II 

111TH CONGRESS 

1ST SESSION S. 2910 

To increase the wages and benefits of blue collar workers by strengthening 

labor provisions in the H–2B program, to provide for labor recruiter 

accountability, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 18, 2009 

Mr. SANDERS introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To increase the wages and benefits of blue collar workers 

by strengthening labor provisions in the H–2B program, 

to provide for labor recruiter accountability, 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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Increasing American Wages and Benefits Act of 2010’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—LABOR PROTECTIONS 


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Sec. 101. Enforcement of Federal labor laws relating to H–2B nonagricultural 

guest workers. 

Sec. 102. Recruitment of United States workers. 

Sec. 103. Prevailing wages for United States workers and H–2B workers. 

Sec. 104. Certification requirement. 

Sec. 105. Protections for workers. 

Sec. 106. Petitions by employers that have signed labor agreements with unions 

that operate hiring halls. 

Sec. 107. H–2B nonimmigrant labor certification application fees. 

TITLE II—LABOR RECRUITER ACCOUNTABILITY 

Sec. 201. Short title. 

Sec. 202. Definitions. 

Sec. 203. Protections for workers recruited abroad. 

Sec. 204. Enforcement provisions. 

Sec. 205. Procedures in addition to other rights of employees. 

Sec. 206. Rulemaking. 

1 TITLE I—LABOR PROTECTIONS 

2 SEC. 101. ENFORCEMENT OF FEDERAL LABOR LAWS RE3 LATING TO H–2B NONAGRICULTURAL GUEST 

4 WORKERS. 

5 (a) IN GENERAL.—Section 214(c)(14) of the Immi6 gration and Nationality Act (8 U.S.C. 1184(c)(14)) is 

7 amended— 

8 (1) in subparagraph (A), by striking ‘‘of Home9 land Security’’ each place it appears and inserting 

10 ‘‘of Labor’’; 

11 (2) by striking subparagraph (B); 

12 (3) by redesignating subparagraphs (C) and 

13 (D) as subparagraphs (B) and (C), respectively; and 

14 (4) by adding at the end the following: 

15 ‘‘(D) The Secretary of Labor is authorized to take 

16 such actions, including imposing appropriate penalties and 

17 seeking appropriate injunctive relief and specific performVerDate Nov 24 2008 00:56 Dec 22, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2910.IS S2910

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1 ance of contractual obligations, as may be necessary to 

2 assure employer compliance with the terms and conditions 

3 required under this Act for employing nonimmigrant 

4 workers described in section 101(a)(15)(H)(ii)(b), and as 

5 required under the Increasing American Wages and Bene6 fits Act of 2010. The authority of the Secretary of Labor 

7 under this subparagraph shall not preempt any other 

8 rights which affected persons may have under Federal or 

9 State law. 

10 ‘‘(E) Any aggrieved person whose wages or working 

11 conditions have been directly and adversely affected by an 

12 employer in violation of applicable laws and regulations 

13 governing the employment of nonimmigrant workers de14 scribed in section 101(a)(15)(H)(ii)(b), or by a violation 

15 of the terms and conditions of employment, may bring a 

16 civil action against such employer in the appropriate dis17 trict court of the United States. Such cause of action shall 

18 not be subject to exhaustion of administrative remedies 

19 and shall be in addition to any other causes of action and 

20 remedies that may exist. 

21 ‘‘(F) Notwithstanding any other provision of law, the 

22 Legal Services Corporation may provide legal services on 

23 behalf of nonimmigrant workers described in section 

24 101(a)(15)(H)(ii)(b) regarding the terms and conditions 

25 of employment, transportation, and housing and other 


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1 provisions of law applicable to the employment of such 

2 nonimmigrants.’’. 

3 (b) REPORT.—Section 214(g)(10) of the Immigration 

4 and Nationality Act (8 U.S.C. 1184(g)(10)) is amended— 

5 (1) by inserting ‘‘(A)’’ after ‘‘(10)’’; and 

6 (2) by adding at the end the following: 

7 ‘‘(B) Each employer that hires a nonimmigrant work8 er described in section 101(a)(15)(H)(ii)(b) shall— 

9 ‘‘(i) notify the Secretary of Labor not later 

10 than 30 days after the conclusion of each such non11 immigrant’s term of employment; and 

12 ‘‘(ii) submit to the Secretary of Labor employ13 ment payroll records and similar documentation 

14 showing that the employer paid the required pre15 vailing wage and transportation, and other expenses 

16 required under this section and section 212.’’. 

