IN THE SENATE OF THE UNITED STATES
March 30, 2017
Mr. Tillis (for himself, Mr. King, Mr. Thune, Ms. Collins, Mr. Rounds, Mr. Cornyn, Ms. Murkowski, and Mr. Blunt) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend the Immigration and Nationality Act to establish an H–2B temporary non-agricultural work visa program, and for other purposes.
This Act may be cited as the
Save Our Small and Seasonal Businesses Act of 2017.
In this Act:
The term conditional approval means, with respect to a petition for admission of H–2B nonimmigrants, the Secretary has determined that such petition has met all the conditions under paragraphs (2) and (6) of section 214.2(h) of title 8, Code of Federal Regulations (or similar successor regulation), and is approved subject to determining whether visas are available for such nonimmigrants within the statutory cap.
The term final approval means, with respect to a petition for admission of H–2B nonimmigrants, the Secretary has determined that such petition has met all the conditions under section 655.11 of title 20, Code of Federal Regulations (or similar successor regulation), and that visas are available for such nonimmigrants within the statutory cap.
The term H–2B nonimmigrant means 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)).
Premium processing petition
The term premium processing petition means a petition for an H–2B nonimmigrant for which the petitioner pays a premium fee pursuant to section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356).
Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security.
The term statutory cap means the maximum number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year under section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)).
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:
Except as provided in clause (ii), and subject to subparagraphs (B) and (C), an alien who has already been counted toward the numerical limitation under paragraph (1)(B) shall not be counted again toward such limitation during the fiscal year and shall be considered a returning worker.
An alien who has already been counted toward the numerical limitation under paragraph (1)(B) shall be counted again toward such limitation if such alien—
departs the United States for a period longer than 1 year;
was not counted toward such limitation in any of the 3 most recent fiscal years; or
violated his or her status during the authorized period of stay.
The amendment made by subsection (a) shall take effect as if enacted on January 1, 2017.
H–2B temporary non-agricultural work visa program
Admission of temporary H–2B nonimmigrants
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 nonimmigrants
In this section:
Best information available
The term best information available, with respect to determining the prevailing wage for a position, means—
a controlling collective bargaining agreement that sets wages for work performed by H–2B nonimmigrants and in which the employer is a signatory;
absent a controlling collective bargaining agreement described in subparagraph (A), the applicable Federal, State, or local prevailing wage laws for any time period during which the H–2B nonimmigrant performs work on a governmental project for which payment of such wages is required by such laws or ordinances if the employer has signed a contract agreeing to pay such wages on such project; or
absent a controlling collective bargaining agreement described in subparagraph (A) or the performance of work by the H–2B nonimmigrant that is governed by a prevailing wage law described in subparagraph (B)—
the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or
a private wage survey of the wages paid for such positions in the geographic area in which the H–2B nonimmigrant will be employed.
The term displace means to lay off a United States worker from a job that is essentially equivalent to the job for which an employer seeks an H–2B nonimmigrant.
A job shall be considered essentially equivalent to another job offered by an employer if the job—
involves the same essential responsibilities as such other job;
is 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.
The term full-time employment means—
30 or more hours of work per week; or
for any occupation in which a State or an established industry practice defines full-time employment as less than 30 hours per week, the number of weekly work hours established by the State or industry.
The term H–2B nonimmigrant means a nonimmigrant described in section 101(a)(15)(H)(ii)(b).
The term layoff means—
to cause a United States worker’s loss of employment before the scheduled cessation of the employer's need, 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)(3)(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 the employee accepts the offer.
Other temporary service or labor
The term other temporary service or labor means that an employer’s need for particular labor will last—
if peak load or intermittent, for not more than 1 year, unless it is a one-time occurrence lasting no longer than 3 years; or
if the employer's need is seasonal, for not more than 10 months.
Private wage survey
The term private wage survey means, in the case of a petition under subsection (b), a survey of wages by an entity other than the Federal Government for which—
the data has been collected during the 2-year period immediately preceding the date of the petition;
if a published survey, the survey has been published during the 2-year period immediately preceding the date of the petition;
the job description for the position being offered by the employer is similar to the job description for which the survey was conducted;
the survey is across industries that employ workers in the job description;
the wage determination is based on a weighted or straight average of the relevant wages or the median of relevant wage levels; and
a statistically valid methodology that was used to collect the data is identified.
United States worker
The term United States worker means any worker who is—
a national of the United States; or
an alien who is—
lawfully admitted for permanent residence;
admitted as a refugee under section 207;
granted asylum under section 208; or
is an immigrant otherwise authorized to be employed under this Act.
The term work period means the time period during which the H–2B nonimmigrants will be needed by an employer.
