I 

116TH CONGRESS 

1ST SESSION H. R. 1740 

To amend the Immigration and Nationality Act to provide for an H–2C 

nonimmigrant classification, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 13, 2019 

Mr. SMUCKER (for himself, Mr. ROONEY of Florida, and Mr. STEUBE) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, and 

Oversight and Reform, 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 amend the Immigration and Nationality Act to provide 

for an H–2C nonimmigrant classification, 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 ‘‘Workforce for an Ex5 panding Economy Act’’. 


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1 SEC. 2. NONIMMIGRANT CLASSIFICATION FOR H–2C NON2 IMMIGRANTS. 

3 Section 101(a)(15)(H)(ii) of the Immigration and 

4 Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended 

5 by inserting ‘‘(c) who is coming temporarily to the United 

6 States to perform services or labor for a registered non7 agricultural employer in a registered position (as those 

8 terms are defined in section 219A(a)) in accordance with 

9 the requirements under section 219A; or’’ before ‘‘(iii) 

10 have a residence’’. 

11 SEC. 3. ADMISSION OF H–2C NONIMMIGRANT WORKERS. 

12 (a) ADMISSION OF H–2C NONIMMIGRANT WORK13 ERS.— 

14 (1) IN GENERAL.—Chapter 2 of title II of the 

15 Immigration and Nationality Act (8 U.S.C. 1181 et 

16 seq.) is amended by adding at the end the following: 

17 ‘‘SEC. 219A. ADMISSION OF H–2C NONIMMIGRANT WORK18 ERS. 

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

20 ‘‘(1) DEPARTMENT.—Except as otherwise spe21 cifically provided, the term ‘Department’ means the 

22 Department of Homeland Security. 

23 ‘‘(2) ELIGIBLE OCCUPATION.—The term ‘eligi24 ble occupation’ means an eligible occupation de25 scribed in subsection (e)(3). 

26 ‘‘(3) EMPLOYER.— 


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1 ‘‘(A) IN GENERAL.—The term ‘employer’ 

2 means any person or operational unit of a for3 profit or nonprofit entity that is operating inde4 pendently in a county or metropolitan statistical 

5 area and who hires an individual for employ6 ment in the United States. 

7 ‘‘(B) TREATMENT OF SINGLE EM8 PLOYER.—For purposes of determining the 

9 number of employees or United States workers 

10 employed by an employer, a single entity shall 

11 be treated as 1 employer. 

12 ‘‘(4) ENDURING JOB OPENING.—The term ‘en13 during job opening’ refers to a job opening that— 

14 ‘‘(A) remains unfilled on the first day of 

15 the month for 3 consecutive months; or 

16 ‘‘(B) is unfilled for more than 60 days in 

17 a period of 90 consecutive days. 

18 ‘‘(5) FULL EMPLOYMENT AREA.—The term ‘full 

19 employment area’ refers to any county or metropoli20 tan statistical area where the unemployment rate 

21 during the fiscal quarter during which an application 

22 is submitted by an employer is equal to or less than 

23 4.9 percent. 


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1 ‘‘(6) H–2C NONIMMIGRANT.—The term ‘H–2C 

2 nonimmigrant’ means an alien admitted as a non3 immigrant pursuant to section 101(a)(15)(H)(ii)(c). 

4 ‘‘(7) H–2C NONIMMIGRANT STATUS.—The term 

5 ‘H–2C nonimmigrant status’ means status granted 

6 to an alien admitted as a nonimmigrant pursuant to 

7 section 101(a)(15)(H)(ii)(c). 

8 ‘‘(8) INITIAL H–2C NONIMMIGRANT.—The term 

9 ‘initial H–2C nonimmigrant’ means an alien— 

10 ‘‘(A) issued an H–2C-nonimmigrant visa 

11 by the Secretary of State authorizing the ad12 mission of that alien to the United States for 

13 the first time as an H–2C nonimmigrant; and 

14 ‘‘(B) does not include an alien on or after 

15 the date the alien commences employment in 

16 H–2C nonimmigrant status with a registered 

17 employer in a registered position. 

18 ‘‘(9) LAY OFF.—The term ‘lay off’— 

19 ‘‘(A) means to cause a worker to lose em20 ployment, other than through a discharge for 

21 inadequate performance, violation of workplace 

22 rules, cause, voluntary departure, voluntary re23 tirement, or the expiration of a grant or con24 tract; and 


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

2 which the worker is offered and refused to ac3 cept, as an alternative to such loss of employ4 ment, a similar employment opportunity with 

5 the same employer at equivalent or higher com6 pensation and benefits than the position from 

7 which the employee was discharged. 

8 ‘‘(10) METROPOLITAN STATISTICAL AREA.— 

9 The term ‘metropolitan statistical area’ means a ge10 ographic area designated as a metropolitan statis11 tical area by the Director of the Office of Manage12 ment and Budget. 

13 ‘‘(11) REGISTERED EMPLOYER.—The term 

14 ‘registered employer’ means an operational business 

15 unit of a nonagricultural employer that is operating 

16 independently in a full employment area and is des17 ignated by the Secretary as a registered employer 

18 under subsection (d). 

19 ‘‘(12) REGISTERED POSITION.—The term ‘reg20 istered position’ means a position designated as a 

21 registered position under subsection (e). 

22 ‘‘(13) SCARCITY RECRUITMENT FEE.—The 

23 term ‘scarcity recruitment fee’ refers to a payment 

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1 ployer remits to the Secretary as part of the employ2 er’s application for a registered position in order to 

3 demonstrate said employer’s inability to recruit a 

4 United States worker for the position. 

5 ‘‘(14) SECRETARY.—Except as otherwise spe6 cifically provided, the term ‘Secretary’ means the 

7 Secretary of Homeland Security. 

8 ‘‘(15) SINGLE ENTITY.—The term ‘single enti9 ty’ means any group treated as a single employer 

10 under subsection (b), (c), (m), or (o) of section 414 

11 of the Internal Revenue Code of 1986. 

12 ‘‘(16) SMALL BUSINESS.—The term ‘small busi13 ness’ means an employer that employs 50 or fewer 

14 full-time equivalent employees. 

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

16 ‘United States worker’ means an individual who is— 

17 ‘‘(A) lawfully employed or seeking employ18 ment in the United States; and 

19 ‘‘(B)(i) a national of the United States; 

20 ‘‘(ii) an alien lawfully admitted for perma21 nent residence; or 

22 ‘‘(iii) any other alien authorized to work in 

23 the United States with no limitation as to the 

24 alien’s employer. 


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1 ‘‘(18) ZONE 1 OCCUPATION.—The term ‘zone 1 

2 occupation’ means an occupation that requires little 

3 or no preparation and is classified as a zone 1 occu4 pation on— 

5 ‘‘(A) the Occupational Information Net6 work Database (O*NET) on the date of the en7 actment of this section; or 

8 ‘‘(B) such Database or a similar successor 

9 database, as designated by the Secretary of 

10 Labor, after the date of the enactment of this 

11 section. 

12 ‘‘(19) ZONE 2 OCCUPATION.—The term ‘zone 2 

13 occupation’ means an occupation that requires some 

14 preparation and is classified as a zone 2 occupation 

15 on— 

16 ‘‘(A) the Occupational Information Net17 work Database (O*NET) on the date of the en18 actment of this section; or 

19 ‘‘(B) such Database or a similar successor 

20 database, as designated by the Secretary of 

21 Labor, after the date of the enactment of this 

22 section. 

23 ‘‘(20) ZONE 3 OCCUPATION.—The term ‘zone 3 

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1 dium preparation and is classified as a zone 3 occu2 pation on— 

3 ‘‘(A) the Occupational Information Net4 work Database (O*NET) on the date of the en5 actment of this section; or 

6 ‘‘(B) such Database or a similar successor 

7 database, as designated by the Secretary of 

8 Labor, after the date of the enactment of this 

9 section. 

10 ‘‘(b) ADMISSION INTO THE UNITED STATES.—An 

11 alien is eligible to be admitted as an H–2C nonimmigrant 

12 if the alien— 

13 ‘‘(1) has received an offer of employment from 

14 a registered employer; and 

15 ‘‘(2) otherwise meets the requirements of this 

16 section. 

