Essential Workers for Economic Advancement Act

I 118TH CONGRESS 1ST SESSION H. R. 3734 To amend the Immigration and Nationality Act to provide for an H–2C nonimmigrant classification, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 25, 2023 Mr. SMUCKER (for himself and Mr. CUELLAR) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, and Oversight and Account- ability, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned A BILL To amend the Immigration and Nationality Act to provide for an H–2C nonimmigrant classification, 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 ‘‘Essential Workers for 4 Economic Advancement Act’’. 5 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 3734 IH SEC. 2. NONIMMIGRANT CLASSIFICATION FOR H–2C NON- 1 IMMIGRANTS. 2 Section 101(a)(15)(H)(ii) of the Immigration and 3 Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended 4 by inserting ‘‘(c) who is coming temporarily to the United 5 States to perform services or labor for a registered non- 6 agricultural employer in a registered position (as those 7 terms are defined in section 219A(a)) in accordance with 8 the requirements under section 219A; or’’ before ‘‘(iii) 9 have a residence’’. 10 SEC. 3. ADMISSION OF H–2C NONIMMIGRANT WORKERS. 11 (a) ADMISSION OF H–2C NONIMMIGRANT WORK- 12 ERS.— 13 (1) IN GENERAL.—Chapter 2 of title II of the 14 Immigration and Nationality Act (8 U.S.C. 1181 et 15 seq.) is amended by adding at the end the following: 16 ‘‘SEC. 219A. ADMISSION OF H–2C NONIMMIGRANT WORK- 17 ERS. 18 ‘‘(a) DEFINITIONS.—In this section: 19 ‘‘(1) DEPARTMENT.—Except as otherwise spe- 20 cifically provided, the term ‘Department’ means the 21 Department of Homeland Security. 22 ‘‘(2) ELIGIBLE OCCUPATION.—The term ‘eligi- 23 ble occupation’ means an eligible occupation de- 24 scribed in subsection (e)(3). 25 ‘‘(3) EMPLOYER.— 26 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 3734 IH ‘‘(A) IN GENERAL.—The term ‘employer’ 1 means any person or operational unit of a for- 2 profit or nonprofit entity that is operating inde- 3 pendently in a county or metropolitan statistical 4 area and who hires an individual for employ- 5 ment in the United States. 6 ‘‘(B) TREATMENT OF SINGLE EM- 7 PLOYER.—For purposes of determining the 8 number of employees or United States workers 9 employed by an employer, a single entity shall 10 be treated as 1 employer. 11 ‘‘(4) ENDURING JOB OPENING.—The term ‘en- 12 during job opening’ refers to a job opening that— 13 ‘‘(A) remains unfilled on the first day of 14 the month for 3 consecutive months; or 15 ‘‘(B) is unfilled for more than 60 days in 16 a period of 90 consecutive days. 17 ‘‘(5) FULL EMPLOYMENT AREA.—The term ‘full 18 employment area’ refers to any county or metropoli- 19 tan statistical area where the unemployment rate 20 during the fiscal quarter during which an application 21 is submitted by an employer is equal or less than 7.9 22 percent. 23 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 3734 IH ‘‘(6) H–2C NONIMMIGRANT.—The term ‘H–2C 1 nonimmigrant’ means an alien admitted as a non- 2 immigrant pursuant to section 101(a)(15)(H)(ii)(c). 3 ‘‘(7) H–2C NONIMMIGRANT STATUS.—The term 4 ‘H–2C nonimmigrant status’ means status granted 5 to an alien admitted as a nonimmigrant pursuant to 6 section 101(a)(15)(H)(ii)(c). 7 ‘‘(8) INDUSTRIES WITH COMPARATIVELY LOW 8 SALES PER EMPLOYEE.—The term ‘industries with 9 comparatively low sales per employee’ means those 10 industries that rank in the lowest ten when dividing 11 sales by the number of employees in the ECNBASIC 12 Dataset, as shown in the ‘All Sectors: Summary Sta- 13 tistics for the U.S.’ using the three-digits North 14 American Industry Classification System (NAICS). 15 This table provides summary statistics for establish- 16 ments and firms with paid employees. 17 ‘‘(9) INITIAL H–2C NONIMMIGRANT.—The term 18 ‘initial H–2C nonimmigrant’ means an alien— 19 ‘‘(A) issued an H–2C-nonimmigrant visa 20 by the Secretary of State authorizing the ad- 21 mission of that alien to the United States for 22 the first time as an H–2C nonimmigrant; and 23 ‘‘(B) does not include an alien on or after 24 the date the alien commences employment in 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 3734 IH H–2C nonimmigrant status with a registered 1 employer in a registered position. 2 ‘‘(10) LAY OFF.