Requirement for petitions
An employer seeking to employ an H–2B nonimmigrant shall file a petition with the Secretary of Homeland Security in accordance with this subsection.
A petition filed under this subsection shall include—
the reason for the employer’s need for other temporary service or labor and the full time need for the H–2B nonimmigrants and the occupations sought;
the number of named and unnamed H–2B nonimmigrants the employer is seeking to employ during the work period;
the area of employment and worksites of the H–2B nonimmigrants, except that itinerant employers who do not operate in a single fixed-site location, shall provide a list of work locations that—
may include an itinerary anticipated at the time of petitioning; and
may be subsequently amended by the employer, with notice to the Secretary;
the anticipated work period, including expected beginning and ending dates and an indication if actual entry or departure will be staggered; and
the written disclosure of employment terms and conditions that the employer chooses to provide to each proposed H–2B nonimmigrant before the date on which the H–2B nonimmigrant files a visa application.
A petition filed under this subsection shall include an attestation by the employer that—
the employer’s need for labor is for other temporary service or labor and for full-time employment;
the work period, the reason for temporary need, and the anticipated number of positions needed and being requested have been truly and accurately stated in the petition;
the employer is offering terms and working conditions normal to United States workers similarly employed in the area or areas of intended employment;
the employer, not later than the date on which the H–2B nonimmigrant presents himself or herself to the consular office, will provide each H–2B nonimmigrant covered by the petition with written disclosure of the terms and conditions of their employment, including individualized expected dates of entry and departure;
conducted recruitment for United States workers in accordance 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 nonimmigrant is sought;
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 H–2B employment or an offer of H–2B employment (other than any Government-mandated charges, such as passport, visa or inspection fees, or other expenses for which reimbursement is not prohibited by the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.));
the employer has contractually forbidden any agent, attorney, facilitator, recruiter, or similar employment service from collecting such fees; and
if the employer learns or has reason to know that any agent, attorney, facilitator, recruiter, or similar employment service has been paid such fees, the employer will fully reimburse such fees to the H–2B nonimmigrant;
the employer has not and will not displace any United States worker employed by the employer as long as an H–2B nonimmigrant is employed for a period of 30 days preceding such period in the occupation and at the area of employment set forth in the petition; and
the specific job opportunity that is the subject of the petition is not vacant because the former worker in that job is on strike or locked out in the course of a labor dispute.
Not later than 60 days before the date on which an employer intends to hire an H–2B nonimmigrant, the employer—
shall submit a written disclosure of the employment terms and conditions for such worker to—
the local office of the State workforce agency where the job is located; or
in the case of an itinerant employer, the local office of the State workforce agency where the job is to begin; and
shall authorize the posting of such disclosure on the appropriate electronic job registry of the Department of Labor for a period of 45 days.
Posting by secretary of labor
The Secretary of Labor shall promptly post each such disclosure without requiring the employer to meet any other condition or carry out any other action.
Benefits, wages, and working conditions
For a job opportunity for which an H–2B worker is sought, the employer shall offer any United States worker applying for such job not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to an H–2B nonimmigrant. The job offer may not impose on any United States worker any restrictions or obligations which will not be imposed on the employer’s H–2B nonimmigrants.
Unless the employer has a lawful, job-related reason not to do so, the employer shall offer the job for which an H–2B nonimmigrant is sought to any eligible United States worker who—
is qualified for the job; and
will be available at the time and place and for the duration of need.
The employer shall keep a record of all eligible, able, willing, and qualified United States workers who apply for employment with the employer for the job for which an H–2B nonimmigrant is sought.
H–2B employers may not be required to file an interstate job order under sections 655.16 and 655.18 of title 20, Code of Federal Regulations.
Housing and other facilities
An employer is not required to provide housing, a housing allowance, or other facilities to an H–2B nonimmigrant.
If an employer does provide housing, a housing allowance, or other facilities to an H–2B nonimmigrant, the employer may take a wage deduction or credit toward satisfying the responsibility to pay prescribed wages in an amount that is equal to the fair value of such housing or other facility in accordance with the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) or other applicable law.
If an employer does not provide housing to H–2B nonimmigrants, the employer shall make reasonable efforts to assist the H–2B nonimmigrants to locate appropriate housing.
H–2B nonimmigrants shall be paid wages that are not less than the greater of—
the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location;
the applicable Federal, State, or local minimum wage; or
the prevailing wage level for the job description of the position in the geographic area in which the H–2B nonimmigrant will be employed, based on the best information available at the time of filing the petition.
