I 

111TH CONGRESS 

1ST SESSION H. R. 4381 

To reform the H–2B program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 16, 2009 

Ms. ZOE LOFGREN of California (for herself and Mr. GEORGE MILLER of 

California) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education 

and Labor, 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 reform the H–2B 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 ‘‘H–2B Program Re5 form Act of 2009’’. 

6 SEC. 2. PROTECTING UNITED STATES AND H–2B WORKERS. 

7 (a) IN GENERAL.—Section 212(o) of the Immigra8 tion and Nationality Act (8 U.S.C. 1182(o)) is amended 

9 to read as follows: 


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1 ‘‘(o) REQUIREMENTS FOR ADMISSION OF H–2B 

2 WORKERS.— 

3 ‘‘(1) CERTIFICATION OF ALIEN.—Any alien who 

4 seeks to enter the United States for the purpose of 

5 performing temporary labor or services under section 

6 101(a)(15)(H)(ii)(b) is inadmissible unless the Sec7 retary of Labor has determined and certified to the 

8 Secretary of State and the Secretary of Homeland 

9 Security that— 

10 ‘‘(A) there are not sufficient United States 

11 workers who are able, willing, qualified, and 

12 who will be available at the time and place 

13 needed, to perform such temporary labor or 

14 services; and 

15 ‘‘(B) the employment of the alien in such 

16 labor or services will not adversely affect the 

17 wages and working conditions of workers in the 

18 United States similarly employed. 

19 ‘‘(2) REGISTRATION OF H–2B EMPLOYER.— 

20 ‘‘(A) REGISTERED H–2B EMPLOYERS.—Ex21 cept as provided in paragraph (5), any employer 

22 who seeks to employ an H–2B nonimmigrant in 

23 an occupational classification must file with the 

24 Secretary of Labor an application for registra25 tion stating the following: 


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1 ‘‘(i) A specification of the number of 

2 H–2B nonimmigrants sought to be em3 ployed, the occupational classifications and 

4 locations in which such H–2B non5 immigrants will be employed, and the an6 ticipated period of employment (including 

7 the expected beginning and termination 

8 dates). 

9 ‘‘(ii) Evidence that— 

10 ‘‘(I) the employer needs such 

11 workers to address temporary, pre12 dictable, and recurring needs for labor 

13 or services directly resulting from cli14 matic, environmental, or other natural 

15 conditions related to certain seasons 

16 of the year; and 

17 ‘‘(II) labor, geographic, or other 

18 conditions substantially prevent the 

19 employer from meeting such needs for 

20 labor or services with workers in the 

21 United States. 

22 ‘‘(iii) Each instance in which the em23 ployer has been found, within the last 3 

24 years, to have violated any foreign worker 


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1 program or any Federal, State, or local 

2 employment-related law or regulation. 

3 ‘‘(B) EXCLUSION OF CERTAIN EMPLOY4 ERS.— 

5 ‘‘(i) LABOR CONTRACTING ENTI6 TIES.—An employer may not be registered 

7 under this paragraph if the employer— 

8 ‘‘(I) contracts labor or services 

9 on a temporary basis to one or more 

10 entities, which are not affiliates, 

11 branches, or subsidiaries of the em12 ployer; and 

13 ‘‘(II) will not exercise supervision 

14 or control in the performance of the 

15 labor or services to be performed by 

16 the H–2B nonimmigrant (other than 

17 the hiring, paying, or firing of work18 ers). 

19 ‘‘(ii) CONSTRUCTION ENTITIES.—At 

20 the beginning of each registration period 

21 described in subparagraph (C)(i), the Sec22 retary of Labor shall issue a certification 

23 of the average national unemployment rate 

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1 pations for the preceding 12 months. An 

2 employer may not be registered under this 

3 paragraph to employ H–2B nonimmigrants 

4 in any construction occupation unless the 

5 unemployment rate in such certification is 

6 less than 6 percent. Any registration 

7 issued pursuant to this clause shall be re8 voked if the unemployment rate in a subse9 quent certification is greater than 7 per10 cent. 

11 ‘‘(C) ADJUDICATION BY SECRETARY OF

12 LABOR.— 

13 ‘‘(i) REGISTRATION PERIOD.—The 

14 Secretary of Labor shall establish a reg15 istration period, of at least 90 days, during 

16 which employers may submit applications 

17 for registration under subparagraph (A). 

18 The Secretary shall adjudicate such appli19 cations not later than 30 days after the 

20 end of the registration period. 

21 ‘‘(ii) ADJUDICATION.—For each reg22 istered employer, the Secretary of Labor 

23 shall set the number of H–2B non24 immigrant positions that such employer is 

25 approved to use. Registration under this 


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1 paragraph shall not expire until the end of 

2 the third fiscal year beginning after the 

3 date of registration. 

