Section 1 Short title
This Act may be cited as the “H–2B Returning Worker Exception Act of 2021”.
H–2B Returning Worker Exception Act of 2021
A BILL
To make improvements to the H–2B nonimmigrant worker program, and for other purposes.
Sec. 2 Definitions
For purposes of this Act:
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.
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.
The term “United States worker” means any employee who is—
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
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
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—
by striking “fiscal year 2013, 2014, or 2015” and inserting “1 of the 3 preceding fiscal years”; and
by striking “fiscal year 2016” and inserting “a fiscal year”.
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—
in subsection (c)(13)(B), by striking “$150” and inserting “$350”; and
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
Streamlined H–2B platform—
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—
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;
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;
facilitate communication between employers and agency adjudicators, including by allowing employers to—
receive and respond to notices of deficiency and requests for information;
receive notices of approval and denial; and
request reconsideration or appeal of agency decisions; and
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.
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—
eliminating the need for employers to submit duplicate information and documentation to multiple agencies;
reducing common petition errors, and otherwise improving and expediting the processing of H–2B petitions;
ensuring compliance with H–2B program requirements and the protection of the wages and working conditions of workers; and
eliminating unnecessary government waste.
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.
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—
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;
provide an interface for workers in English, Spanish, and any other language that the Secretary of Labor determines to be appropriate; and
provide for public access of job order certifications.
Sec. 6 Workplace safety
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—
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
be posted at a conspicuous location at the worksite and provided to employees prior to the commencement of labor or services.
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—
protect against sexual harassment and violence, resolve complaints involving harassment or violence, and protect against retaliation against workers reporting harassment or violence; and
contain other provisions necessary for ensuring workplace safety.
Sec. 7 Foreign labor recruiting; prohibition on fees
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.
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.
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
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—
the requirements of this Act and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and
the applicable terms and conditions of employment.
Complaint process—
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—
the requirements of this Act and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and
the applicable terms and conditions of employment.
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.
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.
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.
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.
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.
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—
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;
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;
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
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.
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
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—
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;
the denial rate of visa applications under such section 101(a)(15)(H)(ii) filed by nationals of the country;
the overstay rate of nationals of the country who were admitted to the United States under such section 101(a)(15)(H)(ii);
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—
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
have not reported for work for a period of 5 consecutive workdays without the consent of the employer;
the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of the country; and
such other factors as may serve the United States interest.
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.
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.
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—
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);
evidence that the beneficiary has been admitted to the United States previously in status under such section 101(a)(15)(H)(ii);
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
such other factors as may serve the United States interest.
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
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:
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.
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.
The employment of such a worker is terminated prior to the completion of labor or services for which he or she was hired.
Such a worker has not reported for work for a period of 5 consecutive workdays without the consent of the employer.
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.
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.
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.
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—
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;
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
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.