impose a fee, to be deposited in the Treasury in 
accordance with section 286(w), on an employer 
that submits an application described in para-
graph (3) or (5)(B) on or after the date that 
is 30 days after the date of the enactment of 
the H–2B Program Reform Act of 2009. The 
fee shall be set at a level the Secretary of Labor 
determines will ensure recovery of the full costs 
of carrying out labor certification activities 
under this subsection and will recover any addi-
tional costs associated with the administration 
of the fees collected. 
‘‘(7) ASSIGNMENT OF H–2B POSITIONS BY SEC-
RETARY OF HOMELAND SECURITY.— 
‘‘(A) IN GENERAL.—Upon the approval of 
an application described in paragraph (6)(A), 
an employer may petition the Secretary of 
Homeland Security for H–2B nonimmigrant 
positions up to the number approved by the 
Secretary of Labor. 
‘‘(B) NUMERICAL LIMITS.—The total num-
ber of aliens who may be issued visas or other-
wise provided nonimmigrant status during any 
fiscal year under section 101(a)(15)(H)(ii)(b) 
may not exceed 66,000, except that 1,000 of 
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such number shall be reserved for employers fil-
ing applications pursuant to paragraph (5). 
‘‘(C) FAIR
DISTRIBUTION
SYSTEM.—The 
Secretary of Homeland Security shall apportion 
H–2B nonimmigrant positions for initial use in 
each quarter of the fiscal year in proportion to 
the demand in each quarter (as determined by 
the expected start dates for the employment of 
H–2B nonimmigrants by employers registered 
under paragraph (2)). 
‘‘(8) LIMITATIONS ON EMPLOYMENT.— 
‘‘(A) DURATION
OF
EMPLOYMENT.—Cer-
tification of an H–2B nonimmigrant for em-
ployment with an employer in the United States 
shall be limited to a maximum of 10 months. 
The Secretary of State and Secretary of Home-
land Security shall allow admission of the H– 
2B nonimmigrant into the United States for 
additional periods, of no more than 20 days in 
the aggregate, to allow for travel to and from 
the worksite. 
‘‘(B) TRANSFER OF H–2B NONIMMIGRANTS 
BETWEEN EMPLOYERS.— 
‘‘(i) IN
GENERAL.—An H–2B non-
immigrant may not accept employment 
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from any employer in the United States 
other than an employer with an approved 
H–2B petition filed on behalf of such non-
immigrant. An employer may not— 
‘‘(I) trade, transfer, or otherwise 
provide an H–2B nonimmigrant to 
any other employer for employment in 
the United States; or 
‘‘(II) assess any fee to an H–2B 
nonimmigrant with respect to such 
trade, transfer, or provision. 
‘‘(ii) 
CONSTRUCTION.—Nothing 
in 
this paragraph prohibits an H–2B non-
immigrant in the United States from ac-
cepting new employment with a new em-
ployer upon approval of a petition filed by 
such 
employer 
on 
the 
H–2B 
non-
immigrant’s behalf. 
‘‘(C) AVAILABILITY
OF
UNITED
STATES 
WORKER.—An employer shall be required to 
offer employment to any able and qualified 
United States worker if such worker applies for 
employment in a job to be filled by an H–2B 
nonimmigrant at least 14 days before com-
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mencement of the H–2B nonimmigrant’s em-
ployment. 
‘‘(9) COMPLIANCE AND STATISTICS.— 
‘‘(A) PUBLIC
EXAMINATION.—The Sec-
retary of Labor shall make available for public 
examination, including by posting over the 
Internet, the following: 
‘‘(i) within 60 days of the close of the 
registration period under paragraph (2), a 
list of all employers registered under such 
paragraph; 
‘‘(ii) upon the filing of an application 
by an employer under paragraph (3), a 
copy of such application, except that the 
Secretary shall redact any proprietary in-
formation from such application; and 
‘‘(iii) a list (by employer, location and 
occupational classification), compiled on a 
current basis, of the applications filed 
under this subsection. Such list shall in-
clude the wage rate, number of aliens 
sought, period of intended employment, 
and dates of need. 
‘‘(B) 
MAINTENANCE
OF
DOCUMENTA-
TION.—The employer shall maintain for at least 
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3 years after the filing of the application or the 
employment relationship is terminated, which-
ever is later, documentation evidencing compli-
ance with the conditions in paragraph (3) and 
recruitment efforts in paragraph (4). 
‘‘(10) COMPLAINTS AND INVESTIGATIONS.— 
‘‘(A) IN
GENERAL.—The Secretary of 
Labor shall establish a process for the receipt, 
investigation, and disposition of complaints 
(which may be filed by any aggrieved person or 
organization) respecting an employer’s compli-
ance with this subsection. The Secretary, either 
pursuant to this complaint process or otherwise, 
may investigate employers as necessary to de-
termine such compliance. 
‘‘(B) PENALTIES.—If the Secretary of 
Labor finds, after notice and an opportunity for 
a hearing, a substantial failure to meet any of 
the conditions of the application described 
under paragraph (2) or (3), a misrepresentation 
of a material fact in such application, or a vio-
lation of subparagraph (C)— 
‘‘(i) the Secretary of Labor may, in 
addition to any other remedy authorized by 
law, impose such administrative remedies 
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(including civil monetary penalties in an 
amount not to exceed $10,000 per viola-
tion) as the Secretary of Labor determines 
to be appropriate; and 
‘‘(ii) the Secretary of Labor may not 
approve applications filed with respect to 
that employer under this subsection during 
a period of at least 1 year but not more 
than 5 years for aliens to be employed by 
the employer. 
