Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2014

To ensure that the provision of foreign assistance does not contribute to human trafficking and to combat human trafficking by requiring greater transparency in the recruitment of foreign workers outside of the United States, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2014 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Title I—Transparency in the recruitment of foreign workers outside of the United States Sec. 101. Definitions. Sec. 102. Transparency in foreign recruiting by foreign labor contractors. Sec. 103. Transparency in foreign recruiting by third-party foreign labor recruiters. Sec. 104. Registration of third-party foreign labor recruiters. Sec. 105. Third-party recruitment fees. Sec. 106. Maintenance and posting of lists. Sec. 107. Enforcement. Sec. 108. Regulations; effective date; report. Title II—Other provisions Sec. 201. Ensuring that foreign assistance does not contribute to human trafficking. Sec. 202. Obligations of United States consular officers. I Transparency in the recruitment of foreign workers outside of the United States 101. Definitions As used in this title, the following definitions apply: (1) Employer The term employer (2) Foreign labor contracting activity The term foreign labor contracting activity 29 U.S.C. 201 et seq. (3) Foreign labor contractor The term foreign labor contractor (A) any Federal, State, or local governmental entity; (B) a United States or foreign firm, corporation, or other legal entity or parent, branch, affiliate, or subsidiary thereof that hires its own existing employee from outside the United States to work for a branch of the same firm, corporation, or other legal entity or a parent, affiliate, or subsidiary thereof within the United States; or (C) any attorney or person to the extent they are assisting an employer with preparing a petition, certification, application, or other documents or filings (such as a job order to be filed with a State workforce agency) related to the legal requirements to hire a prospective worker under the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. (4) Prospective worker The term prospective worker 8 U.S.C. 1101(a)(22) 8 U.S.C. 1101(a)(20) (5) Secretary Except as otherwise specified in section 106, the term Secretary (6) Third-party foreign labor recruiter The term third-party foreign labor recruiter (7) Work-authorized nonimmigrant visa The term work-authorized nonimmigrant visa 8 U.S.C. 1101(a)(26) 8 U.S.C. 1184(s) (8) Worker The term worker 8 U.S.C. 1324a(h)(3) 102. Transparency in foreign recruiting by foreign labor contractors (a) Provision of immigration documents A foreign labor contractor (including a third-party foreign labor recruiter) who files a petition, certification, or application required under the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. (b) Prohibition on false and misleading information No foreign labor contractor (including a third-party foreign labor recruiter) described in subsection (a) shall knowingly provide materially false or misleading information to any worker or prospective worker concerning any document required to be provided under such subsection. 103. Transparency in foreign recruiting by third-party foreign labor recruiters (a) Requirement for disclosure A third-party foreign labor recruiter shall ascertain and, at the time a job offer is made, disclose to each prospective worker in writing in English and in the primary language of the worker, the following information: (1) All information that is reasonably available (including in summarized form, but not including any financial or proprietary information of the employer) that would be required to be included in a petition, certification, or application under the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. (2) All information regarding any fees and expenses allowable under such Act that the foreign labor contractor (including a third-party foreign labor recruiter) will or may charge the worker (including any costs for housing or accommodation, transportation to and from the United States and to and from the worksite, meals, health insurance, worker’s compensation, medical examinations, health care, tools or safety equipment costs, training, or any other benefits provided). (3) A statement, in a form specified by the Secretary— (A) stating that— (i) no third-party foreign labor recruiter, or agent or employee of such a person, lawfully may assess any recruitment, placement, legal or processing fee on a prospective worker or a worker; (ii) unless required by such Act, no foreign labor contractor (including a third-party foreign labor recruiter) is required to pay for the visa or passport fees or costs of transportation to and from the United States of a prospective worker or worker; and (iii) unless prohibited by such Act, any other law of the United States or a State, or the provisions related to a written employment contract entered into as provided in paragraph (4), the employment of a worker may be terminated or modified at any time by the employer; (B) explaining that— (i) if a written employment contract is entered into as provided in paragraph (4), no material changes may be made to a the original contract signed by the prospective worker or worker without the worker having at least 24 hours to consider such changes and to provide their consent, obtained voluntarily, except that if the worker does not provide consent, the worker may be terminated or the employment modified pursuant to subparagraph (A)(iii); and (ii) any material changes made to the original contract that do not comply with clause (i) shall be a violation of this section and be subject to the enforcement under section 107; and (C) describing the protections afforded prospective workers and workers by this section, section 202 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1375c (i) relevant information about the procedure for filing a complaint provided for in section 107; and (ii) the telephone number for the national human trafficking resource center hotline number. (4) If a written employment contract is entered into by a prospective worker or worker and an employer, either voluntarily by both parties or in compliance with the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. (b) Relationship to labor and employment laws Nothing in the disclosure required by subsection (a) shall constitute a legal conclusion as to a prospective worker’s or worker’s status or rights under any labor or employment law. Unless otherwise required by the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. 