I 
111TH CONGRESS 
1ST SESSION H. R. 4381 
To reform the H–2B program, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
DECEMBER 16, 2009 
Ms. ZOE LOFGREN of California (for herself and Mr. GEORGE MILLER of 
California) introduced the following bill; which was referred to the Com-
mittee on the Judiciary, and in addition to the Committee on Education 
and Labor, for a period to be subsequently determined by the Speaker, 
in each case for consideration of such provisions as fall within the juris-
diction of the committee concerned 
A BILL 
To reform the H–2B program, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘H–2B Program Re-
form Act of 2009’’. 
SEC. 2. PROTECTING UNITED STATES AND H–2B WORKERS. 
(a) IN GENERAL.—Section 212(o) of the Immigra-
tion and Nationality Act (8 U.S.C. 1182(o)) is amended 
to read as follows: 
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‘‘(o) REQUIREMENTS
FOR ADMISSION
OF H–2B 
WORKERS.— 
‘‘(1) CERTIFICATION OF ALIEN.—Any alien who 
seeks to enter the United States for the purpose of 
performing temporary labor or services under section 
101(a)(15)(H)(ii)(b) is inadmissible unless the Sec-
retary of Labor has determined and certified to the 
Secretary of State and the Secretary of Homeland 
Security that— 
‘‘(A) there are not sufficient United States 
workers who are able, willing, qualified, and 
who will be available at the time and place 
needed, to perform such temporary labor or 
services; and 
‘‘(B) the employment of the alien in such 
labor or services will not adversely affect the 
wages and working conditions of workers in the 
United States similarly employed. 
‘‘(2) REGISTRATION OF H–2B EMPLOYER.— 
‘‘(A) REGISTERED H–2B EMPLOYERS.—Ex-
cept as provided in paragraph (5), any employer 
who seeks to employ an H–2B nonimmigrant in 
an occupational classification must file with the 
Secretary of Labor an application for registra-
tion stating the following: 
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‘‘(i) A specification of the number of 
H–2B nonimmigrants sought to be em-
ployed, the occupational classifications and 
locations in which such H–2B non-
immigrants will be employed, and the an-
ticipated period of employment (including 
the expected beginning and termination 
dates). 
‘‘(ii) Evidence that— 
‘‘(I) the employer needs such 
workers to address temporary, pre-
dictable, and recurring needs for labor 
or services directly resulting from cli-
matic, environmental, or other natural 
conditions related to certain seasons 
of the year; and 
‘‘(II) labor, geographic, or other 
conditions substantially prevent the 
employer from meeting such needs for 
labor or services with workers in the 
United States. 
‘‘(iii) Each instance in which the em-
ployer has been found, within the last 3 
years, to have violated any foreign worker 
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program or any Federal, State, or local 
employment-related law or regulation. 
‘‘(B) EXCLUSION
OF
CERTAIN
EMPLOY-
ERS.— 
‘‘(i) 
LABOR
CONTRACTING
ENTI-
TIES.—An employer may not be registered 
under this paragraph if the employer— 
‘‘(I) contracts labor or services 
on a temporary basis to one or more 
entities, which are not affiliates, 
branches, or subsidiaries of the em-
ployer; and 
‘‘(II) will not exercise supervision 
or control in the performance of the 
labor or services to be performed by 
the H–2B nonimmigrant (other than 
the hiring, paying, or firing of work-
ers). 
‘‘(ii) CONSTRUCTION
ENTITIES.—At 
the beginning of each registration period 
described in subparagraph (C)(i), the Sec-
retary of Labor shall issue a certification 
of the average national unemployment rate 
for wage and salary workers in the experi-
enced labor force in the construction occu-
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paragraph shall not expire until the end of 
the third fiscal year beginning after the 
date of registration. 
‘‘(iii) FEES.— 
‘‘(I) 
APPLICATION
FOR
REG-
ISTRATION.—In addition to any other 
fees authorized by law, the Secretary 
of Labor shall impose a $100 fee, to 
be deposited in the Treasury in ac-
cordance with section 286(w), on an 
employer that submits an application 
for registration. 
‘‘(II) WORKER
POSITIONS
RE-
QUESTED.—The Secretary shall also 
impose a fee, to be deposited in the 
Treasury in accordance with section 
286(v), on an employer for each H– 
2B worker position requested in such 
application. The additional fee shall 
be $100 for each H–2B worker posi-
tion requested. 
‘‘(3) LABOR
CERTIFICATION
APPLICATION.— 
Except as provided in paragraph (5), any employer 
who seeks to employ an H–2B nonimmigrant in an 
occupational classification must be registered under 
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paragraph (2) and must file with the Secretary of 
Labor, not later than 60 days before the first date 
that such employer requires the labor or services of 
the H–2B nonimmigrant, an application containing 
the following assurances: 
‘‘(A) A specification of the number of H– 
2B nonimmigrant positions requested, the occu-
pational classifications and locations in which 
such workers will be employed, the wage rate 
and conditions under which they will be em-
ployed, and the expected start and end dates of 
employment. 
