I 
113TH CONGRESS 
2D SESSION 
H. R. 4238 
To amend the Immigration and Nationality Act to provide for requirements 
for employers of H–2B nonimmigrants, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 13, 2014 
Mr. HARRIS introduced the following bill; which was referred to the Committee 
on the Judiciary 
A BILL 
To amend the Immigration and Nationality Act to provide 
for requirements for employers of H–2B nonimmigrants, 
and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. H–2B NUMERICAL LIMITATIONS. 
(a) IN GENERAL.—Section 214(g)(9)(A) of the Im-
migration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) 
is amended to read as follows: 
‘‘(A)(i) Except as provided in clause (ii), 
and subject to subparagraphs (B) and (C), an 
alien who has already been counted toward the 
numerical limitation of paragraph (1)(B) shall 
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not again be counted toward such limitation. 
Such an alien shall be considered a returning 
worker. 
‘‘(ii) An alien who has already been count-
ed toward the numerical limitation of para-
graph (1)(B) shall again be counted toward 
such limitation if such alien departs the United 
States for a period of time that is greater than 
one year, and has not been counted toward such 
limitation in any of the 3 years prior to such 
departure.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
subsection (a) shall take effect as if enacted on January 
1, 2013. 
SEC. 2. ADDITIONAL REQUIREMENTS FOR H–2B NON-
IMMIGRANT EMPLOYERS. 
(a) IN GENERAL.—Chapter 2 of title II of the Immi-
gration and Nationality Act (8 U.S.C. 1181 et seq.) is 
amended by inserting after section 218 the following: 
‘‘SEC. 218A. REQUIREMENTS FOR H–2B EMPLOYERS. 
‘‘(a) PETITION PROCESS.— 
‘‘(1) IN GENERAL.—An employer who seeks to 
employ an H–2B nonimmigrant shall submit a peti-
tion to the Secretary of Homeland Security in ac-
cordance with this subsection. 
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‘‘(2) CONTENTS.—A petition submitted under 
paragraph (1) shall include each of the following: 
‘‘(A) The number of named and unnamed 
H–2B nonimmigrants the employer is seeking 
to employ during the applicable period of em-
ployment, and the anticipated dates of entry 
(which may be staggered). 
‘‘(B) The geographic area of intended em-
ployment for the H–2B nonimmigrants, except 
that for itinerant industries that do not operate 
in a single fixed-site location, an employer may 
provide a list of anticipated work locations, 
which— 
‘‘(i) 
may 
include 
an 
anticipated 
itinerary; and 
‘‘(ii) may be subsequently amended by 
the employer, with notice to the Secretary 
of Homeland Security. 
‘‘(C) The anticipated period during which 
such employees will be needed, including ex-
pected beginning and ending dates. 
‘‘(D) The written disclosure of employment 
terms and conditions which will be provided to 
the proposed H–2B nonimmigrant beneficiary 
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of the petition before the date on which the H– 
2B nonimmigrant files a visa application. 
‘‘(E) Evidence that the employer made ef-
forts to recruit available, qualified, willing, and 
able United States workers for any position for 
which the employer seeks an H–2B non-
immigrant worker, which the employer shall be 
deemed to have satisfied if the employer— 
‘‘(i) not later than 60 days before the 
employer’s date of need for an H–2B non-
immigrant, submits the written disclosure 
of employment terms and conditions for 
such worker to the local office of the State 
workforce agency where the job is located, 
or in the case of an itinerant employer, 
where the job is to begin, and authorizes 
the posting of the written disclosure on the 
appropriate Department of Labor Elec-
tronic Job Registry for a period of 45 
days, except that nothing in this clause 
shall require the employer to file an inter-
state job order under section 653, of title 
20, Code of Federal Regulations; and 
‘‘(ii) keeps a record of all eligible, 
able, willing, and qualified United States 
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workers who apply for employment with 
the employer for the job for which an H– 
2B nonimmigrant is sought. 
‘‘(3) REVIEW.— 
‘‘(A) IN
GENERAL.—The Secretary of 
Homeland Security shall establish a procedure 
to process petitions filed under this subsection, 
and shall review each petition submitted by an 
employer under this subsection for completeness 
or obvious inaccuracies. 