8 U.S.C. 1184(s) (c) Prohibition on false and misleading information No third-party foreign labor recruiter shall knowingly provide materially false or misleading information to any prospective worker concerning any matter required to be disclosed under subsection (a). 104. Registration of third-party foreign labor recruiters (a) Requirement To register Prior to engaging in any foreign labor contracting activity, any individual, group of individuals, or employer who is a third-party foreign labor recruiter or who, for any money or other valuable consideration paid or promised to be paid, performs a foreign labor contracting activity on behalf of a third-party foreign labor recruiter, shall have obtained a certificate of registration from the Secretary pursuant to regulations promulgated by the Secretary under subsection (c), except that during the first year after such regulations are promulgated, any individual, group of individuals, or employer who is a third-party foreign labor recruiter or who, for any money or other valuable consideration paid or promised to be paid, performs a foreign labor contracting activity on behalf of a third-party foreign labor recruiter, may engage in foreign labor contracting activity if such individual, group, or employer has applied for a certificate of registration from the Secretary pursuant to such regulations and the certificate has not been denied. (b) Notification (1) Annual employer notification Each employer shall notify the Secretary, once each year, of the identity of any third-party foreign labor recruiter involved in any foreign labor contracting activity for, or on behalf of, the employer during that year, including at a minimum, the name and address of the third-party foreign labor recruiter, a description of the services for which the third-party foreign labor recruiter was being used, and whether the third-party foreign labor recruiter received any economic compensation for such services. (2) Annual third-party foreign labor recruiter notification Each third-party foreign labor recruiter shall notify the Secretary, once each year, of the identity of any subcontractor, agent, or other third-party foreign labor recruiter involved in any foreign labor contracting activity for, or on behalf of, the third-party foreign labor during that year. (3) Noncompliance notification An employer shall notify the Secretary of the identity of a third-party foreign labor recruiter whose activities the employer knows does not comply with this section. (4) Agreement Not later than 7 days after receiving a request from the Secretary, an employer shall provide the Secretary with the identity of any third-party foreign labor recruiter with which the employer has a contract or other agreement. (c) Regulations The Secretary shall promulgate regulations to establish an efficient electronic process for the timely investigation and approval of an application for a certificate of registration of third-party foreign labor recruiters, including— (1) a declaration, subscribed and sworn to by the applicant, stating the applicant’s permanent place of residence, the foreign labor contracting activities for which the certificate is requested, and such other relevant information as the Secretary may require; (2) a set of fingerprints of the applicant; (3) an expeditious means to update registrations and renew certificates; (4) a means of obtaining the consent of any third-party foreign labor recruiter over whom the courts of the United States would not otherwise have jurisdiction to the designation by a court for the Secretary to serve as an agent available to accept service of summons in any action against the applicant, if the applicant has left the jurisdiction in which the action is commenced, otherwise has become unavailable to accept service, or is subject to personal jurisdiction in no State; (5) providing for cooperation in any investigation by the Secretary or other appropriate authorities; (6) providing for consent to the forfeiture of any bond for willful failure or refusal to comply with these provisions; (7) providing for consent of an agent or contractor to be liable for violations of this section by such agent or subcontractor of any level in relation to the foreign labor contracting activity to the same extent as if the third-party foreign labor recruiter had committed the violation if the third-party foreign labor recruiter had knowledge of the violation; and (8) providing for consultation with other appropriate Federal agencies to determine whether any reason exists to deny registration to a third-party foreign labor recruiter. (d) Term of registration Unless suspended or revoked, a certificate under this section shall be valid for 2 years. (e) Application fee (1) Requirement for fee In addition to any other fees authorized by law, the Secretary shall impose a fee, to be deposited in the general fund of the Treasury, on a third-party foreign labor recruiter that submits an application for a certificate of registration under this section. (2) Amount of fee The amount of the fee required by paragraph (1) shall be set at a level that the Secretary determines sufficient to cover the full costs of regulating third-party foreign labor recruiter activities under this section, including worker education and any additional costs associated with the administration of the fees