17 ‘‘(c) H–2C NONIMMIGRANTS.— 

18 ‘‘(1) APPLICATION.—An alien seeking to be an 

19 H–2C nonimmigrant shall submit an application to 

20 the Secretary. 

21 ‘‘(2) ATTESTATION.—Each application sub22 mitted under paragraph (1) for an alien shall in23 clude an attestation as follows: 

24 ‘‘(A) That the H–2C nonimmigrant will re25 port to such nonimmigrant’s initial employment 


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1 in a registered position not later than 14 days 

2 after such nonimmigrant is admitted. 

3 ‘‘(B) That the H–2C nonimmigrant will 

4 accept only registered positions and abide by all 

5 terms and conditions of H–2C nonimmigrant 

6 status. 

7 ‘‘(C) That the H–2C nonimmigrant will 

8 not bring a family member to the United States 

9 in violation of any provision of this Act. 

10 ‘‘(3) APPLICATION REVIEW.—The Secretary 

11 shall adjudicate an application submitted under 

12 paragraph (1) not later than 45 days after the re13 ceipt of such application. 

14 ‘‘(4) FEES.— 

15 ‘‘(A) IN GENERAL.—Each application sub16 mitted under paragraph (1) shall include a fee 

17 in the amount determined by the Secretary ad18 judicating such application to be necessary to 

19 cover the cost of adjudicating the application 

20 within 45 days. 

21 ‘‘(B) PREMIUM PROCESSING.—The Sec22 retary and the Secretary of State shall create 

23 an expedited process to review an application 

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1 tional fee, in an amount determined by such 

2 Secretaries. 

3 ‘‘(5) ELIGIBILITY FOR H–2C NONIMMIGRANT

4 STATUS.—No alien may be admitted as an H–2C 

5 nonimmigrant if the alien— 

6 ‘‘(A) is inadmissible under this Act; 

7 ‘‘(B) fails to pass a criminal background 

8 check or a national security background check; 

9 ‘‘(C) is from a country determined by the 

10 Secretary of State to have repeatedly provided 

11 support for acts of international terrorism pur12 suant to— 

13 ‘‘(i) section 6(j)(1)(A) of the Export 

14 Administration Act of 1979 (50 U.S.C. 

15 App. 2405(j)(1)(A)) (or successor statute); 

16 ‘‘(ii) section 40(d) of the Arms Export 

17 Control Act (22 U.S.C. 2780(d)); or 

18 ‘‘(iii) section 620A(a) of the Foreign 

19 Assistance Act of 1961 (22 U.S.C. 

20 2371(a)); or 

21 ‘‘(D) has not received an offer of employ22 ment from a registered employer in a registered 

23 position. 

24 ‘‘(6) EMPLOYMENT.— 

25 ‘‘(A) INITIAL EMPLOYMENT.— 


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1 ‘‘(i) REPORTING TO EMPLOYMENT.— 

2 An initial H–2C nonimmigrant shall report 

3 to such nonimmigrant’s initial employment 

4 in a registered position not later than 14 

5 days after such nonimmigrant is admitted 

6 to the United States. 

7 ‘‘(ii) REPORTING TO THE SEC8 RETARY.—An initial H–2C nonimmigrant 

9 shall maintain contact with the Secretary 

10 after such H–2C nonimmigrant is admit11 ted to the United States but before report12 ing to the initial employment at an interval 

13 that is determined by the Secretary, but 

14 not less than every 7 days. 

15 ‘‘(B) PERIODS OF UNEMPLOYMENT.—An 

16 H–2C nonimmigrant— 

17 ‘‘(i) may be unemployed for a period 

18 of not more than 45 consecutive days of 

19 presence in the United States; and 

20 ‘‘(ii) shall depart the United States if 

21 such H–2C nonimmigrant is unable to ob22 tain employment during such period. 

23 ‘‘(7) INITIAL PERIOD OF AUTHORIZED PRES24 ENCE.—An H–2C nonimmigrant may be physically 


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1 present in the United States for an initial period of 

2 not more than a total of 36 months. 

3 ‘‘(8) RENEWAL.—An H–2C nonimmigrant may 

4 renew his or her H–2C nonimmigrant status for not 

5 more than 2 additional consecutive periods of au6 thorized presence. 

7 ‘‘(9) TRAVEL.—An H–2C nonimmigrant may 

8 travel outside the United States and be readmitted 

9 to the United States. 

10 ‘‘(10) PENALTIES.—If an H–2C nonimmigrant 

11 fails to comply with any other term or condition of 

12 H–2C nonimmigrant status or remains in the 

13 United States for 10 days after the date of the expi14 ration of his or her period of authorized presence 

15 without status under the immigration laws, then the 

16 Secretary shall mandatorily— 

17 ‘‘(A) subject such nonimmigrant to the 

18 revocation of employment authorization; and 

19 ‘‘(B) initiate and pursue removal under 

20 section 237(a)(1)(C)(i). 

21 ‘‘(d) REGISTERED EMPLOYER.— 

22 ‘‘(1) APPLICATION.—An employer seeking to be 

23 a registered employer may submit an application to 

24 the Secretary. Each such application shall include 

25 the following: 


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1 ‘‘(A) Documentation to establish that the 

2 employer is a bona fide employer operating in 

3 a full employment area. 

4 ‘‘(B) Evidence that the employer is current 

5 in payment of payroll taxes. 

6 ‘‘(C) The employer’s Federal tax identifica7 tion number or employer identification number 

8 issued by the Internal Revenue Service. 

9 ‘‘(D) The number of H–2C nonimmigrants 

10 the employer estimates the employer will seek 

11 to employ annually. 

12 ‘‘(2) REFERRAL FOR FRAUD INVESTIGATION.— 

13 The Secretary may refer an application submitted 

14 under paragraph (1) or subsection (e)(1)(A) to the 

15 Fraud Detection and National Security Directorate 

16 of U.S. Citizenship and Immigration Services for po17 tential investigation if there is evidence of fraud par18 ticular to such application. 

19 ‘‘(3) INELIGIBLE EMPLOYERS.— 

20 ‘‘(A) IN GENERAL.—Notwithstanding any 

21 other applicable penalties under law, the Sec22 retary shall deny an employer’s application to 

23 be a registered employer if the Secretary deter24 mines, after notice and an opportunity for a 


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1 hearing, that the employer submitting such ap2 plication— 

3 ‘‘(i) has, in such application (includ4 ing any attestations required by law)— 

5 ‘‘(I) knowingly misrepresented a 

6 material fact; 

7 ‘‘(II) knowingly made a fraudu8 lent statement; or 

9 ‘‘(III) knowingly failed to comply 

10 with the terms of such attestations; 

11 ‘‘(ii) failed to cooperate in the process 

12 established pursuant to subsection (m); 

13 ‘‘(iii) has been convicted of an offense 

14 under chapter 77 of title 18, United States 

15 Code, any conspiracy to commit such an 

16 offense, or any human trafficking offense 

17 under State or territorial law; 

18 ‘‘(iv) has, within 2 years prior to the 

19 date of the application— 

20 ‘‘(I) been finally adjudicated as 

21 having committed any hazardous oc22 cupation orders violation resulting in 

23 injury or death under the child labor 

24 provisions contained in section 12 of 

25 the Fair Labor Standards Act of 


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1 1938 (29 U.S.C. 212) or any perti2 nent regulation; 

3 ‘‘(II) received a final adjudication 

4 assessing a civil monetary penalty for 

5 a pattern and practice of willful viola6 tion of the minimum wage provisions 

7 of section 6 of the Fair Labor Stand8 ards Act of 1938 (29 U.S.C. 206); or 

9 ‘‘(III) received a final adjudica10 tion assessing a civil monetary penalty 

11 for a pattern and practice of willful 

12 violation of the overtime provisions of 

13 section 7 of the Fair Labor Standards 

14 Act of 1938 (29 U.S.C. 207) or any 

15 regulations thereunder; or 

16 ‘‘(v) has, within 2 years prior to the 

17 date of application, received a final adju18 dication for a willful violation involving in19 jury or death— 

20 ‘‘(I) of section 5 of the Occupa21 tional Safety and Health Act of 1970 

22 (29 U.S.C. 654); 

23 ‘‘(II) of any standard, rule, or 

24 order promulgated pursuant to section 

25 6 of the Occupational Safety and 


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1 Health Act of 1970 (29 U.S.C. 655); 

2 or 

3 ‘‘(III) of a plan approved under 

4 section 18 of the Occupational Safety 

5 and Health Act of 1970 (29 U.S.C. 

