IN THE SENATE OF THE UNITED STATES
November 2, 2017
Ms. Hirono (for herself and Mr. Schatz) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To authorize the temporary entry into the United States of alien crewmen employed on longline fishing vessels originating in Hawaii, to ensure that such aliens receive reasonable wages and working conditions, and to provide for appropriate enforcement and oversight of fishing companies employing such aliens.
This Act may be cited as the
Sustainable Fishing Workforce Protection Act.
In this Act:
Association of employers
The term association of employers means any nonprofit or membership association of owners, charterers, or managing operators of a longline fishing vessel, or the legal representative of any such individual or entity, that has its home port or an operating base in the State of Hawaii.
The term D–3 nonimmigrant means a nonimmigrant described in section 101(a)(15)(D)(iii) of the Immigration and Nationality Act, as added by section 3(a)(2).
The term employer means the owner, charterer, or managing operator of a longline fishing vessel, or the legal representative of any such individual or entity, that has its home port or an operating base in the State of Hawaii.
Longline fishing vessel
The term longline fishing vessel means a vessel which—
is operating in accordance with section 8103(b)(2)(B) of title 46, United States Code;
has its home port or an operating base in the State of Hawaii; and
uses pelagic longline (as defined in section 600.10 of title 50, Code of Federal Regulations) in its fishing operations.
Nonimmigrant visa for alien crewmen on fishing vessels operating out of Hawaii
Section 101(a)(15)(D) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(D)) is amended—
in clause (ii), by adding
and at the end; and
by adding at the end the following:
an alien crewman serving in good faith as such in any capacity required for normal operations and service aboard a longline fishing vessel having its home port or an operating base in Hawaii who intends to land temporarily in Hawaii solely in pursuit of work as a crewman and to depart from Hawaii with the vessel on which the crewman arrived or some other vessel or aircraft;
Treatment of departures
In the administration of section 101(a)(15)(D) of the Immigration and Nationality Act, as added by subsection (a), an alien crewman shall be considered to have departed from Hawaii, Guam, or the Commonwealth of the Northern Mariana Islands after leaving the territorial waters thereof, without regard to whether the alien arrives in a foreign state before returning to Hawaii, Guam, or the Commonwealth of the Northern Mariana Islands.
A visa issued to an alien crewman under section 101(a)(15)(D)(iii) of the Immigration and Nationality Act—
shall remain in effect during the 3-year period beginning on the date on which the visa is issued by the Secretary of State; and
may be renewed for successive 3-year periods under the same terms and conditions applicable to the issuance of a new visa to a nonimmigrant under such section.
Effect of termination of employment on visa status
Except as provided under paragraph (2), a D–3 nonimmigrant whose employment is lawfully terminated by his or her employer, or by an association of employers, before the end of the period described in subsection (c) shall depart the United States not later than 10 days after the effective date of such termination. The employer or association of employers, as applicable, shall pay for the cost of transportation and subsistence necessary to return the alien to his or her country of origin.
Change in employment
An employer or association of employers may employ a D–3 nonimmigrant described in paragraph (1) or a D–3 nonimmigrant who amicably terminates employment with another employer if the employer or association—
enters into a written agreement with the D–3 nonimmigrant that complies with the requirements under section 4; and
submits a copy of such agreement to the Secretary of Homeland Security, the Secretary of Labor, and such State and local entities as may be required for compliance with State and local licensing and oversight of the employer.
Petition requirements and employer responsibilities
An employer or association of employers may not employ an alien crewman on a longline fishing vessel unless—
the employer or association has filed a petition with the Secretary of State to employ the alien as a D–3 nonimmigrant on a longline fishing vessel; and
the Secretary of State has approved the petition.
The petition required under paragraph (1) shall be in such form as determined by the Secretary of State, in consultation with the Secretary of Homeland Security, and shall include—
the name, contact information, and mailing address of the place of business of—
the employer; or
if the petition is submitted by an association of employers, the employers that are members of the association;
an attestation that workers who will be issued visas under section 101(a)(15)(D)(iii) of the Immigration and Nationality Act, as added by section 3(a), are being employed in accordance with section 8103(b)(2)(B) of title 46, United States Code;
the number of visas sought by the employer or association of employers;
the name, place of business, and description of services provided by any foreign third party engaged by the employer or association of employers; and
such other information as the Secretary of State deems necessary.
Upon receipt of a completed petition from an employer pursuant to paragraph (1), the Secretary of State is authorized to issue the requested number of D–3 nonimmigrant visas to aliens to meet the employer’s need.
Role of associations of employers
Filing by associations of employers
A petition to employ an alien or aliens as D–3 nonimmigrants under this subsection may be filed by an association of employers.
Treatment of associations acting as employers
If an association is a joint or sole employer of D–3 nonimmigrants, the visas issued pursuant to an approved petition submitted by the association under this subsection may be used for the certified job opportunities of any of its members and such workers may be transferred among its members.
Employers or associations of employers shall petition the Secretary of State for temporary nonimmigrant visas for all alien crewmembers employed by the employer or association as of the date of the enactment of this Act. The Secretary of State shall issue such temporary visas to such alien crewmembers in accordance with this paragraph.
National security reviews
The Secretary shall ensure that the presence of alien crewmembers for whom D–3 nonimmigrant visas are sought under this subsection does not pose a national security threat.
In evaluating the potential national security threat of alien crewmembers under this subparagraph, the Secretary may—
conduct individual or group interviews of alien crewmembers in Hawaii; and
take any other action the Secretary determines necessary to determine whether alien crewmembers pose a national security threat.
If the Secretary determines that an alien crewmember poses a national security threat, the Secretary shall take appropriate action in accordance with Federal law.
The Secretary shall conduct interviews and related evaluations under this subparagraph as expeditiously as possible to minimize the disruption to the commercial fishing workforce.