collected. (f) Refusal To issue; revocation In accordance with regulations promulgated by the Secretary— (1) the Secretary shall refuse to issue or renew, or shall revoke and debar from eligibility to obtain a certificate of registration for a period of not greater than 5 years, after notice and an opportunity for a hearing, a certificate of registration under this section if— (A) the applicant for, or holder of, the certification has knowingly made a material misrepresentation in the application for such certificate; (B) the applicant for, or holder of, the certification is not the real party in interest in the application or certificate of registration and the real party in interest— (i) is a person who has been refused issuance or renewal of a certificate; (ii) has had a certificate revoked; or (iii) does not qualify for a certificate under this section; (C) the applicant for, or holder of, the certification has materially failed to comply with this subsection; or (D) the Secretary issues a final order pursuant to section 107(c) finding that the applicant for, or holder of, the certification has committed a material violation of this title; and (2) the Secretary shall refuse to issue or renew, or shall revoke and debar from eligibility to obtain a certificate of registration, after notice and an opportunity for a hearing, a certificate of registration under this section if the applicant for, or holder of, the certification has been convicted of— (A) any felony under State or Federal law, any violation of section 274 of the Immigration and Nationality Act ( 8 U.S.C. 1324 (B) any crime relating to gambling, or to the sale, distribution, or possession of alcoholic beverages in connection with or incident to any labor contracting activities. (g) Re-Registration of violators The Secretary shall establish a procedure by which a third-party foreign labor recruiter that has had its registration revoked under this section (other than pursuant to subsection (f)(2)) may seek to re-register under this subsection by demonstrating to the Secretary’s satisfaction that the third-party foreign labor recruiter has not violated this title in the previous 5 years and that the third party foreign labor recruiter has taken sufficient steps to prevent future violations of this title. (h) Bonding requirement The Secretary is authorized to require a third-party foreign labor recruiter to post a bond in an amount sufficient to ensure the protection of prospective workers and workers recruited by the third-party foreign labor recruiter, and to establish, by regulation, the conditions under which the bond amount is determined, paid, and forfeited. Any bond requirements or the forfeiture of any bond under this subsection are in addition to other remedies under this section or any other law. 105. Third-party recruitment fees (a) Prohibition No third-party foreign labor recruiter, or agent or employee of such a person, lawfully may assess any recruitment, placement, legal or processing fee on a prospective worker or a worker. (b) No requirement To pay for visa or passport fees Unless required by the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. 106. Maintenance and posting of lists (a) In general The Secretary— (1) shall maintain an accurate list of all third-party foreign labor recruiters registered pursuant to section 104 that identifies— (A) the countries from which the contractors recruit; (B) the visa categories and occupations for which the contractors recruit; and (C) the States where recruited workers are employed; (2) shall maintain a list of all third-party foreign labor recruiters whose certificate of registration the Secretary has revoked; (3) shall update the lists required by this subsection on an ongoing basis, not less frequently than every 6 months; (4) shall make such lists publicly available, including through continuous publication on Internet websites; and (5) shall provide such lists to the Secretary of State, who shall make such lists available in written form at, and on the websites of, each United States diplomatic mission in the official language of the host country. (b) Responsibilities of the Secretary of State (1) Overseas availability of foreign labor contractor lists The Secretary of State shall make the lists required by subsection (a) publicly available in written form at, and on the websites of, each United States diplomatic and consular post in the official language of the host country. (2) Designation of personnel to receive complaints overseas The Secretary of State shall— (A) designate personnel at each such post who are responsible for receiving information regarding alleged violations of this title by third-party foreign labor recruiters, and for conveying such information to the Secretary of Homeland Security for potential use in a complaint or investigation pursuant to section 107; and (B) make publicly available on the website of each such post, in the official language of the host country, information on how to contact the personnel designated at that mission pursuant to subparagraph (A). 107. Enforcement (a) Filing and notification A worker who believes that the worker has suffered harm as a result of a material violation of this title by a third-party foreign labor recruiter or by a foreign labor contractor may, not later than the later of 180 days after the date on which such violation occurs or the worker becomes aware of such violation, but not later than two years after the date of such violation, file a complaint with the Secretary alleging such material violation. Upon receipt of such a complaint, the Secretary shall notify, in writing, the third-party foreign labor recruiter or foreign labor contractor named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such third-party foreign labor recruiter or foreign labor contractor under subsection (b). (b) Investigation; preliminary order (1) In general Not later than 60 days after the date of receipt of a complaint filed under subsection (a) and