‘‘(B) ACCEPTANCE
OF
PETITIONS.—Not 
later than 7 days after an employer files a peti-
tion, the Secretary of Homeland Security 
shall— 
‘‘(i) accept the petition unless the Sec-
retary determines that the petition is in-
complete or obviously inaccurate; 
‘‘(ii) submit to the petitioner notice of 
acceptance or non-acceptance of the peti-
tion using electronic or other means assur-
ing expedited delivery; and 
‘‘(iii) in the case of an accepted peti-
tion, submit to the United States consulate 
notice of acceptance of the petition using 
electronic or other means assuring expe-
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dited delivery, if the petitioner has indi-
cated that the alien beneficiary or bene-
ficiaries will apply for a visa to the United 
States at such consulate. 
‘‘(4) NUMBER OF POSITIONS NOT REDUCED BY 
HIRING UNITED STATES WORKER.—The Secretary of 
Homeland Security may not reduce the number of 
positions that the Secretary accepts for an employer 
pursuant to a petition under this subsection because 
the employer hires a United States worker before 
date on which the employer indicated it needed 
workers on the petition the employer submitted 
under this subsection. 
‘‘(b) TRANSPORTATION COSTS.— 
‘‘(1) TRANSPORTATION TO THE PLACE OF EM-
PLOYMENT.—Not later than the date on which an 
H–2B nonimmigrant completes 50 percent of the 
work period set forth in the petition, an employer 
who hires an H–2B nonimmigrant shall reimburse 
the H–2B nonimmigrant for the cost of transpor-
tation of the most economic and reasonable common 
carrier, including documented and reasonable sub-
sistence costs during the period of travel, for that 
H–2B nonimmigrant, from the United States con-
sulate issuing the visa to the H–2B nonimmigrant 
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or previous worksite in the United States, if any, to 
the place of such nonimmigrant’s employment, un-
less the H–2B nonimmigrant has been so reim-
bursed by another employer. 
‘‘(2) TRANSPORTATION FROM THE PLACE OF 
EMPLOYMENT.—If an H–2B nonimmigrant com-
pletes the work period set forth in the petition, and 
is not traveling to another worksite in the United 
States, not later than the time the H–2B non-
immigrant departs from the worksite, the employer 
who hired an H–2B nonimmigrant for that work pe-
riod shall pay for the cost of transportation of the 
most economic and reasonable common carrier, in-
cluding an allowance for reasonable subsistence costs 
during the period of travel, for that H–2B non-
immigrant, from the place of employment to the 
United States consulate that issued the visa to the 
H–2B nonimmigrant. 
‘‘(c) NO DISPLACEMENT OF UNITED STATES WORK-
ERS.— 
‘‘(1) IN GENERAL.—An employer may not dis-
place a United States worker employed by the em-
ployer, other than for good cause, during the period 
of employment of the H–2B nonimmigrant and for 
a period of 30 days preceding such period in the oc-
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cupation and at the location of employment for 
which the employer seeks to employ an H–2B non-
immigrant. 
‘‘(2) LABOR DISPUTE.—An employer may not 
employ an H–2B nonimmigrant for a specific job for 
which the employer is requesting an H–2B non-
immigrant because the former occupant of the job is 
on strike or being locked out in the course of a labor 
dispute. 
‘‘(d) WAGES.—The wages to be paid to H–2B non-
immigrants shall be the greater of— 
‘‘(1) the actual wage level paid by the employer 
to other employees with similar experience and quali-
fications for such position in the same location; or 
‘‘(2) the prevailing wage level for the occupa-
tional classification of the position in the geographic 
area in which the H–2B nonimmigrant will be em-
ployed, based on the best information available at 
the time of filing the petition. 
‘‘(e) HOUSING.—An employer is not required to pro-
vide housing or a housing allowance to an H–2B non-
immigrant employee. If an employer does provide housing 
or a housing allowance to an H–2B nonimmigrant em-
ployee, the employer may take a wage deduction or credit 
in an amount that is equal to the fair value of such hous-
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ing in accordance with the Fair Labor Standards Act of 
1938. 