17 SEC. 102. RECRUITMENT OF UNITED STATES WORKERS. 

18 Section 212 of the Immigration and Nationality Act 

19 (8 U.S.C. 1182) is amended— 

20 (1) in subsection (p)(3), by striking ‘‘(a)(5)(A), 

21 (n)(1)(A)(i)(II),’’ and inserting ‘‘(n)(1)(A)(i)(II)’’; 

22 (2) by redesignating subsection (t) (as added by 

23 section 1(b)(2)(B) of Public Law 108–449) as sub24 section (u); and 

25 (3) by adding at the end the following: 


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1 ‘‘(v)(1) Except as provided under paragraph (5), an 

2 employer that seeks to employ an alien described in section 

3 101(a)(15)(H)(ii)(b) (referred to in this subsection as an 

4 ‘H–2B nonimmigrant’) shall take the following steps to 

5 recruit United States workers for the position for which 

6 the alien is sought not later than 14 days before filing 

7 an application under paragraph (3): 

8 ‘‘(A) The employer shall submit a copy of the 

9 job offer, including a description of the wages and 

10 other terms and conditions of employment, to the 

11 State Workforce Agency that serves the area of em12 ployment in the State in which the employer is lo13 cated (referred to in this subsection as the ‘SWA’). 

14 The SWA shall provide the employer with an ac15 knowledgment of receipt of such documentation in 

16 accordance with this paragraph. 

17 ‘‘(B) The employer shall authorize the SWA to 

18 post the job opportunity on the Internet through the 

19 web site for ‘America’s Job Bank’, with local job 

20 banks, and with unemployment agencies and other 

21 labor referral and recruitment sources pertinent to 

22 such job opportunity. 

23 ‘‘(C) The employer shall authorize the SWA to 

24 provide notification of the job opportunity, and the 


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1 SWA shall designate that these are job opportunities 

2 for which H–2B visas have been requested, to— 

3 ‘‘(i) the central office of the State Federa4 tion of Labor in the State in which the job is 

5 located; and 

6 ‘‘(ii) the office of the local union which 

7 represents the employees in the same or sub8 stantially equivalent job classification, if appli9 cable. 

10 ‘‘(D) The employer shall post the availability of 

11 the job opportunity for which the employer is seek12 ing a worker in conspicuous locations at the place of 

13 employment for all employees to see. 

14 ‘‘(E) The employer shall advertise the avail15 ability of the job opportunity for which the employer 

16 is seeking a worker in a publication with the highest 

17 circulation in the labor market that is likely to be 

18 patronized by a potential worker for at least 5 con19 secutive days. 

20 ‘‘(F) Based on recommendations by the local 

21 job service, the employer shall advertise the avail22 ability of the job opportunity in professional, trade, 

23 or local minority and ethnic publications that are 

24 likely to be patronized by a potential worker. 


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1 ‘‘(2) An employer that seeks to employ an H–2B non2 immigrant shall— 

3 ‘‘(A) first offer the job to any eligible United 

4 States worker who— 

5 ‘‘(i) applies; 

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

7 ‘‘(iii) is available at the time of need; and 

8 ‘‘(B) maintain, for at least 3 years after the 

9 employment relation is terminated, documentation of 

10 recruitment efforts and responses conducted and re11 ceived before filing an application with the Depart12 ment of Labor, including— 

13 ‘‘(i) resumes; 

14 ‘‘(ii) applications; and 

15 ‘‘(iii) tests of United States workers who 

16 applied and were not hired for the job the em17 ployer seeks to fill with a nonimmigrant worker, 

18 if applicable. 

19 ‘‘(3) An employer that seeks to hire an H–2B non20 immigrant shall submit an application to the Secretary of 

21 Labor that includes a certification, under penalty of per22 jury, that— 

23 ‘‘(A) the employer has not made a job offer to 

24 a United States worker, which imposed restrictions 


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1 or obligations that will not be imposed on an H–2B 

2 nonimmigrant; 

3 ‘‘(B) the employer has complied with the re4 cruitment requirements under paragraph (1); 

5 ‘‘(C) the employer will offer an H–2B non6 immigrant not less than the same benefits and work7 ing conditions provided to United States workers 

8 similarly employed in the same occupational classi9 fication at the same actual place of employment in 

10 addition to paying an H–2B nonimmigrant a pre11 vailing wage rate not less than the wage rate offered 

12 to United States workers; 

13 ‘‘(D) there is currently no strike, lockout, or 

14 labor dispute (as defined in section 2(9) of the 

15 Labor-Management Relations Act (29 U.S.C. 

16 152(9)), at the same place of employment, which af17 fects employees in the same occupational classifica18 tion in which an H–2B nonimmigrant will be em19 ployed; 

20 ‘‘(E) the employer will comply with all applica21 ble laws and regulations relating to the right of 

