H. R. 2004
IN THE HOUSE OF REPRESENTATIVES
April 6, 2017
Mr. Chabot (for himself, Mr. Chaffetz, Mr. Harris, Mr. Yoder, and Mr. Gibbs) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To modify the provisions of the Immigration and Nationality Act relating to nonimmigrant visas issued under section 101(a)(15)(H)(ii)(b) of such Act, and for other purposes.
This Act may be cited as the
Strengthen Employment And Seasonal Opportunities Now (SEASON) Act.
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 to read as follows:
Subject to subparagraphs (B) and (C), an alien who has already been counted toward the numerical limitation of paragraph (1)(B) during a fiscal year shall not again be counted toward such limitation during each succeeding consecutive fiscal year in which the alien is issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(b). Such an alien shall be considered a returning worker.
The amendment made by subsection (a) shall take effect as if enacted on January 1, 2017.
H–2B temporary non-agricultural work visa program
Section 214(g)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)) is amended by adding at the end the following:
For purposes of section 101(a)(15)(H)(ii)(b), the term
other temporary service or labor means that an employer’s need for labor will last not more than 1 year and is a seasonal, peak load, or intermittent need, unless it is a one-time occurrence lasting not longer than 3 years. For purposes of the preceding sentence, a
seasonal need for labor is a need for labor that lasts not longer than 10 months.
Admission of temporary H–2B workers
Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:
Admission of temporary H–2B workers
In this section:
H–2B worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(b).
United States worker means any worker who is—
a citizen or national of the United States; or
an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized by this Act to be employed.
displace means to lay off a worker from a job that is essentially equivalent to the job for which an H–2B worker is sought. A job shall not be considered to be ‘essentially equivalent’ to another job unless the job—
involves essentially the same responsibilities as such other job;
was held by a United States worker with substantially equivalent qualifications and experience; and
is located in the same area of employment as the other job.
means to cause a worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in subsection (b)(2)(G)); and
does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
full time means 30 or more hours per week, except that where a State or an established practice in an industry has developed a definition of full-time employment for any occupation that is less than 30 hours per week, that definition shall have precedence.
prevailing wage means—
if the job opportunity is covered by a collective bargaining agreement that was negotiated at arms’ length between the union and the employer, the wage rate set forth in the collective bargaining agreement;
if the H–2B worker is a professional athlete whose job opportunity is covered by professional sports league rules or regulations, the wage set forth in section 212(p)(2); and
if subparagraphs (A) and (B) do not apply, at the employer’s option—
the wage rate provided by the Department of Homeland Security that reflects the mean wage of workers similarly employed at the skill level in the area of employment based on Bureau of Labor Statistics data; or
the wage rate indicated by a wage survey prepared by an entity other than the Federal Government where—
the survey data was collected within 24 months;
the survey was published within the prior 24 months;
the employer’s job description adequately matches the job description in the survey;
the survey reflects the area of intended employment, if there are substantially comparable jobs in the area of intended employment;
the survey is across industries that employ workers in the occupation;
the wage determination reflects the mean wage of workers similarly employed (and, at the employer’s discretion, at the same skill level) in the area of intended employment; and
the survey identifies a statistically valid methodology that was used to collect the data.
An employer that seeks to employ an alien as an H–2B worker shall file with the Secretary of Homeland Security a petition (and shall not be required to make any additional filings with the Secretary of Labor).
In the petition, the employer shall include the following:
The number of named and unnamed H–2B workers the employer is seeking to employ.
The reason for the employer’s temporary (consistent with section 214(g)(9)(D)) and full time need for the H–2B workers and the occupations sought.
The area of employment and worksites of the H–2B workers, except that for itinerant industries that do not operate in a single fixed-site location, an employer shall provide a list of work locations.
The time period during which the H–2B workers will be needed (the
work period), including whether actual entry will be staggered.
In the petition, the employer shall attest to the following:
The employer’s need for nonagricultural services or labor is temporary (consistent with section 214(g)(9)(D)), and full time.
The work period, reason for temporary need, and number of positions being requested have been truly and accurately stated in the petition.
The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment.
The employer will provide to each H–2B worker covered by the petition, prior to the submission of the H–2B worker’s visa application, written disclosure of the terms and conditions of their employment.
The employer conducted recruitment for United States workers consistent with paragraph (4) before filing the petition and was unsuccessful in locating sufficient qualified United States workers for the job opportunity for which the H–2B workers are sought.
The employer will provide or reimburse transportation expenses to an H–2B worker consistent with the following rules:
If an H–2B worker completes 50 percent of the work period set forth in the petition, the employer shall pay the H–2B worker for the reasonable costs (including daily subsistence) incurred by the worker for transportation from the United States consulate that issued their visa, or, if already lawfully present in the United States in H–2B status or otherwise, from their previous place of residence in the United States, to the place of their employment as an H–2B worker.
In addition to an employer’s obligations under section 214(c)(5)(A), if an H–2B worker completes the work period set forth in the petition, and is leaving the United States, the employer shall pay the H–2B worker for the reasonable costs (including daily subsistence) incurred by the worker for transportation from the place of their employment as an H–2B worker to the United States consulate that issued their visa.
The employer has not and will not displace United States workers employed by the employer during the period of employment of the H–2B workers and for a period of 60 days preceding such period in the occupation and at the area of employment set forth in the petition.
