H–2B Returning Worker Exception Act of 2021
Bill: H.R.3897 | Sponsor: Rep. Cuellar, Henry (D-TX)
Policy area: Immigration

Summary:
H-2B Returning Worker Exception Act of 2021
This bill modifies the H-2B (temporary nonagricultural workers) nonimmigrant visa program, including by exempting certain workers from an annual numerical limit on such visas and requiring civil penalties for program violations.
Under this bill, if a worker seeking a H-2B visa has been counted toward the 66,000 annual cap on such visas in one of the three preceding fiscal years, that worker shall not be counted against the cap again.
Furthermore, the Department of Homeland Security (DHS) must impose a civil monetary penalty on an employer for (1) failing to meet requirements related to an H-2B visa petition, or (2) making a willful misrepresentation of material fact in such a petition.
DHS must also ensure the establishment of an electronic platform (1) for employers to submit and request approval of an H-2B petition, and (2) to act as a single point of access for applicants and the relevant government agencies. The Department of Labor must maintain a publicly available online database of all job orders by H-2B employers.
Furthermore, Labor may take certain actions to enforce program requirements, such as imposing penalties and seeking injunctions.
The bill provides statutory authority for the current practice of limiting the program to workers who are nationals of countries approved by DHS. DHS may make exceptions to this limitation in individual cases if it is in the U.S. interest to do so. DHS shall select approved countries based on various factors, such as the rate of overstay by H-2B visa holders from each country.

To make improvements to the H-2B nonimmigrant worker program, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``H-2B Returning Worker Exception Act 
of 2021''.

SEC. 2. DEFINITIONS.

    For purposes of this Act:
            (1) The term ``H-2B'', when used with respect to a worker 
        or other individual, refers an alien admitted or provided 
        status as a nonimmigrant described in section 
        101(a)(15)H)(ii)(b) of the Immigration and Nationality Act (8 
        U.S.C. 1101(a)(15)(H)(ii)(b)). Such term, when used with 
        respect to a petition, procedure, process, program, or visa, 
        refers to a petition, procedure, process, program, or visa 
        related to admission or provision of status under such section.
            (2) The term ``job order'' means the document containing 
        the material terms and conditions of employment, including 
        obligations and assurances required under this Act or any other 
        law.
            (3) The term ``United States worker'' means any employee 
        who is--
                    (A) a national of the United States (as defined in 
                section 101(a)(22) of the Immigration and Nationality 
                Act (8 U.S.C. 1101(a)(22))); or
                    (B) an alien lawfully admitted for permanent 
                residence, is admitted as a refugee under section 207 
                of such Act (8 U.S.C. 1157), is granted asylum under 
                section 208 of such Act (8 U.S.C. 1158), or is an 
                immigrant otherwise authorized by the immigration laws 
                (as defined in section 101(a)(17) of such Act (8 U.S.C. 
                1101(a)(17))) or the Secretary of Homeland Security to 
                be employed.

SEC. 3. H-2B CAP RELIEF.

    (a) H-2B Numerical Limitations.--Section 214(g)(9)(A) of the 
Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended--
            (1) by striking ``fiscal year 2013, 2014, or 2015'' and 
        inserting ``1 of the 3 preceding fiscal years''; and
            (2) by striking ``fiscal year 2016'' and inserting ``a 
        fiscal year''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on October 1, 2021. If this section is enacted after such 
date, the amendment made by subsection (a) shall take effect as if 
enacted on such date.

SEC. 4. INCREASED SANCTIONS FOR WILLFUL MISREPRESENTATION OR FAILURE TO 
              MEET THE REQUIREMENTS FOR PETITIONING FOR AN H-2B WORKER.

    Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) 
is amended--
            (1) in subsection (c)(13)(B), by striking ``$150'' and 
        inserting ``$350''; and
            (2) in subsection (c)(14)(A)(i), by striking ``may, in 
        addition to any other remedy authorized by law, impose such 
        administrative remedies (including civil monetary penalties in 
        an amount not to exceed $10,000 per violation)'' and inserting 
        ``shall impose civil monetary penalties in an amount of not 
        less than $1,000 but not to exceed $10,000 per violation, in 
        addition to any other remedy authorized by law, and may impose 
        such other administrative remedies''.

SEC. 5. REDUCTION OF PAPERWORK BURDEN.