‘‘(C) BACK WAGES.—If the Secretary of 
Labor finds, after notice and an opportunity for 
a hearing, that recovery of back wages, travel 
costs, or other fees or costs is necessary to ad-
dress a violation of this subsection or any other 
law, the Secretary of Labor may administra-
tively recover such back wages, fees or costs on 
behalf of the worker. 
‘‘(D) DISCRIMINATION
OR
RETALIATION 
PROHIBITED.—It is a violation of this subpara-
graph for an employer who has filed an applica-
tion under this subsection to intimidate, threat-
en, restrain, coerce, discharge, or in any other 
manner discriminate or retaliate against an em-
ployee (including a former employee or an ap-
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plicant for employment) because the em-
ployee— 
‘‘(i) has disclosed information to the 
employer, or to any other person, that the 
employee reasonably believes evidences a 
violation of this subsection, or any rule or 
regulation pertaining to this subsection; or 
‘‘(ii) seeks legal assistance or counsel 
related to any such violation, or cooper-
ates, or seeks to cooperate, in an investiga-
tion or other proceeding concerning the 
employer’s compliance with the require-
ments of this subsection, or any rule or 
regulation pertaining to this subsection. 
‘‘(E) AUTHORITY
TO
ENSURE
COMPLI-
ANCE.—The Secretary of Labor is authorized to 
take other such actions, including issuing sub-
poenas and seeking appropriate injunctive relief 
and specific performance of contractual obliga-
tions, as may be necessary to assure employer 
compliance with the terms and conditions of 
employment under this subsection. The rights 
and remedies provided to workers by this Act 
are in addition to, and not in lieu of, any other 
contractual or statutory rights and remedies of 
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such workers, and are not intended to alter or 
affect such rights and remedies. 
‘‘(11) OTHER PROTECTIONS.— 
‘‘(A) PROGRAM VIOLATORS.—An employer 
may not be registered under this section if, 
within the last 3 years, the Secretary has found 
a substantial failure by the employer to comply 
with any foreign worker program or the em-
ployer has been found to have willfully, reck-
lessly or repeatedly violated any Federal, State, 
or local employment-related law or regulation, 
where the result of such violation was the pay-
ment of a fine, backpay damages, or any other 
type of penalty in the amount of $5,000 or 
more. 
‘‘(B) ESTABLISHED
WAGES.—If an em-
ployer seeks to appeal a decision of the Sec-
retary of Labor concerning the wages required 
to be paid under this section, United States 
workers and their representatives shall be given 
reasonable opportunity to submit contrary evi-
dence. 
‘‘(C) ACCESS
TO
LEGAL
SERVICES
COR-
PORATION.—Notwithstanding any other provi-
sion of law, the Legal Services Corporation and 
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recipients of its funding may provide legal serv-
ices on behalf of an alien admitted or provided 
status as a nonimmigrant described in section 
101(a)(15)(H)(ii)(B), except that this subpara-
graph shall not be construed to affect section 
292. 
‘‘(D) TRANSPORTATION COSTS.—The em-
ployer shall pay the transportation costs, in-
cluding reasonable subsistence costs during the 
period of travel, for the H–2B nonimmigrant 
from the place of recruitment to the place of 
employment and from the place of employment 
to such worker’s place of permanent residence 
or a subsequent worksite. 
‘‘(E) CAUSE OF ACTION FOR WAGE DIS-
CREPANCIES.—An H–2B nonimmigrant who 
fails to receive compensation under the terms 
described in the job offer for work provided by 
the employer may commence a civil action to 
seek back wages in an appropriate district court 
of the United States, which shall have jurisdic-
tion over such an action without regard to the 
amount in controversy or citizenship of the par-
ties. In a civil action under this subparagraph, 
the court may award such nonimmigrant rea-
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sonable attorney’s fees, including litigation ex-
penses, and costs. 
‘‘(12) DEFINITIONS.—For purposes of this sub-
section: 
‘‘(A) AREA OF EMPLOYMENT.—The term 
‘area of employment’ means the area within 
normal commuting distance of the worksite or 
physical location where the work of the H–2B 
nonimmigrant is or will be performed. If such 
worksite or location is within a Metropolitan 
Statistical Area, any place within such area 
shall be deemed to be within the area of em-
ployment. 
‘‘(B) DISPLACE.—In the case of an appli-
cation with respect to one or more H–2B non-
immigrants by an employer, the employer is 
considered to ‘displace’ a United States worker 
from a job if the employer lays off the worker 
from a job that is essentially the equivalent of 
the job for which the nonimmigrant or non-
immigrants is or are sought. A job shall not be 
considered to be essentially equivalent of an-
other job unless it involves essentially the same 
responsibilities, was held by a United States 
worker with substantially equivalent qualifica-
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tions and experience, and is located in the same 
area of employment as the other job. 
‘‘(C) CONSTRUCTION
OCCUPATION.—The 
term ‘construction occupation’ means any occu-
pation listed as a construction or extraction oc-
cupation in the Department of Labor’s Stand-
ard Occupational Classification, except that it 
shall not include any occupation listed in such 
classification as an extraction worker occupa-
tion. 
‘‘(D) FOREIGN
WORKER
PROGRAM.—The 
term ‘foreign worker program’ means any pro-
gram to employ nonimmigrants described in 
subparagraphs (H), (J), (L), (O), or (P) of sec-
tion 101(a)(15). 
‘‘(E) H–2B NONIMMIGRANT.—The term 
‘H–2B nonimmigrant’ means an alien admitted 
or provided status as a nonimmigrant described 
in section 101(a)(15)(H)(ii)(b). 
‘‘(F) LAYS OFF.— 
‘‘(i) IN
GENERAL.—The term ‘lays 
off’, with respect to a worker— 
‘‘(I) means to cause the worker’s 
loss 
of 
employment, 
other 
than 
through a discharge for inadequate 
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