6 667). 

7 ‘‘(B) LENGTH OF INELIGIBILITY.— 

8 ‘‘(i) TEMPORARY INELIGIBILITY.—An 

9 employer described in clause (i) or (ii) of 

10 subparagraph (A) whose application is de11 nied shall not be eligible to be a registered 

12 employer for a period that is not less than 

13 1 year or a time period determined by the 

14 Secretary, whichever is greater, and not 

15 more than 2 years. 

16 ‘‘(ii) PERMANENT INELIGIBILITY.— 

17 An employer described in clause (iii), (iv), 

18 or (v) of subparagraph (A) shall be perma19 nently ineligible to be a registered em20 ployer. 

21 ‘‘(4) TERM OF REGISTRATION.—The Secretary 

22 may approve an application only for a term, begin23 ning on the date of approval, and ending on the 

24 later of— 

25 ‘‘(A) the date that is 3 years thereafter; or 


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1 ‘‘(B) the date that is 3 months after the 

2 date on which the employer has no registered 

3 positions. 

4 ‘‘(5) RENEWAL.— 

5 ‘‘(A) IN GENERAL.—An employer may sub6 mit an application to renew the employer’s sta7 tus as a registered employer for additional peri8 ods under paragraph (4). 

9 ‘‘(B) ATTESTATION.—An application for 

10 renewal under subparagraph (A) shall include 

11 an attestation described in paragraph (7)(A). 

12 ‘‘(6) FEE.—At the time an employer’s applica13 tion to be a registered employer is approved, such 

14 employer shall pay a fee of $500, and shall pay such 

15 fee every 3 years thereafter while the employer re16 mains a registered employer. 

17 ‘‘(7) CONTINUED ELIGIBILITY.— 

18 ‘‘(A) ATTESTATION.—Each registered em19 ployer shall attest to the Secretary each year— 

20 ‘‘(i) that the registered employer has 

21 provided the wages and working conditions 

22 the registered employer agreed to provide 

23 to its H–2C nonimmigrant employees 

24 under paragraph (5)(B); 


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1 ‘‘(ii) that the registered employer re2 mains a bona fide employer operating in a 

3 full employment area; and 

4 ‘‘(iii) to the number of H–2C non5 immigrants the employer employed the 

6 prior year. 

7 ‘‘(B) NO LONGER A FULL EMPLOYMENT

8 AREA.—An employer is ineligible to file an ap9 plication for a new permit or to renew an exist10 ing permit if the unemployment rate in the 

11 county or metropolitan statistical area where 

12 the business said employer operates rises so 

13 that the area is no longer designated as a full 

14 employment area. 

15 ‘‘(8) NOTICE OF FAILURE OF H–2C NON16 IMMIGRANT TO APPEAR.—An employer shall inform 

17 the Secretary if an H–2C nonimmigrant does not 

18 appear for employment with the employer during the 

19 time period specified in subsection (c)(6)(A)(i). 

20 ‘‘(e) REGISTERED POSITIONS.— 

21 ‘‘(1) IN GENERAL.— 

22 ‘‘(A) APPLICATION.—Each employer may 

23 submit with an application or renewal under 

24 subsection (d) for adjudication to the Secretary 

25 an application to designate a registered position 


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1 for which the employer is seeking to hire an H– 

2 2C nonimmigrant at any time during the year 

3 without regard to the date the employer needs 

4 each position to be filled. 

5 ‘‘(B) ATTESTATION.—An application sub6 mitted under subparagraph (A) shall include a 

7 general description of each such position and an 

8 attestation to each of the following: 

9 ‘‘(i) The number of full-time equiva10 lent employees of the employer. 

11 ‘‘(ii) The occupational category, as 

12 classified by Bureau of Labor Statistics, 

13 for which each registered position is 

14 sought. 

15 ‘‘(iii) That the wages to be paid to H– 

16 2C nonimmigrants employed by the em17 ployer in each registered position will be 

18 the greater of— 

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

20 the employer to other employees with 

21 similar experience and qualifications 

22 for such position in the same location; 

23 or 

24 ‘‘(II) the prevailing wage level for 

25 the occupational classification of the 


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1 position in the metropolitan statistical 

2 area of the employment, based on the 

3 best information available as of the 

4 time of filing the application. 

5 ‘‘(iv) That the employer has carried 

6 out the recruiting activities required by 

7 paragraph (2)(B). 

8 ‘‘(v) That, subject to subparagraphs 

9 (B) and (C) of paragraph (2)— 

10 ‘‘(I) there is no equally or better 

11 qualified United States worker who 

12 has applied for the position and who 

13 is ready, willing, and able to fill such 

14 position; or 

15 ‘‘(II) such position qualifies as 

16 an enduring job opening. 

17 ‘‘(vi) That there is not a strike, lock18 out, or work stoppage in the course of a 

19 labor dispute in the occupation at the place 

20 of employment at which the H–2C non21 immigrant will be employed. If such strike, 

22 lockout, or work stoppage occurs following 

23 submission of the application, the employer 

24 will provide notification in accordance with 

25 all applicable regulations. 


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1 ‘‘(vii)(I) The employer has not laid off 

2 and will not lay off a United States worker 

3 during the period beginning 45 days prior 

4 to and ending 45 days after the date the 

5 employer files an application for designa6 tion of a position for which the H–2C non7 immigrant is sought or hires such H–2C 

8 nonimmigrant, unless the employer has 

9 made a reasonable effort to contact and 

10 offer such United States worker the posi11 tion, or documented the legitimate reasons 

12 that such United States worker is not 

13 qualified or available for the position. 

14 ‘‘(II) A United States worker is not 

15 laid off for purposes of this clause if— 

16 ‘‘(aa) at the time such worker’s 

17 employment is terminated, such work18 er is not employed in the same occu19 pation and in the same metropolitan 

20 statistical area where the registered 

21 position is located. A United States 

22 worker is not laid off for purposes of 

23 this clause if, in the 45 calendar days 

24 before the hiring of an H–2C non25 immigrant, the employer adds another 


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1 United States worker so that the total 

2 number of United States workers em3 ployed by such employer in the same 

4 occupation as such H–2C non5 immigrant and in the same metropoli6 tan statistical area where the reg7 istered position is located has not de8 creased; or 

9 ‘‘(bb) in the 45 calendar days 

10 after the hiring of an H–2C non11 immigrant, the employer adds another 

12 United States worker within 5 busi13 ness days after laying off a United 

14 States worker so that the total num15 ber of United States workers em16 ployed by such employer in the same 

17 occupation as such H–2C non18 immigrant and in the same metropoli19 tan statistical area where the reg20 istered position is located has not de21 creased. 

22 ‘‘(C) DEFINITIONS.— 

23 ‘‘(i) BEST INFORMATION AVAIL24 ABLE.—In subparagraph (B)(iii)(II), the 

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1 spect to determining the prevailing wage 

2 for a position, means— 

3 ‘‘(I) a controlling collective bar4 gaining agreement, to which the em5 ployer is a signatory and which sets 

6 wages for work performed by H–2C 

7 nonimmigrants; 

8 ‘‘(II) if there is no controlling 

9 collective bargaining agreement as set 

10 forth in subclause (I), the local, State, 

11 or Federal prevailing wage laws or or12 dinances, for any time period during 

13 which the H–2C nonimmigrant per14 forms work on a project for which 

15 payment of such wages is required by 

16 such laws or ordinances, and the em17 ployer has signed a contract agreeing 

18 to pay such wages on that project; or 

19 ‘‘(III) if there is no controlling 

20 collective bargaining agreement as set 

21 forth in subclause (I) and the H–2C 

22 nonimmigrant is not performing work 

23 on a project governed by a prevailing 

24 wage law or ordinance as set forth in 

25 subclause (II)— 


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1 ‘‘(aa) the wage level com2 mensurate with the experience, 

3 training, and supervision re4 quired for the job based on Bu5 reau of Labor Statistics data; or 

6 ‘‘(bb) a legitimate private 

7 wage survey of the wages paid 

8 for such positions in the metro9 politan statistical area. 