4 ‘‘(iii) FEES.— 

5 ‘‘(I) APPLICATION FOR REG6 ISTRATION.—In addition to any other 

7 fees authorized by law, the Secretary 

8 of Labor shall impose a $100 fee, to 

9 be deposited in the Treasury in ac10 cordance with section 286(w), on an 

11 employer that submits an application 

12 for registration. 

13 ‘‘(II) WORKER POSITIONS RE14 QUESTED.—The Secretary shall also 

15 impose a fee, to be deposited in the 

16 Treasury in accordance with section 

17 286(v), on an employer for each H– 

18 2B worker position requested in such 

19 application. The additional fee shall 

20 be $100 for each H–2B worker posi21 tion requested. 

22 ‘‘(3) LABOR CERTIFICATION APPLICATION.— 

23 Except as provided in paragraph (5), any employer 

24 who seeks to employ an H–2B nonimmigrant in an 

25 occupational classification must be registered under 


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1 paragraph (2) and must file with the Secretary of 

2 Labor, not later than 60 days before the first date 

3 that such employer requires the labor or services of 

4 the H–2B nonimmigrant, an application containing 

5 the following assurances: 

6 ‘‘(A) A specification of the number of H– 

7 2B nonimmigrant positions requested, the occu8 pational classifications and locations in which 

9 such workers will be employed, the wage rate 

10 and conditions under which they will be em11 ployed, and the expected start and end dates of 

12 employment. 

13 ‘‘(B) The employer— 

14 ‘‘(i) if the job opportunity is covered 

15 by a collective bargaining agreement, is of16 fering and will offer during the period of 

17 authorized employment to H–2B non18 immigrants wages as set forth in the col19 lective bargaining agreement; 

20 ‘‘(ii) if the job opportunity is not cov21 ered by a collective bargaining agreement, 

22 is offering and will offer during the period 

23 of authorized employment to H–2B non24 immigrants wages that are at least— 


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1 ‘‘(I) the actual wage level paid by 

2 the employer to all other individuals 

3 with similar experience and qualifica4 tions for the specific employment in 

5 question; or 

6 ‘‘(II) the wage level for the occu7 pational classification in the area of 

8 employment; 

9 whichever is greater, based on the best in10 formation available as of the time of filing 

11 the application; and 

12 ‘‘(iii) will provide working conditions 

13 for such nonimmigrants that will not ad14 versely affect the working conditions of 

15 workers similarly employed. 

16 ‘‘(C) There is not a strike or lockout in the 

17 course of a labor dispute in the occupational 

18 classification at the place of employment. 

19 ‘‘(D) The employer did not displace and 

20 will not displace a United States worker em21 ployed by the employer within the period begin22 ning 90 days before the start date and ending 

23 on the end date for which the employer requests 

24 the services of an H–2B nonimmigrant on an 


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1 application for labor certification under this 

2 subsection. 

3 ‘‘(E) The employer has— 

4 ‘‘(i) taken, and will continue to take, 

5 good faith steps to recruit United States 

6 workers in the United States, using the 

7 procedures described in paragraph (4) and 

8 offering compensation, benefits and work9 ing conditions that are at least as great as 

10 that required to be offered to H–2B non11 immigrants under subparagraph (B), for 

12 the job for which the nonimmigrant or 

13 nonimmigrants is or are sought; and 

14 ‘‘(ii) offered the job to any United 

15 States worker who applies and is qualified 

16 for the job for which the nonimmigrant or 

17 nonimmigrants is or are sought. 

18 ‘‘(F) If the job opportunity is not covered 

19 by the State workers’ compensation law, the 

20 employer will provide, at no cost to its workers, 

21 insurance covering injury and disease arising 

22 out of, and in the course of, the worker’s em23 ployment which will provide benefits at least 

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1 ers’ compensation law for comparable employ2 ment. 

3 ‘‘(G) The employer will comply with all 

4 Federal, State, and local employment-related 

5 laws and regulations. 

6 ‘‘(H) The employer— 

7 ‘‘(i) will offer an H–2B nonimmigrant 

8 the same benefits and working conditions 

9 provided to United States workers simi10 larly employed in the same occupational 

11 classification at the same place of employ12 ment; and 

13 ‘‘(ii) has not made an offer to a 

14 United States worker or H–2B non15 immigrant that imposed restrictions or ob16 ligations that are greater than those that 

17 will be imposed on any other person of18 fered employment for the same job. 

19 ‘‘(I) The stated requirements applicable to 

20 the job represent the actual minimum require21 ments for such job, and the H–2B employer 

22 will not hire an H–2B nonimmigrant to per23 form the job who does not meet these require24 ments. 


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1 ‘‘(J) The employer has provided or shall 

2 provide to an H–2B nonimmigrant, not later 

3 than on the day work commences, a copy of the 

4 job offer containing the assurances listed in this 

5 paragraph. If the employer has used or is using 

6 a foreign labor contractor, the employer has 

7 provided or shall provide a copy of the job offer 

8 to such contractor by the time of recruitment. 

