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[House Report 106-982]
[From the U.S. Government Publishing Office]

106th Congress                                            Rept. 106-982
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================

 
                     AGRICULTURAL OPPORTUNITIES ACT

                                _______
                                

                October 17, 2000.--Ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4548]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4548) establishing a pilot program creating a system 
of registries of temporary agricultural workers to provide for 
a sufficient supply of such workers, to amend the Immigration 
and Nationality Act to streamline procedures for the temporary 
admission and extension of stay of nonimmigrant agricultural 
workers under the pilot program, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................          18
Background and Need for the Legislation....................          18
Hearings...................................................          24
Committee Consideration....................................          24
Votes of the Committee.....................................          24
Committee Oversight Findings...............................          30
Committee on Government Reform Findings....................          30
New Budget Authority and Tax Expenditures..................          30
Congressional Budget Office Cost Estimate..................          30
Constitutional Authority Statement.........................          36
Section-by-Section Analysis and Discussion.................          36
Agency Views...............................................          41
Changes in Existing Law Made by the Bill, as Reported......          44
Dissenting Views...........................................          51

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Agricultural 
Opportunities Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

                TITLE I--AGRICULTURAL WORKER REGISTRIES

Sec. 101. Agricultural worker registries.

                         TITLE II--H-2C PROGRAM

Sec. 201. Employer applications and assurances.
Sec. 202. Search of registry.
Sec. 203. Issuance of visas and admission of aliens.
Sec. 204. Employment requirements.
Sec. 205. Program for the admission of temporary H-2C workers.

                  TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Enhanced worker protections and labor standards enforcement.
Sec. 302. Commission.
Sec. 303. Regulations.
Sec. 304. Determination and use of user fees.
Sec. 305. Funding for startup costs.
Sec. 306. Report to Congress.
Sec. 307. Effective date.
Sec. 308. Termination of program.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Adverse effect wage rate.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the term ``adverse effect wage rate'' means the 
                rate of pay for an agricultural occupation that is 5 
                percent above the prevailing rate of pay for that 
                agricultural occupation in an area of intended 
                employment, if the prevailing rate of pay for the 
                occupation is less than the prior year's average hourly 
                earnings of field and livestock workers for the State 
                (or region that includes the State), as determined by 
                the Secretary of Agriculture, provided no adverse 
                effect wage rate shall be more than the prior year's 
                average hourly earnings of field and livestock workers 
                for the State (or region that includes the State), as 
                determined by the Secretary of Agriculture.
                    (B) Exception.--If the prevailing rate of pay for 
                an activity is a piece rate, task rate, or group rate, 
                and the average hourly earnings of an employer's 
                workers employed in that activity, taken as a group, 
                are less than the prior year's average hourly earnings 
                of field and livestock workers in the State (or region 
                that includes the State), as determined by the 
                Secretary of Agriculture, the term ``adverse effect 
                wage rate'' means the prevailing piece rate, task rate, 
                or group rate for the activity plus such an amount as 
                is necessary to increase the average hourly earnings of 
                the employer's workers employed in the activity, taken 
                as a group, by 5 percent, or to the prior's years 
                average hourly earnings for field and livestock workers 
                for the State (or region that includes the State) 
                determined by the Secretary of Agriculture, whichever 
                is less.
            (2) Agricultural employment.--The term ``agricultural 
        employment'' means any service or activity that is considered 
        to be agriculture under section 3(f) of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor 
        under section 3121(g) of the Internal Revenue Code of 1986. For 
        purposes of this paragraph, agricultural employment in the 
        United States includes, but is not limited to, employment under 
        section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality 
        Act.
            (3) Eligible.--The term ``eligible'' means, with respect to 
        employment, an individual who is not an unauthorized alien (as 
        defined in section 274A(h)(3) of the Immigration and 
        Nationality Act (8 U.S.C. 1324a(h)(3)) with respect to that 
        employment.
            (4) Employer.--The term ``employer'' means any person or 
        entity, including any farm labor contractor and any 
        agricultural association, that employs workers.
            (5) H-2C employer.--The term ``H-2C employer'' means an 
        employer who seeks to hire one or more nonimmigrant aliens 
        described in section 101(a)(15)(H)(ii)(c) of the Immigration 
        and Nationality Act.
            (6) H-2C  worker.--The term ``H-2C worker'' means a 
        nonimmigrant described in section 101(a)(15)(H)(ii)(c) of the 
        Immigration and Nationality Act.
            (7) Job opportunity.--The term ``job opportunity'' means a 
        specific period of employment provided by an employer to a 
        worker in one or more agricultural activities.
            (8) Prevailing wage.--The term ``prevailing wage'' means 
        with respect to an agricultural activity in an area of intended 
        employment, the rate of wages that includes the 51st percentile 
        of employees in that agricultural activity in the area of 
        intended employment, expressed in terms of the prevailing 
        method of pay for the agricultural activity in the area of 
        intended employment.
            (9) Registered worker.--The term ``registered worker'' 
        means an individual whose name appears in a registry.
            (10) Registry.--The term ``registry'' means an agricultural 
        worker registry established under section 101(a).
            (11) Secretary.--The term ``Secretary'' means the Secretary 
        of Labor.
            (12) United states worker.--The term ``United States 
        worker'' means any worker, whether a United States citizen or 
        national, a lawfully admitted permanent resident alien, or any 
        other alien who is authorized to work in the job opportunity 
        within the United States other than an alien admitted pursuant 
        to section 101(a)(15)(H)(ii)(c) or section 218A of the 
        Immigration and Nationality Act, as in effect on the effective 
        date of this Act.

                TITLE I--AGRICULTURAL WORKER REGISTRIES

SEC. 101. AGRICULTURAL WORKER REGISTRIES.

    (a) Establishment of Registries.--
            (1) In general.--The Secretary shall establish and maintain 
        a system of registries containing a current database of 
        eligible United States workers who seek agricultural employment 
        and the employment status of such workers--
                    (A) to ensure that eligible United States workers 
                are informed about available agricultural job 
                opportunities and have the right of first refusal for 
                the agricultural jobs available through the registry; 
                and
                    (B) to provide timely referral of such workers to 
                agricultural job opportunities in the United States.
            (2) Geographic coverage.--
                    (A) Single state.--Each registry established under 
                paragraph (1) shall include the job opportunities in a 
                single State, except that, in the case of New England 
                States, 2 or more such States may be represented by a 
                single registry in lieu of multiple registries.
                    (B) Requests for inclusion.--Each State having any 
                group of agricultural producers seeking to utilize the 
                registry shall be represented by a registry, except 
                that, in the case of a New England State, the State 
                shall be represented by the registry covering the group 
                of States of which the State is a part.
            (3) Computer database.--The Secretary may establish the 
        registries as part of the computer databases known as 
        ``America's Job Bank'' and ``America's Talent Bank''.
            (4) Relation to process for importing h-2c workers.--
        Notwithstanding section 218A of the Immigration and Nationality 
        Act, no petition to import an alien as an H-2C worker may be 
        approved by the Attorney General unless the H-2C employer--
                    (A) has applied to the Secretary to conduct a 
                search of the registry of the State in which the job 
                opportunities for which H-2C workers are sought are 
                located; and
                    (B) has received a report or approved application 
                described in section 203(a)(1).
    (b) Registration.--
            (1) In general.--An eligible individual who seeks 
        employment in agricultural work may apply to be included in the 
        registry for the State in which the individual resides. Such 
        application shall include--
                    (A) the name and address of the individual;
                    (B) the period or periods of time (including 
                beginning and ending dates) during which the individual 
                will be available for agricultural work;
                    (C) the registry or registries on which the 
                individual desires to be included;
                    (D) the specific qualifications and work experience 
                possessed by the applicant;
                    (E) the type or types of agricultural work the 
                applicant is willing to perform;
                    (F) such other information as the applicant wishes 
                to be taken into account in referring the applicant to 
                agricultural job opportunities; and
                    (G) such other information as may be required by 
                the Secretary.
            (2) Validation of employment authorization.--No person may 
        be included on any registry unless the Secretary has requested 
        and obtained from the Attorney General a certification that the 
        person is authorized to be employed in the United States.
            (3) Employment verification system.--The Attorney General 
        shall establish a reliable automated employment eligibility 
        verification system to ensure that an employer who hires an H-
        2C worker does not hire for employment in the United States an 
        unauthorized alien (as defined in section 274A(h)(3) of the 
        Immigration and Nationality Act).
            (4) United states workers.--United States workers shall 
        have preference in referral by the registry, and may be 
        referred to any job opportunity nationwide for which they are 
        qualified and make a commitment to be available at the time and 
        place needed.
            (5) Use of registry.--Any United States agricultural 
        employer may use the registry.
            (6) Discretionary use for new hires.--An agricultural 
        employer may require prospective employees to register with a 
        registry as a means of assuring that its workers are eligible 
        to be employed in the United States.
            (7) Workers referred to job opportunities.--The name of 
        each registered worker who is referred and accepts employment 
        with an employer shall be classified as inactive on each 
        registry on which the worker is included during the period of 
        employment involved in the job to which the worker was 
        referred, unless the worker reports to the Secretary that the 
        worker is no longer employed and is available for referral to 
        another job opportunity. A registered worker classified as 
        inactive shall not be referred.
            (8) Removal of names from a registry.--The Secretary shall 
        remove from the appropriate registry the name of any registered 
        worker who, on 3 separate occasions within a 3-month period, is 
        referred to a job opportunity pursuant to this section, and who 
        declines such referral or fails to report to work in a timely 
        manner.
            (9) Voluntary removal.--A registered worker may request 
        that the worker's name be removed from a registry.
            (10) Removal by expiration.--The application of a 
        registered worker shall expire, and the Secretary shall remove 
        the name of such worker from the appropriate registry if the 
        worker has not accepted a job opportunity pursuant to this 
        section within the preceding 12-month period.
            (11) Reinstatement.--A worker whose name is removed from a 
        registry pursuant to paragraph (8), (9), or (10) may apply to 
        the Secretary for reinstatement to such registry at any time.
    (c) Confidentiality of Registries.--The Secretary shall maintain 
the confidentiality of the registries established pursuant to this 
section, and the information in such registries shall not be used for 
any purposes other than those authorized in this Act.
    (d) Advertising of Registries.--The Secretary shall widely 
disseminate, through advertising and other means, the existence of the 
registries for the purpose of encouraging eligible United States 
workers seeking agricultural job opportunities to register. The 
Secretary shall ensure that the information about the registry is made 
available to eligible workers through all appropriate means, including 
appropriate State agencies, groups representing farmworkers, and 
nongovernmental organizations, and shall ensure that the registry is 
accessible to growers and farmworkers.