10 ‘‘(ii) LEGITIMATE PRIVATE WAGE

11 SURVEY.—In this paragraph, the term ‘le12 gitimate private wage survey’ means, in 

13 the case of an application under subpara14 graph (A), a survey of wages by an entity 

15 other than the Federal Government— 

16 ‘‘(I) for which the data has been 

17 collected during the 2-year period im18 mediately preceding the date of the 

19 application; 

20 ‘‘(II) that, if a published survey, 

21 has been published during the 2-year 

22 period immediately preceding the date 

23 of the application; 

24 ‘‘(III) that is of the industry or 

25 occupation of intended employment; 


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1 ‘‘(IV) in which the employer job 

2 description is similar to the survey job 

3 description; 

4 ‘‘(V) that is across industries 

5 that employ workers in the occupa6 tion; 

7 ‘‘(VI) for which the wage deter8 mination is based on a weighted or 

9 straight average of the relevant wages, 

10 or another valid measure of central 

11 tendency determined by the Secretary 

12 of Labor of relevant wage levels; and 

13 ‘‘(VII) that identifies a statis14 tically valid methodology that was 

15 used to collect the data. 

16 ‘‘(D) PERMIT.—The Secretary shall pro17 vide each registered employer whose application 

18 submitted under subparagraph (A) is approved 

19 with a permit that includes the number and de20 scription of such employer’s approved registered 

21 positions at the time of such approval. 

22 ‘‘(E) REGISTRY OF REGISTERED POSI23 TIONS.— 


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1 ‘‘(i) MAINTENANCE OF REGISTRY.— 

2 The Secretary shall develop and maintain 

3 a registry of registered positions. 

4 ‘‘(ii) AVAILABILITY ON WEBSITE.— 

5 Such registry shall be accessible on a 

6 website maintained by the Secretary. 

7 ‘‘(iii) AVAILABILITY ON STATE WORK8 FORCE AGENCY WEBSITES.—Each work9 force agency of each State shall be linked 

10 to such registry. 

11 ‘‘(iv) CONDITIONS OF AVAILABILITY

12 ON WEBSITE.— 

13 ‘‘(I) REGISTERED POSITIONS.— 

14 Each registered position shall be in15 cluded in the registry of registered po16 sitions maintained by the Secretary 

17 and shall remain available for viewing 

18 on such registry throughout the pe19 riod of approval under paragraph (5). 

20 ‘‘(II) AVAILABILITY AND ELIGI21 BILITY.—The Secretary shall ensure 

22 that the registry indicates whether 

23 each registered position in the registry 

24 is filled or unfilled. 

25 ‘‘(2) REQUIREMENTS.— 


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1 ‘‘(A) ELIGIBLE OCCUPATION.—Each reg2 istered position shall be for a position in an eli3 gible occupation as described in paragraph (3). 

4 ‘‘(B) RECRUITMENT OF UNITED STATES

5 WORKERS.— 

6 ‘‘(i) REQUIREMENTS.—A position may 

7 not be a registered position unless the reg8 istered employer— 

9 ‘‘(I) advertises the position for a 

10 period of 30 days, including the wage 

11 range, location or locations, and pro12 posed start date— 

13 ‘‘(aa) on the Internet 

14 website maintained by the Sec15 retary of Labor for the purpose 

16 of such advertising; and 

17 ‘‘(bb) with the workforce 

18 agency of the State where the po19 sition will be located; and 

20 ‘‘(II) except as provided for in 

21 subsection (f)(4)(A)(ii), carries out 

22 not less than 3 of the recruiting ac23 tivities described in subparagraph (C). 

24 ‘‘(ii) DURATION OF ADVERTISING.— 

25 The 30-day periods required by items (aa) 


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1 and (bb) of clause (i)(I) may occur at the 

2 same time. 

3 ‘‘(C) RECRUITING ACTIVITIES.—Recruiting 

4 activities described in this subparagraph shall 

5 take place no earlier than 60 days before an 

6 employer files an application for a permit to 

7 hire an H–2C nonimmigrant and may be con8 current with the requirements of subsection 

9 (e)(2)(B). A recruiting activity is any of the fol10 lowing: 

11 ‘‘(i) Advertising such position at a job 

12 fair. 

13 ‘‘(ii) Advertising such position on the 

14 employer’s external website. 

15 ‘‘(iii) Advertising such position on a 

16 job search Internet website. 

17 ‘‘(iv) Advertising such position using a 

18 presentation or posting at a vocational 

19 school, career technical school, community 

20 college, high school, or other educational or 

21 training site. 

22 ‘‘(v) Posting such position with a 

23 trade association. 

24 ‘‘(vi) Utilizing a search firm to seek 

25 applicants for such position. 


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1 ‘‘(vii) Advertising such position 

2 through a recruitment program with a 

3 placement office at a vocational school, ca4 reer technical school, community college, 

5 high school, or other educational or train6 ing site. 

7 ‘‘(viii) Advertising such position with 

8 a local library, journal, or newspaper. 

9 ‘‘(ix) Seeking a candidate for such po10 sition through an employee referral pro11 gram with incentives. 

12 ‘‘(x) Advertising such position on 

13 radio or television. 

14 ‘‘(xi) Advertising such position 

15 through an advertising, posting, or presen16 tation with a newspaper, Internet website, 

17 job fair, or community event targeted to 

18 constituencies designed to increase em19 ployee diversity. 

20 ‘‘(xii) Advertising such position 

21 through a career day presentation at a 

22 local high school or community organiza23 tion. 

24 ‘‘(xiii) Providing in-house training for 

25 such position. 


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1 ‘‘(xiv) Providing third-party training 

2 for such position. 

3 ‘‘(xv) Advertising such position 

4 through recruitment, educational, or other 

5 cooperative programs offered by the em6 ployer and a local economic development 

7 authority. 

8 ‘‘(xvi) Advertising such position twice 

9 in a Sunday edition in a primary daily cir10 culation newspaper. 

11 ‘‘(3) ELIGIBLE OCCUPATION.— 

12 ‘‘(A) IN GENERAL.—An occupation is an 

13 eligible occupation if the occupation— 

14 ‘‘(i) is a zone 1 occupation, a zone 2 

15 occupation, or zone 3 occupation; and 

16 ‘‘(ii) is not an excluded occupation 

17 under subparagraph (B). 

18 ‘‘(B) OCCUPATIONS REQUIRING COLLEGE

19 DEGREES.—An occupation that is listed in the 

20 Occupational Outlook Handbook published by 

21 the Bureau of Labor Statistics (or similar suc22 cessor publication) that is classified as requir23 ing an individual with a bachelor’s degree or 

24 higher level of education may not be an eligible 

25 occupation. 


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1 ‘‘(C) PUBLICATION.—The Secretary of 

2 Labor shall publicize the eligible occupations, 

3 designated as zone 1 occupations, zone 2 occu4 pations, or zone 3 occupations, on an ongoing 

5 basis on a publicly available Internet website. 

6 ‘‘(4) FILLING OF VACANCIES.—If an H–2C 

7 nonimmigrant terminates employment in a reg8 istered position or is terminated from such employ9 ment by the registered employer, such employer may 

10 fill that vacancy by hiring an H–2C nonimmigrant 

11 other than an initial H–2C nonimmigrant. 

12 ‘‘(5) PERIOD OF APPROVAL.— 

13 ‘‘(A) IN GENERAL.—Except as provided in 

14 subparagraph (B), a registered position shall be 

15 approved by the Secretary for a period that be16 gins on the date of such approval and ends on 

17 the earliest of— 

18 ‘‘(i) the date the employer’s status as 

19 a registered employer is terminated; 

20 ‘‘(ii) 3 years after the date of such ap21 proval; 

22 ‘‘(iii) 240 days after the date of such 

23 approval if such position has not been 

24 filled by an H–2C nonimmigrant at any 

25 point during such time; or 


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1 ‘‘(iv) upon termination of the reg2 istered position by the employer. 

3 ‘‘(B) RENEWAL.—An approval under sub4 paragraph (A) shall be renewed for not more 

5 than 2 additional periods at the request of the 

6 registered employer as provided in this subpara7 graph if such registered employer fulfills the re8 quirements of paragraphs (1)(C) and (2). 