9 Each application filed under this paragraph shall be 

10 accompanied by a copy of the job offer describing 

11 the wages and other terms and conditions of employ12 ment of the H–2B nonimmigrant. Nothing in sub13 paragraph (E) or (I) shall be construed to prohibit 

14 an employer from using legitimate selection criteria 

15 relevant to the job that are normal or customary to 

16 the type of job involved, so long as such criteria are 

17 not applied in a discriminatory manner. 

18 ‘‘(4) RECRUITMENT OF UNITED STATES WORK19 ERS.—Not later than 14 days before filing the appli20 cation under paragraph (3), and except as provided 

21 in paragraph (5)(B), any employer who seeks to em22 ploy an H–2B nonimmigrant shall take the following 

23 steps to recruit United States workers for which the 

24 alien is sought: 


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1 ‘‘(A) The employer shall submit a copy of 

2 the job offer, including a description of wages 

3 and other terms and conditions of employment, 

4 to the State workforce agency that serves the 

5 area of employment in the State in which the 

6 employer is located. The State workforce agency 

7 shall provide the employer with an acknowledg8 ment of receipt of such documentation in ac9 cordance with this paragraph. 

10 ‘‘(B) The employer shall authorize the 

11 State workforce agency to post the job oppor12 tunity on the Internet, with State and local job 

13 banks, with other State workforce agencies, and 

14 with unemployment agencies and other labor re15 ferral and recruitment sources pertinent to such 

16 job opportunity. 

17 ‘‘(C) The employer shall authorize the 

18 State workforce agency to provide notification 

19 of the job opportunity to— 

20 ‘‘(i) the central office of the State 

21 Federation of Labor in the State in which 

22 the job is located; and 

23 ‘‘(ii) the office of the local union 

24 which represents the employees in the 


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1 same or substantially equivalent job classi2 fication, if applicable. 

3 ‘‘(D) The employer shall— 

4 ‘‘(i) provide notice of the job oppor5 tunity to the bargaining representative (if 

6 any) of the employer’s employees in the oc7 cupational classification and area for which 

8 the employer is seeking a worker, or 

9 ‘‘(ii) if there is no such bargaining 

10 representative, post the availability of the 

11 job opportunity for which the employer is 

12 seeking a worker in conspicuous locations 

13 at the place or places of employment or in 

14 some other manner that provides reason15 able notification to all employees in the oc16 cupational classification and in the same 

17 area of intended employment for which H– 

18 2B nonimmigrants are sought. 

19 ‘‘(E) The employer shall advertise the 

20 availability of the job opportunity for which the 

21 employer is seeking a worker in one or more 

22 publications in the labor market that is likely to 

23 be patronized by potential applicants (as deter24 mined by the State workforce agency). Such ad25 vertisement, at a minimum, shall— 


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1 ‘‘(i) describe the job opportunity and 

2 term of employment; 

3 ‘‘(ii) state the wage rate to be offered; 

4 ‘‘(iii) summarize the employer’s min5 imum job requirements; 

6 ‘‘(iv) offer training if the job oppor7 tunity is the type for which employers nor8 mally provide training; and 

9 ‘‘(v) be posted for 3 consecutive days, 

10 one of which must be a Sunday, during the 

11 first half of the 21-day recruitment period. 

12 ‘‘(F) If the job involved in the application 

13 requires a particular skill or an advanced de14 gree, and a professional or trade journal nor15 mally would be used to advertise the job oppor16 tunity, the local job service may require the em17 ployer to place an advertisement in the journal 

18 most likely to bring responses from able, will19 ing, and qualified United States workers. 

20 ‘‘(G) In no event shall the employer adver21 tise such job opportunity to United States 

22 workers using wages or other terms and condi23 tions of employment which are less favorable for 

24 United States workers than those to be offered 


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1 to an H–2B nonimmigrant of similar qualifica2 tions. 

3 ‘‘(5) EXCEPTION TO REGISTRATION REQUIRE4 MENT.— 

5 ‘‘(A) IN GENERAL.—An employer that 

6 seeks to employ an H–2B nonimmigrant but is 

7 not registered under paragraph (2) may file an 

8 application under paragraph (3) to employ H– 

9 2B nonimmigrants if the employer dem10 onstrates to the Secretary of Labor that: 

11 ‘‘(i) the failure to hire such workers to 

12 address a temporary need for labor or 

13 services would directly result in the loss of 

14 jobs for United States workers and would 

15 deprive the impacted community of a sub16 stantial economic benefit (as certified by a 

17 State or regional economic development 

18 authority, including consultation with any 

19 relevant union); and 

20 ‘‘(ii) labor, geographic, or other condi21 tions substantially prevent the employer 

22 from meeting such need for labor or serv23 ices with workers in the United States. 