Period of validity
Visas issued under subparagraph (A) shall be valid for the longer of—
1 year; or
the period beginning on the date of issuance and ending 90 days after the date on which the Secretary of State issues regulations or other written guidance relating to the issuance of visas to D–3 immigrants in accordance with section 101(a)(15)(D)(iii) of the Immigration and Nationality Act, as added by section 3(a).
Not later than 90 days after the issuance of the regulations or other written guidance described in subparagraph (C)(ii) or within an alternate timeframe determined by the Secretary of State, employers and associations of employers shall petition for D–3 nonimmigrant visas for all of their alien crewmembers, including those who were issued temporary visas under subparagraph (A). Employers or associations of employers may not seek compensation or reimbursement from D–3 nonimmigrants for costs associated with applications for transitional visas or D–3 nonimmigrant visas.
After the approval of a petition and the issuance of D–3 nonimmigrant visas, but before proceeding on a voyage of a longline fishing vessel, an employer or association of employers shall enter into a written agreement directly with each D–3 nonimmigrant, in accordance with section 10601 of title 46, United States Code, that describes—
the responsibilities of, and costs to be covered by, the employer or association of employers during the contract period;
the job duties to be performed and the expected work during the contract period;
the terms of the wage, share, or other compensation the employer or association of employers will provide to the employee during the contract period;
the responsibility of the employer or association of employers—
to pay for or reimburse the employee in his or her first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the Government) incurred by the employee, other than passport expenses or other charges primarily for the benefit of the employee;
to pay all recruitment costs; and
to provide, or reimburse the employee for the costs of, transportation and subsistence to and from the United States;
the terms of payment and provision or reimbursement for transportation and subsistence costs from the United States if the worker is dismissed or otherwise fails to complete contract term;
the crewmember’s rights (with respect to occupational safety and health protections)—
to freely report any labor, safety, or health abuses without fear of retaliation;
to have access to remediation, as needed;
to free and timely access to their passports or other identity documents; and
to adequate living conditions aboard the vessel, including access to food, water, medical care, and other necessary provisions;
a summary of the remedies for violations of the terms of the labor agreement available to the employee in accordance with paragraph (2); and
other agreed terms and conditions of employment.
Enforcement of agreements
Employers or associations of employers and D–3 nonimmigrants have the right to avail themselves of appropriate legal recourse in the United States, including voluntary arbitration, in the event of disputes arising due to nonperformance of any provision of an agreement.
Language barriers and recordkeeping
Employers or associations of employers shall secure such language services as may be necessary to ensure that D–3 nonimmigrants understand the terms of the labor agreement described in paragraph (1) that is presented to them before embarking on their first voyage on a longline fishing vessel and may not seek compensation or reimbursement from D–3 nonimmigrants for the provision of such services.
Record retention requirements
A signed copy of each labor agreement shall be kept on file by the employer in English and in the language of the D–3 nonimmigrant. Copies of signed labor agreements shall be submitted to the Secretary of Homeland Security, the Secretary of Labor, and such State and local entities as may be required for compliance with State and local licensing and oversight of the employer or association of employers.
Recruitment costs and oversight
Employers or associations of employers shall pay or reimburse each D–3 nonimmigrant, in his or her first workweek, for all visa, visa processing, border crossing, and other related fees (including those mandated by the Government) incurred by the D–3 nonimmigrant, but are not required to reimburse D–3 nonimmigrants for passport expenses or other charges primarily for the benefit of the D–3 nonimmigrants.
Other costs and oversight
Employers or associations of employers may engage agents or firms in the United States or elsewhere to recruit D–3 nonimmigrants only if the employer or association—
solely assumes all costs associated with such recruitment services, including—
fees for the employers’ attorneys and agents;
placement and referral fees; and
other fees required to be paid directly to the third party providing recruitment services; and
discloses the agents or firms used for such recruitment to the Secretary of State.
Report on third-party recruitment practices
The Secretary of Labor shall review and evaluate the laws and business practices governing third-party recruitment of workers in Southeast Asian countries to determine whether third-party recruitment firms in such countries engage in—
forced labor practices, including debt bondage; or
practices that violate International Labour Organization standards or other relevant standards with respect to the recruitment of workers for jobs in the United States.
The Secretary of Labor shall submit a report to Congress that—
summarizes the findings of the review conducted pursuant to clause (i); and
suggested legislation or other recommendations for Congress and executive branch agencies; or
recommendations for private sector businesses regarding best practices for avoiding third-party recruitment firms in countries that the Secretary determines allow for, or engage in, forced labor practices that violate international law or other relevant standards and practices.
Enforcement and oversight
The Commandant of the Coast Guard, in conjunction with the Secretary of Labor, shall ensure that employers operating vessels that employ D–3 nonimmigrants are subject to regular dockside examinations not less than biennially to ensure compliance with applicable laws and regulations affecting the safety and health of seamen, including D–3 nonimmigrants, aboard longline fishing vessels that have their home port or an operating base in Hawaii.
The Secretary of Homeland Security, in conjunction with the Secretary of Labor—
may conduct additional examinations, as they consider necessary to ensure compliance with labor agreement terms and conditions or health and safety conditions; and
shall conduct additional examinations upon receipt of information from a D–3 nonimmigrant, or from such State or local entity as may be responsible for licensing and oversight of the employer, that an employer may be violating the requirements under this Act or applicable health and safety requirements.
Penalties for noncompliance
The Secretary of Labor and the Secretary of Homeland Security are authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to ensure employer compliance with the terms and conditions of employment required under this Act.
The Secretary of State, the Secretary of Homeland Security, and the Secretary of Labor are authorized to issue such regulations and written guidance as may be necessary to carry out the activities required under this Act.
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this Act.