9 ‘‘(C) RENEWING EMPLOYER EXEMPTION.— 

10 Renewals of registered positions by employers 

11 shall not be counted toward the limits estab12 lished under paragraph (1)(A) or (2)(D) of sub13 section (f) or counted for the purposes of a nu14 merical limitation under subparagraph (B) or 

15 (C) of subsection (f)(2). 

16 ‘‘(D) SECRETARY AUTHORITY TO TERMI17 NATE REGISTERED POSITION.—The Secretary 

18 shall terminate a registered position if the Sec19 retary determines— 

20 ‘‘(i) that an employer has purposefully 

21 allowed a registered position to be used for 

22 an alien to gain admission to the United 

23 States as an H–2C nonimmigrant with no 

24 intention of such alien working for such 

25 registered employer; or 


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1 ‘‘(ii) that there exists a pattern and 

2 practice of initial H–2C nonimmigrants 

3 failing to report in accordance with the 

4 time period specified in subsection 

5 (c)(6)(A)(i). 

6 ‘‘(6) FEES.— 

7 ‘‘(A) REGISTRATION FEE.— 

8 ‘‘(i) IN GENERAL.—At the time an ap9 plication to register a position is approved 

10 and after each renewal of such position, 

11 each registered employer shall pay a fee in 

12 an amount determined by the Secretary. 

13 ‘‘(ii) USE OF FEE.—Except as other14 wise provided in this section, a fee col15 lected under clause (i) shall be used to 

16 fund any action to carry out this section, 

17 except for subsection (q) and subsection 

18 (p)(2). 

19 ‘‘(B) PROHIBITION ON OTHER FEES.—A 

20 registered employer may not be required to pay 

21 an additional fee other than any fees specified 

22 in this Act. 

23 ‘‘(7) INITIAL REVIEW OF APPLICATIONS.— 

24 ‘‘(A) IN GENERAL.—For applications filed 

25 and considered under paragraph (1)— 


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1 ‘‘(i) unless the Secretary determines 

2 that the application is incomplete, facially 

3 invalid, or obviously inaccurate, the Sec4 retary, not later than 10 business days 

5 after the date on which such application 

6 was filed, shall either approve or reject the 

7 application and provide the applicant with 

8 notice of such action by means ensuring 

9 same or next day delivery; and 

10 ‘‘(ii) if the Secretary determines that 

11 the application is incomplete, facially in12 valid, or obviously inaccurate, the Sec13 retary shall— 

14 ‘‘(I) not later than 10 business 

15 days after the date on which such ap16 plication was filed, notify the appli17 cant of the deficiencies to be corrected 

18 by means ensuring same or next day 

19 delivery; and 

20 ‘‘(II) not later than 10 business 

21 days after receipt of the corrected ap22 plication, approve or deny the applica23 tion and provide the applicant with 

24 notice of such action by means ensur25 ing same or next day delivery. 


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1 ‘‘(B) PREMIUM PROCESSING.—The Sec2 retary shall establish a process for expedited 

3 processing of applications under this section, 

4 subject to the payment of an additional fee, as 

5 determined by the Secretary. 

6 ‘‘(C) FEE REDUCTION.—The Secretary 

7 shall reduce the registration fee under para8 graph (6) by 5 percent for each day the applica9 tion is delayed beyond the required review peri10 ods under subparagraph (A). 

11 ‘‘(8) EXPEDITED REVIEW.—Not later than 1 

12 year after the date of enactment of the Workforce 

13 for an Expanding Economy Act, the Secretary shall 

14 promulgate regulations to provide for an expedited 

15 procedure for the review of a denial of an application 

16 under this section by the Secretary. 

17 ‘‘(f) NUMERICAL LIMITATION.— 

18 ‘‘(1) REGISTERED POSITIONS.—Subject to 

19 paragraphs (3), (4), and (5), the maximum number 

20 of registered positions that may be approved by the 

21 Secretary for a fiscal year is as follows: 

22 ‘‘(A) For the first full fiscal year after the 

23 effective date of the Workforce for an Expand24 ing Economy Act that aliens are admitted as 

25 H–2C nonimmigrants, 65,000. 


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1 ‘‘(B) For each fiscal year after that first 

2 fiscal year, the level calculated for that fiscal 

3 year under paragraph (2). 

4 ‘‘(2) SUBSEQUENT FISCAL YEARS.— 

5 ‘‘(A) DEFINITION OF CURRENT FISCAL

6 YEAR AND PRECEDING FISCAL YEAR.—In this 

7 paragraph: 

8 ‘‘(i) CURRENT FISCAL YEAR.—The 

9 term ‘current fiscal year’ means the fiscal 

10 year for which the calculation of the nu11 merical limits under this paragraph is 

12 being performed. 

13 ‘‘(ii) PRECEDING FISCAL YEAR.—The 

14 term ‘preceding fiscal year’ means the fis15 cal year immediately preceding the current 

16 fiscal year. 

17 ‘‘(B) NUMERICAL LIMITATION.—Subject to 

18 subparagraph (D), the maximum number of 

19 registered positions that may be approved by 

20 the Secretary for a fiscal year after the first fis21 cal year referred to in paragraph (1)(A) shall 

22 be equal to— 

23 ‘‘(i) 65,000 for the first fiscal year in 

24 which the program is implemented; and 

25 ‘‘(ii) in any subsequent fiscal year— 


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1 ‘‘(I) if the total number of reg2 istered positions allocated for that fis3 cal year are allotted within the first 

4 quarter of that fiscal year, then an 

5 additional 20 percent of the allocated 

6 number shall be made available imme7 diately and the allocated amount for 

8 the following fiscal year shall increase 

9 by 20 percent of the original allocated 

10 amount in the prior fiscal year; 

11 ‘‘(II) if the total number of reg12 istered positions allocated for that fis13 cal year are allotted within the second 

14 quarter of that fiscal year, then an 

15 additional 15 percent of the allocated 

16 number shall be made available imme17 diately and the allocated amount for 

18 the following fiscal year shall increase 

19 by 15 percent of the original allocated 

20 amount in the prior fiscal year; 

21 ‘‘(III) if the total number of reg22 istered positions allocated for that fis23 cal year are allotted within the third 

24 quarter of that fiscal year, then an 

25 additional 10 percent of the allocated 


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•HR 1740 IH

1 number shall be made available imme2 diately and the allocated amount for 

3 the following fiscal year shall increase 

4 by 10 percent of the original allocated 

5 amount in the prior fiscal year; 

6 ‘‘(IV) if the total number of reg7 istered positions allocated for that fis8 cal year are allotted within the last 

9 quarter of that fiscal year, then the 

10 allocated amount for the following fis11 cal year shall increase by 10 percent 

12 of the original allocated amount in the 

13 prior fiscal year; and 

14 ‘‘(V) with the exception of the 

15 first subsequent fiscal year to the fis16 cal year in which the program is im17 plemented, if fewer registered posi18 tions were allotted the previous fiscal 

19 year than the number of registered 

20 positions allocated for that year and 

21 the reason was not due to processing 

22 delays or delays in promulgating regu23 lations, then the allocated amount for 

24 the following fiscal year shall decrease 


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1 by 10 percent of the allocated amount 

2 in the prior fiscal year. 

3 ‘‘(C) MINIMUM AND MAXIMUM LEVELS.— 

4 Notwithstanding the number of registered posi5 tions calculated under subparagraph (B), the 

6 number of registered positions made available 

7 for a fiscal year under this paragraph may not 

8 be less than 45,000 or more than 85,000. 

9 ‘‘(D) SUBSEQUENT ALLOCATIONS.— 

10 ‘‘(i) IN GENERAL.—Subject to the 

11 limitations under subparagraph (C)— 

12 ‘‘(I) the maximum number of 

13 registered positions available for the 

14 current fiscal year calculated under 

15 subparagraph (B) may be increased 

16 for the 6-month period beginning on 

17 the first day of the current fiscal year 

18 by 5 percent of the maximum number 

19 of registered positions allocated for 

20 that 6-month period under subsection 

21 (h)(1), if all such allocated registered 

22 positions have been approved prior to 

23 the 6th month of that 6-month period; 

24 and 


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1 ‘‘(II) the maximum number of 

2 registered positions available for the 

3 current fiscal year calculated under 

4 subparagraph (B) may be increased 

5 for the 6-month period ending on the 

6 last day of the current fiscal year by 

7 5 percent of the maximum number of 

8 registered positions allocated for that 

9 6-month period under subsection 

10 (h)(2), if all such allocated registered 

11 positions have been approved prior to 

12 the 6th month of that 6-month period. 

