I 

113TH CONGRESS 

2D SESSION H. R. 4238 

To amend the Immigration and Nationality Act to provide for requirements 

for employers of H–2B nonimmigrants, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 13, 2014 

Mr. HARRIS introduced the following bill; which was referred to the Committee 

on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to provide 

for requirements for employers of H–2B nonimmigrants, 

and for other purposes. 

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

3 SECTION 1. H–2B NUMERICAL LIMITATIONS. 

4 (a) IN GENERAL.—Section 214(g)(9)(A) of the Im5 migration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) 

6 is amended to read as follows: 

7 ‘‘(A)(i) Except as provided in clause (ii), 

8 and subject to subparagraphs (B) and (C), an 

9 alien who has already been counted toward the 

10 numerical limitation of paragraph (1)(B) shall 


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1 not again be counted toward such limitation. 

2 Such an alien shall be considered a returning 

3 worker. 

4 ‘‘(ii) An alien who has already been count5 ed toward the numerical limitation of para6 graph (1)(B) shall again be counted toward 

7 such limitation if such alien departs the United 

8 States for a period of time that is greater than 

9 one year, and has not been counted toward such 

10 limitation in any of the 3 years prior to such 

11 departure.’’. 

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

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

14 1, 2013. 

15 SEC. 2. ADDITIONAL REQUIREMENTS FOR H–2B NON16 IMMIGRANT EMPLOYERS. 

17 (a) IN GENERAL.—Chapter 2 of title II of the Immi18 gration and Nationality Act (8 U.S.C. 1181 et seq.) is 

19 amended by inserting after section 218 the following: 

20 ‘‘SEC. 218A. REQUIREMENTS FOR H–2B EMPLOYERS. 

21 ‘‘(a) PETITION PROCESS.— 

22 ‘‘(1) IN GENERAL.—An employer who seeks to 

23 employ an H–2B nonimmigrant shall submit a peti24 tion to the Secretary of Homeland Security in ac25 cordance with this subsection. 


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1 ‘‘(2) CONTENTS.—A petition submitted under 

2 paragraph (1) shall include each of the following: 

3 ‘‘(A) The number of named and unnamed 

4 H–2B nonimmigrants the employer is seeking 

5 to employ during the applicable period of em6 ployment, and the anticipated dates of entry 

7 (which may be staggered). 

8 ‘‘(B) The geographic area of intended em9 ployment for the H–2B nonimmigrants, except 

10 that for itinerant industries that do not operate 

11 in a single fixed-site location, an employer may 

12 provide a list of anticipated work locations, 

13 which— 

14 ‘‘(i) may include an anticipated 

15 itinerary; and 

16 ‘‘(ii) may be subsequently amended by 

17 the employer, with notice to the Secretary 

18 of Homeland Security. 

19 ‘‘(C) The anticipated period during which 

20 such employees will be needed, including ex21 pected beginning and ending dates. 

22 ‘‘(D) The written disclosure of employment 

23 terms and conditions which will be provided to 

24 the proposed H–2B nonimmigrant beneficiary 


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1 of the petition before the date on which the H– 

2 2B nonimmigrant files a visa application. 

3 ‘‘(E) Evidence that the employer made ef4 forts to recruit available, qualified, willing, and 

5 able United States workers for any position for 

6 which the employer seeks an H–2B non7 immigrant worker, which the employer shall be 

8 deemed to have satisfied if the employer— 

9 ‘‘(i) not later than 60 days before the 

10 employer’s date of need for an H–2B non11 immigrant, submits the written disclosure 

12 of employment terms and conditions for 

13 such worker to the local office of the State 

14 workforce agency where the job is located, 

15 or in the case of an itinerant employer, 

16 where the job is to begin, and authorizes 

17 the posting of the written disclosure on the 

18 appropriate Department of Labor Elec19 tronic Job Registry for a period of 45 

20 days, except that nothing in this clause 

21 shall require the employer to file an inter22 state job order under section 653, of title 

23 20, Code of Federal Regulations; and 

24 ‘‘(ii) keeps a record of all eligible, 

25 able, willing, and qualified United States 


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1 workers who apply for employment with 

2 the employer for the job for which an H– 

3 2B nonimmigrant is sought. 

4 ‘‘(3) REVIEW.— 

5 ‘‘(A) IN GENERAL.—The Secretary of 

6 Homeland Security shall establish a procedure 

7 to process petitions filed under this subsection, 

8 and shall review each petition submitted by an 

9 employer under this subsection for completeness 

10 or obvious inaccuracies. 