    (a) Streamlined H-2B Platform.--
            (1) In general.--Not later than 12 months after the date of 
        the enactment of this Act, the Secretary of Homeland Security, 
        in consultation with the Secretary of Labor, the Secretary of 
        State, and the Administrator of the United States Digital 
        Service, shall ensure the establishment of an electronic 
        platform through which employers may submit and request 
        approval of an H-2B petition. Such platform shall--
                    (A) serve as a single point of access for employers 
                to input all information and supporting documentation 
                required for obtaining labor certification from the 
                Secretary of Labor and the adjudication of the petition 
                by the Secretary of Homeland Security;
                    (B) serve as a single point of access for the 
                Secretary of Homeland Security, the Secretary of Labor, 
                the Secretary of State, and State workforce agencies 
                concurrently to perform their respective review and 
                adjudicatory responsibilities in the petition process;
                    (C) facilitate communication between employers and 
                agency adjudicators, including by allowing employers 
                to--
                            (i) receive and respond to notices of 
                        deficiency and requests for information;
                            (ii) receive notices of approval and 
                        denial; and
                            (iii) request reconsideration or appeal of 
                        agency decisions; and
                    (D) provide information to the Secretary of State 
                and the Secretary of Homeland Security necessary for 
                the efficient and secure processing of H-2B visas and 
                applications for admission.
            (2) Objectives.--In developing the platform described in 
        paragraph (1), the Secretary of Homeland Security, in 
        consultation with the Secretary of Labor, the Secretary of 
        State, and the Administrator of the United States Digital 
        Service, shall make an effort to streamline and improve the H-
        2B process, including by--
                    (A) eliminating the need for employers to submit 
                duplicate information and documentation to multiple 
                agencies;
                    (B) reducing common petition errors, and otherwise 
                improving and expediting the processing of H-2B 
                petitions;
                    (C) ensuring compliance with H-2B program 
                requirements and the protection of the wages and 
                working conditions of workers; and
                    (D) eliminating unnecessary government waste.
            (3) Enhancement of existing platform.--If the Secretary of 
        Homeland Security, the Secretary of Labor, the Secretary of 
        State, or the State workforce agencies already have an 
        electronic platform with respect to the H-2B process on the 
        date of the enactment of this Act, they shall enhance it as 
        necessary so as to ensure that adjudication of an H-2B petition 
        may be conducted electronically as specified in this section.
    (b) Online Job Registry.--The Secretary of Labor shall maintain a 
publicly-accessible online job registry and database of all job orders 
submitted by H-2B employers. The registry and database shall--
            (1) be searchable using relevant criteria, including the 
        types of jobs needed to be filled, the dates and locations of 
        need, and the employers named in the job order;
            (2) provide an interface for workers in English, Spanish, 
        and any other language that the Secretary of Labor determines 
        to be appropriate; and
            (3) provide for public access of job order certifications.

SEC. 6. WORKPLACE SAFETY.

    (a) Worksite Safety and Compliance Plan.--If the employer is 
seeking to employ an H-2B worker pursuant to this Act and the 
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), the employer 
shall maintain an effective worksite safety and compliance plan to 
ensure safety and reduce workplace illnesses, injuries and fatalities. 
Such plan shall--
            (1) be in writing in English and, to the extent necessary, 
        any language common to a significant portion of the workers if 
        they are not fluent in English; and
            (2) be posted at a conspicuous location at the worksite and 
        provided to employees prior to the commencement of labor or 
        services.
    (b) Contents of Plan.--The Secretary of Labor shall establish by 
regulation the minimum requirements for the plan described in 
subsection (a). Such plan shall include measures to--
            (1) protect against sexual harassment and violence, resolve 
        complaints involving harassment or violence, and protect 
        against retaliation against workers reporting harassment or 
        violence; and
            (2) contain other provisions necessary for ensuring 
        workplace safety.

SEC. 7. FOREIGN LABOR RECRUITING; PROHIBITION ON FEES.

    (a) Foreign Labor Recruiting.--If an employer has engaged any 
foreign labor contractor or recruiter (or any agent of such a foreign 
labor contractor or recruiter) in the recruitment of H-2B workers, the 
employer shall disclose the identity and geographic location of such 
person or entity to the Secretary of Labor in accordance with the 
regulations of the Secretary.
    (b) Prohibition Against Employees Paying Fees.--Neither the 
employer nor its agents shall seek or receive payment of any kind from 
any worker for any activity related to the H-2B petition process, 
including payment of the employer's attorneys' fees, application fees, 
or recruitment costs. An employer and its agents may receive 
reimbursement for costs that are the responsibility, and primarily for 
the benefit, of the worker, such as government-required passport fees.
    (c) Third Party Contracts.--The employer shall contractually forbid 
any foreign labor contractor or recruiter (or any agent of a foreign 
labor contractor or recruiter) who the employer engages, either 
directly or indirectly, in the recruitment of H-2B workers to seek or 
receive payments or other compensation from prospective employees. Upon 
learning that a foreign labor contractor or recruiter has collected 
such payments, the employer shall terminate any contracts with the 
foreign labor contractor or recruiter.

SEC. 8. PROGRAM INTEGRITY MEASURES.

