONS.—For a job opportunity for which 

17 an H–2B worker is sought, the employer shall 

18 offer any United States worker applying for 

19 such job not less than the same benefits, wages, 

20 and working conditions that the employer is of21 fering, intends to offer, or will provide to an H– 

22 2B nonimmigrant. The job offer may not im23 pose on any United States worker any restric24 tions or obligations which will not be imposed 

25 on the employer’s H–2B nonimmigrants. 


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1 ‘‘(C) JOB OFFERS.—Unless the employer 

2 has a lawful, job-related reason not to do so, 

3 the employer shall offer the job for which an 

4 H–2B nonimmigrant is sought to any eligible 

5 United States worker who— 

6 ‘‘(i) applies; 

7 ‘‘(ii) is qualified for the job; and 

8 ‘‘(iii) will be available at the time and 

9 place and for the duration of need. 

10 ‘‘(D) RECORDS.—The employer shall keep 

11 a record of all eligible, able, willing, and quali12 fied United States workers who apply for em13 ployment with the employer for the job for 

14 which an H–2B nonimmigrant is sought. 

15 ‘‘(E) SAVINGS PROVISION.—H–2B employ16 ers may not be required to file an interstate job 

17 order under sections 655.16 and 655.18 of title 

18 20, Code of Federal Regulations. 

19 ‘‘(c) HOUSING AND OTHER FACILITIES.— 

20 ‘‘(1) IN GENERAL.—An employer is not re21 quired to provide housing, a housing allowance, or 

22 other facilities to an H–2B nonimmigrant. 

23 ‘‘(2) WAGE DEDUCTION.—If an employer does 

24 provide housing, a housing allowance, or other facili25 ties to an H–2B nonimmigrant, the employer may 


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1 take a wage deduction or credit toward satisfying 

2 the responsibility to pay prescribed wages in an 

3 amount that is equal to the fair value of such hous4 ing or other facility in accordance with the Fair 

5 Labor Standards Act of 1938 (29 U.S.C. 201 et 

6 seq.) or other applicable law. 

7 ‘‘(3) LOCATING HOUSING.—If an employer does 

8 not provide housing to H–2B nonimmigrants, the 

9 employer shall make reasonable efforts to assist the 

10 H–2B nonimmigrants to locate appropriate housing. 

11 ‘‘(d) WAGES.—H–2B nonimmigrants shall be paid 

12 wages that are not less than the greater of— 

13 ‘‘(1) the actual wage level paid by the employer 

14 to other employees with similar experience and quali15 fications for such position in the same location; 

16 ‘‘(2) the applicable Federal, State, or local min17 imum wage; or 

18 ‘‘(3) the prevailing wage level for the job de19 scription of the position in the geographic area in 

20 which the H–2B nonimmigrant will be employed, 

21 based on the best information available at the time 

22 of filing the petition. 

23 ‘‘(e) TRANSPORTATION.— 

24 ‘‘(1) TRANSPORTATION TO THE PLACE OF EM25 PLOYMENT.—Not later than the date on which an 


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1 H–2B nonimmigrant completes 50 percent of the 

2 work period set forth in the petition, the employer 

3 shall reimburse the H–2B nonimmigrant for the cost 

4 of transportation for that H–2B nonimmigrant from 

5 the United States consulate that issued the visa to 

6 the H–2B nonimmigrant, or the previous worksite in 

7 the United States, if any, to the place of employ8 ment of such H–2B nonimmigrant, unless the H–2B 

9 nonimmigrant has been previously reimbursed by an10 other employer. The amount of reimbursement 

11 under this paragraph shall be not more than the 

12 cost incurred through the most economical and rea13 sonable common carrier, and shall include docu14 mented and reasonable subsistence costs during the 

15 period of travel. 

16 ‘‘(2) TRANSPORTATION FROM THE PLACE OF

17 EMPLOYMENT.—If an H–2B nonimmigrant com18 pletes the work period set forth in the petition for 

19 an employer, and is not traveling to another work20 site in the United States, the employer, not later 

21 than the time the H–2B nonimmigrant departs from 

22 the worksite, shall pay for the cost of transportation 

23 for that H–2B nonimmigrant, from the place of em24 ployment to the United States consulate that issued 

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1 quired to be paid under this paragraph shall be not 

2 more than the cost incurred through the most eco3 nomical and reasonable common carrier, and shall 

4 include reasonable subsistence costs during the pe5 riod of travel. 

