H–2B Returning Worker Exception Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 3897 To make improvements to the H–2B nonimmigrant worker program, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 15, 2021 Mr. CUELLAR (for himself, Mr. JOYCE of Ohio, Mr. KEATING, Mr. CHABOT, Ms. PINGREE, and Mr. HARRIS) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Com- mittee on Education and Labor, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To make improvements to the H–2B nonimmigrant worker program, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘H–2B Returning 4 Worker Exception Act of 2021’’. 5 SEC. 2. DEFINITIONS. 6 For purposes of this Act: 7 VerDate Sep 11 2014 22:47 Jul 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 2 •HR 3897 IH (1) The term ‘‘H–2B’’, when used with respect 1 to a worker or other individual, refers an alien ad- 2 mitted or provided status as a nonimmigrant de- 3 scribed in section 101(a)(15)H)(ii)(b) of the Immi- 4 gration and Nationality Act (8 U.S.C. 5 1101(a)(15)(H)(ii)(b)). Such term, when used with 6 respect to a petition, procedure, process, program, or 7 visa, refers to a petition, procedure, process, pro- 8 gram, or visa related to admission or provision of 9 status under such section. 10 (2) The term ‘‘job order’’ means the document 11 containing the material terms and conditions of em- 12 ployment, including obligations and assurances re- 13 quired under this Act or any other law. 14 (3) The term ‘‘United States worker’’ means 15 any employee who is— 16 (A) a national of the United States (as de- 17 fined in section 101(a)(22) of the Immigration 18 and Nationality Act (8 U.S.C. 1101(a)(22))); or 19 (B) an alien lawfully admitted for perma- 20 nent residence, is admitted as a refugee under 21 section 207 of such Act (8 U.S.C. 1157), is 22 granted asylum under section 208 of such Act 23 (8 U.S.C. 1158), or is an immigrant otherwise 24 authorized by the immigration laws (as defined 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 3 •HR 3897 IH in section 101(a)(17) of such Act (8 U.S.C. 1 1101(a)(17))) or the Secretary of Homeland 2 Security to be employed. 3 SEC. 3. H–2B CAP RELIEF. 4 (a) H–2B NUMERICAL LIMITATIONS.—Section 5 214(g)(9)(A) of the Immigration and Nationality Act (8 6 U.S.C. 1184(g)(9)(A)) is amended— 7 (1) by striking ‘‘fiscal year 2013, 2014, or 8 2015’’ and inserting ‘‘1 of the 3 preceding fiscal 9 years’’; and 10 (2) by striking ‘‘fiscal year 2016’’ and inserting 11 ‘‘a fiscal year’’. 12 (b) EFFECTIVE DATE.—The amendment made by 13 subsection (a) shall take effect on October 1, 2021. If this 14 section is enacted after such date, the amendment made 15 by subsection (a) shall take effect as if enacted on such 16 date. 17 SEC. 4. INCREASED SANCTIONS FOR WILLFUL MISREPRE- 18 SENTATION OR FAILURE TO MEET THE RE- 19 QUIREMENTS FOR PETITIONING FOR AN H–2B 20 WORKER. 21 Section 214 of the Immigration and Nationality Act 22 (8 U.S.C. 1184) is amended— 23 (1) in subsection (c)(13)(B), by striking 24 ‘‘$150’’ and inserting ‘‘$350’’; and 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 4 •HR 3897 IH (2) in subsection (c)(14)(A)(i), by striking 1 ‘‘may, in addition to any other remedy authorized by 2 law, impose such administrative remedies (including 3 civil monetary penalties in an amount not to exceed 4 $10,000 per violation)’’ and inserting ‘‘shall impose 5 civil monetary penalties in an amount of not less 6 than $1,000 but not to exceed $10,000 per violation, 7 in addition to any other remedy authorized by law, 8 and may impose such other administrative rem- 9 edies’’. 10 SEC. 5. REDUCTION OF PAPERWORK BURDEN. 11 (a) STREAMLINED H–2B PLATFORM.— 12 (1) IN GENERAL.—Not later than 12 months 13 after the date of the enactment of this Act, the Sec- 14 retary of Homeland Security, in consultation with 15 the Secretary of Labor, the Secretary of State, and 16 the Administrator of the United States Digital Serv- 17 ice, shall ensure the establishment of an electronic 18 platform through which employers may submit and 19 request approval of an H–2B petition. Such plat- 20 form shall— 21 (A) serve as a single point of access for 22 employers to input all information and sup- 23 porting documentation required for obtaining 24 labor certification from the Secretary of Labor 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 5 •HR 3897 IH and the adjudication of the petition by the Sec- 1 retary of Homeland Security; 2 (B) serve as a single point of access for the 3 Secretary of