22 workers to join or organize a union (including rights 

23 protected under section 7 of the Labor-Management 

24 Relations Act (29 U.S.C. 157)); 

25 ‘‘(F) the employer has— 


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1 ‘‘(i) provided notice of the filing of an ap2 plication to the bargaining representative of em3 ployees, if any, working in the same occupa4 tional classification at the place of employment 

5 as an H–2B nonimmigrant who the employer 

6 intends to employ; or 

7 ‘‘(ii) if there is no such bargaining rep8 resentative, posted notice of filing such applica9 tion in conspicuous locations at the place of em10 ployment for all employees to see for not fewer 

11 than 14 business days; and 

12 ‘‘(G) the requirements applicable to the job, 

13 which the employer intends to hire an H–2B non14 immigrant to perform, represent the actual min15 imum requirements applicable to that job and the 

16 employer will not hire an H–2B nonimmigrant to 

17 perform the job who has less training or experience 

18 than the employer’s other employees. 

19 ‘‘(4)(A) An employer that applies to hire an H–2B 

20 nonimmigrant shall hire any qualified United States work21 er who applies for the job for which such nonimmigrant 

22 was intended to be employed if such United States worker 

23 applies before the date that is 30 days before the date 

24 on which the last such H–2B nonimmigrant is scheduled 

25 to begin work for such employer. 


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1 ‘‘(B) The Secretary of Labor, through the workforce 

2 agency of a State, as appropriate, shall provide informa3 tion about applications for H–2B nonimmigrants, includ4 ing information about domestic workers who apply for jobs 

5 but are not hired, to a United States worker, nonprofit 

6 organization, or union not later than 48 hours after such 

7 worker, organization, or union requests such informa8 tion.’’. 

9 SEC. 103. PREVAILING WAGES FOR UNITED STATES WORK10 ERS AND H–2B WORKERS. 

11 Section 212 of the Immigration and Nationality Act 

12 (8 U.S.C. 1182), as amended by section 102, is further 

13 amended by adding at the end the following: 

14 ‘‘(w)(1) No alien may be admitted or provided status 

15 as a nonimmigrant under section 101(a)(15)(H)(ii)(b) in 

16 an occupational classification unless the Secretary of 

17 Labor certifies that the employer— 

18 ‘‘(A) is offering and will offer during the period 

19 of authorized employment to aliens admitted or pro20 vided such status the wage rate set forth in the col21 lective bargaining agreement, if the job opportunity 

22 is covered by a collective bargaining agreement; 

23 ‘‘(B) if the job opportunity is not covered by a 

24 collective bargaining agreement, the wage the em25 ployer is offering and will offer, to any alien or 


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1 United States worker employed by or offered em2 ployment by the employer, during the period of au3 thorized employment for aliens admitted or provided 

4 such status, wages that are not less than the higher 

5 of— 

6 ‘‘(i) the wage determination, if any, issued 

7 pursuant to subchapter IV of chapter 31 of title 

8 40, United States Code (commonly known as 

9 the ‘Davis–Bacon Act’); 

10 ‘‘(ii) the wage determination, if any, issued 

11 pursuant to the Service Contract Act of 1965 

12 (41 U.S.C. 351 et seq.); 

13 ‘‘(iii) the median rate of the highest 66 

14 percent of the wage data applicable to such oc15 cupational classification under the most recently 

16 published Occupational Employment Statistics 

17 Survey, compiled by the Bureau of Labor Sta18 tistics; or 

19 ‘‘(iv) a wage that is not less than 150 per20 cent of the Federal minimum wage in effect 

21 under the Fair Labor Standards Act (29 U.S.C. 

22 201 et seq.); and 

23 ‘‘(C) will provide working conditions for such 

24 alien that will not adversely affect the working con25 ditions of workers similarly employed. 


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1 ‘‘(2) An employer may not appeal a decision of the 

2 Secretary of Labor concerning the wages required to be 

3 paid under paragraph (1)(A) unless United States workers 

4 and their labor representatives are given the opportunity 

5 to submit contrary evidence or appeal that such required 

6 wages are too low. 

7 ‘‘(3) An employer may not hire a nonimmigrant de8 scribed in section 101(a)(15)(H)(ii)(b) unless— 

9 ‘‘(A) real prevailing wages in the occupational 

10 classification in which such nonimmigrant is to be 

11 hired are at least 3 percent higher than such wages 

12 during the preceding year under the Occupational 

13 Employment Statistics Survey compiled by the Bu14 reau of Labor Statistics; or 

15 ‘‘(B) the employer offers to pay the H–2B 

16 worker or a United States worker a wage in the oc17 cupational classification in which such worker is to 

18 be hired that is at least 3 percent higher during the 

19 preceding year, after adjusting for inflation under 

20 the Occupational Employment Survey.’’. 