                         TITLE II--H-2C PROGRAM

SEC. 201. EMPLOYER APPLICATIONS AND ASSURANCES.

    (a) Applications to the Secretary.--
            (1) In general.--Not later than 28 days prior to the date 
        on which an H-2C employer desires to employ an H-2C worker in a 
        temporary or seasonal agricultural job opportunity, the 
        employer shall, before petitioning for the admission of such a 
        worker, apply to the Secretary for the referral of a United 
        States worker or nonimmigrant agricultural worker through a 
        search of the appropriate registry, in accordance with section 
        202. Such application shall--
                    (A) describe the nature and location of the work to 
                be performed;
                    (B) list the anticipated period (expected beginning 
                and ending dates) for which workers will be needed;
                    (C) indicate the number of job opportunities in 
                which the employer seeks to employ workers from the 
                registry;
                    (D) describe the bona fide occupational 
                qualifications that must be possessed by a worker to be 
                employed in the job opportunity in question;
                    (E) describe the wages and other terms and 
                conditions of employment the employer will offer, which 
                shall not be less (and are not required to be more) 
                than those required by this section;
                    (F) contain the assurances required by subsection 
                (c);
                    (G) specify the foreign country or region thereof 
                from which alien workers should be admitted in the case 
                of a failure to refer United States workers under this 
                Act; and
                    (H) be accompanied by the payment of a registry 
                user fee determined under section 304(b)(1)(A) for each 
                job opportunity indicated under subparagraph (C).
            (2) Applications by associations on behalf of employer 
        members.--
                    (A) In general.--An agricultural association may 
                file an application under paragraph (1) for registered 
                workers on behalf of its employer members.
                    (B) Employers.--An application under subparagraph 
                (A) shall cover those employer members of the 
                association that the association certifies in its 
                application have agreed in writing to comply with the 
                requirements of this Act.
    (b) Amendment of Applications.--Prior to receiving a referral of 
workers from a registry, an employer may amend an application under 
this subsection if the employer's need for workers changes. If an 
employer makes a material amendment to an application on a date which 
is later than 28 days prior to the date on which the workers on the 
amended application are sought to be employed, the Secretary may delay 
issuance of the report described in section 202(b) by the number of 
days by which the filing of the amended application is later than 28 
days before the date on which the employer desires to employ workers.
    (c) Assurances.--The assurances referred to in subsection (a)(1)(F) 
are the following:
            (1) Assurance that the job opportunity is not a result of a 
        labor dispute.--The employer shall assure that the job 
        opportunity for which the employer requests a registered worker 
        is not vacant because a worker is involved in a strike, 
        lockout, or work stoppage in the course of a labor dispute 
        involving the job opportunity at the place of employment.
            (2) Assurance that the job opportunity is temporary or 
        seasonal.--
                    (A) Required assurance.--The employer shall assure 
                that the job opportunity for which the employer 
                requests a registered worker is temporary or seasonal.
                    (B) Seasonal basis.--For purposes of this Act, 
                labor is performed on a seasonal basis where, 
                ordinarily, the employment pertains to or is of the 
                kind exclusively performed at certain seasons or 
                periods of the year and which, from its nature, may not 
                be continuous or carried on throughout the year.
                    (C) Temporary basis.--For purposes of this Act, a 
                worker is employed on a temporary basis where the 
                employment is intended not to exceed 10 months.
            (3) Assurance of provision of required wages and 
        benefits.--The employer shall assure that the employer will 
        provide the wages and benefits required by subsections (a), 
        (b), and (c) of section 204 to all workers employed in job 
        opportunities for which the employer has applied under 
        subsection (a) and to all other workers in the same occupation 
        at the place of employment, and in no case less than the 
        greater of the hourly wage prescribed under section 6(a)(1) of 
        the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or 
        the applicable State minimum wage.
            (4) Assurance of employment.--The employer shall assure 
        that the employer will not refuse to employ qualified 
        individuals referred under section 202, and will terminate 
        qualified individuals employed pursuant to this Act only for 
        lawful job-related reasons, including lack of work.
            (5) Assurance of compliance with labor laws.--
                    (A) In general.--An employer who requests 
                registered workers shall assure that, except as 
                otherwise provided in this Act, the employer will 
                comply with all applicable Federal, State, and local 
                labor laws, including laws affecting migrant and 
                seasonal agricultural workers, with respect to all 
                United States workers and alien workers employed by the 
                employer.
                    (B) Limitations.--The disclosure required under 
                section 201(a) of the Migrant and Seasonal Agricultural 
                Worker Protection Act (29 U.S.C. 1821(a)) may be made 
                at any time prior to the time the alien is issued a 
                visa permitting entry into the United States.
            (6) Assurance of advertising of the registry.--The employer 
        shall assure that, from the day an application for workers is 
        submitted under subsection (a), and continuing throughout the 
        period of employment of any job opportunity for which the 
        employer has applied for a worker from the registry, post in a 
        conspicuous place a poster to be provided by the Secretary 
        advertising the availability of the registry.
            (7) Assurance of advertising of job opportunities.--The 
        employer shall assure that not later than 14 days after 
        submitting an application to a registry for workers under 
        subsection (a) the employer will advertise the availability of 
        the job opportunities for which the employer is seeking workers 
        from the registry in a publication in the local labor market 
        that is likely to be patronized by potential farmworkers, if 
        any, and refer interested workers to register with the 
        registry.
            (8) Assurance of contacting former workers.--The employer 
        shall assure that the employer has made reasonable efforts 
        through the sending of a letter by United States Postal Service 
        mail, or otherwise, to contact any eligible worker the employer 
        employed during the previous season in the occupation at the 
        place of intended employment for which the employer is applying 
        for registered workers, and has made the availability of the 
        employer's job opportunities in the occupation at the place of 
        intended employment known to such previous worker, unless the 
        worker was terminated from employment by the employer for a 
        lawful job-related reason or abandoned the job before the 
        worker completed the period of employment of the job 
        opportunity for which the worker was hired.
            (9) Assurance of provision of workers compensation.--The 
        employer shall assure that if the job opportunity is not 
        covered by the State workers' compensation law, that the 
        employer will provide, at no cost to the worker, insurance 
        covering injury and disease arising out of and in the course of 
        the worker's employment which will provide benefits at least 
        equal to those provided under the State workers' compensation 
        law for comparable employment.
            (10) Assurance of payment of alien employment user fee.--
        The employer shall assure that if the employer receives a 
        notice of insufficient workers under section 202(c), such 
        employer shall promptly pay the alien employment user fee 
        determined under section 304(b)(1)(B) for each job opportunity 
        to be filled by an eligible alien as required under such 
        section.
    (d) Withdrawal of Applications.--
            (1) In general.--An employer may withdraw an application 
        under subsection (a), except that, if the employer is an 
        agricultural association, the association may withdraw an 
        application under subsection (a) with respect to one or more of 
        its members. To withdraw an application, the employer shall 
        notify the Secretary in writing, and the Secretary shall 
        acknowledge in writing the receipt of such withdrawal notice. 
        An employer who withdraws an application under subsection (a), 
        or on whose behalf an application is withdrawn, is relieved of 
        the obligations undertaken in the application.
            (2) Limitation.--An application may not be withdrawn while 
        any alien provided status under this Act pursuant to such 
        application is employed by the employer.
            (3) Obligations under other statutes.--Any obligation 
        incurred by an employer under any other law or regulation as a 
        result of recruitment of United States workers under an offer 
        of terms and conditions of employment required as a result of 
        making an application under subsection (a) is unaffected by 
        withdrawal of such application.
    (e) Review of Application.--
            (1) In general.--Promptly upon receipt of an application by 
        an employer under subsection (a), the Secretary shall review 
        the application for compliance with the requirements of such 
        subsection.
            (2) Approval of applications.--If the Secretary determines 
        that an application meets the requirements of subsection (a), 
        and the employer is not ineligible to apply under paragraph 
        (2), (3), or (4) of section 301(b), the Secretary shall, not 
        later than 7 days after the receipt of such application, 
        approve the application and so notify the employer.
            (3) Rejection of applications.--If the Secretary determines 
        that an application fails to meet 1 or more of the requirements 
        of subsection (a), the Secretary, as expeditiously as possible, 
        but in no case later than 7 days after the receipt of such 
        application, shall--
                    (A) notify the employer of the rejection of the 
                application and the reasons for such rejection, and 
                provide the opportunity for the prompt resubmission of 
                an amended application; and
                    (B) offer the applicant an opportunity to request 
                an expedited administrative review or a de novo 
                administrative hearing before an administrative law 
                judge of the rejection of the application.
            (4) Rejection for program violations.--The Secretary shall 
        reject the application of an employer under this section if--
                    (A) the employer has been determined to be 
                ineligible to employ workers under section 301(b); or
                    (B) the employer during the previous 2-year period 
                employed H-2C workers or registered workers and the 
                Secretary has determined, after notice and opportunity 
                for a hearing, that the employer at any time during 
                that period substantially violated a material term or 
                condition of the assurances made with respect to the 
                employment of United States workers or nonimmigrant 
                workers.
        No employer may have applications under this section rejected 
        for more than 3 years for any violation described in this 
        paragraph.

