**AGRICULTURAL JOB OPPORTUNITY, BENEFITS, AND SECURITY ACT OF 2005**

**Overview and Summary of Significant Provisions**

February, 2005

**Overview---**

-   The Agricultural Job Opportunity, Benefits, and Security Act of 2005
    is, in all substantive essentials, the same as S.1645, which
    attracted 63 Senate cosponsors in the 108^th^ Congress.

**Title I-- Adjustment of Agricultural Workers to Temporary and
Permanent Resident Status**

Title I establishes a program whereby agricultural workers in the United
States who lack authorized immigration status but who can demonstrate
that they have worked 100 or more days in a 12 consecutive month period
during the 18-month period ending on December 31, 2004 can apply for
adjustment of status. Eligible applicants would be granted temporary
resident status. If the farmworker performs at least 360 work days (no
less than 2,060 hours) of agricultural employment during the six year
period after the date of enactment, including at least 240 work days (no
less than 1,380 hours) during the first three years following
adjustment, and at least 75 days (no less than 430 hours) of
agricultural work during each of three 12-month periods in the six years
following adjustment to temporary resident status, the farmworker may
apply for permanent resident status.

During the period of temporary resident status the farmworker is
employment authorized, and can travel abroad and reenter the United
States. Workers adjusting to temporary resident status may work in
non-agricultural occupations, as long as their agricultural work
requirements are met. While in temporary resident status, workers may
select their employers and may switch employers. During the period of
temporary resident status, the farmworker's spouse and minor children
who are residing in the United States may remain in the U.S., but are
not employment authorized. The spouse and minor children may adjust to
permanent resident status once the farmworker adjusts to permanent
resident status. Unauthorized workers who do not apply or are not
qualified for adjustment to temporary resident status are subject to
removal. Temporary residents under this program who do not fulfill the
agricultural work requirement or are inadmissible under immigration law
or commit a felony or three or more misdemeanors as temporary residents
are denied adjustment to permanent resident status and are subject to
removal. The adjustment program is funded through application fees.

**Titles II and III---Reform of the H-2A Temporary and Seasonal
Agricultural Worker Program**

This section modifies the existing H-2A temporary and seasonal foreign
agricultural worker program. Employers desiring to employ H-2A foreign
workers in seasonal jobs (10 months or less) will file an application
and a job offer with the Secretary of Labor. If the application and job
offer meets the requirements of the program and there are no obvious
deficiencies the Secretary must approve the application. Employers must
seek to employ qualified U.S. workers prior to the arrival of H-2A
foreign workers by filing a job order with a local job service office at
least 28 days prior to date of need and also authorizing the posting of
the job on an electronic job registry.

All workers in job opportunities covered by an H-2A application must be
provided with workers' compensation insurance, and no job may be filled
by an H-2A worker that is vacant because the previous occupant is on
strike or involved in a labor dispute. If the job is covered by a
collective bargaining agreement, the employer must also notify the
bargaining agent of the filing of the application. If the job
opportunity is not covered by a collective bargaining agreement, the
employer is required to provide additional benefits, as follows.

The employer must provide housing at no cost, or a monetary housing
allowance where the Governor of a State has determined that there is
sufficient migrant housing available, to workers whose place of
residence is beyond normal commuting distance. The employer must also
reimburse inbound and return transportation costs to workers who meet
employment requirements and who travel more than 100 miles to come to
work for the employer. The employer must also guarantee employment for
at least three quarters of the period of employment, and assure at least
the highest of the applicable statutory minimum wage, the prevailing
wage in the occupation and area of intended employment, or a reformed
Adverse Effect Wage Rate (AEWR). If the AEWR applies, it will not be
higher than that existing on 1/01/03 and if Congress fails to enact a
new wage rate within 3 years, the AEWR would be indexed to changes in
the consumer price index, capped at 4% per year, with increases applied
beginning the first March 1 following three years from the date of
enactment. Employers must meet specific motor vehicle safety standards.

H-2A foreign workers are admitted for the duration of the initial job,
not to exceed 10 months, and may extend their stay if recruited for
additional seasonal jobs, to a maximum continuous stay of 3 years, after
which the H-2A foreign worker must depart the United States. H-2A
foreign workers are authorized to be employed only in the job
opportunity and by the employer for which they were admitted. Workers
who abandon their employment or are terminated for cause must be
reported by the employer, and are subject to removal. H-2A foreign
workers are provided with a counterfeit resistant identity and
employment authorization document.

The Secretary of Labor is required to provide a process for filing,
investigating and disposing of complaints, and may order back wages and
civil money penalties for program violators. The Secretary of Homeland
Security may order debarment of violators for up to 2 years. H2A workers
are provided with a limited federal private right of action to enforce
the requirements of housing, transportation, wages, the employment
guarantee, motor vehicle safety, retaliation and any other written
promises in the employer's job offer. Either party may request mediation
after the filing of the complaint. State contract claims seeking to
enforce terms of the H-2A program are preempted by the limited federal
right of action. No other state law rights are preempted or restricted.

The administration of the H-2A program is funded through a user fee paid
by agricultural employers.

**Technical Adjustments Made in the 2005 AgJOBS bill**

Several technical adjustments have been made to update or clarify
provisions, relative to the predecessor bill introduced in 2003 (S.
1645). They include the following:

-   Relevant dates associated with H-2A and earned adjustment provisions
    have been updated to reflect the passage of time since the original
    bill's introduction. Affected provisions remain substantively
    equivalent. The AEWR in 2009 and thereafter would be the same as if
    the 2003 bill (S. 1645) had been enacted in 2003.

-   Time frames associated with the H-2A adverse effect wage rate and
    study, and future work requirements under the earned adjustment
    program, have been modified from "hard dates" to fixed time periods
    after date of enactment to ensure that the effect of the provisions
    remains constant regardless of timing of enactment.

-   Language regarding eligibility for adjustment or grounds for removal
    for various acts has been added to clarify that the spouse or minor
    children of an alien applying for or working under temporary
    residency are held to the same strict standards for lawful behavior,
    and are excludable or deportable under the same standards that apply
    to the alien worker.

-   New language clarifies that the bill does not limit the use or
    release of information contained in files or records of the
    Department of Homeland Security regarding criminal convictions or
    other information for immigration enforcement or law enforcement
    purposes.

-   Clarifying language has been added to conform with the Personal
    Responsibility and Work Opportunity (Welfare Reform) Act of 1996, to
    ensure that adjusting AgJOBS workers have no advantage over other,
    legal immigrants, with regard to the timing and eligibility of
    means-tested public benefits.

-   Technical clarifications have been made to carry out the authors'
    original intent only to authorize appropriations, not create or
    imply mandatory spending, to administer the Act.

For more information, please contact:

Sen. Larry Craig Erick Simmons 202-224-2752
erick_simmons@craig.senate.gov

Damon Tobias 202-224-2752 <damon_tobias@craig.senate.gov>

Sen. Ted Kennedy Esther Olavarria 202-224-7878
esther_olavarria@judiciary.senate.gov