after affording the person named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses, the Secretary shall conduct an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify, in writing, by certified or registered mail, the complainant and the third-party foreign labor recruiter or foreign labor contractor alleged to have committed a material violation of this title of the Secretary’s findings. If the Secretary concludes that there is a reasonable cause to believe that a material violation of this title has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by subsection (c)(2). Not later than 30 days after the date of notification of findings under this subsection, either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record. Such hearings shall be conducted expeditiously. If objections are not filed or a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. (2) Requirements (A) Required showing by complainant The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under paragraph (1) unless the complainant makes a prima facie showing that any alleged violation of this title is a material violation and that the complainant suffered harm as a result of such alleged material violation. (B) Criteria for determination by Secretary The Secretary may determine that a violation of this title has occurred only if the complainant demonstrates by a preponderance of the evidence that the violation was material and that the complainant suffered harm as a result of the violation. (c) Final order (1) Deadline for issuance; settlement agreements Not later than 120 days after the date of conclusion of a hearing under subsection (b)(1), the Secretary shall issue a final order providing the relief prescribed by paragraph (2) or denying the complaint. At any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, and the third-party foreign labor recruiter or foreign labor contractor alleged to have committed the violation. (2) Remedy If, in response to a complaint filed under subsection (a), the Secretary determines that a material violation of this title has occurred, the Secretary shall order the third-party foreign labor recruiter or foreign labor contractor who committed such violation to— (A) take affirmative action to abate the violation; (B) provide compensatory damages to the complainant; and (C) at the request of the complainant, shall assess against the third-party foreign labor recruiter or foreign labor contractor a sum equal to the aggregate amount of all costs and expenses (including attorneys’ fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing the complaint upon which the order was issued. (3) Frivolous complaints If the Secretary determines that a complaint under subsection (a) is frivolous or has been brought in bad faith, the Secretary shall award to the prevailing third-party foreign labor recruiter foreign labor contractor reasonable attorneys’ fees and costs associated with defending against such frivolous complaint. (d) Judicial review (1) Appeal to court of appeals A complainant or third-party foreign labor recruiter or foreign labor contractor adversely affected or aggrieved by an order issued under subsection (c) may obtain review of the order in the United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such alleged violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. Review shall conform to chapter 7 (2) Limitation on collateral attack An order of the Secretary with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding. (e) Enforcement of order by Secretary of Homeland Security Whenever any person has failed to comply with an order issued under subsection (c), the Secretary may file a civil action in the United States district court for the district in which the violation was found to have occurred to enforce such order. The Department of Justice shall represent the Department of Homeland Security in any such action. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages. (f) Enforcement of order by parties (1) Commencement of action A person on whose behalf an order was issued under subsection (c) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. (2) Attorneys’ fees The district court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorneys’ fees) to any party whenever the court determines such award is appropriate. (g) Treatment of employers that hire unregistered third-Party foreign labor recruiters (1) In general An employer who hires a third-party foreign labor recruiter that is not registered under section 104 shall, for purposes of this section, be treated as the third-party foreign labor recruiter (including with regard to notice, opportunity to be heard, and the right to appeal) if the unregistered third-party foreign labor recruiter is not subject to the jurisdiction of the courts of the United States or if the Secretary determines that the circumstances are such that enforcing the provisions of this section against the unregistered foreign labor recruiter would be unreasonably difficult. (2) Exception Paragraph (1) shall not apply if, in retaining the third-party labor recruiter, the employer relied upon inaccurate or outdated information maintained by the Secretary pursuant to section 106. 