21 SEC. 104. CERTIFICATION REQUIREMENT. 

22 Section 214(c)(14) of the Immigration and Nation23 ality Act, as amended by section 101, is further amended 

24 by adding at the end the following: 


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1 ‘‘(G) A petition by an employer seeking to hire an 

2 alien described in section 101(a)(15)(H)(ii)(b) shall not 

3 be approved until the employer has provided written cer4 tification, under penalty of perjury, to the Secretary of 

5 Labor that— 

6 ‘‘(i) the employer has not been required under 

7 law to provide a notice of a mass layoff pursuant to 

8 the Worker Adjustment and Retraining Notification 

9 Act (29 U.S.C. 2101 et seq.) during the 12-month 

10 period immediately preceding the date on which the 

11 alien is to be hired; and 

12 ‘‘(ii) the employer does not intend to provide a 

13 notice of a mass layoff pursuant to such Act. 

14 ‘‘(H) If an employer is required under law to provide 

15 a notice of a mass layoff pursuant to such Act after hiring 

16 nonimmigrants granted status under section 

17 101(a)(15)(H)(ii)(b), the status of such nonimmigrants 

18 shall expire on the date that is 60 days after the date 

19 on which such notice is provided. 

20 ‘‘(I) An employer shall be exempt from the require21 ments under subparagraphs (G) and (H) if the employer 

22 provides written certification, under penalty of perjury, 

23 that the total number of the employer’s employees in the 

24 United States will not be reduced as a result of a mass 

25 layoff.’’. 


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1 SEC. 105. PROTECTIONS FOR WORKERS. 

2 Section 214(c)(14) of the Immigration and Nation3 ality Act, as amended by sections 101 and 104, is further 

4 amended by adding at the end the following: 

5 ‘‘(J) Employers who hire nonimmigrants described in 

6 section 101(a)(15)(H)(ii)(b) shall reimburse the non7 immigrants for the reasonable transportation costs in8 curred by such nonimmigrants and United States workers 

9 to initially reach the job site and, once the period of em10 ployment for the job opportunity is completed, to return 

11 to their countries of origin or to the next place of employ12 ment, if the worker has contracted with a subsequent em13 ployer who has not agreed to provide or pay for the work14 er’s transportation to such subsequent employer’s place of 

15 employment. The amount of reimbursement for such 

16 transportation expenses shall not exceed the lesser of— 

17 ‘‘(i) the actual cost to the worker or alien of the 

18 transportation and subsistence involved; or 

19 ‘‘(ii) the most economical and reasonable com20 mon carrier transportation charges and subsistence 

21 costs for the distance involved. 

22 ‘‘(K)(i) Employers who hire nonimmigrants described 

23 in section 101(a)(15)(H)(ii)(b) shall guarantee to offer the 

24 worker employment for at least 75 percent of the work25 days of the total periods during which the work contract 

26 and all extensions of such contract are in effect, beginning 


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1 with the first workday after the arrival of the worker at 

2 the place of employment and ending on the expiration date 

3 specified in the work contract or in its extensions, if any. 

4 ‘‘(ii) If the employer affords a worker during the total 

5 work contract period less employment than that required 

6 under this subparagraph, the employer shall pay the work7 er the amount which the worker would have earned had 

8 the worker worked for the guaranteed number of days. 

9 ‘‘(iii) In this subparagraph, the term ‘workday’— 

10 ‘‘(I) means a day in which the worker is offered 

11 the number of hours stated in the job order; and 

12 ‘‘(II) excludes the worker’s Sabbath and Fed13 eral holidays. 

14 ‘‘(iv) A work guarantee does not meet the require15 ments under this subparagraph unless the number of 

16 hours of work offered by the employer is equal to not less 

17 than the product of— 

18 ‘‘(I) 75 percent of the workdays; multiplied by 

19 ‘‘(II) the average number of hours per day stat20 ed in the job order. 

21 ‘‘(v) A worker may be offered more than the specified 

22 hours of work on a single workday. 

23 ‘‘(vi) The employer may not require, for purposes of 

24 meeting the work guarantee, that the worker work longer 


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1 than the number of hours specified in the job order on 

2 a workday, the worker’s Sabbath, or a Federal holiday. 

3 ‘‘(L) If the job opportunity is not covered by the 

4 State workers’ compensation law, the employer will pro5 vide, at no cost to the worker, insurance covering injury 

6 and disease arising out of, and in the course of, the work7 er’s employment which will provide benefits at least equal 

8 to those provided under the State’s workers’ compensation 

9 law for comparable employment.’’. 