SEC. 202. SEARCH OF REGISTRY.

    (a) Search Process and Referral to the Employer.--Upon the approval 
of an application under section 201(e), the Secretary shall promptly 
begin a search of the registry of the State (or States) in which the 
work is to be performed to identify registered United States workers 
with the qualifications requested by the employer. The Secretary shall 
contact such qualified registered workers and determine, in each 
instance, whether the worker is ready, willing, and able to accept the 
employer's job opportunity and will make the affirmative commitment to 
work for the employer at the time and place needed. The Secretary shall 
provide to each worker who commits to work for the employer the 
employer's name, address, telephone number, the location where the 
employer has requested that employees report for employment, and a 
statement disclosing the terms and conditions of employment.
    (b) Deadline for Completing Search Process; Referral of Workers.--
As expeditiously as possible, but not later than 7 days before the date 
on which an employer desires work to begin, the Secretary shall 
complete the search under subsection (a) and shall transmit to the 
employer a report containing the name, address, and social security 
account number of each registered worker who has made the affirmative 
commitment described in subsection (a) to work for the employer on the 
date needed, together with sufficient information to enable the 
employer to establish contact with the worker. The identification of 
such registered workers in a report shall constitute a referral of 
workers under this section.
    (c) Acceptance of Referrals.--H-2C employers shall accept all 
qualified United States worker referrals who make a commitment to 
report to work at the time and place needed and to complete the full 
period of employment offered, on the registry of the State in which the 
intended employment is located, and the immediately contiguous States. 
An employer shall not be required to accept more referrals than the 
number of job opportunities for which the employer applied to the 
registry.
    (d) Notice of Insufficient Workers.--If the report provided to the 
employer under subsection (b) does not include referral of a sufficient 
number of registered workers to fill all of the employer's job 
opportunities in the occupation for which the employer applied under 
section 201(a), the Secretary shall indicate in the report the number 
of job opportunities for which registered workers could not be 
referred, and shall promptly transmit a copy of the report to the 
Attorney General and the Secretary of State, by electronic or other 
means ensuring next day delivery.
    (e) User Fee for Certification To Employ Alien Workers.--With 
respect to each job opportunity for which a notice of insufficient 
workers is made, the Secretary shall require the payment of an alien 
employment user fee determined under section 304(b)(1)(B).

SEC. 203. ISSUANCE OF VISAS AND ADMISSION OF ALIENS.

    (a) In General.--
            (1) Number of admissions.--Subject to paragraph (2), the 
        Secretary of State shall promptly issue visas to, and the 
        Attorney General shall admit, as nonimmigrant aliens described 
        in section 101(a)(15)(H)(ii)(c) of the Immigration and 
        Nationality Act a sufficient number of eligible aliens 
        designated by the employer to fill the job opportunities of the 
        employer--
                    (A) upon receipt of a copy of the report described 
                in section 202(b);
                    (B) upon approval of an application (or copy of an 
                application under subsection (b));
                    (C) upon receipt of the report required by 
                subsection (c)(1)(B); or
                    (D) upon receipt of a report under subsection (d).
            (2) Procedures.--The admission of aliens under paragraph 
        (1) shall be subject to the procedures of section 218A of the 
        Immigration and Nationality Act.
    (b) Direct Application Upon Failure To Act.--
            (1) Application to the secretary of state.--If the employer 
        has not received a referral of sufficient workers pursuant to 
        section 202(b) or a report of insufficient workers pursuant to 
        section 202(d), by the date that is 7 days before the date on 
        which the work is anticipated to begin, the employer may submit 
        an application for alien workers directly to the Secretary of 
        State, with a copy of the application provided to the Attorney 
        General, seeking the issuance of visas to and the admission of 
        aliens for employment in the job opportunities for which the 
        employer has not received referral of registered workers. Such 
        an application shall include a copy of the employer's 
        application under section 201(a), together with evidence of its 
        timely submission. The Secretary of State may consult with the 
        Secretary in carrying out this paragraph.
            (2) Expedited consideration by secretary of state.--The 
        Secretary of State shall, as expeditiously as possible, but not 
        later than 5 days after the employer files an application under 
        paragraph (1), issue visas to, and the Attorney General shall 
        admit, a sufficient number of eligible aliens designated by the 
        employer to fill the job opportunities for which the employer 
        has applied under that paragraph, if the employer has met the 
        requirements of sections 201 and 202. The employer shall be 
        subject to the alien employment user fee determined under 
        section 304(b)(1)(B) with respect to each job opportunity for 
        which the Secretary of State authorizes the issuance of a visa 
        pursuant to paragraph (2).
    (c) Redetermination of Need.--
            (1) Requests for redetermination.--
                    (A) In general.--An employer may file a request for 
                a redetermination by the Secretary of the employer's 
                need for workers if a worker referred from the 
                registry--
                            (i) is not at the place of employment on 
                        the date of need shown on the application, or 
                        the date the work for which the worker is 
                        needed has begun, whichever is later;
                            (ii) is not ready, willing, able, or 
                        qualified to perform the work required; or
                            (iii) abandons the employment or is 
                        terminated for a lawful job-related reason.
                    (B) Additional authorization of admissions.--The 
                Secretary shall expeditiously, but in no case later 
                than 72 hours after a redetermination is requested 
                under subparagraph (A), submit a report to the 
                Secretary of State and the Attorney General providing 
                notice of a need for workers under this subsection, if 
                the employer has met the requirements of sections 201 
                and 202 and the conditions described in subparagraph 
                (A).
            (2) Job-related requirements.--An employer shall not be 
        required to initially employ a worker who fails to meet lawful 
        job-related employment criteria, nor to continue the employment 
        of a worker who fails to meet lawful, job-related standards of 
        conduct and performance, including failure to meet minimum 
        production standards after a 3-day break-in period.
    (d) Emergency Applications.--Notwithstanding subsections (b) and 
(c), the Secretary may promptly transmit a report to the Attorney 
General and Secretary of State providing notice of a need for workers 
under this subsection for an employer--
            (1) who has not employed aliens under this Act in the 
        occupation in question in the prior year's agricultural season;
            (2) who faces an unforeseen need for workers (as determined 
        by the Secretary); and
            (3) with respect to whom the Secretary cannot refer ready, 
        willing, able and qualified workers from the registry who will 
        commit to be at the employer's place of employment and ready 
        for work within 72 hours or on the date the work for which the 
        worker is needed has begun, whichever is later.
The employer shall be subject to the alien employment user fee 
determined under section 304(b)(1)(B) with respect to each job 
opportunity for which a notice of insufficient workers is made pursuant 
to this subsection.
    (e) Regulations.--The Secretary of State shall prescribe 
regulations to provide for the designation of aliens under this 
section.