24 ‘‘(B) HIRING HALL APPLICATIONS.—Any 

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1 immigrant under subparagraph (A) may file an 

2 application with the Secretary of Labor in ac3 cordance with this subparagraph instead of 

4 complying with paragraphs (3) and (4) if— 

5 ‘‘(i) the employer has signed a labor 

6 agreement with a labor organization (as 

7 defined in section 2(5) of the Labor-Man8 agement Relations Act (29 U.S.C. 152(5))) 

9 under which the labor organization is re10 sponsible for referring applicants for em11 ployment to the employer under a proce12 dure commonly known as a ‘hiring hall’ or 

13 ‘referral hall’; 

14 ‘‘(ii) the application is accompanied 

15 by a written statement prepared by the 

16 labor organization attesting that— 

17 ‘‘(I) the labor organization oper18 ates a hiring hall that, pursuant to 

19 contractual agreement and actual 

20 practice, is a source of employees in 

21 the same or substantially equivalent 

22 occupational classification in which 

23 the employer seeks to employ an H– 

24 2B nonimmigrant; 


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1 ‘‘(II) the labor organization does 

2 not have a sufficient number of quali3 fied applicants available for referral in 

4 the same or substantially equivalent 

5 occupational classification in which 

6 the employer seeks to employ an H– 

7 2B nonimmigrant; 

8 ‘‘(III) the labor organization has 

9 advertised the availability of the job 

10 opportunity for which the employer is 

11 seeking to employ an H–2B non12 immigrant in one or more publications 

13 in the labor market that is likely to be 

14 patronized by potential applicants; 

15 ‘‘(IV) the employer is contrac16 tually obligated to pay all employees, 

17 in the same or substantially equivalent 

18 occupational classification in which 

19 the employer seeks to employ an H– 

20 2B nonimmigrant, wages and benefits 

21 set forth in a labor agreement with 

22 the labor organization, which equals 

23 or exceeds the higher of the actual or 

24 predominant wage rate the employer 

25 would be obligated to pay; and 


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1 ‘‘(V) the H–2B nonimmigrants 

2 whom the employer seeks to employ 

3 will be paid not less than the same 

4 wages and benefits and be subject to 

5 the same terms and conditions of em6 ployment set forth in the employer’s 

7 labor agreement with the labor orga8 nization. 

9 ‘‘(6) CERTIFICATION BY SECRETARY OF

10 LABOR.— 

11 ‘‘(A) ADJUDICATION DEADLINE.—The Sec12 retary of Labor shall adjudicate an application 

13 described in paragraph (3) or (5)(B) not later 

14 than 30 days after the date on which the appli15 cation is filed. 

16 ‘‘(B) NOTICE OF DEFICIENCIES.—The em17 ployer shall be notified in writing within seven 

18 days of the date of filing if the application does 

19 not meet the standards for approval. Such no20 tice shall include a description of the deficiency, 

21 and the Secretary shall provide an opportunity 

22 for the prompt resubmission of a modified ap23 plication. 

24 ‘‘(C) FEES.—In addition to any other fees 

25 authorized by law, the Secretary of Labor shall 


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1 impose a fee, to be deposited in the Treasury in 

2 accordance with section 286(w), on an employer 

3 that submits an application described in para4 graph (3) or (5)(B) on or after the date that 

5 is 30 days after the date of the enactment of 

6 the H–2B Program Reform Act of 2009. The 

7 fee shall be set at a level the Secretary of Labor 

8 determines will ensure recovery of the full costs 

9 of carrying out labor certification activities 

10 under this subsection and will recover any addi11 tional costs associated with the administration 

12 of the fees collected. 

13 ‘‘(7) ASSIGNMENT OF H–2B POSITIONS BY SEC14 RETARY OF HOMELAND SECURITY.— 

15 ‘‘(A) IN GENERAL.—Upon the approval of 

16 an application described in paragraph (6)(A), 

17 an employer may petition the Secretary of 

18 Homeland Security for H–2B nonimmigrant 

19 positions up to the number approved by the 

20 Secretary of Labor. 

21 ‘‘(B) NUMERICAL LIMITS.—The total num22 ber of aliens who may be issued visas or other23 wise provided nonimmigrant status during any 

24 fiscal year under section 101(a)(15)(H)(ii)(b) 

25 may not exceed 66,000, except that 1,000 of 


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1 such number shall be reserved for employers fil2 ing applications pursuant to paragraph (5). 

3 ‘‘(C) FAIR DISTRIBUTION SYSTEM.—The 

4 Secretary of Homeland Security shall apportion 

5 H–2B nonimmigrant positions for initial use in 

6 each quarter of the fiscal year in proportion to 

7 the demand in each quarter (as determined by 

8 the expected start dates for the employment of 

9 H–2B nonimmigrants by employers registered 

10 under paragraph (2)). 