13 ‘‘(ii) LOTTERY ALLOCATION.—Addi14 tional registered positions made available 

15 under clause (i) during a 6-month period 

16 shall be allocated 3 weeks prior to the last 

17 day of that 6-month period by lottery 

18 among registered employers that submit 

19 applications in accordance with this section 

20 for such positions. 

21 ‘‘(3) SPECIAL ALLOCATIONS OF REGISTERED

22 POSITIONS.— 

23 ‘‘(A) AUTHORITY TO MAKE AVAILABLE.— 

24 In addition to the number of registered posi25 tions made available for a fiscal year under 


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1 paragraphs (1) and (3), the Secretary shall 

2 make additional registered positions available, 

3 up to the maximum number of registered posi4 tions specified in paragraph (3)(C), for the fis5 cal year for a specific registered employer as 

6 described in this paragraph, if— 

7 ‘‘(i)(I) the maximum number of reg8 istered positions available under paragraph 

9 (2)(B) have been approved for the fiscal 

10 year and none remain available for alloca11 tion; or 

12 ‘‘(II) such registered employer is lo13 cated in a full employment area; 

14 ‘‘(ii) such registered employer has 

15 paid a scarcity recruitment fee; or 

16 ‘‘(iii) in the case of registered employ17 ers with 50 or fewer employees, such reg18 istered employer has carried out not less 

19 than 7 of the recruiting activities described 

20 in subsection (e)(2)(C) and posts the posi21 tion, including the wage range, location, 

22 and initial date of employment, for not less 

23 than 30 days— 

24 ‘‘(I) on the Internet website 

25 maintained by the Secretary of Labor 


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1 for the purpose of such advertising; 

2 and 

3 ‘‘(II) with the workforce agency 

4 of the State where the position will be 

5 located. 

6 ‘‘(B) RECRUITMENT.— 

7 ‘‘(i) LIMITATION FOR INITIAL H–2C

8 NONIMMIGRANTS.—Except as provided in 

9 clause (ii), an initial H–2C nonimmigrant 

10 may only enter the United States for ini11 tial employment pursuant to a special allo12 cation under this paragraph if the reg13 istered employer has carried out at least 7 

14 of the recruiting activities described in sub15 section (e)(2)(C) or has paid a scarcity re16 cruitment fee. 

17 ‘‘(ii) EXCEPTION.—A registered em18 ployer may register a position pursuant to 

19 a special allocation under this paragraph 

20 by conducting at least 3 of the recruiting 

21 activities described in subsection (e)(2)(C), 

22 however a position registered pursuant to 

23 this clause may not be filled by an initial 

24 H–2C nonimmigrant. 

25 ‘‘(iii) ADVERTISING THE POSITION.— 


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1 ‘‘(I) REQUIREMENT.—Any reg2 istered employer registering any posi3 tion under the special allocation au4 thority shall post the position, includ5 ing the wage range, location or loca6 tions, and initial date of employment, 

7 for not less than 30 days— 

8 ‘‘(aa) on the Internet 

9 website maintained by the Sec10 retary of Labor for the purpose 

11 of such advertising; and 

12 ‘‘(bb) with the workforce 

13 agency of the State where the po14 sition will be located. 

15 ‘‘(II) TIMING.—The 30-day peri16 ods required by items (aa) and (bb) of 

17 subclause (I) may occur at the same 

18 time. 

19 ‘‘(4) UNFILLED POSITIONS.—If an H–2C non20 immigrant has not been employed in registered posi21 tion during any portion of the 240-day period after 

22 the date of the approval of the position, the reg23 istered position shall be terminated and added to the 

24 number of positions made available for the next 6- 


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1 month allocation period under paragraph (1) or (2) 

2 of subsection (i). 

3 ‘‘(g) FEDERAL PUBLIC BENEFITS.— 

4 ‘‘(1) IN GENERAL.—H–2C nonimmigrants— 

5 ‘‘(A) are not entitled to the premium as6 sistance tax credit authorized under section 

7 36B of the Internal Revenue Code of 1986; 

8 ‘‘(B) shall be subject to the rules applica9 ble to individuals who are not lawfully present 

10 as set forth in subsection (e) of such section; 

11 and 

12 ‘‘(C) shall not be allowed any credit under 

13 section 24 or 32 of the Internal Revenue Code 

14 of 1986, and, in the case of a joint return, no 

15 credit shall be allowed under either such section 

16 if both spouses are H–2C nonimmigrants. 

17 ‘‘(2) EMPLOYER FEE.—For purposes of sub18 sections (a)(2), (b)(1)(B), and (c)(2)(A) of section 

19 4980H of the Internal Revenue Code of 1986, the 

20 H–2C nonimmigrant shall be treated as a full-time 

21 employee certified as having enrolled in a qualified 

22 health plan with respect to which an applicable pre23 mium tax credit or cost-sharing reduction is allowed 

24 or paid with respect to the employee. 

25 ‘‘(h) ALLOCATION OF REGISTERED POSITIONS.— 


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1 ‘‘(1) IN GENERAL.— 

2 ‘‘(A) FIRST 6-MONTH PERIOD.—The num3 ber of registered positions available under para4 graph (2) of subsection (f) (except those made 

5 available under subparagraph (E) of such para6 graph) for the 6-month period beginning on the 

7 first day of a year is 50 percent of the max8 imum number of registered positions available 

9 for such year under paragraph (1)(A)(i) or 

10 (2)(B) of subsection (f). Such registered posi11 tions shall be allocated as described in this sub12 section. 

13 ‘‘(B) SECOND 6-MONTH PERIOD.—The 

14 number of registered positions available under 

15 paragraph (2) of subsection (f) (except those 

16 made available under subparagraph (E) of such 

17 paragraph) for the 6-month period ending on 

18 the last day of a year is the maximum number 

19 of registered positions available for such year 

20 under paragraph (1)(A)(i) or (2)(B) of sub21 section (f) minus the number of registered posi22 tions approved during the 6-month period re23 ferred to in subparagraph (A). Such registered 

24 positions shall be allocated as described in this 

25 subsection. 


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1 ‘‘(2) SMALL BUSINESSES.— 

2 ‘‘(A) IN GENERAL.—The Secretary shall 

3 reserve not less than one quarter of the number 

4 of registered positions initially allocated for 

5 each 6-month period under subsection (f)(2)(B) 

6 only for a registered employer that is a small 

7 business unless— 

8 ‘‘(i) any such registered positions are 

9 not approved in the first 4 months of each 

10 6-month period; or 

11 ‘‘(ii) less than one quarter of the reg12 istered positions initially allocated for the 

13 6-month period remain available after the 

14 first month. 

15 ‘‘(B) CONDITION MET.—If a condition re16 ferred to in clause (i) or (ii) of subparagraph 

17 (A) is met, any remaining registered positions 

18 shall be available for any registered employer. 

19 ‘‘(i) PORTABILITY.— 

20 ‘‘(1) NONIMMIGRANT PORTABILITY.—An H–2C 

21 nonimmigrant who is employed in a registered posi22 tion may— 

23 ‘‘(A) be employed at any worksite if the 

24 registered employer advertised such location 


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1 under subsection (e)(2)(B)(i)(I) or 

2 (f)(3)(B)(iii); 

3 ‘‘(B) terminate such employment at any 

4 time, for any reason; and 

5 ‘‘(C) seek and accept employment with an6 other registered employer in any other reg7 istered position within the terms and conditions 

8 of the H–2C nonimmigrant visa. 

9 ‘‘(2) EMPLOYER PORTABILITY.—A registered 

10 employer who employs an H–2C nonimmigrant 

11 may— 

12 ‘‘(A) employ such nonimmigrant at any 

13 worksite if the registered employer advertised 

14 such location under subsection (e)(2)(B)(i)(I) 

15 or (f)(3)(B)(iii); 

16 ‘‘(B) terminate such employment at any 

17 time for any reason if such reason is lawful for 

18 United States workers; and 

19 ‘‘(C) seek and hire another H–2C non20 immigrant in accordance with subsection (e)(4). 