6 ‘‘(3) NO OBLIGATION TO PROVIDE TRANSPOR7 TATION COSTS.—Notwithstanding any other provi8 sion of law, an employer shall have no obligation to 

9 provide or reimburse any transportation-related 

10 costs incurred by an alien seeking to be an H–2B 

11 nonimmigrant between the such alien’s home and 

12 the consulate or embassy and between the consulate 

13 or embassy and such alien’s home. 

14 ‘‘(f) REPORTING ABSCONDING WORKERS.— 

15 ‘‘(1) REQUIREMENT TO NOTIFY.—An employer 

16 shall notify the Secretary of Homeland Security not 

17 later than 2 work days after— 

18 ‘‘(A) an H–2B nonimmigrant fails to re19 port for work within 5 work days after the em20 ployee’s expected start date, as stated on the 

21 petition, or the reasonably anticipated start 

22 date in the event of exigent circumstances; 

23 ‘‘(B) the labor or services for which the H– 

24 2B nonimmigrant was hired is completed more 

25 than 30 days early; or 


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1 ‘‘(C) the employer discovers that an H–2B 

2 nonimmigrant has absconded from the worksite 

3 by failing to report for work at the regularly 

4 scheduled time for 5 consecutive working days 

5 without the consent of the employer. 

6 ‘‘(2) REPLACEMENT WORKERS.—Notwith7 standing the numerical limitation under section 

8 214(g)(1)(B), if an employer notifies the Secretary 

9 of Homeland Security of a situation described in 

10 subparagraph (A) or (C) of paragraph (1), the Sec11 retary shall promptly notify the Secretary of State, 

12 who shall make available to the employer 1 addi13 tional visa for the employer to hire a replacement 

14 H–2B nonimmigrant for the same job opportunity, 

15 without filing an additional petition, for each H–2B 

16 nonimmigrant who fails to report to work or who ab17 sconds from work. 

18 ‘‘(g) ADMISSION OF AN H–2B NONIMMIGRANT.—An 

19 H–2B nonimmigrant is authorized to be admitted to the 

20 United States during the period beginning 10 days before 

21 the first day of the validity period and ending 10 days 

22 after the last day of the validity period. An H–2B non23 immigrant is not authorized to be employed except during 

24 the work period set forth in the petition. 


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1 ‘‘(h) LIMITATION ON AN H–2B NONIMMIGRANT’S

2 STAY IN STATUS.—An H–2B nonimmigrant who was 

3 present in the United States for 3 years under subpara4 graph (H) of section 101(a)(15) may not seek extension 

5 of stay, change of status, or be readmitted to the United 

6 States pursuant to such subparagraph unless the alien has 

7 resided and been physically present outside the United 

8 States for the immediately preceding 3 months. This limi9 tation shall not apply to aliens who did not reside contin10 ually in the United States for 3 years and whose employ11 ment in the United States was seasonal or intermittent 

12 or was for an aggregate of 6 months or less per year. 

13 ‘‘(i) FLEXIBILITY WITH RESPECT TO CROSSING OF

14 H–2B NONIMMIGRANTS.— 

15 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

16 if an employer files a petition for H–2B non17 immigrants and that petition is granted, the em18 ployer may bring the H–2B nonimmigrants for 

19 which the petition was granted into the United 

20 States at any time during the 120-day period begin21 ning on the start date for which the employer is 

22 seeking the services of the nonimmigrants without 

23 filing another petition. 

24 ‘‘(2) REQUIREMENTS FOR CROSSINGS AFTER

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1 immigrants into the United States under paragraph 

2 (1) after the date that is 90 days after the start 

3 date for which the employer is seeking the services 

4 of the nonimmigrants unless the employer— 

5 ‘‘(A) completes a new assessment of the 

6 local labor market by— 

7 ‘‘(i) publishing notice of the job offer 

8 in a local newspaper in not less than 2 

9 Sunday editions of such newspaper; and 

10 ‘‘(ii) posting the job opportunity on 

11 the appropriate electronic job registry of 

12 the Department of Labor pursuant to sub13 section (b)(4)(A) and at the employer’s 

14 place of employment; and 

15 ‘‘(B) offers the job to an equally or better 

16 qualified United States worker who will be 

17 available at the time and place and for the du18 ration of need and who applies for the job. 

19 ‘‘(3) EXEMPTION FROM RULES WITH RESPECT

20 TO STAGGERING.—The Secretary of Homeland Secu21 rity shall not consider an employer who brings H– 

22 2B nonimmigrants into the United States during the 

23 120-day period specified in paragraph (1) to be stag24 gering the date of need in violation of any applicable 

25 provision of law.’’. 