11 ‘‘(8) LIMITATIONS ON EMPLOYMENT.— 

12 ‘‘(A) DURATION OF EMPLOYMENT.—Cer13 tification of an H–2B nonimmigrant for em14 ployment with an employer in the United States 

15 shall be limited to a maximum of 10 months. 

16 The Secretary of State and Secretary of Home17 land Security shall allow admission of the H– 

18 2B nonimmigrant into the United States for 

19 additional periods, of no more than 20 days in 

20 the aggregate, to allow for travel to and from 

21 the worksite. 

22 ‘‘(B) TRANSFER OF H–2B NONIMMIGRANTS

23 BETWEEN EMPLOYERS.— 

24 ‘‘(i) IN GENERAL.—An H–2B non25 immigrant may not accept employment 


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1 from any employer in the United States 

2 other than an employer with an approved 

3 H–2B petition filed on behalf of such non4 immigrant. An employer may not— 

5 ‘‘(I) trade, transfer, or otherwise 

6 provide an H–2B nonimmigrant to 

7 any other employer for employment in 

8 the United States; or 

9 ‘‘(II) assess any fee to an H–2B 

10 nonimmigrant with respect to such 

11 trade, transfer, or provision. 

12 ‘‘(ii) CONSTRUCTION.—Nothing in 

13 this paragraph prohibits an H–2B non14 immigrant in the United States from ac15 cepting new employment with a new em16 ployer upon approval of a petition filed by 

17 such employer on the H–2B non18 immigrant’s behalf. 

19 ‘‘(C) AVAILABILITY OF UNITED STATES

20 WORKER.—An employer shall be required to 

21 offer employment to any able and qualified 

22 United States worker if such worker applies for 

23 employment in a job to be filled by an H–2B 

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1 mencement of the H–2B nonimmigrant’s em2 ployment. 

3 ‘‘(9) COMPLIANCE AND STATISTICS.— 

4 ‘‘(A) PUBLIC EXAMINATION.—The Sec5 retary of Labor shall make available for public 

6 examination, including by posting over the 

7 Internet, the following: 

8 ‘‘(i) within 60 days of the close of the 

9 registration period under paragraph (2), a 

10 list of all employers registered under such 

11 paragraph; 

12 ‘‘(ii) upon the filing of an application 

13 by an employer under paragraph (3), a 

14 copy of such application, except that the 

15 Secretary shall redact any proprietary in16 formation from such application; and 

17 ‘‘(iii) a list (by employer, location and 

18 occupational classification), compiled on a 

19 current basis, of the applications filed 

20 under this subsection. Such list shall in21 clude the wage rate, number of aliens 

22 sought, period of intended employment, 

23 and dates of need. 

24 ‘‘(B) MAINTENANCE OF DOCUMENTA25 TION.—The employer shall maintain for at least 


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1 3 years after the filing of the application or the 

2 employment relationship is terminated, which3 ever is later, documentation evidencing compli4 ance with the conditions in paragraph (3) and 

5 recruitment efforts in paragraph (4). 

6 ‘‘(10) COMPLAINTS AND INVESTIGATIONS.— 

7 ‘‘(A) IN GENERAL.—The Secretary of 

8 Labor shall establish a process for the receipt, 

9 investigation, and disposition of complaints 

10 (which may be filed by any aggrieved person or 

11 organization) respecting an employer’s compli12 ance with this subsection. The Secretary, either 

13 pursuant to this complaint process or otherwise, 

14 may investigate employers as necessary to de15 termine such compliance. 

16 ‘‘(B) PENALTIES.—If the Secretary of 

17 Labor finds, after notice and an opportunity for 

18 a hearing, a substantial failure to meet any of 

19 the conditions of the application described 

20 under paragraph (2) or (3), a misrepresentation 

21 of a material fact in such application, or a vio22 lation of subparagraph (C)— 

23 ‘‘(i) the Secretary of Labor may, in 

24 addition to any other remedy authorized by 

25 law, impose such administrative remedies 


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1 (including civil monetary penalties in an 

2 amount not to exceed $10,000 per viola3 tion) as the Secretary of Labor determines 

4 to be appropriate; and 

5 ‘‘(ii) the Secretary of Labor may not 

6 approve applications filed with respect to 

7 that employer under this subsection during 

8 a period of at least 1 year but not more 

9 than 5 years for aliens to be employed by 

10 the employer. 

11 ‘‘(C) BACK WAGES.—If the Secretary of 

12 Labor finds, after notice and an opportunity for 

13 a hearing, that recovery of back wages, travel 

14 costs, or other fees or costs is necessary to ad15 dress a violation of this subsection or any other 

16 law, the Secretary of Labor may administra17 tively recover such back wages, fees or costs on 

18 behalf of the worker. 