108. Regulations; effective date; report (a) Regulations The Secretary and Secretary of State shall, not later than one year after the date of the enactment of this Act, prescribe regulations to implement this title and develop policies and procedures to enforce the provisions of this title. (b) Effective date The provisions of this title shall be effective upon the promulgation of the final regulations described in subsection (a) and shall apply to foreign labor contracting activity taking place on or after the effective date. (c) Report Not later than one year after the effective date, and annually for each of the following four years, the Secretary shall provide to the appropriate Congressional committees a report that includes the following information for the preceding year: (1) Regarding complaints filed pursuant to section 107(a)— (A) the number filed, both in total and broken out by visa category of the complaining worker; (B) the number that were held to be time-barred; (C) the number that resulted in a determination by the Secretary of a material violation of the requirements of this title, and a general description of the types of violations encountered during the year; and (D) the total number of final orders issued by the Secretary granting relief to a complaining worker, a general description of the types of remedies that were granted, and a general description of compensatory damages awarded during the year (including the range and the average of damages provided, both in total and broken out by visa category of the complaining worker). (2) Regarding the registration of third-party foreign labor recruiters pursuant to section 104: (A) the number of applications received, both in total and by country; (B) the number of certifications granted, both in total and by country; (C) the number of certifications refused, both in total and by country; and (D) the number of certifications revoked, both in total and by country. (d) Appropriate Congressional Committees For purposes of this section, appropriate congressional committees (1) the Committee on Education and the Workforce, the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Foreign Affairs of the House; and (2) the Committee on the Judiciary, the Committee on Homeland Security and Governmental Affairs, and the Committee on Foreign Relations of the Senate. II Other provisions 201. Ensuring that foreign assistance does not contribute to human trafficking Section 106 of the Trafficking Victims Protection Act of 2000 ( 22 U.S.C. 7104 (1) by redesignating subsections (i) and (j) as subsections (j) and (k), respectively; and (2) by inserting after subsection (h) the following: (i) Prevention of trafficking in conjunction with foreign assistance The United States Agency for International Development and the Department of State shall make reasonable efforts to incorporate anti-trafficking and anti-slavery priorities into other aspects of foreign assistance, including the maintenance of systems, such as appropriate supply chain monitoring, to ensure that assistance programs do not contribute to vulnerability to, or the prevalence of, human trafficking and slavery, consistent with this Act. . 202. Obligations of United States consular officers Section 214 of the Immigration and Nationality Act ( 8 U.S.C. 1184 (s) A visa shall not be issued under the subparagraph (A)(iii), (B)(i) (but only for domestic servants described in clause (i) or (ii) of section 274a.12(c)(17) section 62.32 (1) has provided to and reviewed with the applicant, in the applicant’s language (or a language the applicant understands), a copy of the information and resources pamphlet required by section 202 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1375c (2) has reviewed and made a part of the visa file the foreign labor recruiter disclosures required by title I of the Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2014, as well as a notation of whether the foreign labor recruiter is registered pursuant section 104 of that Act. .

Summary: Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2014 - Requires a foreign labor contractor (including a third-party foreign labor recruiter) who files a petition, certification, or application for a work-authorized nonimmigrant visa to provide a prospective worker with a copy of the petition and a copy of the approval notification. Prohibits a foreign labor contractor (including a third-party foreign labor recruiter) from knowingly providing false or misleading information to any worker or prospective worker concerning any required document. Requires a third-party foreign labor recruiter to disclose in writing in English and in the prospective worker's primary language specified information about fees, contracts, worker protections, and a copy of the work visa petition. Requires a third-party foreign labor recruiter to obtain from the Secretary of Homeland Security (DHS) a certificate of registration which shall be valid for two years. Establishes a registration fee. Prohibits a third-party foreign labor recruiter, or agent or employee of the recruiter, from assessing any recruitment, placement, legal, or processing fee on a worker or prospective worker. States that, unless required by the Immigration and Nationality Act, no foreign labor contractor (including a third-party foreign labor recruiter) shall be required to pay for the visa or passport fees or transportation costs to and from the United States of a prospective worker or worker. Directs the Secretary of Labor to: (1) maintain a publicly available list of all registered third-party foreign labor recruiters that identifies the countries from which the contractors recruit, the visa categories and occupations for which the contractors recruit, and the states where recruited workers are employed; (2) maintain a publicly available list of all third-party foreign labor recruiters whose certificate of registration has been revoked; and (3) provide such lists to the Secretary of State, who shall make them available in written form at, and on the websites of, each U.S. diplomatic mission. Sets forth worker complaint and related civil and administrative enforcement requirements. Amends the Trafficking Victims Protection Act of 2000 to require the U.S. Agency for International Development (USAID) and the Department of State to incorporate anti-trafficking and anti-slavery priorities into other aspects of foreign assistance to ensure that assistance programs do not contribute to human trafficking and slavery. Amends the Immigration and Nationality Act to require a consular officer, before issuing specified work visas, to: (1) provide the alien with certain trafficking information, and (2) review and include in the alien's visa file the foreign labor recruiter's disclosures.