21 ‘‘(3) AT-WILL EMPLOYMENT.—Notwithstanding 

22 any other provision of law, employment pursuant to 

23 this section shall be considered at-will unless speci24 fied by a contract agreed to by the H–2C non25 immigrant and the registered employer. 


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1 ‘‘(j) PROMOTION.—A registered employer may pro2 mote an H–2C nonimmigrant if the H–2C nonimmigrant 

3 has been employed with that employer for a period of not 

4 less than 12 months. Such a promotion shall not increase 

5 the total number of registered positions available to that 

6 employer. 

7 ‘‘(k) ASSESSING THE IMPACT OF THE H–2C PRO8 GRAM.— 

9 ‘‘(1) STUDY.—The Director of the Bureau of 

10 the Census, jointly with the Secretary, the Secretary 

11 of Energy, the Secretary of Health and Human 

12 Services, the Secretary of Housing and Urban De13 velopment, the Secretary of the Interior, the Sec14 retary of Labor, the Secretary of Transportation, 

15 the Secretary of the Treasury, and the Attorney 

16 General, shall undertake a study examining the im17 pacts of this section as well as a possible future per18 manent H–2C program on the infrastructure of, and 

19 quality of life in, the participating metropolitan sta20 tistical areas and counties. 

21 ‘‘(2) REPORT.—Not later than 3 years after the 

22 date of the enactment of the Workforce for an Ex23 panding Economy Act, the Director of the Bureau 

24 of the Census shall submit to Congress a report on 


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1 the findings of the study required by paragraph (1), 

2 including the following information: 

3 ‘‘(A) An estimate of legal and illegal immi4 grants in participating counties and metropoli5 tan statistical areas, the estimated change in 

6 those populations since commencement of the 

7 program, and the estimated change to the num8 ber of United States workers in such counties 

9 and metropolitan statistical areas. 

10 ‘‘(B) The impact of H–2C nonimmigrants 

11 on employment and wage rates for United 

12 States workers in State labor markets affected 

13 by worker inflows into the full employment 

14 areas where the program operates. The study 

15 should pay particular attention to the industries 

16 and services in which H–2C nonimmigrants are 

17 concentrated. It should take into consideration 

18 equilibrating labor flows in and out of said full 

19 employment areas, and it should consider asso20 ciated costs and benefits, including those re21 lated to public services, infrastructure mainte22 nance, business startups, investment, and over23 all economic activity. 

24 ‘‘(C) The impact of H–2C nonimmigrants 

25 on home ownership rates, housing prices, and 


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1 the demand for low-income and subsidized 

2 housing in participating counties and metropoli3 tan statistical areas and the public expenditures 

4 required to maintain current median standards 

5 in these areas and the degree to which those 

6 standards will deteriorate if such expenditures 

7 are not forthcoming. 

8 ‘‘(D) The impact of H–2C nonimmigrants 

9 on access to quality health care in participating 

10 counties and metropolitan statistical areas, on 

11 the cost of health care and health insurance, 

12 and an estimate of the public expenditures re13 quired to maintain current median standards 

14 and the degree to which those standards will 

15 deteriorate if such expenditures are not forth16 coming. 

17 ‘‘(E) The impact of H–2C nonimmigrants 

18 on the criminal justice system in participating 

19 counties and metropolitan statistical areas, and 

20 an estimate of associated public costs. 

21 ‘‘(F) The impact of permitting non-sea22 sonal low skilled workers that currently do not 

23 qualify for H–2C nonimmigrant status to qual24 ify for H–2C nonimmigrant status or of cre25 ating a new program to provide nonimmigrant 


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1 status for such non-seasonal low skilled work2 ers, including— 

3 ‘‘(i) any impact on United States 

4 workers; 

5 ‘‘(ii) any impact on employers that 

6 are utilizing H–2C nonimmigrants; 

7 ‘‘(iii) any impact on employers that do 

8 not qualify to employ H–2C non9 immigrants; and 

10 ‘‘(iv) any impact on H–2C non11 immigrants. 

12 ‘‘(l) H–2C NONIMMIGRANT PROTECTIONS.— 

13 ‘‘(1) WAIVER OF RIGHTS PROHIBITED.— 

14 ‘‘(A) IN GENERAL.—An H–2C non15 immigrant may not be required to waive any 

16 substantive rights or protections under this Act. 

17 ‘‘(B) CONSTRUCTION.—Nothing in this 

18 paragraph may be construed to affect the inter19 pretation of any other law. 

20 ‘‘(2) PROHIBITION ON TREATMENT AS INDE21 PENDENT CONTRACTORS.— 

22 ‘‘(A) IN GENERAL.—Notwithstanding any 

23 other provision of law— 

24 ‘‘(i) an H–2C nonimmigrant is prohib25 ited from being treated as an independent 


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1 contractor under any Federal or State law; 

2 and 

3 ‘‘(ii) no person, including any em4 ployer, labor contractor, or any person who 

5 is affiliated with or contracts with an em6 ployer or labor contractor, may treat an 

7 H–2C nonimmigrant as an independent 

8 contractor. 

9 ‘‘(B) CONSTRUCTION.—Subparagraph (A) 

10 may not be construed to prevent registered em11 ployers who operate as independent contractors 

12 from employing H–2C nonimmigrants. 

13 ‘‘(3) PAYMENT OF FEES.—A fee related to the 

14 hiring of an H–2C nonimmigrant required to be paid 

15 by an employer under this Act shall be paid by the 

16 employer and may not be deducted from the wages 

17 or other compensation paid to an H–2C non18 immigrant. 

19 ‘‘(4) TAX RESPONSIBILITIES.—An employer 

20 shall comply with all applicable Federal, State, and 

21 local tax laws with respect to each H–2C non22 immigrant employed by the employer. 

23 ‘‘(5) WHISTLEBLOWER PROTECTION.—It shall 

24 be unlawful for an employer of an H–2C non25 immigrant to intimidate, threaten, restrain, coerce, 


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1 retaliate, discharge, or in any other manner discrimi2 nate against an employee or former employee be3 cause the employee or former employee— 

4 ‘‘(A) discloses information to the employer 

5 or any other person that the employee or 

6 former employee reasonably believes that the 

7 employer or other person has committed a vio8 lation of this section; or 

9 ‘‘(B) cooperates or seeks to cooperate in an 

10 investigation or other proceeding concerning 

11 compliance with the requirements of this sec12 tion. 

13 ‘‘(m) ENFORCEMENT.— 

14 ‘‘(1) COMPLAINT PROCESS.—The Secretary 

15 shall, by rule, establish a process for the receipt, in16 vestigation, and disposition of complaints by an ag17 grieved employee, applicant, or H–2C nonimmigrant 

18 respecting a violation of this section. 

19 ‘‘(2) FILING DEADLINE.—No investigation or 

20 hearing shall be conducted on a complaint con21 cerning a violation under this section unless the 

22 complaint was filed not later than 3 months after 

23 the date of such violation. 

24 ‘‘(3) REASONABLE BASIS.—The Secretary shall 

25 conduct an investigation under this subsection if 


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1 there is reasonable basis to believe that a violation 

2 of this section has occurred. The process established 

3 under this subsection shall provide that, not later 

4 than 30 days after a complaint is filed, the Sec5 retary shall determine if there is reasonable cause to 

6 find such a violation. 

7 ‘‘(4) NOTICE AND HEARING.— 

8 ‘‘(A) IN GENERAL.—Not later than 30 

9 days after the Secretary finds a reasonable 

10 basis under paragraph (3), the Secretary shall 

11 issue a notice to the interested parties and offer 

12 an opportunity for a hearing on the complaint, 

13 in accordance with section 556 of title 5, 

14 United States Code. 

15 ‘‘(B) HEARING DEADLINE.—Not later than 

16 60 days after the date of a hearing under this 

17 paragraph, the Secretary shall make a finding 

18 on the matter. 

19 ‘‘(5) ATTORNEY’S FEES.— 

20 ‘‘(A) AWARD.—A complainant who prevails 

21 in an action under this subsection with respect 

22 to a claim related to wages or compensation for 

23 employment shall be entitled to an award of 

24 reasonable attorney’s fees and costs. 