19 ‘‘(D) DISCRIMINATION OR RETALIATION

20 PROHIBITED.—It is a violation of this subpara21 graph for an employer who has filed an applica22 tion under this subsection to intimidate, threat23 en, restrain, coerce, discharge, or in any other 

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1 plicant for employment) because the em2 ployee— 

3 ‘‘(i) has disclosed information to the 

4 employer, or to any other person, that the 

5 employee reasonably believes evidences a 

6 violation of this subsection, or any rule or 

7 regulation pertaining to this subsection; or 

8 ‘‘(ii) seeks legal assistance or counsel 

9 related to any such violation, or cooper10 ates, or seeks to cooperate, in an investiga11 tion or other proceeding concerning the 

12 employer’s compliance with the require13 ments of this subsection, or any rule or 

14 regulation pertaining to this subsection. 

15 ‘‘(E) AUTHORITY TO ENSURE COMPLI16 ANCE.—The Secretary of Labor is authorized to 

17 take other such actions, including issuing sub18 poenas and seeking appropriate injunctive relief 

19 and specific performance of contractual obliga20 tions, as may be necessary to assure employer 

21 compliance with the terms and conditions of 

22 employment under this subsection. The rights 

23 and remedies provided to workers by this Act 

24 are in addition to, and not in lieu of, any other 

25 contractual or statutory rights and remedies of 


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1 such workers, and are not intended to alter or 

2 affect such rights and remedies. 

3 ‘‘(11) OTHER PROTECTIONS.— 

4 ‘‘(A) PROGRAM VIOLATORS.—An employer 

5 may not be registered under this section if, 

6 within the last 3 years, the Secretary has found 

7 a substantial failure by the employer to comply 

8 with any foreign worker program or the em9 ployer has been found to have willfully, reck10 lessly or repeatedly violated any Federal, State, 

11 or local employment-related law or regulation, 

12 where the result of such violation was the pay13 ment of a fine, backpay damages, or any other 

14 type of penalty in the amount of $5,000 or 

15 more. 

16 ‘‘(B) ESTABLISHED WAGES.—If an em17 ployer seeks to appeal a decision of the Sec18 retary of Labor concerning the wages required 

19 to be paid under this section, United States 

20 workers and their representatives shall be given 

21 reasonable opportunity to submit contrary evi22 dence. 

23 ‘‘(C) ACCESS TO LEGAL SERVICES COR24 PORATION.—Notwithstanding any other provi25 sion of law, the Legal Services Corporation and 


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1 recipients of its funding may provide legal serv2 ices on behalf of an alien admitted or provided 

3 status as a nonimmigrant described in section 

4 101(a)(15)(H)(ii)(B), except that this subpara5 graph shall not be construed to affect section 

6 292. 

7 ‘‘(D) TRANSPORTATION COSTS.—The em8 ployer shall pay the transportation costs, in9 cluding reasonable subsistence costs during the 

10 period of travel, for the H–2B nonimmigrant 

11 from the place of recruitment to the place of 

12 employment and from the place of employment 

13 to such worker’s place of permanent residence 

14 or a subsequent worksite. 

15 ‘‘(E) CAUSE OF ACTION FOR WAGE DIS16 CREPANCIES.—An H–2B nonimmigrant who 

17 fails to receive compensation under the terms 

18 described in the job offer for work provided by 

19 the employer may commence a civil action to 

20 seek back wages in an appropriate district court 

21 of the United States, which shall have jurisdic22 tion over such an action without regard to the 

23 amount in controversy or citizenship of the par24 ties. In a civil action under this subparagraph, 

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1 sonable attorney’s fees, including litigation ex2 penses, and costs. 

3 ‘‘(12) DEFINITIONS.—For purposes of this sub4 section: 

5 ‘‘(A) AREA OF EMPLOYMENT.—The term 

6 ‘area of employment’ means the area within 

7 normal commuting distance of the worksite or 

8 physical location where the work of the H–2B 

9 nonimmigrant is or will be performed. If such 

10 worksite or location is within a Metropolitan 

11 Statistical Area, any place within such area 

12 shall be deemed to be within the area of em13 ployment. 

14 ‘‘(B) DISPLACE.—In the case of an appli15 cation with respect to one or more H–2B non16 immigrants by an employer, the employer is 

17 considered to ‘displace’ a United States worker 

18 from a job if the employer lays off the worker 

19 from a job that is essentially the equivalent of 

20 the job for which the nonimmigrant or non21 immigrants is or are sought. A job shall not be 

22 considered to be essentially equivalent of an23 other job unless it involves essentially the same 

24 responsibilities, was held by a United States 

25 worker with substantially equivalent qualificaVerDate Nov 24 2008 22:11 Dec 21, 2009 Jkt 089200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H4381.IH H4381

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1 tions and experience, and is located in the same 

2 area of employment as the other job. 

3 ‘‘(C) CONSTRUCTION OCCUPATION.—The 

4 term ‘construction occupation’ means any occu5 pation listed as a construction or extraction oc6 cupation in the Department of Labor’s Stand7 ard Occupational Classification, except that it 

8 shall not include any occupation listed in such 

9 classification as an extraction worker occupa10 tion. 