10 SEC. 106. PETITIONS BY EMPLOYERS THAT HAVE SIGNED 

11 LABOR AGREEMENTS WITH UNIONS THAT OP12 ERATE HIRING HALLS. 

13 Section 212(v) of the Immigration and Nationality 

14 Act, as added by section 102, is amended by adding at 

15 the end the following: 

16 ‘‘(5) An employer that seeks to hire an H–2B non17 immigrant may file an application with the Secretary of 

18 Labor in accordance with this paragraph, instead of com19 plying with paragraphs (1) through (4), if— 

20 ‘‘(A) the employer has signed a labor agreement 

21 with a labor organization (as defined in section 2(5) 

22 of the Labor-Management Relations Act (29 U.S.C. 

23 152(5)) under which the labor organization is re24 sponsible for referring applicants for employment to 


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1 the employer under a procedure commonly known as 

2 a ‘hiring hall’ or ‘referral hall’; and 

3 ‘‘(B) the application is accompanied by a writ4 ten statement prepared by the labor organization at5 testing that— 

6 ‘‘(i) the labor organization operates a hir7 ing hall that, pursuant to contractual agree8 ment and actual practice, is a source of employ9 ees in the same or substantially equivalent oc10 cupational classification in which the employer 

11 seeks to employ an H–2B nonimmigrant; 

12 ‘‘(ii) the labor organization does not have 

13 a sufficient number of qualified applicants 

14 available for referral in the same or substan15 tially equivalent occupational classification in 

16 which the employer seeks to employ an H–2B 

17 nonimmigrant; 

18 ‘‘(iii) the labor organization has advertised, 

19 for at least 5 consecutive days, the availability 

20 of the job opportunity for which the employer 

21 is seeking to employ an H–2B nonimmigrant in 

22 the publication with the highest circulation in 

23 the labor market that is likely to be patronized 

24 by potential applicants; 


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1 ‘‘(iv) the employer is contractually obli2 gated to pay all employees, in the same or sub3 stantially equivalent occupational classification 

4 in which the employer seeks to employ an H– 

5 2B nonimmigrant, wages and benefits set forth 

6 in a labor agreement with the labor organiza7 tion, which equals or exceeds the prevailing 

8 wage rate the employer would be obligated to 

9 pay; and 

10 ‘‘(v) the H–2B nonimmigrants who the 

11 employer seeks to employ will be paid not less 

12 than the same wages and benefits and be sub13 ject to the same terms and conditions of em14 ployment set forth in the employer’s labor 

15 agreement with the labor organization.’’. 

16 SEC. 107. H–2B NONIMMIGRANT LABOR CERTIFICATION AP17 PLICATION FEES. 

18 (a) ESTABLISHMENT OF FEES.—Section 

19 212(a)(5)(A) of the Immigration and Nationality Act (8 

20 U.S.C. 1182(a)(5)(A)) is amended by adding at the end 

21 the following: 

22 ‘‘(v) ESTABLISHMENT OF H–2B EM23 PLOYMENT CERTIFICATION APPLICATION

24 FEE.— 


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1 ‘‘(I) IN GENERAL.—The Sec2 retary of Labor shall impose a fee on 

3 an employer that submits an applica4 tion for an employment certification 

5 for aliens granted nonimmigrant sta6 tus under section 101(a)(15)(H)(ii)(b) 

7 to the Secretary of Labor under this 

8 subparagraph on or after the date 

9 that is 30 days after the date of en10 actment of the Increasing American 

11 Wages and Benefits Act of 2010. 

12 ‘‘(II) FEE DURING INITIAL

13 YEAR.—During the period beginning 

14 30 days after the date of enactment of 

15 the Increasing American Wages and 

16 Benefits Act of 2010 and ending 1 

17 year after such date, the fee imposed 

18 under subclause (I) shall be $800 for 

19 each application. 

20 ‘‘(III) FEE AFTER INITIAL

21 YEAR.—After the date that is one 

22 year after the date of enactment of 

23 the Increasing American Wages and 

24 Benefits Act of 2010, the fee imposed 

25 under subclause (I) shall be set at a 


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1 level the Secretary of Labor deter2 mines will ensure recovery of the full 

3 costs of carrying out labor certifi4 cation activities under this subpara5 graph and will recover any additional 

6 costs associated with the administra7 tion of the fees collected. 

8 ‘‘(IV) PROHIBITION ON EM9 PLOYER ACCEPTING REIMBURSEMENT

10 OF FEE.— 

11 ‘‘(aa) IN GENERAL.—An em12 ployer subject to a fee under this 

13 clause shall not require or accept 

14 reimbursement, directly or indi15 rectly, of or other compensation 

16 for all or part of the cost of such 

17 fee. 