Transportation to the place of employment
Not later than the date on which an H–2B nonimmigrant completes 50 percent of the work period set forth in the petition, the employer shall reimburse the H–2B nonimmigrant for the cost of transportation for that H–2B nonimmigrant from the United States consulate that issued the visa to the H–2B nonimmigrant, or the previous worksite in the United States, if any, to the place of employment of such H–2B nonimmigrant, unless the H–2B nonimmigrant has been previously reimbursed by another employer. The amount of reimbursement under this paragraph shall be not more than the cost incurred through the most economical and reasonable common carrier, and shall include documented and reasonable subsistence costs during the period of travel.
Transportation from the place of employment
If an H–2B nonimmigrant completes the work period set forth in the petition for an employer, and is not traveling to another worksite in the United States, the employer, not later than the time the H–2B nonimmigrant departs from the worksite, shall pay for the cost of transportation for that H–2B nonimmigrant, from the place of employment to the United States consulate that issued the visa to the H–2B nonimmigrant. The cost required to be paid under this paragraph shall be not more than the cost incurred through the most economical and reasonable common carrier, and shall include reasonable subsistence costs during the period of travel.
No obligation to provide transportation costs
Notwithstanding any other provision of law, an employer shall have no obligation to provide or reimburse any transportation-related costs incurred by an alien seeking to be an H–2B nonimmigrant between the such alien’s home and the consulate or embassy and between the consulate or embassy and such alien’s home.
Reporting absconding workers
Requirement to notify
An employer shall notify the Secretary of Homeland Security not later than 2 work days after—
an H–2B nonimmigrant fails to report for work within 5 work days after the employee’s expected start date, as stated on the petition, or the reasonably anticipated start date in the event of exigent circumstances;
the labor or services for which the H–2B nonimmigrant was hired is completed more than 30 days early; or
the employer discovers that an H–2B nonimmigrant has absconded from the worksite by failing to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer.
Notwithstanding the numerical limitation under section 214(g)(1)(B), if an employer notifies the Secretary of Homeland Security of a situation described in subparagraph (A) or (C) of paragraph (1), the Secretary shall promptly notify the Secretary of State, who shall make available to the employer 1 additional visa for the employer to hire a replacement H–2B nonimmigrant for the same job opportunity, without filing an additional petition, for each H–2B nonimmigrant who fails to report to work or who absconds from work.
Admission of an H–2B nonimmigrant
An H–2B nonimmigrant is authorized to be admitted to the United States during the period beginning 10 days before the first day of the validity period and ending 10 days after the last day of the validity period. An H–2B nonimmigrant is not authorized to be employed except during the work period set forth in the petition.
Limitation on an H–2B nonimmigrant’s stay in status
An H–2B nonimmigrant who was present in the United States for 3 years under subparagraph (H) of section 101(a)(15) may not seek extension of stay, change of status, or be readmitted to the United States pursuant to such subparagraph 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 for 3 years and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year.
Flexibility with respect to crossing of H–2B nonimmigrants
Subject to paragraph (2), if an employer files a petition for H–2B nonimmigrants and that petition is granted, the employer may bring the H–2B nonimmigrants for which the petition was granted into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition.
Requirements for crossings after 90th day
An employer may not bring H–2B nonimmigrants into the United States under paragraph (1) after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer—
completes a new assessment of the local labor market by—
publishing notice of the job offer in a local newspaper in not less than 2 Sunday editions of such newspaper; and
posting the job opportunity on the appropriate electronic job registry of the Department of Labor pursuant to subsection (b)(4)(A) and at the employer's place of employment; and
offers the job to an equally or better qualified United States worker who will be available at the time and place and for the duration of need and who applies for the job.
Exemption from rules with respect to staggering
The Secretary of Homeland Security shall not consider an employer who brings H–2B nonimmigrants into the United States during the 120-day period specified in paragraph (1) to be staggering the date of need in violation of any applicable provision of law.
Table of contents amendment
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 nonimmigrants.
Processing of H–2B visa petitions by the Department of Homeland Security
Not later than 180 days after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of Labor, shall issue regulations that establish the necessary procedures for processing visa petitions for H–2B nonimmigrants in accordance with the provisions of this Act and the amendments made by this Act. The Secretary shall have exclusive authority, which may not be delegated outside the Department of Homeland Security, to issue rules and final determinations with respect to the visa program for H–2B nonimmigrants.
Acceptance of petitions
Not later than 5 business days after the date an employer files a premium processing petition and not later than 15 business days after the date an employer files any other petition for an H–2B nonimmigrant, the Secretary shall—
review the petition and make a prima facie determination as to whether the petition is potentially approvable, which shall be based on whether—
the employer has established the need for non-agricultural services or labor to be performed is temporary in nature;
the number of workers being requested is justified;
the employer has made the attestations required under section 218A of the Immigration and Nationality Act, as added by section 4(a); and
the employer has complied with—
all of the requirements under such section 218A;
other provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and
submit to the petitioner notice of acceptance or nonacceptance of the petition using electronic or other means assuring expedited delivery; and
if the petition is accepted, submit to the relevant United States consulate notice of acceptance of the petition using electronic or other means assuring expedited delivery if the petitioner has indicated that the alien beneficiaries will apply for United States visas at such consulate.