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1 (b) TABLE OF CONTENTS AMENDMENT.—The table 

2 of contents of the Immigration and Nationality Act is 

3 amended by inserting after the item relating to section 

4 218 the following: 

‘‘218A. Admission of temporary H–2B nonimmigrants.’’. 

5 SEC. 5. PROCESSING OF H–2B VISA PETITIONS BY THE DE6 PARTMENT OF HOMELAND SECURITY. 

7 (a) RULEMAKING.—Not later than 180 days after the 

8 date of the enactment of this Act, the Secretary, in con9 sultation with the Secretary of Labor, shall issue regula10 tions that establish the necessary procedures for proc11 essing visa petitions for H–2B nonimmigrants in accord12 ance with the provisions of this Act and the amendments 

13 made by this Act. The Secretary shall have exclusive au14 thority, which may not be delegated outside the Depart15 ment of Homeland Security, to issue rules and final deter16 minations with respect to the visa program for H–2B non17 immigrants. 

18 (b) ACCEPTANCE OF PETITIONS.— 

19 (1) IN GENERAL.—Not later than 5 business 

20 days after the date an employer files a premium 

21 processing petition and not later than 15 business 

22 days after the date an employer files any other peti23 tion for an H–2B nonimmigrant, the Secretary 

24 shall— 


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1 (A) review the petition and make a prima 

2 facie determination as to whether the petition is 

3 potentially approvable, which shall be based on 

4 whether— 

5 (i) the employer has established the 

6 need for non-agricultural services or labor 

7 to be performed is temporary in nature; 

8 (ii) the number of workers being re9 quested is justified; 

10 (iii) the employer has made the attes11 tations required under section 218A of the 

12 Immigration and Nationality Act, as added 

13 by section 4(a); and 

14 (iv) the employer has complied with— 

15 (I) all of the requirements under 

16 such section 218A; 

17 (II) other provisions of the Immi18 gration and Nationality Act (8 U.S.C. 

19 1101 et seq.); and 

20 (III) this Act; 

21 (B) submit to the petitioner notice of ac22 ceptance or nonacceptance of the petition using 

23 electronic or other means assuring expedited de24 livery; and 


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1 (C) if the petition is accepted, submit to 

2 the relevant United States consulate notice of 

3 acceptance of the petition using electronic or 

4 other means assuring expedited delivery if the 

5 petitioner has indicated that the alien bene6 ficiaries will apply for United States visas at 

7 such consulate. 

8 (2) PROHIBITION ON CERTAIN REDUCTIONS.— 

9 The Secretary may not reduce the number of posi10 tions an employer will receive pursuant to a petition 

11 that the Secretary accepts pursuant to this sub12 section because the employer hires or offers employ13 ment to a United States worker for the position be14 fore the date on which the employer indicated in the 

15 petition that workers were needed to begin work. 

16 (3) CONDITIONAL APPROVAL.—Once the Sec17 retary determines that a sufficient number of peti18 tions for H–2B nonimmigrants have been received to 

19 result in a likely fulfillment of the statutory cap, the 

20 Secretary shall continue to receive such petitions for 

21 that fiscal year and issue conditional approvals, un22 less the beneficiaries for visas for H–2B non23 immigrants are not subject to the statutory cap, in 

24 which event the Secretary will issue final approval. 


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1 (4) ASSESSMENT OF ISSUED VISAS.—The Sec2 retary shall consult with the Secretary of State and 

3 continually report the number of visas actually 

4 issued to H–2B nonimmigrants at United States 

5 embassies and consulate offices to determine if the 

6 employers that received conditional approval under 

7 paragraph (3) may be issued final approvals. 

8 (5) FINAL APPROVAL.— 

9 (A) IN GENERAL.—Final approvals shall 

10 be issued in the order in which the petitions 

11 were conditionally approved. 

12 (B) REFUND OF FEES.—The Secretary 

13 shall refund any fee submitted for a premium 

14 processing petition for a fiscal year that was 

15 submitted after the date the Secretary deter16 mines that the statutory cap has been met for 

17 that fiscal year. 

18 SEC. 6. COORDINATION BETWEEN THE DEPARTMENT OF 

19 HOMELAND SECURITY AND THE DEPART20 MENT OF STATE. 

21 (a) ELECTRONIC NOTIFICATION.—The Secretary 

22 shall consult with the Secretary of State to develop an 

23 electronic notification system to notify the Department of 

24 State not later than 48 hours after the final approval of 

25 a petition for an H–2B nonimmigrant. Each such notificaVerDate Sep 11 2014 06:17 Apr 06, 2017 Jkt 069200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792

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1 tion shall include information indicating whether the H– 

2 2B nonimmigrant is subject to the statutory cap, whether 

3 the H–2B nonimmigrant has previously entered the 

4 United States under H–2B nonimmigrant visa status, as 

5 well as any relevant biographic information included in the 

6 employer’s petition for each approved worker. 