SEC. 204. EMPLOYMENT REQUIREMENTS.

    (a) Required Wages.--
            (1) In general.--An employer applying under section 201(a) 
        for workers shall offer to pay, and shall pay, all workers in 
        the occupation or occupations for which the employer has 
        applied for workers from the registry, not less (and is not 
        required to pay more) than the greater of the prevailing wage 
        in the occupation in the area of intended employment or the 
        adverse effect wage rate. No worker shall be paid less than the 
        greater of the hourly wage prescribed under section 6(a)(1) of 
        the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or 
        the applicable State minimum wage.
            (2) Payment of prevailing wage determined by a state 
        employment security agency sufficient.--In complying with 
        paragraph (1), an employer may request and obtain a prevailing 
        wage determination from the State employment security agency. 
        If the employer requests such a determination, and pays the 
        wage required by paragraph (1) based upon such a determination, 
        such payment shall be considered sufficient to meet the 
        requirement of such paragraph.
            (3) Reliance on wage survey.--In lieu of the procedure of 
        paragraph (2), an employer may rely on other information, such 
        as an employer-generated prevailing wage survey that the 
        Secretary determines meets criteria specified by the Secretary 
        in regulations.
            (4) Alternative methods of payment permitted.--
                    (A) In general.--A prevailing wage may be expressed 
                as an hourly wage, a piece rate, a task rate, or other 
                incentive payment method, including a group rate. The 
                requirement to pay at least the prevailing wage in the 
                occupation and area of intended employment does not 
                require an employer to pay by the method of pay in 
                which the prevailing rate is expressed, except that, if 
                the employer adopts a method of pay other than the 
                prevailing rate, the burden of proof is on the employer 
                to demonstrate that the employer's method of pay is 
                designed to produce earnings equivalent to the earnings 
                that would result from payment of the prevailing rate.
                    (B) Compliance when paying an incentive rate.--In 
                the case of an employer that pays a piece rate or task 
                rate or uses any other incentive payment method, 
                including a group rate, the employer shall be 
                considered to be in compliance with any applicable 
                hourly wage requirement if the average of the hourly 
                earnings of the workers, taken as a group, in the 
                activity for which a piece rate, task rate, or other 
                incentive payment, including a group rate, is paid, for 
                the pay period, is at least equal to the required 
                hourly wage, except that no worker shall be paid less 
                than the hourly wage prescribed under section 6(a)(1) 
                of the Fair Labor Standards Act of 1938 (29 U.S.C. 
                206(a)(1)) or the applicable State minimum wage.
                    (C) Task rate.--For purposes of this paragraph, the 
                term ``task rate'' means an incentive payment method 
                based on a unit of work performed such that the 
                incentive rate varies with the level of effort required 
                to perform individual units of work.
                    (D) Group rate.--For purposes of this paragraph, 
                the term ``group rate'' means an incentive payment 
                method in which the payment is shared among a group of 
                workers working together to perform the task.
    (b) Requirement To Provide Housing.--An employer applying under 
section 201(a) for workers shall offer to provide, and shall provide, 
housing to all workers in the occupation or occupations for which the 
employer has applied for workers from the registry. Such housing shall 
be provided at no cost to the worker. The housing shall meet Federal, 
State, and local standards, including Federal standards for temporary 
labor housing. When it is the prevailing practice in the area and 
occupation of intended employment to provide family housing, family 
housing shall be provided to workers with families who request it.
    (c) Housing Allowance as Alternative.--
            (1) In general.--In lieu of offering housing pursuant to 
        subsection (b), the employer may provide a reasonable housing 
        allowance during the 3-year period beginning on the effective 
        date of this Act, if the requirement of paragraph (2) is 
        satisfied or, in the case of a certification under such 
        paragraph that is expired, the requirement of paragraph (3) is 
        satisfied. Upon the request of a worker seeking assistance in 
        locating housing, the employer shall make a good faith effort 
        to assist the worker in identifying and locating housing in the 
        area of intended employment. An employer who offers a housing 
        allowance to a worker, or assists a worker in locating housing 
        which the worker occupies pursuant to this paragraph, shall not 
        be deemed to be a housing provider under section 203 of the 
        Migrant and Seasonal Agricultural Worker Protection Act (29 
        U.S.C. 1823) solely by virtue of providing such housing 
        allowance.
            (2) Certification.--The requirement of this paragraph is 
        satisfied if the Governor of the State certifies to the 
        Secretary that there is adequate housing available in an area 
        of intended employment for migrant farmworkers, and 
        nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) 
        of the Immigration and Nationality Act, who are seeking 
        temporary housing while employed at farm work. Such 
        certification shall expire after 3 years unless renewed by the 
        Governor of the State.
            (3) Effect of certification.--Notwithstanding the 
        expiration of a certification under paragraph (2) with respect 
        to an area of intended employment, a housing allowance 
        described in paragraph (1) may be offered for up to one year 
        after the date of expiration.
            (4) Amount of allowance.--The amount of a housing allowance 
        under this subsection shall be equal to the statewide average 
        fair market rental for existing housing for nonmetropolitan 
        counties for the State in which the employment occurs, as 
        established by the Secretary of Housing and Urban Development 
        pursuant to section 8(c) of the United States Housing Act of 
        1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit 
        and an assumption of 2 persons per bedroom.
    (d) Reimbursement of Transportation.--
            (1) To place of employment.--A worker who is referred to a 
        job opportunity under section 202(a), or an alien employed 
        pursuant to this Act, who completes 50 percent of the period of 
        employment of the job opportunity for which the worker was 
        hired, shall be reimbursed by the employer for the cost of the 
        worker's transportation and subsistence from the worker's 
        permanent place of residence (or place of last employment, if 
        the worker traveled from such place) to the place of employment 
        to which the worker was referred under section 202(a).
            (2) From place of employment.--A worker who is referred to 
        a job opportunity under section 202(a), or an alien employed 
        pursuant to this Act, who completes the period of employment 
        for the job opportunity involved, shall be reimbursed by the 
        employer for the cost of the worker's transportation and 
        subsistence from the place of employment to the worker's place 
        of residence, or to the place of next employment, if the worker 
        has contracted with a subsequent employer who has not agreed to 
        provide or pay for the worker's transportation and subsistence 
        to such subsequent employer's place of employment.
            (3) Limitation.--
                    (A) Amount of reimbursement.--Except as provided in 
                subparagraph (B), the amount of reimbursement provided 
                under paragraph (1) or (2) to a worker or alien shall 
                not exceed the lesser of--
                            (i) the actual cost to the worker or alien 
                        of the transportation and subsistence involved; 
                        or
                            (ii) the most economical and reasonable 
                        common carrier transportation charges and 
                        subsistence costs for the distance involved.
                    (B) Distance traveled.--No reimbursement under 
                paragraph (1) or (2) shall be required if the distance 
                traveled is 100 miles or less, or the worker is not 
                residing in employer-provided housing or housing 
                secured through a housing allowance as provided in 
                subsection (b)(6).
                    (C) Place of recruitment.--For the purpose of the 
                reimbursement required under paragraph (1) or (2) to 
                aliens admitted pursuant to this Act, the alien's place 
                of residence shall be deemed to be the place where the 
                alien was issued the visa authorizing admission to the 
                United States or, if no visa was required, the place 
                from which the alien departed the foreign country to 
                travel to the United States.
    (e) Continuing Obligation To Employ United States Workers.--
            (1) In general.--An employer that applies for registered 
        workers under section 201(a) shall, as a condition for the 
        approval of such application, continue to offer employment to 
        qualified, eligible United States workers who are referred 
        under section 202(b) after the employer receives the report 
        described in section 202(b).
            (2) Limitation.--An employer shall not be obligated to 
        comply with paragraph (1)--
                    (A) after 50 percent of the anticipated period of 
                employment shown on the employer's application under 
                section 201(a) has elapsed;
                    (B) during any period in which the employer is 
                employing no H-2C workers in the occupation for which 
                the United States worker was referred; or
                    (C) during any period when the Secretary is 
                conducting a search of a registry for workers in the 
                occupation and area of intended employment to which the 
                worker has been referred, or in other occupations in 
                the area of intended employment for which the worker 
                that has been referred is qualified and that offer 
                substantially similar terms and conditions of 
                employment.
            (3) Referral of workers during 50-percent period.--The 
        Secretary shall make all reasonable efforts to place a 
        registered worker in an open job acceptable to the worker, 
        including available jobs not listed on the registry, before 
        referring such worker to an employer for a job opportunity 
        already filled by, or committed to, an alien admitted pursuant 
        to this Act.
    (f) Guaranteed Number of Work Days.--An employer applying under 
section 201(a) for workers shall guarantee to offer to all workers in 
the occupation or occupations for which the employer has applied for 
workers from the registry at least \3/4\ of the work days of the total 
work period specified by the employer, including any extensions. If the 
employer offers any such worker fewer days, the employer shall pay the 
worker the amount which the worker would have earned had the worker, in 
fact, worked for the guaranteed number of days. The employer shall not 
be liable for payment under this subsection with respect to an alien 
who the Secretary has certified was displaced due to the employer's 
obligation under this Act to hire a United States worker.