—The term ‘lay off’— 3 ‘‘(A) means to cause a worker to lose em- 4 ployment, other than through a discharge for 5 inadequate performance, violation of workplace 6 rules, cause, voluntary departure, voluntary re- 7 tirement, or the expiration of a grant or con- 8 tract; and 9 ‘‘(B) does not include any situation in 10 which the worker is offered and refused to ac- 11 cept, as an alternative to such loss of employ- 12 ment, a similar employment opportunity with 13 the same employer at equivalent or higher com- 14 pensation and benefits than the position from 15 which the employee was discharged. 16 ‘‘(11) METROPOLITAN STATISTICAL AREA.— 17 The term ‘metropolitan statistical area’ means a ge- 18 ographic area designated as a metropolitan statis- 19 tical area by the Director of the Office of Manage- 20 ment and Budget. 21 ‘‘(12) REGISTERED EMPLOYER.—The term 22 ‘registered employer’ means an operational business 23 unit of a nonagricultural employer that is operating 24 independently in a full employment area and is des- 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 3734 IH ignated by the Secretary as a registered employer 1 under subsection (d). 2 ‘‘(13) REGISTERED POSITION.—The term ‘reg- 3 istered position’ means a position designated as a 4 registered position under subsection (e). 5 ‘‘(14) SCARCITY RECRUITMENT FEE.—The 6 term ‘scarcity recruitment fee’ refers to a payment 7 equal to 5 percent of an H–2C immigrant’s esti- 8 mated annual compensation that a registered em- 9 ployer remits to the Secretary as part of the employ- 10 er’s application for a registered position in order to 11 demonstrate said employer’s inability to recruit a 12 United States worker for the position. 13 ‘‘(15) SECRETARY.—Except as otherwise spe- 14 cifically provided, the term ‘Secretary’ means the 15 Secretary of Homeland Security. 16 ‘‘(16) SINGLE ENTITY.—The term ‘single enti- 17 ty’ means any group treated as a single employer 18 under subsection (b), (c), (m), or (o) of section 414 19 of the Internal Revenue Code of 1986. 20 ‘‘(17) SMALL BUSINESS.—The term ‘small busi- 21 ness’ means an employer that employs fewer than 36 22 full-time employees or fewer than 51 full-time equiv- 23 alent employees. 24 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 3734 IH ‘‘(18) UNITED STATES WORKER.—The term 1 ‘United States worker’ means an individual who is— 2 ‘‘(A) lawfully employed or seeking employ- 3 ment in the United States; and 4 ‘‘(B)(i) a national of the United States; 5 ‘‘(ii) an alien lawfully admitted for perma- 6 nent residence; or 7 ‘‘(iii) any other alien authorized to work in 8 the United States with no limitation as to the 9 alien’s employer. 10 ‘‘(19) ZONE 1 OCCUPATION.—The term ‘zone 1 11 occupation’ means an occupation that requires little 12 or no preparation and is classified as a zone 1 occu- 13 pation on— 14 ‘‘(A) the Occupational Information Net- 15 work Database (O*NET) on the date of the en- 16 actment of this section; or 17 ‘‘(B) such Database or a similar successor 18 database, as designated by the Secretary of 19 Labor, after the date of the enactment of this 20 section. 21 ‘‘(20) ZONE 2 OCCUPATION.—The term ‘zone 2 22 occupation’ means an occupation that requires some 23 preparation and is classified as a zone 2 occupation 24 on— 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 3734 IH ‘‘(A) the Occupational Information Net- 1 work Database (O*NET) on the date of the en- 2 actment of this section; or 3 ‘‘(B) such Database or a similar successor 4 database, as designated by the Secretary of 5 Labor, after the date of the enactment of this 6 section. 7 ‘‘(21) ZONE 3 OCCUPATION.—The term ‘zone 3 8 occupation’ means an occupation that requires me- 9 dium preparation and is classified as a zone 3 occu- 10 pation on— 11 ‘‘(A) the Occupational Information Net- 12 work Database (O*NET) on the date of the en- 13 actment of this section; or 14 ‘‘(B) such Database or a similar successor 15 database, as designated by the Secretary of 16 Labor, after the date of the enactment of this 17 section. 18 ‘‘(b) ADMISSION INTO THE UNITED STATES.—An 19 alien is eligible to be admitted as an H–2C nonimmigrant 20 if the alien— 21 ‘‘(1) has received an offer of employment from 22 a registered employer; and 23 ‘‘(2) otherwise meets the requirements of this 24 section. 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 3734 IH ‘‘(c) H–2C NONIMMIGRANTS.— 1 ‘‘(1) APPLICATION.—An alien seeking to be an 2 H–2C nonimmigrant shall submit an application to 3 the Secretary. 4 ‘‘(2) ATTESTATION.