    (a) Enforcement Authority.--With respect to the H-2B program, the 
Secretary of Labor is authorized to take such actions against 
employers, including imposing appropriate penalties and seeking 
monetary and injunctive relief and specific performance of contractual 
obligations, as may be necessary to ensure compliance with--
            (1) the requirements of this Act and the Immigration and 
        Nationality Act (8 U.S.C. 1101 et seq.); and
            (2) the applicable terms and conditions of employment.
    (b) Complaint Process.--
            (1) Process.--With respect to the H-2B program, the 
        Secretary of Labor shall establish a process for the receipt, 
        investigation, and disposition of complaints alleging failure 
        of an employer to comply with--
                    (A) the requirements of this Act and the 
                Immigration and Nationality Act (8 U.S.C. 1101 et 
                seq.); and
                    (B) the applicable terms and conditions of 
                employment.
            (2) Filing.--Any aggrieved person or organization, 
        including a bargaining representative, may file a complaint 
        referred to in paragraph (1) not later than 2 years after the 
        date of the conduct that is the subject of the complaint.
            (3) Complaint not exclusive.--A complaint filed under this 
        subsection is not an exclusive remedy and the filing of such a 
        complaint does not waive any rights or remedies of the 
        aggrieved party under this law or other laws.
            (4) Decision and remedies.--If the Secretary of Labor 
        finds, after notice and opportunity for a hearing, that the 
        employer failed to comply with the requirements of this Act, 
        the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), or 
        the terms and conditions of employment, the Secretary of Labor 
        shall require payment of unpaid wages, unpaid benefits, 
        damages, and civil money penalties. The Secretary is also 
        authorized to impose other administrative remedies, including 
        disqualification of the employer from utilizing the H-2B 
        program for a period of up to 5 years in the event of willful 
        or multiple material violations. The Secretary is authorized to 
        permanently disqualify an employer from utilizing the H-2B 
        program upon a subsequent finding involving willful or multiple 
        material violations.
            (5) Disposition of penalties.--To the extent provided in 
        advance in appropriations Acts, civil penalties collected under 
        this subsection shall be used by the Secretary of Labor for the 
        administration and enforcement of the provisions of this 
        section.
            (6) Statutory construction.--Nothing in this subsection may 
        be construed as limiting the authority of the Secretary of 
        Labor to conduct an investigation in the absence of a 
        complaint.
            (7) Retaliation prohibited.--It is a violation of this 
        subsection for any person to intimidate, threaten, restrain, 
        coerce, blacklist, discharge, or in any other manner 
        discriminate against, or to cause any person to intimidate, 
        threaten, restrain, coerce, blacklist, or in any manner 
        discriminate against, an employee, including a former employee 
        or an applicant for employment, because the employee--
                    (A) has disclosed information to the employer, or 
                to any other person, that the employee reasonably 
                believes evidences a violation of the immigration laws 
                relating to the H-2B program, or any rule or regulation 
                relating to such program;
                    (B) has filed a complaint concerning the employer's 
                compliance with the immigration laws relating to the H-
                2B program, or any rule or regulation relating to such 
                program;
                    (C) cooperates or seeks to cooperate in an 
                investigation or other proceeding concerning the 
                employer's compliance with the immigration laws 
                relating to the H-2B program, or any rule or regulation 
                relating to such program; or
                    (D) has taken steps to exercise or assert any right 
                or protection under the provisions of this section, or 
                any rule or regulation pertaining to this section, or 
                any other relevant Federal, State, or local law.
    (c) Interagency Communication.--The Secretary of Labor, in 
consultation with the Secretary of Homeland Security, Secretary of 
State and the Equal Employment Opportunity Commission, shall establish 
mechanisms by which the agencies and their components share 
information, including by public electronic means, regarding 
complaints, studies, investigations, findings and remedies regarding 
compliance by employers with the requirements of the H-2B program and 
other employment-related laws and regulations.

SEC. 9. PROGRAM ELIGIBILITY.