18 ‘‘(bb) CIVIL PENALTY.—If 

19 the Secretary of Labor deter20 mines, after notice and oppor21 tunity for a hearing, that an em22 ployer has violated item (aa), the 

23 Secretary of Labor may impose a 

24 civil penalty on such employer in 


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1 an amount not to exceed $5,000 

2 per violation. 

3 ‘‘(V) DEPOSIT OF FEES AND

4 PENALTIES.—Fees and civil penalties 

5 collected under this clause shall be de6 posited in the ‘H–2B Employment 

7 Certification Application Fee Account’ 

8 established under section 286(w).’’. 

9 (b) ESTABLISHMENT OF ACCOUNT AND USE OF

10 FUND.—Section 286 of the Immigration and Nationality 

11 Act (8 U.S.C. 1356) is amended by adding at the end the 

12 following: 

13 ‘‘(w) H–2B EMPLOYMENT CERTIFICATION APPLICA14 TION FEE ACCOUNT.— 

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

16 established in the general fund of the Treasury a 

17 separate account, which shall be known as the ‘H– 

18 2B Employment Certification Application Fee Ac19 count’. Notwithstanding any other provision of this 

20 title, there shall be deposited as offsetting receipts 

21 into the account all amounts from the fees and civil 

22 penalties collected under section 212(a)(5)(A)(v). 

23 ‘‘(2) USE OF FEES.—Of the amounts deposited 

24 into the H–2B Employment Certification Applica25 tion Fee Account under this subsection in each fiscal 


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1 year, the Secretary of Labor shall use such amounts 

2 as the Secretary of Labor determines are nec3 essary— 

4 ‘‘(A) for the costs of Federal administra5 tion, including personnel, in carrying out labor 

6 certification activities under section 

7 212(a)(5)(A); and 

8 ‘‘(B) to assist the States, as appropriate, 

9 in the determination of prevailing wages for 

10 purposes of carrying out such section. 

11 ‘‘(3) AVAILABILITY OF FUNDS.—The fees de12 posited into the H–2B Employment Certification 

13 Application Fee Account under this subsection shall 

14 remain available until expended for the activities de15 scribed in paragraph (2).’’. 

16 (c) PROGRAM INTEGRITY.—Section 212(a)(5)(A) of 

17 the Immigration and Nationality Act (8 U.S.C. 

18 1182(a)(5)(A)), as amended by subsection (a), is further 

19 amended by adding at the end the following: 

20 ‘‘(vi) PROGRAM INTEGRITY REGULA21 TIONS.—The Secretary of Labor may pre22 scribe such regulations as may be nec23 essary to ensure the integrity of the labor 

24 certification process carried out under this 

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1 clude standards and procedures under 

2 which employers and their representatives 

3 are excluded from participation in the 

4 labor certification process under this sub5 paragraph.’’. 

6 TITLE II—LABOR RECRUITER 

7 ACCOUNTABILITY 

8 SEC. 201. SHORT TITLE. 

9 This title may be cited as the ‘‘Indentured Servitude 

10 Abolition Act of 2010’’. 

11 SEC. 202. DEFINITIONS. 

12 (a) FAIR LABOR STANDARDS ACT OF 1938.—Except 

13 as otherwise provided by this title, for purposes of this 

14 Act the terms used in this Act shall have the same mean15 ings, respectively, as are given those terms in section 3 

16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). 

17 (b) OTHER DEFINITIONS.—In this title: 

18 (1) FOREIGN LABOR CONTRACTING ACTIVITY.— 

19 The term ‘‘foreign labor contracting activity’’ means 

20 recruiting, soliciting, hiring, employing, or fur21 nishing, an individual who resides outside of the 

22 United States to be employed in the United States. 

23 (2) FOREIGN LABOR CONTRACTOR.—The term 

24 ‘‘foreign labor contractor’’ means any person who 

25 for any money or other valuable consideration paid 


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1 or promised to be paid, performs any foreign labor 

2 contracting activity. 

3 (3) SECRETARY.—The term ‘‘Secretary’’ means 

4 the Secretary of Labor. 

5 (4) STATE.—The term ‘‘State’’ means any 

6 State of the United States and includes the District 

7 of Columbia, Puerto Rico, Guam, American Samoa, 

8 the Commonwealth of the Northern Mariana Is9 lands, and the Virgin Islands of the United States. 

10 (5) WORKER.—The term ‘‘worker’’ means an 

11 individual who is the subject of foreign labor con12 tracting activity. 