Homeland Security, the Secretary 4 of Labor, the Secretary of State, and State 5 workforce agencies concurrently to perform 6 their respective review and adjudicatory respon- 7 sibilities in the petition process; 8 (C) facilitate communication between em- 9 ployers and agency adjudicators, including by 10 allowing employers to— 11 (i) receive and respond to notices of 12 deficiency and requests for information; 13 (ii) receive notices of approval and de- 14 nial; and 15 (iii) request reconsideration or appeal 16 of agency decisions; and 17 (D) provide information to the Secretary of 18 State and the Secretary of Homeland Security 19 necessary for the efficient and secure processing 20 of H–2B visas and applications for admission. 21 (2) OBJECTIVES.—In developing the platform 22 described in paragraph (1), the Secretary of Home- 23 land Security, in consultation with the Secretary of 24 Labor, the Secretary of State, and the Adminis- 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 6 •HR 3897 IH trator of the United States Digital Service, shall 1 make an effort to streamline and improve the H–2B 2 process, including by— 3 (A) eliminating the need for employers to 4 submit duplicate information and documenta- 5 tion to multiple agencies; 6 (B) reducing common petition errors, and 7 otherwise improving and expediting the proc- 8 essing of H–2B petitions; 9 (C) ensuring compliance with H–2B pro- 10 gram requirements and the protection of the 11 wages and working conditions of workers; and 12 (D) eliminating unnecessary government 13 waste. 14 (3) ENHANCEMENT OF EXISTING PLATFORM.— 15 If the Secretary of Homeland Security, the Sec- 16 retary of Labor, the Secretary of State, or the State 17 workforce agencies already have an electronic plat- 18 form with respect to the H–2B process on the date 19 of the enactment of this Act, they shall enhance it 20 as necessary so as to ensure that adjudication of an 21 H–2B petition may be conducted electronically as 22 specified in this section. 23 (b) ONLINE JOB REGISTRY.—The Secretary of Labor 24 shall maintain a publicly-accessible online job registry and 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 7 •HR 3897 IH database of all job orders submitted by H–2B employers. 1 The registry and database shall— 2 (1) be searchable using relevant criteria, includ- 3 ing the types of jobs needed to be filled, the dates 4 and locations of need, and the employers named in 5 the job order; 6 (2) provide an interface for workers in English, 7 Spanish, and any other language that the Secretary 8 of Labor determines to be appropriate; and 9 (3) provide for public access of job order certifi- 10 cations. 11 SEC. 6. WORKPLACE SAFETY. 12 (a) WORKSITE SAFETY AND COMPLIANCE PLAN.— 13 If the employer is seeking to employ an H–2B worker pur- 14 suant to this Act and the Immigration and Nationality 15 Act (8 U.S.C. 1101 et seq.), the employer shall maintain 16 an effective worksite safety and compliance plan to ensure 17 safety and reduce workplace illnesses, injuries and fatali- 18 ties. Such plan shall— 19 (1) be in writing in English and, to the extent 20 necessary, any language common to a significant 21 portion of the workers if they are not fluent in 22 English; and 23 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 8 •HR 3897 IH (2) be posted at a conspicuous location at the 1 worksite and provided to employees prior to the com- 2 mencement of labor or services. 3 (b) CONTENTS OF PLAN.—The Secretary of Labor 4 shall establish by regulation the minimum requirements 5 for the plan described in subsection (a). Such plan shall 6 include measures to— 7 (1) protect against sexual harassment and vio- 8 lence, resolve complaints involving harassment or vi- 9 olence, and protect against retaliation against work- 10 ers reporting harassment or violence; and 11 (2) contain other provisions necessary for en- 12 suring workplace safety. 13 SEC. 7. FOREIGN LABOR RECRUITING; PROHIBITION ON 14 FEES. 15 (a) FOREIGN LABOR RECRUITING.—If an employer 16 has engaged any foreign labor contractor or recruiter (or 17 any agent of such a foreign labor contractor or recruiter) 18 in the recruitment of H–2B workers, the employer shall 19 disclose the identity and geographic location of such per- 20 son or entity to the Secretary of Labor in accordance with 21 the regulations of the Secretary. 22 (b) PROHIBITION AGAINST EMPLOYEES PAYING 23 FEES.