11 ‘‘(B) ACCEPTANCE OF PETITIONS.—Not 

12 later than 7 days after an employer files a peti13 tion, the Secretary of Homeland Security 

14 shall— 

15 ‘‘(i) accept the petition unless the Sec16 retary determines that the petition is in17 complete or obviously inaccurate; 

18 ‘‘(ii) submit to the petitioner notice of 

19 acceptance or non-acceptance of the peti20 tion using electronic or other means assur21 ing expedited delivery; and 

22 ‘‘(iii) in the case of an accepted peti23 tion, submit to the United States consulate 

24 notice of acceptance of the petition using 

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1 dited delivery, if the petitioner has indi2 cated that the alien beneficiary or bene3 ficiaries will apply for a visa to the United 

4 States at such consulate. 

5 ‘‘(4) NUMBER OF POSITIONS NOT REDUCED BY

6 HIRING UNITED STATES WORKER.—The Secretary of 

7 Homeland Security may not reduce the number of 

8 positions that the Secretary accepts for an employer 

9 pursuant to a petition under this subsection because 

10 the employer hires a United States worker before 

11 date on which the employer indicated it needed 

12 workers on the petition the employer submitted 

13 under this subsection. 

14 ‘‘(b) TRANSPORTATION COSTS.— 

15 ‘‘(1) TRANSPORTATION TO THE PLACE OF EM16 PLOYMENT.—Not later than the date on which an 

17 H–2B nonimmigrant completes 50 percent of the 

18 work period set forth in the petition, an employer 

19 who hires an H–2B nonimmigrant shall reimburse 

20 the H–2B nonimmigrant for the cost of transpor21 tation of the most economic and reasonable common 

22 carrier, including documented and reasonable sub23 sistence costs during the period of travel, for that 

24 H–2B nonimmigrant, from the United States con25 sulate issuing the visa to the H–2B nonimmigrant 


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1 or previous worksite in the United States, if any, to 

2 the place of such nonimmigrant’s employment, un3 less the H–2B nonimmigrant has been so reim4 bursed by another employer. 

5 ‘‘(2) TRANSPORTATION FROM THE PLACE OF

6 EMPLOYMENT.—If an H–2B nonimmigrant com7 pletes the work period set forth in the petition, and 

8 is not traveling to another worksite in the United 

9 States, not later than the time the H–2B non10 immigrant departs from the worksite, the employer 

11 who hired an H–2B nonimmigrant for that work pe12 riod shall pay for the cost of transportation of the 

13 most economic and reasonable common carrier, in14 cluding an allowance for reasonable subsistence costs 

15 during the period of travel, for that H–2B non16 immigrant, from the place of employment to the 

17 United States consulate that issued the visa to the 

18 H–2B nonimmigrant. 

19 ‘‘(c) NO DISPLACEMENT OF UNITED STATES WORK20 ERS.— 

21 ‘‘(1) IN GENERAL.—An employer may not dis22 place a United States worker employed by the em23 ployer, other than for good cause, during the period 

24 of employment of the H–2B nonimmigrant and for 

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1 cupation and at the location of employment for 

2 which the employer seeks to employ an H–2B non3 immigrant. 

4 ‘‘(2) LABOR DISPUTE.—An employer may not 

5 employ an H–2B nonimmigrant for a specific job for 

6 which the employer is requesting an H–2B non7 immigrant because the former occupant of the job is 

8 on strike or being locked out in the course of a labor 

9 dispute. 

10 ‘‘(d) WAGES.—The wages to be paid to H–2B non11 immigrants shall be the greater of— 

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

13 to other employees with similar experience and quali14 fications for such position in the same location; or 

15 ‘‘(2) the prevailing wage level for the occupa16 tional classification of the position in the geographic 

17 area in which the H–2B nonimmigrant will be em18 ployed, based on the best information available at 

19 the time of filing the petition. 

20 ‘‘(e) HOUSING.—An employer is not required to pro21 vide housing or a housing allowance to an H–2B non22 immigrant employee. If an employer does provide housing 

23 or a housing allowance to an H–2B nonimmigrant em24 ployee, the employer may take a wage deduction or credit 

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1 ing in accordance with the Fair Labor Standards Act of 

2 1938. 