    (a) In General.--A petition filed by an employer under subsection 
(c)(1) initially to grant an alien nonimmigrant status under section 
101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)(ii)(b)), or to extend or change to such status, may be 
approved only for nationals of countries that the Secretary of Homeland 
Security has designated as participating countries, with the 
concurrence of the Secretary of State, in a notice published in the 
Federal Register, taking into account for each such country factors, 
including--
            (1) the fraud rate relating to petitions under section 
        101(a)(15)(H)(ii) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)) 
        filed for by nationals of the country and visa applications 
        under such section filed by nationals of the country;
            (2) the denial rate of visa applications under such section 
        101(a)(15)(H)(ii) filed by nationals of the country;
            (3) the overstay rate of nationals of the country who were 
        admitted to the United States under such section 
        101(a)(15)(H)(ii);
            (4) the number of nationals of the country who were 
        admitted to the United States under such section 
        101(a)(15)(H)(ii) and who were reported by their employers to--
                    (A) have failed to report to work within 5 workdays 
                of the employment start date on the petition or within 
                5 workdays of the date on which the worker is admitted 
                into the United States pursuant to the petition, 
                whichever is later; or
                    (B) have not reported for work for a period of 5 
                consecutive workdays without the consent of the 
                employer;
            (5) the number of final and unexecuted orders of removal 
        against citizens, subjects, nationals, and residents of the 
        country; and
            (6) such other factors as may serve the United States 
        interest.
    (b) Limitation.--A country may not be included on the list 
described in subsection (a) if the country denies or unreasonably 
delays the repatriation of aliens who are subject to a final order of 
removal and who are citizens, subjects, nationals or residents of that 
country.
    (c) Statistics.--The Secretary of Homeland Security shall include 
in the notice described in subsection (a), for each country included in 
the list of participating countries, the statistics referenced in 
paragraphs (1) through (5) of that subsection, if available, for the 
immediately preceding fiscal year.
    (d) National From a Country Not on the List.--A national from a 
country not on the list described in subsection (a) may be a 
beneficiary of an approved petition under such section 
101(a)(15)(H)(ii) upon the request of a petitioner or potential 
petitioner, if the Secretary of Homeland Security, in his sole and 
unreviewable discretion, determines that it is in the United States 
interest for that alien to be a beneficiary of such petition. 
Determination of such a United States interest will take into account 
factors, including but not limited to--
            (1) evidence from the petitioner demonstrating that a 
        worker with the required skills is not available from among 
        foreign workers from a country currently on the list described 
        in subsection (a);
            (2) evidence that the beneficiary has been admitted to the 
        United States previously in status under such section 
        101(a)(15)(H)(ii);
            (3) the potential for abuse, fraud, or other harm to the 
        integrity of the visa program under such section 
        101(a)(15)(H)(ii) through the potential admission of a 
        beneficiary from a country not currently on the list; and
            (4) such other factors as may serve the United States 
        interest.
    (e) Duration.--Once published, any designation of participating 
countries pursuant to subsection (a) shall be effective for one year 
after the date of publication in the Federal Register and shall be 
without effect at the end of that one-year period.

SEC. 10. H-2B EMPLOYER NOTIFICATION REQUIREMENT.

    (a) In General.--An employer of one or more H-2B workers shall, 
within three business days, make electronic notification, in the manner 
prescribed by the Secretary of Homeland Security, of the following 
events:
            (1) Such a worker fails to report to work within 5 workdays 
        of the employment start date on the petition or within 5 
        workdays of the date on which the worker is admitted into the 
        United States pursuant to the petition, whichever is later.
            (2) The labor or services for which such a worker was hired 
        is completed more than 30 days earlier than the employment end 
        date stated on the petition.
            (3) The employment of such a worker is terminated prior to 
        the completion of labor or services for which he or she was 
        hired.
            (4) Such a worker has not reported for work for a period of 
        5 consecutive workdays without the consent of the employer.
    (b) Evidence.--An employer shall retain evidence of a notification 
described in subsection (a) and make it available for inspection by 
officers of the Department of Homeland Security for a 1-year period 
beginning on the date of the notification.
    (c) Penalty.--The Secretary shall impose civil monetary penalties, 
in an amount not less than $500 per violation and not to exceed $1,000 
per violation, as the Secretary determines to be appropriate, for each 
instance where the employer cannot demonstrate that it has complied 
with the notification requirements, unless, in the case of an untimely 
notification, the employer demonstrates with such notification that 
good cause existed for the untimely notification, and the Secretary of 
Homeland Security, in the Secretary's discretion, waives such penalty.
    (d) Process.--If the Secretary has determined that an employer has 
violated the notification requirements in subsection (a), the employer 
shall be given written notice and 30 days to reply before being given 
written notice of the assessment of the penalty.
    (e) Failure To Pay Penalty.--If a penalty described in subsection 
(c) is not paid within 10 days of assessment, no nonimmigrant or 
immigrant petition may be processed for that employer, nor may that 
employer continue to employ nonimmigrants, until such penalty is paid.

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated for fiscal year 2022 and 
each fiscal year thereafter such sums as may be necessary for the 
purposes of--
            (1) recruiting United States workers for labor or services 
        which might otherwise be performed by H-2B workers, including 
        by ensuring that State workforce agencies are sufficiently 
        funded to fulfill their functions under the H-2B program;
            (2) enabling the Secretary of Labor to make determinations 
        and certifications under the H-2B program in accordance with 
        this Act and the Immigration and Nationality Act (8 U.S.C. 1101 
        et seq.), including the operation of the publicly-accessible 
        online job registry and database of job orders described in 
        section 5(b) of this Act; and
            (3) monitoring the terms and conditions under which H-2B 
        workers (and United States workers employed by the same 
        employers) are employed in the United States.
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