7 (b) WEEKLY REPORT.—The Secretary of State shall 

8 submit a weekly report to the Secretary that includes— 

9 (1) the total number of H–2B nonimmigrant 

10 visas issued during the past week and during the fis11 cal year to date; 

12 (2) of such visas, the total number of visas that 

13 were exempt from the statutory cap; and 

14 (3) all relevant information regarding the iden15 tity of the beneficiary who was issued an H–2B non16 immigrant visa. 

17 (c) WAIVER OF INTERVIEWS FOR RETURNING WORK18 ERS.—The Secretary of State may waive the in-person 

19 visa interview requirement for an individual applying for 

20 an H–2B nonimmigrant visa who previously traveled to 

21 the United States on H–2B nonimmigrant visa status. 

22 SEC. 7. TRANSPARENCY MEASURES. 

23 The Secretary shall update weekly and make pub24 lically available on the website of the Department of 

25 Homeland Security— 


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1 (1) five years of historical data of H–2B non2 immigrant petitions received and approved and the 

3 number of visas for H–2B nonimmigrants that were 

4 not subject to the statutory cap; 

5 (2) the annual target number of beneficiaries to 

6 be issued visas as H–2B nonimmigrants for the fis7 cal year; 

8 (3) the number of petitions for H–2B non9 immigrants approved by the Department in each 

10 half of the fiscal year, including the aggregated 

11 number of beneficiaries contained in the approved 

12 petitions; 

13 (4) the number of petitions pending approval or 

14 denial by the Secretary; 

15 (5) the number of visas that are not exempt 

16 from the statutory cap issued by the Secretary of 

17 State; 

18 (6) disclosure of the methodology and raw data 

19 used to determine when the statutory cap has been 

20 reached, including notification whenever the method21 ology to make this determination changes at any 

22 time during the fiscal year; and 

23 (7) the number of petitions for H–2B non24 immigrants that have received conditional approval 

25 once the statutory cap has been met, including the 


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1 aggregated number of beneficiaries contained in the 

2 conditionally approved petitions. 

3 SEC. 8. GAO REPORTS. 

4 (a) REPORT ON METHODOLOGY FOR STATUTORY

5 CAP.— 

6 (1) IN GENERAL.—Not later than 6 months 

7 after the date on which the Secretary issues regula8 tions to carry out this Act and the amendments 

9 made by this Act, the Comptroller General of the 

10 United States shall publish a report that describes 

11 the methodology used by the Secretary to determine 

12 that the statutory cap for H–2B nonimmigrants is 

13 met and the accuracy of such methodology. 

14 (2) CONTENT.—The report required under 

15 paragraph (1) shall include an assessment of— 

16 (A) the efficiencies and inefficiencies in the 

17 processing and approval of petitions for H–2B 

18 nonimmigrants; and 

19 (B) the effectiveness of data sharing be20 tween the Secretary and the Secretary of State. 

21 (b) ASSESSMENT.—Not later than four years after 

22 the date of the enactment of this Act, the Comptroller 

23 General of the United States shall submit to Congress an 

24 assessment of the effect of the amendment made by sec25 tion 3(a) on the domestic workforce, including data to inVerDate Sep 11 2014 06:17 Apr 06, 2017 Jkt 069200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S792.IS S792

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1 dicate any relationship between an increase of H–2B non2 immigrants and changes in domestic employment or earn3 ings. 

4 SEC. 9. RULE OF CONSTRUCTION. 

5 The benefits and wages provided to an H–2B non6 immigrant, the services an H–2B nonimmigrant provides 

7 to the employer, the employment opportunities afforded to 

8 an H–2B nonimmigrant by the employer, including those 

9 employment opportunities that require a United States 

10 worker or an H–2B nonimmigrant to travel or relocate 

11 in order to accept or perform employment, and other 

12 terms or conditions of the employment of an H–2B non13 immigrant provided for under this Act, or the amendments 

14 made by this Act, are not primarily for the benefit of ei15 ther the H–2B nonimmigrant or the employer and are for 

16 the equal mutual benefit for the H–2B worker and the 

17 employer. 

Æ 


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