11 ‘‘(D) FOREIGN WORKER PROGRAM.—The 

12 term ‘foreign worker program’ means any pro13 gram to employ nonimmigrants described in 

14 subparagraphs (H), (J), (L), (O), or (P) of sec15 tion 101(a)(15). 

16 ‘‘(E) H–2B NONIMMIGRANT.—The term 

17 ‘H–2B nonimmigrant’ means an alien admitted 

18 or provided status as a nonimmigrant described 

19 in section 101(a)(15)(H)(ii)(b). 

20 ‘‘(F) LAYS OFF.— 

21 ‘‘(i) IN GENERAL.—The term ‘lays 

22 off’, with respect to a worker— 

23 ‘‘(I) means to cause the worker’s 

24 loss of employment, other than 

25 through a discharge for inadequate 


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1 performance, violation of workplace 

2 rules, cause, voluntary departure, vol3 untary retirement, or the expiration of 

4 a grant or contract (other than a tem5 porary employment contract entered 

6 into in order to evade a condition de7 scribed in paragraph (1)(E)); but 

8 ‘‘(II) does not include any situa9 tion in which the worker is offered, as 

10 an alternative to such loss of employ11 ment, a similar employment oppor12 tunity with the same employer at 

13 equivalent or higher compensation and 

14 benefits than the position from which 

15 the employee was discharged, regard16 less of whether or not the employee 

17 accepts the offer. 

18 ‘‘(ii) CONSTRUCTION.—Nothing in 

19 this subparagraph is intended to limit an 

20 employee’s rights under a collective bar21 gaining agreement or other employment 

22 contract. 

23 ‘‘(G) REGISTERED H–2B EMPLOYER.—The 

24 term ‘registered H–2B employer’ means an em25 ployer that has been registered by the Secretary 


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1 of Labor under paragraph (2) to employ an H– 

2 2B nonimmigrant. 

3 ‘‘(H) STATE WORKFORCE AGENCY.—The 

4 term ‘State workforce agency’ means the agen5 cy designated or authorized under section 4 of 

6 the Wagner-Peyser Act (29 U.S.C. 49 et seq.) 

7 to carry out the State responsibilities under 

8 that Act. 

9 ‘‘(I) SUBSTANTIAL FAILURE.—The term 

10 ‘substantial failure’ means the repeated, reck11 less or willful failure to comply with the re12 quirements of this section that constitutes a 

13 significant deviation from the terms and condi14 tions of this section. 

15 ‘‘(J) UNITED STATES WORKER.—The term 

16 ‘United States worker’ means an employee 

17 who— 

18 ‘‘(i) is a citizen or national of the 

19 United States; or 

20 ‘‘(ii) is an alien who is lawfully admit21 ted for permanent residence, is admitted as 

22 a refugee under section 207, is granted 

23 asylum under section 208, or is an immi24 grant otherwise authorized, by this Act or 


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1 by the Secretary of Homeland Security, to 

2 be employed.’’. 

3 (b) CONFORMING AMENDMENTS.— 

4 (1) Section 101(a)(15)(H)(ii)(b) of the Immi5 gration and Nationality Act (8 U.S.C. 

6 1101(a)(15)(H)(ii)(b)) is amended by striking ‘‘un7 employed’’. 

8 (2) Section 214(c) of the Immigration and Na9 tionality Act (8 U.S.C. 1184(c)) is amended— 

10 (A) by striking ‘‘or 101(a)(15)(H)(ii)(b)’’ 

11 from paragraph (5)(A); and 

12 (B) by striking paragraphs (13) and (14). 

13 (3) Section 214(g) of the Immigration and Na14 tionality Act (8 U.S.C. 1184(g)) is amended— 

15 (A) in paragraph (1)— 

16 (i) by striking subparagraphs (A) and 

17 (B); and 

18 (ii) by striking ‘‘(beginning with fiscal 

19 year 1992)—’’ and inserting ‘‘under sec20 tion 101(a)(15)(H)(i)(b) may not exceed 

21 65,000.’’; and 

22 (B) by striking paragraph (10). 


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1 SEC. 3. ESTABLISHED WAGE LEVEL. 

2 Section 212(p) of the Immigration and Nationality 

3 Act (8 U.S.C. 1182(p)) is amended by adding at the end 

4 the following: 

5 ‘‘(5) Notwithstanding the other provisions of this 

6 subsection, in computing the established wage level for an 

7 occupational classification in an area of employment for 

8 purposes of subsection (o)(3)(B)(ii)(II) of this section, the 

9 established wage level shall be determined in accordance 

10 as follows: 

11 ‘‘(A) If the job opportunity is covered by a collective 

12 bargaining agreement between a union and the employer, 

13 the established wage level shall be the wage rate set forth 

14 in the collective bargaining agreement. 