—Neither the employer nor its agents shall seek or 24 receive payment of any kind from any worker for any ac- 25 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 9 •HR 3897 IH tivity related to the H–2B petition process, including pay- 1 ment of the employer’s attorneys’ fees, application fees, 2 or recruitment costs. An employer and its agents may re- 3 ceive reimbursement for costs that are the responsibility, 4 and primarily for the benefit, of the worker, such as gov- 5 ernment-required passport fees. 6 (c) THIRD PARTY CONTRACTS.—The employer shall 7 contractually forbid any foreign labor contractor or re- 8 cruiter (or any agent of a foreign labor contractor or re- 9 cruiter) who the employer engages, either directly or indi- 10 rectly, in the recruitment of H–2B workers to seek or re- 11 ceive payments or other compensation from prospective 12 employees. Upon learning that a foreign labor contractor 13 or recruiter has collected such payments, the employer 14 shall terminate any contracts with the foreign labor con- 15 tractor or recruiter. 16 SEC. 8. PROGRAM INTEGRITY MEASURES. 17 (a) ENFORCEMENT AUTHORITY.—With respect to 18 the H–2B program, the Secretary of Labor is authorized 19 to take such actions against employers, including imposing 20 appropriate penalties and seeking monetary and injunctive 21 relief and specific performance of contractual obligations, 22 as may be necessary to ensure compliance with— 23 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 10 •HR 3897 IH (1) the requirements of this Act and the Immi- 1 gration and Nationality Act (8 U.S.C. 1101 et seq.); 2 and 3 (2) the applicable terms and conditions of em- 4 ployment. 5 (b) COMPLAINT PROCESS.— 6 (1) PROCESS.—With respect to the H–2B pro- 7 gram, the Secretary of Labor shall establish a proc- 8 ess for the receipt, investigation, and disposition of 9 complaints alleging failure of an employer to comply 10 with— 11 (A) the requirements of this Act and the 12 Immigration and Nationality Act (8 U.S.C. 13 1101 et seq.); and 14 (B) the applicable terms and conditions of 15 employment. 16 (2) FILING.—Any aggrieved person or organiza- 17 tion, including a bargaining representative, may file 18 a complaint referred to in paragraph (1) not later 19 than 2 years after the date of the conduct that is 20 the subject of the complaint. 21 (3) COMPLAINT NOT EXCLUSIVE.—A complaint 22 filed under this subsection is not an exclusive rem- 23 edy and the filing of such a complaint does not 24 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 11 •HR 3897 IH waive any rights or remedies of the aggrieved party 1 under this law or other laws. 2 (4) DECISION AND REMEDIES.—If the Sec- 3 retary of Labor finds, after notice and opportunity 4 for a hearing, that the employer failed to comply 5 with the requirements of this Act, the Immigration 6 and Nationality Act (8 U.S.C. 1101 et seq.), or the 7 terms and conditions of employment, the Secretary 8 of Labor shall require payment of unpaid wages, un- 9 paid benefits, damages, and civil money penalties. 10 The Secretary is also authorized to impose other ad- 11 ministrative remedies, including disqualification of 12 the employer from utilizing the H–2B program for 13 a period of up to 5 years in the event of willful or 14 multiple material violations. The Secretary is au- 15 thorized to permanently disqualify an employer from 16 utilizing the H–2B program upon a subsequent find- 17 ing involving willful or multiple material violations. 18 (5) DISPOSITION OF PENALTIES.—To the ex- 19 tent provided in advance in appropriations Acts, civil 20 penalties collected under this subsection shall be 21 used by the Secretary of Labor for the administra- 22 tion and enforcement of the provisions of this sec- 23 tion. 24 VerDate Sep 11 2014 17:47 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3897.IH H3897 khammond on DSKJM1Z7X2PROD with BILLS 12 •HR 3897 IH (6) STATUTORY CONSTRUCTION.—Nothing in 1 this subsection may be construed as limiting the au- 2 thority of the Secretary of Labor to conduct an in- 3 vestigation in the absence of a complaint. 4 (7) RETALIATION PROHIBITED.—It is a viola- 5 tion of this subsection for any person to intimidate, 6 threaten, restrain, coerce, blacklist, discharge, or in 7 any other manner discriminate against, or to cause 8 any person to intimidate, threaten, restrain, coerce, 9 blacklist, or in any manner discriminate against, an 10 employee, including a former employee or an appli- 11 cant for employment, because the e [Text truncated for display. 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