SEC. 205. PROGRAM FOR THE ADMISSION OF TEMPORARY H-2C WORKERS.

    (a) Establishment of New Nonimmigrant Category for Pilot Program 
Agricultural Workers.--Section 101(a)(15)(H)(ii) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended--
            (1) by striking ``or (b)'' and inserting ``(b)''; and
            (2) by adding at the end the following:
        ``or (c) having a residence in a foreign country which he has 
        no intention of abandoning who is coming temporarily to the 
        United States pursuant to section 218A to perform such 
        agricultural labor or services of a temporary or seasonal 
        nature;''.
    (b) No Family Members Permitted.--Section 101(a)(15)(H) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by 
striking ``specified in this paragraph'' and inserting ``specified in 
this subparagraph (other than in clause (ii)(c))''.
    (c) Alternative Agricultural Temporary Worker Program.--
            (1) In general.--The Immigration and Nationality Act is 
        amended by inserting after section 218 the following:
          ``alternative agricultural temporary worker program
    ``Sec. 218A. (a) Procedure for Admission of Aliens Who Are Outside 
the United States.--
            ``(1) Criteria for admissibility.--
                    ``(A) In general.--An alien described in section 
                101(a)(15)(H)(ii)(c) of the Immigration and Nationality 
                Act shall be admissible under this section if the alien 
                is designated pursuant to section 203 of the 
                Agricultural Opportunities Act, otherwise admissible 
                under this Act, and the alien is not ineligible under 
                subparagraph (B) or (C).
                    ``(B) Disqualification.--An alien shall be 
                ineligible for admission to the United States or being 
                provided status under this section if the alien has, at 
                any time during the past 5 years--
                            ``(i) violated a material provision of this 
                        section, including the requirement to promptly 
                        depart the United States when the alien's 
                        authorized period of admission under this 
                        section has expired; or
                            ``(ii) otherwise violated a term or 
                        condition of admission to the United States as 
                        a nonimmigrant, including overstaying the 
                        period of authorized admission as such a 
                        nonimmigrant.
                    ``(C) Foreign residence requirement.--
                            ``(i) In general.--No alien admitted as a 
                        nonimmigrant under section 101(a)(15)(H)(ii)(c) 
                        or acquiring such status after admission shall 
                        be eligible to receive another nonimmigrant 
                        visa under such section until it is established 
                        that the alien--
                                    ``(I) departed the United States 
                                before the expiration of the alien's 
                                authorization to remain in the United 
                                States as such a nonimmigrant; and
                                    ``(II) has resided and been 
                                physically present in the country of 
                                the person's nationality or last 
                                residence for an aggregate of at least 
                                2 months after the expiration of such 
                                authorization.
                            ``(ii) Appearance before consular 
                        officer.--No alien admitted as a nonimmigrant 
                        under section 101(a)(15)(H)(ii)(c) or acquiring 
                        such status after admission shall be eligible 
                        to apply for another nonimmigrant visa under 
                        such section until the alien, at least 2 months 
                        after the expiration of the alien's 
                        authorization to remain in the United States as 
                        such a nonimmigrant--
                                    ``(I) appears before a consular 
                                officer in the country described in 
                                clause (i)(II);
                                    ``(II) verifies his or her identity 
                                by presenting to the consular officer 
                                the identification and employment 
                                eligibility document provided under 
                                subsection (a)(4); and
                                    ``(III) surrenders that document to 
                                the consular officer.
                            ``(iii) Entry and exit data system.--After 
                        the Attorney General fully implements the 
                        integrated entry and exit data system under 
                        section 110 of the Illegal Immigration Reform 
                        and Immigrant Responsibility Act of 1996 (8 
                        U.S.C. 1221 note), no alien admitted as a 
                        nonimmigrant under section 101(a)(15)(H)(ii)(c) 
                        or acquiring such status after admission shall 
                        be eligible to receive another nonimmigrant 
                        visa under such section unless the data in such 
                        system establish that--
                                    ``(I) the requirement of clause 
                                (i)(I) has been satisfied;
                                    ``(II) at least 2 months have 
                                elapsed since the expiration of the 
                                alien's authorization to remain in the 
                                United States as such a nonimmigrant; 
                                and
                                    ``(III) during that 2-month period, 
                                the alien has not entered or attempted 
                                to enter the United States.
            ``(2) Period of admission.--The alien shall be admitted for 
        the period requested by the employer not to exceed 10 months, 
        or the ending date of the anticipated period of employment on 
        the employer's application for registered workers, whichever is 
        less.
            ``(3) Abandonment of employment.--
                    ``(A) In general.--An alien admitted or provided 
                status under this section who abandons the employment 
                which was the basis for such admission or status shall 
                be considered to have failed to maintain nonimmigrant 
                status as an alien described in section 
                101(a)(15)(H)(ii)(c) and shall depart the United States 
                or be subject to removal under section 237(a)(1)(C)(i).
                    ``(B) Report by employer.--The employer (or 
                association acting as agent for the employer) shall 
                notify the Attorney General within 7 days of an alien 
                admitted or provided status under this Act pursuant to 
                an application to the Secretary under section 201 of 
                the Agricultural Opportunities Act who prematurely 
                abandons the alien's employment.
                    ``(C) Removal by the attorney general.--The 
                Attorney General shall promptly remove from the United 
                States aliens admitted pursuant to section 
                101(a)(15)(H)(ii)(c) who have failed to maintain 
                nonimmigrant status or who have otherwise violated the 
                terms of a visa issued under this title.
                    ``(D) Voluntary termination.--Notwithstanding the 
                provisions of subparagraph (A), an alien may 
                voluntarily terminate his or her employment if the 
                alien promptly departs the United States upon 
                termination of such employment.
                    ``(E) Replacement of alien.--Upon presentation of 
                the notice to the Attorney General required by 
                subparagraph (B), the Secretary of State shall promptly 
                issue a visa to, and the Attorney General shall admit, 
                an eligible alien designated by the employer to replace 
                an alien who abandons or prematurely terminates 
                employment.
            ``(4) Identification document and identification system.--
                    ``(A) In general.--Each alien admitted under this 
                section shall, upon receipt of a visa, be given an 
                identification and employment eligibility document to 
                verify eligibility for employment in the United States 
                and verify such person's proper identity.
                    ``(B) Requirements.--No identification and 
                employment eligibility document may be issued and no 
                identification system may be implemented which does not 
                meet the following requirements:
                            ``(i) The document and system shall be 
                        capable of reliably determining whether--
                                    ``(I) the individual with the 
                                identification and employment 
                                eligibility document whose eligibility 
                                is being verified is in fact eligible 
                                for employment,
                                    ``(II) the individual whose 
                                eligibility is being verified is 
                                claiming the identity of another 
                                person, and
                                    ``(III) the individual whose 
                                eligibility is being verified has been 
                                properly admitted under this section.
                            ``(ii) The document shall be in the form 
                        that is resistant to counterfeiting and to 
                        tampering.
                            ``(iii) The document shall incorporate, at 
                        a minimum, the features of the most 
                        technologically advanced identification 
                        documents issued under this Act on the date of 
                        the enactment of the Agricultural Opportunities 
                        Act that are designed--
                                    ``(I) to prevent counterfeiting;
                                    ``(II) to prevent tampering; and
                                    ``(III) to ensure that a person 
                                proffering the document as 
                                identification is the person to whom 
                                the document was issued.
                            ``(iv) The document and system shall--
                                    ``(I) be compatible with other 
                                Immigration and Naturalization Service 
                                databases and other Federal Government 
                                databases for the purpose of excluding 
                                aliens from benefits for which they are 
                                not eligible and to determine whether 
                                the alien is illegally present in the 
                                United States, and
                                    ``(II) be compatible with law 
                                enforcement databases to determine if 
                                the alien has been convicted of 
                                criminal offenses.
    ``(b) Extension of Stay of Aliens in the United States.--
            ``(1) Extension of stay.--If an employer with respect to 
        whom a report or application described in section 203(a)(1) of 
        the Agricultural Opportunities Act has been submitted seeks to 
        employ an alien who has acquired status under this section and 
        who is lawfully present in the United States, the employer 
        shall file with the Attorney General an application for an 
        extension of the alien's stay or a change in the alien's 
        authorized employment. The application shall be accompanied by 
        a copy of the appropriate report or application described in 
        section 203 of the Agricultural Opportunities Act.
            ``(2) Limitation on filing an application for extension of 
        stay.--An application may not be filed to extend an alien's 
        stay if the granting of the application would permit the 
        alien's period of authorized admission as a nonimmigrant 
        described in section 101(a)(15)(H)(ii)(c) to exceed 12 months.
            ``(3) Work authorization upon filing an application for 
        extension of stay.--An employer may begin employing an alien 
        who is present in the United States who has acquired status 
        under this Act on the day the employer files an application for 
        extension of stay. For the purpose of this requirement, the 
        term `filing' means sending the application by certified mail 
        via the United States Postal Service, return receipt requested, 
        or delivered by guaranteed commercial delivery which will 
        provide the employer with a documented acknowledgment of the 
        date of sending and receipt of the application. The employer 
        shall provide a copy of the employer's application to the 
        alien, who shall keep the application with the alien's 
        identification and employment eligibility document as evidence 
        that the application has been filed and that the alien is 
        authorized to work in the United States. Upon approval of an 
        application for an extension of stay or change in the alien's 
        authorized employment, the Attorney General shall provide a new 
        or updated employment eligibility document to the alien 
        indicating the new validity date, after which the alien is not 
        required to retain a copy of the application.
            ``(4) Limitation on employment authorization of aliens 
        without valid identification and employment eligibility card.--
        An expired identification and employment eligibility document, 
        together with a copy of an application for extension of stay or 
        change in the alien's authorized employment that complies with 
        the requirements of paragraph (1), shall constitute a valid 
        work authorization document for a period of not more than 60 
        days from the date of application for the extension of stay, 
        after which time only a currently valid identification and 
        employment eligibility document shall be acceptable.
            ``(5) Maximum period of authorized admission.--In the case 
        of a nonimmigrant described in section 101(a)(15)(H)(ii)(c) who 
        is granted an extension of stay under this subsection, the 
        period of authorized admission as such a nonimmigrant may not 
        exceed 12 months.''.
            (2) Clerical amendment.--The table of contents of the 
        Immigration and Nationality Act is amended by inserting after 
        the item relating to section 218 the following new item:

``Sec. 218A. Alternative agricultural temporary worker program.''.

    (d) Range Production of Livestock.--Nothing in this title shall 
preclude the Secretary and the Attorney General from continuing to 
apply special procedures to the employment, admission, and extension of 
aliens in the range production of livestock.
    (e) Verification of Return of Workers to Country of Origin.--The 
Attorney General shall establish a program to verify that H-2C workers 
are departing from the United States after the expiration of their 
authorized period of stay in the United States.

                  TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. ENHANCED WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.

    (a) Enforcement Authority.--
            (1) Investigation of complaints.--
                    (A) Aggrieved person or third-party complaints.--
                The Secretary shall establish a process for the 
                receipt, investigation, and disposition of complaints 
                respecting an employer's failure to meet a condition 
                specified in section 201 or an employer's 
                misrepresentation of material facts in an application 
                under that section, or violation of the provisions 
                described in subparagraph (B). Complaints may be filed 
                by any aggrieved person or any organization (including 
                bargaining representatives). No investigation or 
                hearing shall be conducted on a complaint concerning 
                such a failure or misrepresentation unless the 
                complaint was filed not later than 12 months after the 
                date of the failure or misrepresentation, as the case 
                may be. The Secretary shall conduct an investigation 
                under this paragraph if there is reasonable cause to 
                believe that such a failure or misrepresentation has 
                occurred.
                    (B) Expedited investigation of serious child labor, 
                wage, and housing violations.--The Secretary shall 
                complete an investigation and issue a written 
                determination as to whether or not a violation has been 
                committed within 10 days of the receipt of a complaint 
                pursuant to subparagraph (A) if there is reasonable 
                cause to believe that any of the following serious 
                violations have occurred:
                            (i) A violation of section 12(c) of the 
                        Fair Labor Standards Act of 1938 (29 U.S.C. 
                        212(c)).
                            (ii) A failure to make a wage payment, 
                        except that complaints alleging that an amount 
                        less than the wages due has been paid shall be 
                        handled pursuant to subparagraph (A).
                            (iii) A failure to provide the housing 
                        allowance required under section 204(b)(6).
                            (iv) Providing housing pursuant to section 
                        204(b)(1) that fails to comply with standards 
                        under section 204(b)(2) and which poses an 
                        immediate threat of serious bodily injury or 
                        death to workers.
                    (C) Statutory construction.--Nothing in this Act 
                limits the authority of the Secretary to conduct any 
                compliance investigation under any other labor law, 
                including any law affecting migrant and seasonal 
                agricultural workers or, in the absence of a complaint 
                under this paragraph, under this Act.
            (2) Written notice of finding and opportunity for appeal.--
        After an investigation has been conducted, the Secretary shall 
        issue a written determination as to whether or not any 
        violation described in subsection (b) has been committed. The 
        Secretary's determination shall be served on the complainant 
        and the employer, and shall provide an opportunity for an 
        appeal of the Secretary's decision to an administrative law 
        judge, who may conduct a de novo hearing.
            (3) Ability of alien workers to change employers.--
                    (A) In general.--Pending the completion of an 
                investigation pursuant to paragraph (1)(A), the 
                Secretary may permit the transfer of an aggrieved 
                person who has filed a complaint under such paragraph 
                to an employer that--
                            (i) has been approved to employ workers 
                        under this Act; and
                            (ii) agrees to accept the person for 
                        employment.
                    (B) Replacement worker.--An aggrieved person may 
                not be transferred under subparagraph (A) until such 
                time as the employer from whom the person is to be 
                transferred receives a requested replacement worker 
                referred by a registry pursuant to section 202 of this 
                Act or provided status under section 
                101(a)(15)(H)(ii)(c) of the Immigration and Nationality 
                Act.
                    (C) Limitation.--An employer from whom an aggrieved 
                person has been transferred under this paragraph shall 
                have no obligation to reimburse the person for the cost 
                of transportation prior to the completion of the period 
                of employment referred to in section 204(d).
                    (D) Voluntary transfer.--Notwithstanding this 
                paragraph, an employer may voluntarily agree to 
                transfer a worker to another employer that--
                            (i) has been approved to employ workers 
                        under this Act; and
                            (ii) agrees to accept the person for 
                        employment.
    (b) Remedies.--
            (1) Back wages.--Upon a final determination that the 
        employer has failed to pay wages as required under this 
        section, the Secretary may assess payment of back wages due to 
        any United States worker or alien described in section 
        101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act 
        employed by the employer in the specific employment in 
        question. The back wages shall be equal to the difference 
        between the amount that should have been paid and the amount 
        that actually was paid to such worker.
            (2) Failure to pay wages.--Upon a final determination that 
        the employer has failed to pay the wages required under this 
        Act, the Secretary may assess a civil money penalty up to 
        $1,000 for each person for whom the employer failed to pay the 
        required wage, and may recommend to the Attorney General the 
        disqualification of the employer from the employment of aliens 
        described in section 101(a)(15)(H)(ii)(c) of the Immigration 
        and Nationality Act for a period of time determined by the 
        Secretary not to exceed 1 year.
            (3) Other violations.--If the Secretary, as a result of an 
        investigation pursuant to a complaint, determines that an 
        employer covered by an application under section 201(a) has--
                    (A) filed an application that misrepresents a 
                material fact;
                    (B) failed to meet a condition specified in section 
                201; or
                    (C) committed a serious violation of subsection 
                (a)(1)(B),
        the Secretary may seek a cease and desist order and assess a 
        civil money penalty not to exceed $1,000 for each violation and 
        may recommend to the Attorney General the disqualification of 
        the employer if the Secretary finds it to be a substantial 
        misrepresentation or violation of the requirements for the 
        employment of any United States workers or aliens described in 
        section 101(a)(15)(ii)(c) of the Immigration and Nationality 
        Act for a period of time determined by the Secretary not to 
        exceed 1 year. In determining the amount of civil money penalty 