13 SEC. 203. PROTECTIONS FOR WORKERS RECRUITED 

14 ABROAD. 

15 (a) BASIC REQUIREMENTS.— 

16 (1) DISCLOSURES OF INFORMATION.—Each em17 ployer and foreign labor contractor who engages in 

18 foreign labor contracting activity shall ascertain and 

19 disclose to each such worker who is recruited for em20 ployment the following information at the time of 

21 the worker’s recruitment: 

22 (A) The place of employment. 

23 (B) The compensation for the employment. 

24 (C) A description of employment activities. 

25 (D) The period of employment. 


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1 (E) The transportation, housing, and any 

2 other employee benefit to be provided and any 

3 costs to be charged for each benefit. 

4 (F) The existence of any arrangements 

5 with any owner or agent of any establishment 

6 in the area of employment under which the con7 tractor or employer is to receive a commission 

8 or any other benefit resulting from any sales 

9 (including the provision of services) by such es10 tablishment to the workers. 

11 (G) Whether and the extent to which work12 ers will be compensated through workers’ com13 pensation, private insurance, or otherwise for 

14 injuries or death, including work related inju15 ries and death, during the period of employ16 ment and, if so, the name of the State workers’ 

17 compensation insurance carrier or the name of 

18 the policyholder of the private insurance, the 

19 name and the telephone number of each person 

20 who must be notified of an injury or death, and 

21 the time period within which such notice must 

22 be given. 

23 (H) Any education or training to be pro24 vided or made available, including the nature 

25 and cost of such training, who will pay such 


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1 costs, and whether the training is a condition of 

2 employment, continued employment, or future 

3 employment. 

4 (I) A statement, approved by the Secretary 

5 of Labor, describing the protections of this Act 

6 for workers recruited abroad. 

7 (2) PROHIBITION ON PROVIDING FALSE INFOR8 MATION.—No foreign labor contractor or employer 

9 shall knowingly provide false or misleading informa10 tion to any worker concerning any matter required 

11 to be disclosed in paragraph (1). 

12 (3) FORM OF DISCLOSURE.—The information 

13 required to be disclosed by paragraph (1) to workers 

14 shall be provided in written form. Such information 

15 shall be provided in English or, as necessary and 

16 reasonable, in the language of the worker being re17 cruited. The Department of Labor shall make forms 

18 available in English, Spanish, and other languages, 

19 as necessary, which may be used in providing work20 ers with information required under this section. 

21 (4) PROHIBITION ON RECRUITMENT FEES.—No 

22 fees may be charged to a worker for recruitment. 

23 (5) PROHIBITION ON VIOLATING THE TERMS OF

24 A WORKING ARRANGEMENT.—No employer or for25 eign labor contractor shall, without justification, vioVerDate Nov 24 2008 00:56 Dec 22, 2009 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S2910.IS S2910

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1 late the terms of any working arrangement made by 

2 that contractor or employer. 

3 (6) PROHIBITION ON DISCRIMINATION.— 

4 (A) IN GENERAL.—It shall be unlawful for 

5 an employer or a foreign labor contractor to fail 

6 or refuse to hire or to discharge any individual, 

7 or otherwise discriminate against an individual 

8 with respect to compensation, terms, conditions, 

9 or privileges of employment because such indi10 vidual’s race, color, creed, sex, national origin, 

11 religion, age, or disability. 

12 (B) CONSIDERATIONS.—For the purposes 

13 of determining the existence of unlawful dis14 crimination under subparagraph (A)— 

15 (i) in the case of a claim of discrimi16 nation based on race, color, creed, sex, na17 tional origin, or religion, the same legal 

18 standards shall apply as are applicable 

19 under title VII of the Civil Rights Act of 

20 1964 (42 U.S.C. 2000e et seq.); 

21 (ii) in the case of a claim of discrimi22 nation based on unlawful discrimination 

23 based on age, the same legal standards 

24 shall apply as are applicable under the Age 


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1 Discrimination in Employment Act of 1967 

2 (29 U.S.C. 621 et seq.); and 

3 (iii) in the case of a claim of discrimi4 nation based on disability, the same legal 

5 standards shall apply as are applicable 

6 under title I of the Americans With Dis7 abilities Act (42 U.S.C. 12101 et seq.). 

8 (b) OTHER WORKER PROTECTIONS.— 

9 (1) NOTIFICATION REQUIREMENTS.—Each em10 ployer shall notify the Secretary of the identity of 

11 any foreign labor contractor involved in any foreign 

12 labor contractor activity for or on behalf of the em13 ployer. The employer shall be subject to the civil 

14 remedies of this Act for violations committed by 

15 such foreign labor contractor to the same extent as 

16 if the employer had committed the violation. The 

17 employer shall notify the Secretary of the identity of 

18 such a foreign labor contractor whose activities do 

19 not comply with this Act. 

