1048 
‘‘(A) AUTHORITY TO MAKE AVAILABLE.— 
In addition to the number of registered posi-
tions made available for a year under para-
graph (1) or (3), the Secretary shall make addi-
tional registered positions available for the year 
for a specific registered employer as described 
in this paragraph, if— 
‘‘(i) the maximum number of reg-
istered positions available under paragraph 
(1) have been approved for the year and 
none remain available for allocation; or 
‘‘(ii) such registered employer is lo-
cated in a metropolitan statistical area 
that has an unemployment rate that is 
more than 81⁄2 percent as reported in the 
most recent month preceding the date that 
the application is submitted to the Sec-
retary. 
‘‘(B) RECRUITMENT.— 
‘‘(i) IN
GENERAL.—Except as pro-
vided in clause (ii), an initial W non-
immigrant may only enter the United 
States for initial employment pursuant to 
a special allocation under this paragraph if 
the registered employer has carried out at 
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least 7 of the recruiting activities described 
in subsection (e)(2)(C). 
‘‘(ii) REQUIREMENT
TO
RECRUIT
W 
NONIMMIGRANTS
IN
THE
UNITED 
STATES.—A registered employer may reg-
ister a position pursuant to a special allo-
cation under this paragraph by conducting 
at least 3 of the recruiting activities de-
scribed in subsection (e)(2)(C), however a 
position registered pursuant to this clause 
may not be filled by an initial W non-
immigrant entering the United States for 
initial employment. 
‘‘(iii) 30-DAY POSTING.— 
‘‘(I) REQUIREMENT.—Any reg-
istered employer registering any posi-
tion under the special allocation au-
thority shall post the position, includ-
ing the wage range, location, and ini-
tial date of employment, for not less 
than 30 days— 
‘‘(aa) 
on 
the 
Internet 
website maintained by the Sec-
retary of Labor for the purpose 
of such advertising; and 
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‘‘(bb) with the workforce 
agency of the State where the po-
sition will be located. 
‘‘(II) CONTEMPORANEOUS POST-
ING.—The 30-day periods required by 
items (aa) and (bb) of subclause (I) 
may occur at the same time. 
‘‘(C) WAGES.— 
‘‘(i) INITIAL W NONIMMIGRANTS.—An 
initial 
W 
nonimmigrant 
entering 
the 
United States for initial employment pur-
suant to a registered position made avail-
able under this paragraph may not be paid 
less than the greater of— 
‘‘(I) the level 4 wage set out in 
the Foreign Labor Certification Data 
Center Online Wage Library (or simi-
lar successor website) maintained by 
the Secretary of Labor for such occu-
pation in that metropolitan statistical 
area; or 
‘‘(II) the mean of the highest 
two-thirds of wages surveyed for such 
occupation in that metropolitan statis-
tical area. 
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1051 
‘‘(ii) OTHER W NONIMMIGRANTS.—A 
W nonimmigrant employed in a registered 
position 
referred 
to 
in 
subsection 
(g)(4)(B)(ii) may not be paid less than the 
wages 
required 
under 
subsection 
(e)(1)(B)(iv). 
‘‘(D) REDUCTION OF FUTURE REGISTERED 
POSITIONS.—Each registered position made 
available for a year subject to the wage condi-
tions of subparagraph (C)(i) shall reduce by 1 
the number of registered positions made avail-
able under paragraph (g)(1) for the following 
year or the earliest possible year for which a 
registered position is available. The limitation 
contained in subsection (h)(4) shall not be re-
duced by any registered position made available 
under this paragraph. 
‘‘(h) ALLOCATION OF REGISTERED POSITIONS.— 
‘‘(1) IN GENERAL.— 
‘‘(A) FIRST 6-MONTH PERIOD.—The num-
ber of registered positions available for the 6- 
month period beginning on the first day of a 
year is 50 percent of the maximum number of 
registered positions available for such year 
under paragraph (1) or (2) of subsection (g). 
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Such registered positions shall be allocated as 
described in this subsection. 
‘‘(B) SECOND
6-MONTH
PERIOD.—The 
number of registered positions available for the 
6-month period ending on the last day of a year 
is the maximum number of registered positions 
available for such year under paragraph (1) or 
(2) of subsection (g) minus the number of reg-
istered positions approved during the 6-month 
period referred to in subsection (A). Such reg-
istered positions shall be allocated as described 
in this subsection. 