        to be assessed or whether to recommend disqualification of the 
        employer, the Secretary shall consider the seriousness of the 
        violation, the good faith of the employer, the size of the 
        business of the employer being charged, the history of previous 
        violations by the employer, whether the employer obtained a 
        financial gain from the violation, whether the violation was 
        willful, and other relevant factors.
            (4) Expanded program disqualification.--
                    (A) 3 years for second violation.--Upon a second 
                final determination that an employer has failed to pay 
                the wages required under this Act, or a second final 
                determination that the employer has committed another 
                substantial violation under paragraph (3) in the same 
                category of violations, with respect to the same alien, 
                the Secretary shall report such determination to the 
                Attorney General and the Attorney General shall 
                disqualify the employer from the employment of aliens 
                described in section 101(a)(15)(H)(ii)(c) of the 
                Immigration and Nationality Act for a period of 3 
                years.
                    (B) Permanent for third violation.--Upon a third 
                final determination that an employer has failed to pay 
                the wages required under this section or committed 
                other substantial violations under paragraph (3), the 
                Secretary shall report such determination to the 
                Attorney General, and the Attorney General shall 
                disqualify the employer from any subsequent employment 
                of aliens described in section 101(a)(15)(H)(ii)(c) of 
                the Immigration and Nationality Act.
    (c) Role of Associations.--
            (1) Violation by a member of an association.--An employer 
        on whose behalf an application is filed by an association 
        acting as its agent is fully responsible for such application, 
        and for complying with the terms and conditions of this Act, as 
        though the employer had filed the application itself. If such 
        an employer is determined to have violated a requirement of 
        this section, the penalty for such violation shall be assessed 
        against the employer who committed the violation and not 
        against the association or other members of the association.
            (2) Violation by an association acting as an employer.--If 
        an association filing an application on its own behalf as an 
        employer is determined to have committed a violation under this 
        subsection which results in disqualification from the program 
        under subsection (b), no individual member of such association 
        may be the beneficiary of the services of an alien described in 
        section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality 
        Act in an occupation in which such alien was employed by the 
        association during the period such disqualification is in 
        effect, unless such member files an application as an 
        individual employer or such application is filed on the 
        employer's behalf by an association with which the employer has 
        an agreement that the employer will comply with the 
        requirements of this Act.
    (d) Study of Agricultural Labor Standards and Enforcement.--
            (1) Commission on housing migrant agricultural workers.--
                    (A) Establishment.--There is established the 
                Commission on Housing Migrant Agricultural Workers (in 
                this paragraph referred to as the ``Commission'').
                    (B) Composition.--The Commission shall consist of 
                12 members, as follows:
                            (i) Four representatives of agricultural 
                        employers and one representative of the 
                        Department of Agriculture, each appointed by 
                        the Secretary of Agriculture.
                            (ii) Four representatives of agricultural 
                        workers and one representative of the 
                        Department of Labor, each appointed by the 
                        Secretary.
                            (iii) One State or local official 
                        knowledgeable about farmworker housing and one 
                        representative of Housing and Urban 
                        Development, each appointed by the Secretary of 
                        Housing and Urban Development.
                    (C) Functions.--The Commission shall conduct a 
                study of the problem of in-season housing for migrant 
                agricultural workers.
                    (D) Interim reports.--The Commission may at any 
                time submit interim reports to Congress describing the 
                findings made up to that time with respect to the study 
                conducted under subparagraph (C).
                    (E) Final report.--Not later than 3 years after the 
                date of enactment of this Act, the Commission shall 
                submit a report to Congress setting forth the findings 
                of the study conducted under subparagraph (C).
                    (F) Termination date.--The Commission shall 
                terminate upon filing its final report.
            (2) Study of relationship between child care and child 
        labor.--The Secretaries of Labor, Agriculture, and Health and 
        Human Services shall jointly conduct a study of the issues 
        relating to child care of migrant agricultural workers. Such 
        study shall address issues related to the adequacy of 
        educational and day care services for migrant children and the 
        relationship, if any, of child care needs and child labor 
        violations in agriculture. An evaluation of migrant and 
        seasonal Head Start programs (as defined in section 637(12) of 
        the Head Start Act) as they relate to these issues shall be 
        included as a part of the study.
            (3) Study of field sanitation.--The Secretary and the 
        Secretary of Agriculture shall jointly conduct a study 
        regarding current field sanitation standards in agriculture and 
        evaluate alternative approaches and innovations that may 
        further compliance with such standards.
            (4) Study of coordinated and targeted labor standards 
        enforcement.--The Secretary, in consultation with the Secretary 
        of Agriculture, shall conduct a study of the most persistent 
        and serious labor standards violations in agriculture and 
        evaluate the most effective means of coordinating enforcement 
        efforts between Federal and State officials. The study shall 
        place primary emphasis on the means by which Federal and State 
        authorities, in consultation with representatives of workers 
        and agricultural employers, may develop more effective methods 
        of targeting resources at repeated and egregious violators of 
        labor standards. The study also shall consider ways of 
        facilitating expanded education among agricultural employers 
        and workers regarding compliance with labor standards and 
        evaluate means of broadening such education on a cooperative 
        basis among employers and workers.
            (5) Report.--Not later than 3 years after the date of 
        enactment of this Act, with respect to each study required to 
        be conducted under paragraphs (2) through (4), the Secretary or 
        group of Secretaries required to conduct the study shall submit 
        to Congress a report setting forth the findings of the study.

SEC. 302. COMMISSION.

    The Attorney General is authorized and requested to establish a 
commission between the United States and each country not less than 
10,000 nationals of which are nonimmigrant aliens described in section 
101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)(ii)(c)). Such commission shall provide a forum to the 
governments involved to discuss matters of mutual concern regarding the 
program for the admission of aliens under section 101(a)(15)(H)(ii)(c) 
of the Immigration and Nationality Act.