‘‘(B) The employer— 
‘‘(i) if the job opportunity is covered 
by a collective bargaining agreement, is of-
fering and will offer during the period of 
authorized employment to H–2B non-
immigrants wages as set forth in the col-
lective bargaining agreement; 
‘‘(ii) if the job opportunity is not cov-
ered by a collective bargaining agreement, 
is offering and will offer during the period 
of authorized employment to H–2B non-
immigrants wages that are at least— 
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‘‘(I) the actual wage level paid by 
the employer to all other individuals 
with similar experience and qualifica-
tions for the specific employment in 
question; or 
‘‘(II) the wage level for the occu-
pational classification in the area of 
employment; 
whichever is greater, based on the best in-
formation available as of the time of filing 
the application; and 
‘‘(iii) will provide working conditions 
for such nonimmigrants that will not ad-
versely affect the working conditions of 
workers similarly employed. 
‘‘(C) There is not a strike or lockout in the 
course of a labor dispute in the occupational 
classification at the place of employment. 
‘‘(D) The employer did not displace and 
will not displace a United States worker em-
ployed by the employer within the period begin-
ning 90 days before the start date and ending 
on the end date for which the employer requests 
the services of an H–2B nonimmigrant on an 
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application for labor certification under this 
subsection. 
‘‘(E) The employer has— 
‘‘(i) taken, and will continue to take, 
good faith steps to recruit United States 
workers in the United States, using the 
procedures described in paragraph (4) and 
offering compensation, benefits and work-
ing conditions that are at least as great as 
that required to be offered to H–2B non-
immigrants under subparagraph (B), for 
the job for which the nonimmigrant or 
nonimmigrants is or are sought; and 
‘‘(ii) offered the job to any United 
States worker who applies and is qualified 
for the job for which the nonimmigrant or 
nonimmigrants is or are sought. 
‘‘(F) If the job opportunity is not covered 
by the State workers’ compensation law, the 
employer will provide, at no cost to its workers, 
insurance covering injury and disease arising 
out of, and in the course of, the worker’s em-
ployment which will provide benefits at least 
equal to those provided under the State’s work-
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ers’ compensation law for comparable employ-
ment. 
‘‘(G) The employer will comply with all 
Federal, State, and local employment-related 
laws and regulations. 
‘‘(H) The employer— 
‘‘(i) will offer an H–2B nonimmigrant 
the same benefits and working conditions 
provided to United States workers simi-
larly employed in the same occupational 
classification at the same place of employ-
ment; and 
‘‘(ii) has not made an offer to a 
United States worker or H–2B non-
immigrant that imposed restrictions or ob-
ligations that are greater than those that 
will be imposed on any other person of-
fered employment for the same job. 
‘‘(I) The stated requirements applicable to 
the job represent the actual minimum require-
ments for such job, and the H–2B employer 
will not hire an H–2B nonimmigrant to per-
form the job who does not meet these require-
ments. 
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‘‘(J) The employer has provided or shall 
provide to an H–2B nonimmigrant, not later 
than on the day work commences, a copy of the 
job offer containing the assurances listed in this 
paragraph. If the employer has used or is using 
a foreign labor contractor, the employer has 
provided or shall provide a copy of the job offer 
to such contractor by the time of recruitment. 
Each application filed under this paragraph shall be 
accompanied by a copy of the job offer describing 
the wages and other terms and conditions of employ-
ment of the H–2B nonimmigrant. Nothing in sub-
paragraph (E) or (I) shall be construed to prohibit 
an employer from using legitimate selection criteria 
relevant to the job that are normal or customary to 
the type of job involved, so long as such criteria are 
not applied in a discriminatory manner. 
‘‘(4) RECRUITMENT OF UNITED STATES WORK-
ERS.—Not later than 14 days before filing the appli-
cation under paragraph (3), and except as provided 
in paragraph (5)(B), any employer who seeks to em-
ploy an H–2B nonimmigrant shall take the following 
steps to recruit United States workers for which the 
alien is sought: 
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same or substantially equivalent job classi-
fication, if applicable. 
‘‘(D) The employer shall— 
‘‘(i) provide notice of the job oppor-
tunity to the bargaining representative (if 
any) of the employer’s employees in the oc-
cupational classification and area for which 
the employer is seeking a worker, or 
‘‘(ii) if there is no such bargaining 
representative, post the availability of the 
job opportunity for which the employer is 
seeking a worker in conspicuous locations 
at the place or places of employment or in 
some other manner that provides reason-
able notification to all employees in the oc-
cupational classification and in the same 
area of intended employment for which H– 
2B nonimmigrants are sought. 