3 ‘‘(f) INCENTIVE FOR AN EMPLOYER TO REPORT AN

4 ABSCONDING H–2B NONIMMIGRANT EMPLOYEE.—If an 

5 H–2B nonimmigrant terminates employment prior to the 

6 end of the work period set forth in the job order, and the 

7 employer provides timely notice of this termination to the 

8 Secretary of Homeland Security, the Secretary of Home9 land Security shall promptly notify the Secretary of State, 

10 and the Secretary of State shall make available to the em11 ployer one additional visa for each such terminating non12 immigrant in order for the employer to hire a replacement 

13 H–2B nonimmigrant for the same job opportunity without 

14 filing an additional petition. 

15 ‘‘(g) DEFINITIONS.—In this section, the following 

16 definitions apply: 

17 ‘‘(1) The term ‘H–2B nonimmigrant’ means an 

18 alien admitted to the United States pursuant to sec19 tion 101(a)(15)(H)(ii)(B). 

20 ‘‘(2) The term ‘United States worker’ means an 

21 employee who— 

22 ‘‘(A) is a citizen or national of the United 

23 States; 

24 ‘‘(B) is an alien who is lawfully admitted 

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1 ugee under section 207 of this title, is granted 

2 asylum under section 208, or is an immigrant 

3 otherwise authorized, by this Act or by the Sec4 retary of Homeland Security, to be employed; 

5 or 

6 ‘‘(C) an individual who is not an unauthor7 ized alien (as defined in section 274A(h)(3)) 

8 with respect to the proposed occupation of the 

9 H–2B nonimmigrant. 

10 ‘‘(3) The term ‘best information available’, with 

11 respect to determining the prevailing wage for a po12 sition, means— 

13 ‘‘(A) a controlling collective bargaining 

14 agreement, where the employer is a signatory to 

15 a collective bargaining agreement that sets 

16 wages for work performed by H–2B non17 immigrants; 

18 ‘‘(B) if there is no controlling collective 

19 bargaining agreement as set forth in subpara20 graph (A), the local, State, or Federal pre21 vailing wage laws or ordinances, for any time 

22 period during which the H–2B nonimmigrant 

23 performs work on a project for which payment 

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1 nances, and the employer has signed a contract 

2 agreeing to pay such wages on that project; or 

3 ‘‘(C) if there is no controlling collective 

4 bargaining agreement as set forth in subpara5 graph (A) and the H–2B nonimmigrant is not 

6 performing work governed by a prevailing wage 

7 law or ordinance as set forth in subparagraph 

8 (B)— 

9 ‘‘(i) the wage level commensurate with 

10 the experience, training, and supervision 

11 required for the job based on Bureau of 

12 Labor Statistics data; or 

13 ‘‘(ii) a legitimate private wage survey 

14 of the wages paid for such positions in the 

15 geographic area in which the H–2B non16 immigrant will be employed. 

17 ‘‘(4) The term ‘legitimate private wage survey’ 

18 means, in the case of a petition under subsection 

19 (a), a survey of wages by an entity other than the 

20 Federal Government where— 

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

22 2-year period immediately preceding the date of 

23 the petition; 


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

2 been published during the 2-year period imme3 diately preceding the date of the petition; 

4 ‘‘(C) the employer job description is simi5 lar to the survey job description; 

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

7 employ workers in the occupation; 

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

9 weighted or straight average of the relevant 

10 wages or the median of relevant wage levels; 

11 and 

12 ‘‘(F) the survey identifies a statistically 

13 valid methodology that was used to collect the 

14 data. 

15 ‘‘(h) RULE OF CONSTRUCTION.—The benefits and 

16 wages provided to an H–2B nonimmigrant, the services 

17 an H–2B nonimmigrant provides to the employer, the em18 ployment opportunities afforded to an H–2B non19 immigrant by the employer, including those employment 

20 opportunities that require a United States worker or an 

21 H–2B nonimmigrant to travel or relocate in order to ac22 cept or perform employment, and other terms or condi23 tions of the employment of an H–2B nonimmigrant pro24 vided for under this section are for the mutual benefit of 

25 the H–2B nonimmigrant and the employer. 


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1 ‘‘(i) EXCLUSIVE RULEMAKING AUTHORITY.—The 

2 Secretary of Homeland Security shall have the exclusive 

3 authority to make rules to implement this section.’’. 

4 (b) CLERICAL AMENDMENT.—The table of contents 

5 of the Immigration and Nationality Act is amended by in6 serting after the item relating to section 218 the following: 

‘‘218A. Requirements for H–2B Nonimmigrant Employers.’’. 

Æ 


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