Prohibition on certain reductions
The Secretary may not reduce the number of positions an employer will receive pursuant to a petition that the Secretary accepts pursuant to this subsection because the employer hires or offers employment to a United States worker for the position before the date on which the employer indicated in the petition that workers were needed to begin work.
Once the Secretary determines that a sufficient number of petitions for H–2B nonimmigrants have been received to result in a likely fulfillment of the statutory cap, the Secretary shall continue to receive such petitions for that fiscal year and issue conditional approvals, unless the beneficiaries for visas for H–2B nonimmigrants are not subject to the statutory cap, in which event the Secretary will issue final approval.
Assessment of issued visas
The Secretary shall consult with the Secretary of State and continually report the number of visas actually issued to H–2B nonimmigrants at United States embassies and consulate offices to determine if the employers that received conditional approval under paragraph (3) may be issued final approvals.
Final approvals shall be issued in the order in which the petitions were conditionally approved.
Refund of fees
The Secretary shall refund any fee submitted for a premium processing petition for a fiscal year that was submitted after the date the Secretary determines that the statutory cap has been met for that fiscal year.
Coordination between the Department of Homeland Security and the Department of State
The Secretary shall consult with the Secretary of State to develop an electronic notification system to notify the Department of State not later than 48 hours after the final approval of a petition for an H–2B nonimmigrant. Each such notification shall include information indicating whether the H–2B nonimmigrant is subject to the statutory cap, whether the H–2B nonimmigrant has previously entered the United States under H–2B nonimmigrant visa status, as well as any relevant biographic information included in the employer's petition for each approved worker.
The Secretary of State shall submit a weekly report to the Secretary that includes—
the total number of H–2B nonimmigrant visas issued during the past week and during the fiscal year to date;
of such visas, the total number of visas that were exempt from the statutory cap; and
all relevant information regarding the identity of the beneficiary who was issued an H–2B nonimmigrant visa.
Waiver of interviews for returning workers
The Secretary of State may waive the in-person visa interview requirement for an individual applying for an H–2B nonimmigrant visa who previously traveled to the United States on H–2B nonimmigrant visa status.
The Secretary shall update weekly and make publically available on the website of the Department of Homeland Security—
five years of historical data of H–2B nonimmigrant petitions received and approved and the number of visas for H–2B nonimmigrants that were not subject to the statutory cap;
the annual target number of beneficiaries to be issued visas as H–2B nonimmigrants for the fiscal year;
the number of petitions for H–2B nonimmigrants approved by the Department in each half of the fiscal year, including the aggregated number of beneficiaries contained in the approved petitions;
the number of petitions pending approval or denial by the Secretary;
the number of visas that are not exempt from the statutory cap issued by the Secretary of State;
disclosure of the methodology and raw data used to determine when the statutory cap has been reached, including notification whenever the methodology to make this determination changes at any time during the fiscal year; and
the number of petitions for H–2B nonimmigrants that have received conditional approval once the statutory cap has been met, including the aggregated number of beneficiaries contained in the conditionally approved petitions.
Report on methodology for statutory cap
Not later than 6 months after the date on which the Secretary issues regulations to carry out this Act and the amendments made by this Act, the Comptroller General of the United States shall publish a report that describes the methodology used by the Secretary to determine that the statutory cap for H–2B nonimmigrants is met and the accuracy of such methodology.
The report required under paragraph (1) shall include an assessment of—
the efficiencies and inefficiencies in the processing and approval of petitions for H–2B nonimmigrants; and
the effectiveness of data sharing between the Secretary and the Secretary of State.
Not later than four years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress an assessment of the effect of the amendment made by section 3(a) on the domestic workforce, including data to indicate any relationship between an increase of H–2B nonimmigrants and changes in domestic employment or earnings.
Rule of construction
The benefits and wages provided to an H–2B nonimmigrant, the services an H–2B nonimmigrant provides to the employer, the employment opportunities afforded to an H–2B nonimmigrant by the employer, including those employment opportunities that require a United States worker or an H–2B nonimmigrant to travel or relocate in order to accept or perform employment, and other terms or conditions of the employment of an H–2B nonimmigrant provided for under this Act, or the amendments made by this Act, are not primarily for the benefit of either the H–2B nonimmigrant or the employer and are for the equal mutual benefit for the H–2B worker and the employer.