‘‘(E) The employer shall advertise the 
availability of the job opportunity for which the 
employer is seeking a worker in one or more 
publications in the labor market that is likely to 
be patronized by potential applicants (as deter-
mined by the State workforce agency). Such ad-
vertisement, at a minimum, shall— 
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‘‘(i) describe the job opportunity and 
term of employment; 
‘‘(ii) state the wage rate to be offered; 
‘‘(iii) summarize the employer’s min-
imum job requirements; 
‘‘(iv) offer training if the job oppor-
tunity is the type for which employers nor-
mally provide training; and 
‘‘(v) be posted for 3 consecutive days, 
one of which must be a Sunday, during the 
first half of the 21-day recruitment period. 
‘‘(F) If the job involved in the application 
requires a particular skill or an advanced de-
gree, and a professional or trade journal nor-
mally would be used to advertise the job oppor-
tunity, the local job service may require the em-
ployer to place an advertisement in the journal 
most likely to bring responses from able, will-
ing, and qualified United States workers. 
‘‘(G) In no event shall the employer adver-
tise such job opportunity to United States 
workers using wages or other terms and condi-
tions of employment which are less favorable for 
United States workers than those to be offered 
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to an H–2B nonimmigrant of similar qualifica-
tions. 
‘‘(5) EXCEPTION TO REGISTRATION REQUIRE-
MENT.— 
‘‘(A) IN
GENERAL.—An employer that 
seeks to employ an H–2B nonimmigrant but is 
not registered under paragraph (2) may file an 
application under paragraph (3) to employ H– 
2B nonimmigrants if the employer dem-
onstrates to the Secretary of Labor that: 
‘‘(i) the failure to hire such workers to 
address a temporary need for labor or 
services would directly result in the loss of 
jobs for United States workers and would 
deprive the impacted community of a sub-
stantial economic benefit (as certified by a 
State or regional economic development 
authority, including consultation with any 
relevant union); and 
‘‘(ii) labor, geographic, or other condi-
tions substantially prevent the employer 
from meeting such need for labor or serv-
ices with workers in the United States. 
‘‘(B) HIRING
HALL
APPLICATIONS.—Any 
employer who seeks to hire an H–2B non-
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immigrant under subparagraph (A) may file an 
application with the Secretary of Labor in ac-
cordance with this subparagraph instead of 
complying with paragraphs (3) and (4) if— 
‘‘(i) the employer has signed a labor 
agreement with a labor organization (as 
defined in section 2(5) of the Labor-Man-
agement Relations Act (29 U.S.C. 152(5))) 
under which the labor organization is re-
sponsible for referring applicants for em-
ployment to the employer under a proce-
dure commonly known as a ‘hiring hall’ or 
‘referral hall’; 
‘‘(ii) the application is accompanied 
by a written statement prepared by the 
labor organization attesting that— 
‘‘(I) the labor organization oper-
ates a hiring hall that, pursuant to 
contractual agreement and actual 
practice, is a source of employees in 
the same or substantially equivalent 
occupational classification in which 
the employer seeks to employ an H– 
2B nonimmigrant; 
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‘‘(II) the labor organization does 
not have a sufficient number of quali-
fied applicants available for referral in 
the same or substantially equivalent 
occupational classification in which 
the employer seeks to employ an H– 
2B nonimmigrant; 
‘‘(III) the labor organization has 
advertised the availability of the job 
opportunity for which the employer is 
seeking to employ an H–2B non-
immigrant in one or more publications 
in the labor market that is likely to be 
patronized by potential applicants; 
‘‘(IV) the employer is contrac-
tually obligated to pay all employees, 
in the same or substantially equivalent 
occupational classification in which 
the employer seeks to employ an H– 
2B nonimmigrant, wages and benefits 
set forth in a labor agreement with 
the labor organization, which equals 
or exceeds the higher of the actual or 
predominant wage rate the employer 
would be obligated to pay; and 
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‘‘(V) the H–2B nonimmigrants 
whom the employer seeks to employ 
will be paid not less than the same 
wages and benefits and be subject to 
the same terms and conditions of em-
ployment set forth in the employer’s 
labor agreement with the labor orga-
nization. 
‘‘(6) 
CERTIFICATION
BY
SECRETARY
OF 
LABOR.— 
‘‘(A) ADJUDICATION DEADLINE.—The Sec-
retary of Labor shall adjudicate an application 
described in paragraph (3) or (5)(B) not later 
than 30 days after the date on which the appli-
cation is filed. 
‘‘(B) NOTICE OF DEFICIENCIES.—The em-
ployer shall be notified in writing within seven 
days of the date of filing if the application does 
not meet the standards for approval. Such no-
tice shall include a description of the deficiency, 
and the Secretary shall provide an opportunity 
for the prompt resubmission of a modified ap-
plication. 
‘‘(C) FEES.—In addition to any other fees 
authorized by law, the Secretary of Labor shall 
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