15 ‘‘(B) If the job opportunity is not covered by such 

16 an agreement and it is in an occupation that is listed in 

17 a wage determination in the area issued pursuant to a pro18 vision of subchapter IV of chapter 31 of title 40, United 

19 States Code, or the Service Contract Act of 1965 (41 

20 U.S.C. 351 et seq.), the established wage level shall be 

21 at the rate required under the statutory determination. 

22 ‘‘(C) If the job opportunity is not covered by such 

23 an agreement and it is not in an occupation that is listed 

24 in a wage determination in the area issued pursuant to 

25 a provision of subchapter IV of chapter 31 of title 40, 

26 United States Code, or the Service Contract Act of 1965 


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1 (41 U.S.C. 351 et seq.), the established wage level shall 

2 be the median of the wage data applicable to such occupa3 tion as published in the Bureau of Labor Statistics’ Occu4 pational Employment Statistics survey. 

5 ‘‘(D) If the job opportunity is not covered by such 

6 an agreement, it is not in an occupation that is listed in 

7 a wage determination in the area issued pursuant to a pro8 vision of subchapter IV of chapter 31 of title 40, United 

9 States Code, or the Service Contract Act of 1965 (41 

10 U.S.C. 351 et seq.), and the employer demonstrates to the 

11 satisfaction of the Secretary of Labor that the Bureau of 

12 Labor Statistics’ Occupational Employment Statistics sur13 vey does not sufficiently represent the job opportunity 

14 being petitioned, the Secretary may provide a wage deter15 mination based on the median wage level of wage data 

16 contained in a published wage survey, or wage data con17 tained in a survey that has been conducted or funded by 

18 the employer, provided the Secretary finds that— 

19 ‘‘(i) such survey meets generally accepted prin20 ciples of survey methodology, including reliability 

21 and viability; 

22 ‘‘(ii) the population surveyed in such survey is 

23 comprised of at least 51 percent United States work24 ers; and 


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1 ‘‘(iii) such survey meets any other requirements 

2 set by the Secretary of Labor pursuant to regula3 tion.’’. 

4 SEC. 4. ESTABLISHMENT OF ACCOUNT AND USE OF FUNDS. 

5 (a) IN GENERAL.—Section 286 of the Immigration 

6 and Nationality Act (8 U.S.C. 1356) is amended by add7 ing at the end the following: 

8 ‘‘(w) EMPLOYMENT CERTIFICATION APPLICATION

9 FEE ACCOUNT.— 

10 ‘‘(1) ESTABLISHMENT OF ACCOUNT.—There is 

11 established in the general fund of the Treasury a 

12 separate account, which shall be known as the ‘Em13 ployment Certification Fee Account’. Notwith14 standing any other provision of law, there shall be 

15 deposited as offsetting receipts into the account 

16 amounts from fees and civil penalties collected under 

17 section 212(o) (except for fees collected under para18 graph (2)(C)(iii)(I) of such section). 

19 ‘‘(2) USE OF FEES.— 

20 ‘‘(A) SECRETARY OF LABOR.—Two-thirds 

21 of the amounts deposited into the Employment 

22 Certification Fee Account shall remain available 

23 to the Secretary of Labor until expended for the 

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1 rying out labor certification activities under sec2 tion 212(o). 

3 ‘‘(B) SECRETARY OF HOMELAND SECU4 RITY.—One-third of the amounts deposited into 

5 the Employment Certification Fee Account shall 

6 remain available to the Secretary of Homeland 

7 Security until expended for the administration 

8 of activities under section 212(o).’’. 

9 (b) REPORT.—Not later than 1 year after the date 

10 of the enactment of this Act, the Secretary of Labor shall 

11 submit a report to the Congress that includes— 

12 (1) the number of complaints received under 

13 section 212(o)(9) of the Immigration and Nation14 ality Act, as added by section 2 of this Act; 

15 (2) the resolution of complaints described in 

16 paragraph (1); and 

17 (3) recommendations, if any, to improve the 

18 process for resolving complaints, including whether 

19 the rights and obligations enumerated by the amend20 ments made by sections 2 and 3 of this Act would 

21 be better enforced if aggrieved persons had access to 

22 a private civil cause of action to effectuate such en23 forcement. 


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1 SEC. 5. TRANSFER OF FOREST, CONSERVATION, AND LOG2 GING WORKERS TO THE H-2A AGRICULTURAL 

3 WORKER PROGRAM. 

4 Any forest, conservation, or logging occupation (as 

5 listed in the Standard Occupational Classification) shall 

6 be considered agricultural labor for the purposes of em7 ploying nonimmigrants described in section 

8 101(a)(15)(H)(ii)(a) of the Immigration and Nationality 

9 Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), except that such 

10 workers shall continue to be considered seasonal agricul11 tural workers under the Migrant Seasonal Worker Protec12 tion Act (29 U.S.C. 1801 et seq.) notwithstanding any 

13 other provision of law. 

Æ 


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