The specific job opportunity that is the subject of the petition is not vacant because the former workers in that specific job are on strike or locked out in the course of a labor dispute.
The employer shall pay the H–2B workers, and any United States worker hired in response to the recruitment required by subparagraph (E), the greatest of—
the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question;
the applicable Federal, State, or local minimum wage, whichever is greatest; or
the prevailing wage level for the occupational classification in the area of employment.
The employer shall notify the Secretary of Homeland Security within 2 work days of—
an H–2B worker failing to report for work within 5 work days after the employment start date stated on the petition;
the labor or services for which the H–2B worker was hired being completed more than 30 days early; or
the employer discovering that an H–2B worker has failed to report for work at the regularly scheduled time for 5 or more consecutive working days without the consent of the employer.
has not collected and will not collect any job placement fee, payment for any activity related to preparing or filing the petition, or other compensation from a beneficiary of an H–2B petition as a condition of an offer of employment or a condition of H–2B employment (other than any government-mandated passport, visa, or inspection fees);
has contractually forbidden any agent, attorney, facilitator, recruiter, or similar employment service from collecting such fees; and
shall ensure that the fees are reimbursed in full, if at any point the employer learns or has reason to know that any agent, attorney, facilitator, recruiter, or similar employment service has been paid such fees.
Effect of notice
An employer who notifies the Secretary of Homeland Security in accordance with paragraph (3)(J) may designate an eligible alien to replace an H–2B worker who fails to report for work notwithstanding the numerical limitation in section 214(g)(1)(B).
The recruitment required by paragraph (3)(E) is satisfied if the employer—
prior to filing the petition, placed a local job order with the State workforce agency serving the local area or areas where the work will be performed (or in the case of an itinerant employer, where the job is to begin), except that nothing in this clause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations. The State workforce agency shall post the job order on its official agency website for a minimum of 30 days and not later than 3 days after receipt using the employment statistics system authorized under section 15 of the Wagner-Peyser Act (29 U.S.C. 49l–2);
offered or will offer United States workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H–2B workers;
does not impose on recruited United States workers any restrictions or obligations which will not be imposed on the employer’s H–2B workers; and
has offered or will offer the job for which the H–2B worker(s) are sought, unless the employer has a lawful, job-related reason not to do so, to any eligible United States worker who—
is qualified for the job; and
will be available at the time and place of need.
The requirement to offer a job to a United States worker ceases to apply as of the date the petition is approved.
Acceptance of petitions
An employer may file a petition during the period that begins on the 90th day, and ends on the 51st day, before the first date the employer requires the labor or services of a petitioned-for H–2B worker.
Adjudication of petitions
The Secretary of Homeland Security—
shall approve the petition if the Secretary determines that the employer—
has established that the need for the nonagricultural services or labor to be performed is temporary in nature and that the number of worker positions being requested is justified and represents bona fide job opportunities;
made the attestations required in subsection (b); and
has complied with all other requirements of this section; and
shall submit notice to the petitioner of approval or nonapproval not later than the later of 45 days prior to the first date the employer requires the labor or services of a petitioned-for H–2B worker, or 21 days following the date the employer files a petition for the H–2B worker.
Expedited administrative appeals
The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure for the review of a denial of a petition under this section by the Secretary, which may include, at the petitioner’s request, a de novo administrative hearing regarding the denial of a petition at which new evidence may be introduced.
Admission of an H–2B worker
An H–2B worker shall be admitted to the United States for the duration of the work period in the petition, plus a period of up to 10 days before the work period begins and 10 days after the work period ends. An H–2B worker is not authorized to be employed except during the work period set forth in the petition.
Limitation on an H–2B worker’s stay in status
An H–2B worker who has spent 3 years in the United States under section 101(a)(15)(H) and (L) may not seek extension of stay, change status, or be readmitted to the United States pursuant to these provisions of such section unless the alien has resided and been physically present outside the United States for the immediately preceding 3 months. This limitation shall not apply to aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year.
An employer is not required to provide housing or a housing allowance to an H–2B worker.
Section 214(c)(14) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(14)) is amended—
by striking subparagraph (B); and
by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively.
The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 218 the following:
218A. Admission of temporary H–2B workers.
Eligibility for Federal public benefits and refundable tax credits
Federal public benefits
An H–2B worker (as defined in section 218A(a)(1) of the Immigration and Nationality Act, as inserted by section 3 of this Act)—
is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986;
shall be subject to the rules applicable to individuals who are not lawfully present set forth in subsection (e) of such section; and
shall be subject to the rules applicable to individuals who are not lawfully present set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C. 18071(e)).
Refundable tax credits
An H–2B worker (as defined in section 218A(a)(1) of the Immigration and Nationality Act, as inserted by section 3 of this Act) shall not be allowed any credit under section 24 or 32 of the Internal Revenue Code of 1986. In the case of a joint return, no credit shall be allowed under either such section if both spouses are such a worker or alien.
The Department of Labor H–2B program regulations published at 73 Fed. Reg. 78020 et seq. (2008) shall be in force for all petitions submitted under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) beginning on the date of the enactment of this Act until the effective date of regulations implementing this Act. Not later than 12 months after the date of the enactment of this Act, the Secretary of Homeland Security shall promulgate regulations, in accordance with the notice and comment provisions of section 553 of title 5, United States Code, to implement the Secretary’s duties under this Act. The Secretary of Homeland Security shall have the exclusive authority to make rules to implement this Act.