‘‘(2) SHORTAGE OCCUPATIONS.— 
‘‘(A) IN GENERAL.—For the first month of 
each 6-month period referred to in subpara-
graph (A) or (B) of paragraph (1) a registered 
position may not be created in an occupation 
that is not a shortage occupation. 
‘‘(B) INITIAL
DESIGNATIONS.—Subpara-
graph (A) shall not apply in any period for 
which the Commissioner has not designated any 
shortage occupations. 
‘‘(3) SMALL BUSINESSES.—During the second, 
third, and fourth months of each 6-month period re-
ferred to in subparagraph (A) or (B) of paragraph 
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(1), one-third of the number of registered positions 
allocated for such period shall be approved only for 
a registered employer that is a small business. Any 
such registered positions not approved for such 
small businesses during such months shall be avail-
able for any registered employer during the last 2 
months of each such 6-month period. 
‘‘(4) ANIMAL
PRODUCTION
SUBSECTORS.—In 
addition to the number of registered positions made 
available for a year under paragraph (1) or (3) of 
such section (g), the Secretary shall make additional 
registered positions available for the year for occupa-
tions designated by the Secretary of Labor as Ani-
mal Production Subsectors. The numerical limitation 
for such additional registered positions shall be no 
more than 10 percent of the annual numerical limi-
tation provided for in such paragraph (1). 
‘‘(5) LIMITATION FOR CONSTRUCTION OCCUPA-
TIONS.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), not more than 33 percent of the reg-
istered positions made available under para-
graph (1) or (2) of subsection (g) for a year 
may be granted to perform work in a construc-
tion occupation. 
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‘‘(B) MAXIMUM LEVEL.—Notwithstanding 
subparagraph (A), the number of registered po-
sitions granted to perform work in a construc-
tion occupation under subsection (g)(1) may 
not exceed 15,000 for a year and 7,500 for any 
6-month period. 
‘‘(C) 
PROHIBITION
FOR
OCCUPATIONS 
WITH HIGH UNEMPLOYMENT.— 
‘‘(i) IN GENERAL.—A registered em-
ployer may not hire a certified alien for a 
registered position to perform work in a 
construction occupation if the unemploy-
ment rate for construction occupations in 
the corresponding occupational job zone in 
that metropolitan statistical area was more 
than 81⁄2 percent. 
‘‘(ii) DETERMINATION OF UNEMPLOY-
MENT
RATE.—The unemployment rate 
used in clause (i) shall be determined— 
‘‘(I) using the most recent survey 
taken by the Bureau; or 
‘‘(II) if a survey referred to in 
subclause (I) is not available, using a 
recent and legitimate private survey. 
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States worker employed in a similar position with 
the employer because of the alien’s status as a non-
immigrant worker. 
‘‘(2) WAIVER OF RIGHTS PROHIBITED.— 
‘‘(A) IN
GENERAL.—A W nonimmigrant 
may not be required to waive any substantive 
rights or protections under this Act. 
‘‘(B) CONSTRUCTION.—Nothing under this 
paragraph may be construed to affect the inter-
pretation of any other law. 
‘‘(3) PROHIBITION
ON
TREATMENT
AS
INDE-
PENDENT CONTRACTORS.— 
‘‘(A) IN GENERAL.—Notwithstanding any 
other provision of law— 
‘‘(i) a W nonimmigrant is prohibited 
from being treated as an independent con-
tractor under any Federal or State law; 
and 
‘‘(ii) no person, including an employer 
or labor contractor and any persons who 
are affiliated with or contract with an em-
ployer or labor contractor, may treat a W 
nonimmigrant as an independent con-
tractor. 
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1057 
‘‘(B) CONSTRUCTION.—Subparagraph (A) 
may not be construed to prevent registered em-
ployers who operate as independent contractors 
from employing W nonimmigrants. 
‘‘(4) PAYMENT OF FEES.— 
‘‘(A) IN GENERAL.—A fee related to the 
hiring of a W nonimmigrant required to be paid 
by an employer under this Act shall be paid by 
the employer and may not be deducted from the 
wages or other compensation paid to a W non-
immigrant. 
‘‘(B) EXCLUDED
COSTS.—The cost of 
round trip transportation from a certified 
alien’s home to the location of a registered posi-
tion and the cost of obtaining a foreign pass-
port are not fees required to be paid by the em-
ployer. 
‘‘(5) TAX
RESPONSIBILITIES.—An employer 
shall comply with all applicable Federal, State, and 
local tax laws with respect to each W nonimmigrant 
employed by the employer. 