—Each application sub- 5 mitted under paragraph (1) for an alien shall in- 6 clude an attestation as follows: 7 ‘‘(A) That the H–2C nonimmigrant will re- 8 port to such nonimmigrant’s initial employment 9 in a registered position not later than 14 days 10 after such nonimmigrant is admitted. 11 ‘‘(B) That the H–2C nonimmigrant will 12 accept only registered positions and abide by all 13 terms and conditions of H–2C nonimmigrant 14 status. 15 ‘‘(C) That the H–2C nonimmigrant will 16 not bring a family member to the United States 17 in violation of any provision of this Act. 18 ‘‘(3) APPLICATION REVIEW.—The Secretary 19 shall adjudicate an application submitted under 20 paragraph (1) not later than 45 days after the re- 21 ceipt of such application. 22 ‘‘(4) FEES.— 23 ‘‘(A) IN GENERAL.—Each application sub- 24 mitted under paragraph (1) shall include a fee 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 3734 IH in the amount determined by the Secretary ad- 1 judicating such application to be necessary to 2 cover the cost of adjudicating the application 3 within 45 days. 4 ‘‘(B) PREMIUM PROCESSING.—The Sec- 5 retary and the Secretary of State shall create 6 an expedited process to review an application 7 submitted under paragraph (1) for an addi- 8 tional fee, in an amount determined by such 9 Secretaries. 10 ‘‘(5) ELIGIBILITY FOR H–2C NONIMMIGRANT 11 STATUS.—No alien may be admitted as an H–2C 12 nonimmigrant if the alien— 13 ‘‘(A) is inadmissible under this Act; 14 ‘‘(B) fails to pass a criminal background 15 check or a national security background check; 16 ‘‘(C) is from a country determined by the 17 Secretary of State to have repeatedly provided 18 support for acts of international terrorism pur- 19 suant to— 20 ‘‘(i) section 6(j)(1)(A) of the Export 21 Administration Act of 1979 (50 U.S.C. 22 App. 2405(j)(1)(A)) (or successor statute); 23 ‘‘(ii) section 40(d) of the Arms Export 24 Control Act (22 U.S.C. 2780(d)); or 25 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 3734 IH ‘‘(iii) section 620A(a) of the Foreign 1 Assistance Act of 1961 (22 U.S.C. 2 2371(a)); or 3 ‘‘(D) has not received an offer of employ- 4 ment from a registered employer in a registered 5 position. 6 ‘‘(6) EMPLOYMENT.— 7 ‘‘(A) INITIAL EMPLOYMENT.— 8 ‘‘(i) REPORTING TO EMPLOYMENT.— 9 An initial H–2C nonimmigrant shall report 10 to such nonimmigrant’s initial employment 11 in a registered position not later than 14 12 days after such nonimmigrant is admitted 13 to the United States. 14 ‘‘(ii) REPORTING TO THE SEC- 15 RETARY.—An initial H–2C nonimmigrant 16 shall maintain contact with the Secretary 17 after such H–2C nonimmigrant is admit- 18 ted to the United States but before report- 19 ing to the initial employment at an interval 20 that is determined by the Secretary, but 21 not less than every 7 days. 22 ‘‘(B) PERIODS OF UNEMPLOYMENT.—An 23 H–2C nonimmigrant— 24 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 3734 IH ‘‘(i) may be unemployed for a period 1 of not more than 45 consecutive days of 2 presence in the United States; and 3 ‘‘(ii) shall depart the United States if 4 such H–2C nonimmigrant is unable to ob- 5 tain employment during such period. 6 ‘‘(7) INITIAL PERIOD OF AUTHORIZED PRES- 7 ENCE.—An H–2C nonimmigrant may be physically 8 present in the United States for an initial period of 9 not more than a total of 36 months. 10 ‘‘(8) RENEWAL.—An H–2C nonimmigrant may 11 renew his or her H–2C nonimmigrant status for not 12 more than 2 additional consecutive periods of au- 13 thorized presence. 14 ‘‘(9) TRAVEL.—An H–2C nonimmigrant may 15 travel outside the United States and be readmitted 16 to the United States. 17 ‘‘(10) PENALTIES.—If an H–2C nonimmigrant 18 fails to comply with any other term or condition of 19 H–2C nonimmigrant status or remains in the 20 United States for 10 days after the date of the expi- 21 ration of his or her period of authorized presence 22 without status under the immigration laws, then the 23 Secretary shall mandatorily— 24 VerDate Sep 11 2014 21:20 Jun 19, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3734.IH H3734 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •HR 3734 IH ‘‘(A) subject such nonimmigrant to the 1 revocation of employment authorization; and 2 ‘‘(B) initiate and pursue removal under 3 section 237(a)(1)(C)(i). 4 ‘‘(d) REGISTERED EMPLOYER.— 5 ‘‘(1) [Text truncated for display. 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