20 (2) LIST OF VIOLATORS.—The Secretary shall 

21 maintain a list of all foreign labor contractors whom 

22 the Secretary knows or believes have been involved 

23 in violations of this Act, and make that list publicly 

24 available. The Secretary shall provide a procedure by 

25 which an employer, a foreign labor contractor, or 


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1 someone acting on behalf of such contractor may 

2 seek to have a foreign labor contractor’s name re3 moved from such list by demonstrating to the Sec4 retary’s satisfaction that the foreign labor contractor 

5 has not violated this Act in the previous 5 years. 

6 (3) PROHIBITION ON VIOLATION OF WRITTEN

7 AGREEMENTS.—A foreign labor contractor may not 

8 violate, without justification, the terms of any writ9 ten agreements made with an employer pertaining to 

10 any contracting activity or worker protection under 

11 this Act. 

12 (c) DISCRIMINATION PROHIBITED AGAINST WORK13 ERS SEEKING RELIEF UNDER THIS ACT.—A person may 

14 not intimidate, threaten, restrain, coerce, blacklist, dis15 charge, or in any manner discriminate against any worker 

16 because such worker has, with just cause, filed any com17 plaint or instituted, or caused to be instituted, any pro18 ceeding under or related to this Act, or has testified or 

19 is about to testify in any such proceedings, or because of 

20 the exercise, with just cause, by such worker on behalf 

21 of himself or others of any right or protection afforded 

22 by this Act. 

23 SEC. 204. ENFORCEMENT PROVISIONS. 

24 (a) CRIMINAL PENALTIES.— 


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1 (1) FIRST CONVICTION.—Any person who 

2 knowingly violates this Act shall be fined under title 

3 18, United States Code, or imprisoned not more 

4 than 1 year, or both. 

5 (2) SUBSEQUENT CONVICTIONS.—Upon convic6 tion for a second or subsequent violation of this Act, 

7 the defendant shall be fined under title 18, United 

8 States Code, or imprisoned not more than 3 years, 

9 or both. 

10 (b) ADMINISTRATIVE SANCTIONS.— 

11 (1) CIVIL PENALTIES.— 

12 (A) IN GENERAL.—Subject to subpara13 graph (B), the Secretary may assess a civil 

14 money penalty of not more than $5,000 on any 

15 person who violates this Act. 

16 (B) CONSIDERATIONS.—In determining 

17 the amount of any penalty to be assessed under 

18 subparagraph (A), the Secretary shall take into 

19 account— 

20 (i) the person’s previous record of 

21 compliance with this Act, comparable re22 quirements of the Fair Labor Standards 

23 Act of 1938 (29 U.S.C. 201 et seq.), and 

24 regulations promulgated under such Acts; 

25 and 


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1 (ii) the gravity of the violation. 

2 (2) USE OF PROHIBITED CONTRACTOR.—Any 

3 employer who uses the services of a foreign labor 

4 contractor who is on the list maintained by the Sec5 retary pursuant to section 203(b)(2), shall, if the ac6 tions of such foreign labor contractor have contrib7 uted to a violation of this Act by the employer, be 

8 fined $10,000 per violation in addition to any other 

9 fines or penalties for which the employer may be lia10 ble for such violation. 

11 (c) ACTIONS BY SECRETARY.—The Secretary may 

12 take such actions, including seeking appropriate injunctive 

13 relief and specific performance of contractual obligations, 

14 as may be necessary to ensure employer compliance with 

15 this Act, including required terms and conditions of em16 ployment. 

17 (d) WAIVER OF RIGHTS.—Agreements by employees 

18 purporting to waive or to modify their rights under this 

19 Act shall be void as contrary to public policy. 

20 (e) REPRESENTATION IN COURT.—Except as pro21 vided under section 518(a) of title 28, United States Code, 

22 relating to litigation before the Supreme Court, the Solic23 itor of Labor may appear for and represent the Secretary 

24 in any civil litigation brought under this Act, but all such 


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1 litigation shall be subject to the direction and control of 

2 the Attorney General. 

3 SEC. 205. PROCEDURES IN ADDITION TO OTHER RIGHTS OF 

4 EMPLOYEES. 

5 The rights and remedies provided to workers by this 

6 Act are in addition to any other contractual or statutory 

7 rights and remedies of the workers and are not intended 

8 to alter or affect such rights and remedies. 

9 SEC. 206. RULEMAKING. 

10 The Secretary shall prescribe such regulations as may 

11 be necessary to carry out this Act. 

Æ 


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