‘‘(6) PROHIBITED ACTIVITIES.—It shall be un-
lawful for an employer of a W nonimmigrant to in-
timidate, threaten, restrain, coerce, retaliate, dis-
charge, or in any other manner, discriminate against 
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an employee or former employee because the em-
ployee or former employee— 
‘‘(A) discloses information to the employer 
or any other person that the employee or 
former employee reasonably believes dem-
onstrates a violation of this section; or 
‘‘(B) cooperates or seeks to cooperate in an 
investigation or other proceeding concerning 
compliance with the requirements of this sec-
tion. 
‘‘(m) COMPLAINT PROCESS.—The Secretary shall es-
tablish a process for the receipt, investigation, and disposi-
tion of complaints by an aggrieved applicant, employee, 
or nonimmigrant (or a person acting on behalf of such 
applicant, employee, or nonimmigrant) with respect to— 
‘‘(1) the failure of a registered employer to 
meet a condition of this section; or 
‘‘(2) the lay off or nonhiring of a United States 
worker as prohibited under this section. 
‘‘(n) ENFORCEMENT.— 
‘‘(1) IN GENERAL.—The Secretary shall pro-
mulgate regulations for the receipt, investigation, 
and disposition of complaints by an aggrieved W 
nonimmigrant respecting a violation of this section. 
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‘‘(2) FILING
DEADLINE.—No investigation or 
hearing shall be conducted on a complaint con-
cerning a violation under this section unless the 
complaint was filed not later than 6 months after 
the date of such violation. 
‘‘(3) REASONABLE BASIS.—The Secretary shall 
conduct an investigation under this subsection if 
there is reasonable basis to believe that a violation 
of this section has occurred. The process established 
under this subsection shall provide that, not later 
than 30 days after a complaint is filed, the Sec-
retary shall determine if there is reasonable cause to 
find such a violation. 
‘‘(4) NOTICE AND HEARING.— 
‘‘(A) IN
GENERAL.—Not later than 60 
days after the Secretary makes a determination 
of reasonable basis under paragraph (3), the 
Secretary shall issue a notice to the interested 
parties and offer an opportunity for a hearing 
on the complaint, in accordance with section 
556 of title 5, United States Code. 
‘‘(B) HEARING DEADLINE.—Not later than 
60 days after the date of a hearing under this 
paragraph, the Secretary shall make a finding 
on the matter. 
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‘‘(5) ATTORNEY’S FEES.— 
‘‘(A) AWARD.—A complainant who prevails 
in an action under this subsection with respect 
to a claim related to wages or compensation for 
employment, or a claim for a violation of sub-
section (l) or (m), shall be entitled to an award 
of reasonable attorney’s fees and costs. 
‘‘(B) FRIVOLOUS
COMPLAINTS.—A com-
plainant who files a frivolous complaint for an 
improper purpose under this subsection shall be 
liable for the reasonable attorney’s fees and 
costs of the person named in the complaint. 
‘‘(6) POWER OF THE SECRETARY.—The Sec-
retary may bring an action in any court of com-
petent jurisdiction— 
‘‘(A) to seek remedial action, including in-
junctive relief; 
‘‘(B) to recover the damages described in 
this subsection and subsection (o); or 
‘‘(C) to ensure compliance with terms and 
conditions described in subsection (l)(6). 
‘‘(7) OTHER
RIGHTS
OF
EMPLOYEES.—The 
rights and remedies provided to W nonimmigrants 
under this section are in addition to any other con-
tractual or statutory rights and remedies of the 
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workers, and are not intended to alter or affect such 
rights and remedies. 
‘‘(o) PENALTIES.— 
‘‘(1) IN GENERAL.—If, after notice and an op-
portunity for a hearing, the Secretary finds a viola-
tion of this section, the Secretary may impose ad-
ministrative remedies and penalties, including— 
‘‘(A) back wages; 
‘‘(B) benefits; and 
‘‘(C) civil monetary penalties. 
‘‘(2) CIVIL
PENALTIES.—The Secretary may 
impose, as a civil penalty— 
‘‘(A) for a violation of this subsection— 
‘‘(i) a fine in an amount not more 
than $2,000 per violation per affected 
worker and $4,000 per violation per af-
fected worker for each subsequent viola-
tion; 
‘‘(ii) if the violation was willful, a fine 
in an amount not more than $5,000 per 
violation per affected worker; and 
‘‘(iii) if the violation was willful and if 
in the course of such violation a United 
States worker was harmed, a fine in an 
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