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1 ‘‘(B) FRIVOLOUS COMPLAINTS.—A com2 plainant who files a frivolous complaint under 

3 this subsection shall be liable for the reasonable 

4 attorney’s fees and costs of the person named 

5 in the complaint. 

6 ‘‘(6) POWER OF THE SECRETARY.—The Sec7 retary may bring an action in any court of com8 petent jurisdiction— 

9 ‘‘(A) to seek remedial action, including in10 junctive relief; 

11 ‘‘(B) to recover the damages described in 

12 subsection (n)(2); or 

13 ‘‘(C) to ensure compliance with terms and 

14 conditions described in subsection (l)(5). 

15 ‘‘(7) OTHER RIGHTS OF EMPLOYEES.—The 

16 rights and remedies provided to H–2C non17 immigrants under this section are in addition to any 

18 other contractual or statutory rights and remedies of 

19 the workers, and are not intended to alter or affect 

20 such rights and remedies. 

21 ‘‘(8) COMPLIANCE.—De minimis variations 

22 from the registered position’s duties described in the 

23 application and related materials or from the posi24 tion’s general description provided in the attestation 

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1 section (e), including de minimis work or work inci2 dental to the job, shall be permitted and not be 

3 cause for complaint, referral, investigation, audit, or 

4 penalties. 

5 ‘‘(n) PENALTIES.— 

6 ‘‘(1) IN GENERAL.—If, after notice and an op7 portunity for a hearing, the Secretary finds a viola8 tion of this section, the Secretary may impose ad9 ministrative remedies and penalties, including re10 quiring the payment of— 

11 ‘‘(A) back wages; and 

12 ‘‘(B) benefits. 

13 ‘‘(2) CIVIL PENALTIES.—The Secretary may 

14 bring an action for a civil monetary penalty— 

15 ‘‘(A) for a violation of this section— 

16 ‘‘(i) in an amount not more than 

17 $3,000 for the first violation and $4,000 

18 per violation for each subsequent violation; 

19 or 

20 ‘‘(ii) if the violation was committed 

21 knowingly, a fine in an amount not more 

22 than $5,000 per violation; 

23 ‘‘(B) for intentionally failing to comply 

24 with the protections of United States workers 

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1 tion of whistleblowers under subsection (l)(5), a 

2 fine in an amount not more than $25,000 per 

3 violation; or 

4 ‘‘(C) for knowingly failing to materially 

5 comply with the terms of other representations 

6 made in petitions, applications, certifications, or 

7 attestations under this section— 

8 ‘‘(i) a fine in an amount not more 

9 than $4,000 per violation; and 

10 ‘‘(ii) upon the occasion of a third of11 fense of failure to comply with representa12 tions, a fine in an amount not to exceed 

13 $5,000 per violation and designation as an 

14 ineligible employer, pursuant to subsection 

15 (d)(3)(B)(i). 

16 ‘‘(3) CRIMINAL PENALTY.—Any H–2C non17 immigrant who intentionally fails to report to a reg18 istered position in the time period specified in sub19 section (c)(6)(A)(i) or a registered employer who 

20 knowingly facilitates an H–2C nonimmigrant to in21 tentionally fail to report in the time period specified 

22 above shall— 

23 ‘‘(A) for a first offense, be fined in accord24 ance with title 18, United States Code, in an 


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1 amount up to $5,000, or imprisoned for not 

2 more than 90 days; and 

3 ‘‘(B) for each subsequent offense, be fined 

4 in accordance with title 18, United States Code, 

5 in an amount up to $10,000, or imprisoned for 

6 not more than 1 year, or both. 

7 ‘‘(o) MONITORING.— 

8 ‘‘(1) ELECTRONIC MONITORING SYSTEM.— 

9 ‘‘(A) REQUIREMENT FOR SYSTEM.—The 

10 Secretary, through U.S. Citizenship and Immi11 gration Services, shall implement an electronic 

12 monitoring system to monitor the presence and 

13 employment of H–2C nonimmigrants, including 

14 a requirement that registered employers update 

15 the system when H–2C nonimmigrants start 

16 and end employment in registered positions. 

17 The system shall be operational not later than 

18 6 months following the date of the publication 

19 of the final regulations to carry out this section. 

20 ‘‘(B) RELATIONSHIP TO SEVIS.—Such sys21 tem shall be modeled on the Student and Ex22 change Visitor Information System (SEVIS) 

23 and SEVIS II tracking system of U.S. Immi24 gration and Customs Enforcement. 


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1 ‘‘(C) INTERACTION WITH REGISTRY.— 

2 Such system shall interact with the registry re3 ferred to in subsection (e)(1)(E) to ensure that 

4 the Secretary designates and updates approved 

5 registered positions as being filled or unfilled. 

6 ‘‘(D) EMPLOYER.—The employer shall no7 tify such system after offering employment to 

8 an H–2C nonimmigrant. 

9 ‘‘(E) ACCESS FOR SECRETARY OF

10 STATE.—The Secretary of State shall have ac11 cess to such system to verify an alien’s offer of 

12 employment with a registered employer prior to 

13 admission as an H–2C nonimmigrant. 

14 ‘‘(2) MANDATORY E-VERIFY USE.—No reg15 istered employer may employ an H–2C non16 immigrant without participating in the E-Verify 

17 Program described in section 403(a) of the Illegal 

18 Immigration Reform and Immigrant Responsibility 

19 Act of 1996 (8 U.S.C. 1324a note) or an employ20 ment eligibility verification system patterned on such 

21 Program’s verification system. Any such system— 

22 ‘‘(A) shall respond to inquiries made by 

23 registered employers by providing an employee’s 

24 employment eligibility; and 


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1 ‘‘(B) shall not be used, subject to a civil 

2 monetary penalty determined by the Secretary 

3 by rule— 

4 ‘‘(i) by any department, bureau, or 

5 other agency of the United States Govern6 ment, any other public or private entity, or 

7 any individual to monitor the movement of 

8 United States workers; or 

9 ‘‘(ii) for inquiries related to a United 

10 States worker other than— 

11 ‘‘(I) to provide such worker’s eli12 gibility for employment in the United 

13 States; or 

14 ‘‘(II) to ensure secure, appro15 priate, and nondiscriminatory use of 

16 such system, notwithstanding any 

17 other provision of law. 

18 ‘‘(p) REQUIREMENT TO COMPLY WITH BIOMETRIC

19 ENTRY AND EXIT SYSTEM.—Any alien entering the 

20 United States or present in the United States on a visa 

21 issued under section 101(a)(15)(H)(ii)(c) shall comply 

22 with the requirements of the entry and exit data system 

23 required by section 7208 of the Intelligence Reform and 

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1 cluding the biometric identification requirements, after 

2 such requirements are implemented. 

3 ‘‘(q) RULEMAKING.—Not later than 1 year after the 

4 date of the enactment of the Workforce for an Expanding 

5 Economy Act, the Secretary shall, by rule, provide for a 

6 means by which any renewal, attestation, or application 

7 filed pursuant to this section may be made electronically.’’. 

8 (2) TABLE OF CONTENTS AMENDMENT.—The 

9 table of contents in the first section of the Immigra10 tion and Nationality Act (8 U.S.C. 1101 et seq.) is 

11 amended by adding after the item relating to section 

12 219 the following: 

‘‘Sec. 219A. Admission of H–2C nonimmigrant workers.’’. 

13 (b) INTENTION TO ABANDON FOREIGN RESI14 DENCE.—Section 214(h) of the Immigration and Nation15 ality Act (8 U.S.C. 1184(h)) is amended by inserting 

16 ‘‘(H)(ii)(d),’’ after ‘‘(H)(i)(b) or (c),’’. 

17 (c) PROHIBITION ON FAMILY MEMBERS.—Section 

18 101(a)(15)(H) of the Immigration and Nationality Act (8 

19 U.S.C. 1101(a)(15)(H)) is amended by striking ‘‘him;’’ at 

20 the end and inserting ‘‘him, except that the Secretary of 

21 State shall not issue a visa under clause (ii)(d) to a spouse 

22 or child seeking to enter into the United States under such 

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1 ment by a registered employer as defined in section 

2 219A;’’. 

Æ 


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