performance, violation of workplace 
rules, cause, voluntary departure, vol-
untary retirement, or the expiration of 
a grant or contract (other than a tem-
porary employment contract entered 
into in order to evade a condition de-
scribed in paragraph (1)(E)); but 
‘‘(II) does not include any situa-
tion in which the worker is offered, as 
an alternative to such loss of employ-
ment, a similar employment oppor-
tunity with the same employer at 
equivalent or higher compensation and 
benefits than the position from which 
the employee was discharged, regard-
less of whether or not the employee 
accepts the offer. 
‘‘(ii) 
CONSTRUCTION.—Nothing 
in 
this subparagraph is intended to limit an 
employee’s rights under a collective bar-
gaining agreement or other employment 
contract. 
‘‘(G) REGISTERED H–2B EMPLOYER.—The 
term ‘registered H–2B employer’ means an em-
ployer that has been registered by the Secretary 
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of Labor under paragraph (2) to employ an H– 
2B nonimmigrant. 
‘‘(H) STATE
WORKFORCE
AGENCY.—The 
term ‘State workforce agency’ means the agen-
cy designated or authorized under section 4 of 
the Wagner-Peyser Act (29 U.S.C. 49 et seq.) 
to carry out the State responsibilities under 
that Act. 
‘‘(I) SUBSTANTIAL
FAILURE.—The term 
‘substantial failure’ means the repeated, reck-
less or willful failure to comply with the re-
quirements of this section that constitutes a 
significant deviation from the terms and condi-
tions of this section. 
‘‘(J) UNITED STATES WORKER.—The term 
‘United States worker’ means an employee 
who— 
‘‘(i) is a citizen or national of the 
United States; or 
‘‘(ii) is an alien who is lawfully admit-
ted for permanent residence, is admitted as 
a refugee under section 207, is granted 
asylum under section 208, or is an immi-
grant otherwise authorized, by this Act or 
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by the Secretary of Homeland Security, to 
be employed.’’. 
(b) CONFORMING AMENDMENTS.— 
(1) Section 101(a)(15)(H)(ii)(b) of the Immi-
gration 
and 
Nationality 
Act 
(8 
U.S.C. 
1101(a)(15)(H)(ii)(b)) is amended by striking ‘‘un-
employed’’. 
(2) Section 214(c) of the Immigration and Na-
tionality Act (8 U.S.C. 1184(c)) is amended— 
(A) by striking ‘‘or 101(a)(15)(H)(ii)(b)’’ 
from paragraph (5)(A); and 
(B) by striking paragraphs (13) and (14). 
(3) Section 214(g) of the Immigration and Na-
tionality Act (8 U.S.C. 1184(g)) is amended— 
(A) in paragraph (1)— 
(i) by striking subparagraphs (A) and 
(B); and 
(ii) by striking ‘‘(beginning with fiscal 
year 1992)—’’ and inserting ‘‘under sec-
tion 101(a)(15)(H)(i)(b) may not exceed 
65,000.’’; and 
(B) by striking paragraph (10). 
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SEC. 3. ESTABLISHED WAGE LEVEL. 
Section 212(p) of the Immigration and Nationality 
Act (8 U.S.C. 1182(p)) is amended by adding at the end 
the following: 
‘‘(5) Notwithstanding the other provisions of this 
subsection, in computing the established wage level for an 
occupational classification in an area of employment for 
purposes of subsection (o)(3)(B)(ii)(II) of this section, the 
established wage level shall be determined in accordance 
as follows: 
‘‘(A) If the job opportunity is covered by a collective 
bargaining agreement between a union and the employer, 
the established wage level shall be the wage rate set forth 
in the collective bargaining agreement. 
‘‘(B) If the job opportunity is not covered by such 
an agreement and it is in an occupation that is listed in 
a wage determination in the area issued pursuant to a pro-
vision of subchapter IV of chapter 31 of title 40, United 
States Code, or the Service Contract Act of 1965 (41 
U.S.C. 351 et seq.), the established wage level shall be 
at the rate required under the statutory determination. 
‘‘(C) If the job opportunity is not covered by such 
an agreement and it is not in an occupation that is listed 
in a wage determination in the area issued pursuant to 
a provision of subchapter IV of chapter 31 of title 40, 
United States Code, or the Service Contract Act of 1965 
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(41 U.S.C. 351 et seq.), the established wage level shall 
be the median of the wage data applicable to such occupa-
tion as published in the Bureau of Labor Statistics’ Occu-
pational Employment Statistics survey. 
‘‘(D) If the job opportunity is not covered by such 
an agreement, it is not in an occupation that is listed in 
a wage determination in the area issued pursuant to a pro-
vision of subchapter IV of chapter 31 of title 40, United 
States Code, or the Service Contract Act of 1965 (41 
U.S.C. 351 et seq.), and the employer demonstrates to the 
satisfaction of the Secretary of Labor that the Bureau of 
Labor Statistics’ Occupational Employment Statistics sur-
vey does not sufficiently represent the job opportunity 
being petitioned, the Secretary may provide a wage deter-
mination based on the median wage level of wage data 
contained in a published wage survey, or wage data con-
tained in a survey that has been conducted or funded by 
the employer, provided the Secretary finds that— 
‘‘(i) such survey meets generally accepted prin-
ciples of survey methodology, including reliability 
and viability; 
‘‘(ii) the population surveyed in such survey is 
comprised of at least 51 percent United States work-
ers; and 
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