‘‘(f) INCENTIVE FOR AN EMPLOYER TO REPORT AN 
ABSCONDING H–2B NONIMMIGRANT EMPLOYEE.—If an 
H–2B nonimmigrant terminates employment prior to the 
end of the work period set forth in the job order, and the 
employer provides timely notice of this termination to the 
Secretary of Homeland Security, the Secretary of Home-
land Security shall promptly notify the Secretary of State, 
and the Secretary of State shall make available to the em-
ployer one additional visa for each such terminating non-
immigrant in order for the employer to hire a replacement 
H–2B nonimmigrant for the same job opportunity without 
filing an additional petition. 
‘‘(g) DEFINITIONS.—In this section, the following 
definitions apply: 
‘‘(1) The term ‘H–2B nonimmigrant’ means an 
alien admitted to the United States pursuant to sec-
tion 101(a)(15)(H)(ii)(B). 
‘‘(2) The term ‘United States worker’ means an 
employee who— 
‘‘(A) is a citizen or national of the United 
States; 
‘‘(B) is an alien who is lawfully admitted 
for permanent residence, is admitted as a ref-
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ugee under section 207 of this title, is granted 
asylum under section 208, or is an immigrant 
otherwise authorized, by this Act or by the Sec-
retary of Homeland Security, to be employed; 
or 
‘‘(C) an individual who is not an unauthor-
ized alien (as defined in section 274A(h)(3)) 
with respect to the proposed occupation of the 
H–2B nonimmigrant. 
‘‘(3) The term ‘best information available’, with 
respect to determining the prevailing wage for a po-
sition, means— 
‘‘(A) a controlling collective bargaining 
agreement, where the employer is a signatory to 
a collective bargaining agreement that sets 
wages for work performed by H–2B non-
immigrants; 
‘‘(B) if there is no controlling collective 
bargaining agreement as set forth in subpara-
graph (A), the local, State, or Federal pre-
vailing wage laws or ordinances, for any time 
period during which the H–2B nonimmigrant 
performs work on a project for which payment 
of such wages is required by such laws or ordi-
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nances, and the employer has signed a contract 
agreeing to pay such wages on that project; or 
‘‘(C) if there is no controlling collective 
bargaining agreement as set forth in subpara-
graph (A) and the H–2B nonimmigrant is not 
performing work governed by a prevailing wage 
law or ordinance as set forth in subparagraph 
(B)— 
‘‘(i) the wage level commensurate with 
the experience, training, and supervision 
required for the job based on Bureau of 
Labor Statistics data; or 
‘‘(ii) a legitimate private wage survey 
of the wages paid for such positions in the 
geographic area in which the H–2B non-
immigrant will be employed. 
‘‘(4) The term ‘legitimate private wage survey’ 
means, in the case of a petition under subsection 
(a), a survey of wages by an entity other than the 
Federal Government where— 
‘‘(A) the data has been collected during the 
2-year period immediately preceding the date of 
the petition; 
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‘‘(B) if a published survey, the survey has 
been published during the 2-year period imme-
diately preceding the date of the petition; 
‘‘(C) the employer job description is simi-
lar to the survey job description; 
‘‘(D) the survey is across industries that 
employ workers in the occupation; 
‘‘(E) the wage determination is based on a 
weighted or straight average of the relevant 
wages or the median of relevant wage levels; 
and 
‘‘(F) the survey identifies a statistically 
valid methodology that was used to collect the 
data. 
‘‘(h) RULE OF CONSTRUCTION.—The benefits and 
wages provided to an H–2B nonimmigrant, the services 
an H–2B nonimmigrant provides to the employer, the em-
ployment opportunities afforded to an H–2B non-
immigrant by the employer, including those employment 
opportunities that require a United States worker or an 
H–2B nonimmigrant to travel or relocate in order to ac-
cept or perform employment, and other terms or condi-
tions of the employment of an H–2B nonimmigrant pro-
vided for under this section are for the mutual benefit of 
the H–2B nonimmigrant and the employer. 
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‘‘(i) EXCLUSIVE
RULEMAKING
AUTHORITY.—The 
Secretary of Homeland Security shall have the exclusive 
authority to make rules to implement this section.’’. 
(b) CLERICAL AMENDMENT.—The table of contents 
of the Immigration and Nationality Act is amended by in-
serting after the item relating to section 218 the following: 
‘‘218A. Requirements for H–2B Nonimmigrant Employers.’’. 
Æ 
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