SEC. 303. REGULATIONS.

    (a) Regulations of the Attorney General.--The Attorney General 
shall consult with the Secretary and the Secretary of Agriculture on 
all regulations to implement the duties of the Attorney General under 
this Act.
    (b) Regulations of the Secretary of State.--The Secretary of State 
shall consult with the Attorney General, the Secretary, and the 
Secretary of Agriculture on all regulations to implement the duties of 
the Secretary of State under this Act.
    (c) Regulations of the Secretary of Labor.--The Secretary shall 
consult with the Secretary of Agriculture and shall obtain the approval 
of the Attorney General on all regulations to implement the duties of 
the Secretary under this Act.
    (d) Deadline for Issuance of Regulations.--All regulations to 
implement the duties of the Attorney General, the Secretary of State, 
and the Secretary shall take effect on the effective date of this Act.

SEC. 304. DETERMINATION AND USE OF USER FEES.

    (a) Schedule of Fees.--The Secretary shall establish and 
periodically adjust a schedule for the registry user fee and the alien 
employment user fee imposed under this Act, and a collection process 
for such fees from employers participating in the programs provided 
under this Act. Such fees shall be the only fees chargeable to 
employers for services provided under this Act.
    (b) Determination of Schedule.--
            (1) In general.--The schedule under subsection (a) shall 
        reflect a fee rate based on the number of job opportunities 
        indicated in an employer's application under section 
        201(a)(1)(C) and sufficient to provide for the reimbursement of 
        the direct costs of providing the following services:
                    (A) Registry user fee.--Services provided through 
                the agricultural worker registries established under 
                section 101(a), including registration, referral, and 
                validation, but not including services that would 
                otherwise be provided by the Secretary under related or 
                similar programs if such registries had not been 
                established.
                    (B) Alien employment user fee.--Services related to 
                an employer's authorization to employ eligible aliens 
                pursuant to this Act, including the establishment and 
                certification of eligible employers, the issuance of 
                documentation, and the admission of eligible aliens.
            (2) Procedure.--
                    (A) In general.--In establishing and adjusting such 
                schedule, the Secretary shall comply with Federal cost 
                accounting and fee setting standards.
                    (B) Publication and comment.--The Secretary shall 
                publish in the Federal Register an initial fee schedule 
                and associated collection process and the cost data or 
                estimates upon which such fee schedule is based, and 
                any subsequent amendments thereto, pursuant to which 
                public comment will be sought and a final rule issued.
    (c) Use of Proceeds.--
            (1) In general.--All proceeds resulting from the payment of 
        registry user fees and alien employment user fees shall be 
        available without further appropriation and shall remain 
        available without fiscal year limitation to reimburse the 
        Secretaries of Labor, State, and Agriculture, and the Attorney 
        General for the costs of carrying out section 218A of the 
        Immigration and Nationality Act and the provisions of this Act.
            (2) Limitation on enforcement costs.--In making a 
        determination of reimbursable costs under paragraph (1), the 
        Secretary shall provide that reimbursement of the costs of 
        enforcement under section 301 shall not exceed 10 percent of 
        the direct costs of the Secretary described in subparagraphs 
        (A) and (B) of subsection (b)(1).

SEC. 305. FUNDING FOR STARTUP COSTS.

    If additional funds are necessary to pay the startup costs of the 
agricultural worker registries established under section 101(a), such 
costs may be paid out of amounts available to Federal or State 
governmental entities under the Wagner-Peyser Act (29 U.S.C. 49 et 
seq.). Proceeds described in section 304(c) may be used to reimburse 
the use of such available amounts.

SEC. 306. REPORT TO CONGRESS.

    (a) Requirement.--Not later than 4 years after the effective date 
under section 307, the Resources, Community and Economic Development 
Division, and the Health, Education and Human Services Division, of the 
Office of the Comptroller General of the United States shall jointly 
prepare and transmit to the Committee on the Judiciary and the 
Committee on Agriculture of the House of Representatives and the 
Committee on the Judiciary and the Committee on Agriculture, Nutrition, 
and Forestry of the Senate a report describing the results of a review 
of the implementation of and compliance with this Act. The report shall 
address--
            (1) whether the program has ensured an adequate and timely 
        supply of qualified, eligible workers at the time and place 
        needed by employers;
            (2) whether the program has ensured that aliens admitted 
        under this program are employed only in authorized employment, 
        and that they timely depart the United States when their 
        authorized stay ends;
            (3) whether the program has ensured that participating 
        employers comply with the requirements of the program with 
        respect to the employment of United States workers and aliens 
        admitted under this program;
            (4) whether the program has ensured that aliens admitted 
        under this program are not displacing eligible, qualified 
        United States workers or diminishing the wages and other terms 
        and conditions of employment of eligible United States workers;
            (5) to the extent practicable, compare the wages and other 
        terms of employment of eligible United States workers and 
        aliens employed under this program with the wages and other 
        terms of employment of agricultural workers who are not 
        authorized to work in the United States;
            (6) whether the housing provisions of this program ensure 
        that adequate housing is available to workers employed under 
        this program who are required to be provided housing or a 
        housing allowance;
            (7) recommendations for improving the operation of the 
        program for the benefit of participating employers, eligible 
        United States workers, participating aliens, and governmental 
        agencies involved in administering the program; and
            (8) recommendations for the continuation or termination of 
        the program under this Act.
    (b) Advisory Board.--There shall be established an advisory board 
to be composed of--
            (1) four representatives of agricultural employers to be 
        appointed by the Secretary of Agriculture, including 
        individuals who have experience with the H-2C program; and
            (2) four representatives of agricultural workers to be 
        appointed by the Secretary, including individuals who have 
        experience with the H-2C program,
to provide advice to the Comptroller General in the preparation of the 
reports required under subsection (a).

SEC. 307. EFFECTIVE DATE.

    (a) In General.--This Act and the amendments made by this Act shall 
take effect on the date that is 1 year after the date of the enactment 
of this Act.
    (b) Report.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary shall prepare and submit to the 
appropriate committees of Congress a report that described the measures 
being taken and the progress made in implementing this Act.

SEC. 308. TERMINATION OF PROGRAM.

    This Act, and the amendments made by this Act, shall cease to be 
effective on the date that is 3 years after the effective date under 
section 307(a).

                          Purpose and Summary

    H.R. 4548, the ``Agricultural Opportunities Act,'' 
introduced by Rep. Pombo of California, would create a 3-year 
pilot program for agricultural guest workers using a new ``H-
2C'' visa.

                Background and Need for the Legislation

I. The Fruit, Vegetable, and Horticultural Specialty Industry and Labor 
                                 Force

    The branch of agriculture that relies most heavily on hired 
farmworkers, and hired immigrant farm workers, is that composed 
of fruit, vegetable, and horticultural specialty crops 
(``FVH''). What is distinctive about FVH crops? ``Many farmers 
with several hundred acres of land raise crops which can be 
mechanically planted, tended and harvested, and need only one 
or two `hired hands' to maintain their operations. In contrast, 
FVH-producing farmers are likely to need hundreds of seasonal 
employees to accomplish the same tasks.'' \1\ Many fruits and 
vegetables are still hand harvested and packed because they are 
so perishable and easily bruised. Most vegetables are 
predominantly hand harvested with certain exceptions such as 
tomatoes, carrots, corn, potatoes and spinach; most fruits are 
predominantly hand harvested with certain exceptions such as 
raspberries, dates, figs and cranberries.\2\
---------------------------------------------------------------------------
    \1\ Commission on Agricultural Workers, Report of the Commission on 
Agricultural Workers 27 (1992) (hereinafter cited as ``Commission'').
    \2\ See Hamm, Oliveira, Zepp & Duffield, Trends in Labor-Intensive 
Agriculture in Immigration Reform and U.S. Agriculture 39, 43 (Martin 
et al. eds., 1995). An estimated 63% of vegetable production and 11% of 
fruit production is harvested mechanically. See id. at 51.
---------------------------------------------------------------------------
    Because of these special requirements, the labor cost share 
of total production expenses is three times as large for FVH 
crops as for others.\3\ Because they are so labor intensive, 
FVH farmers must rely on hired help. Thus, in midwestern farms, 
hired farmworkers account for only 8.5% of all farmworkers. In 
California, where much of the FVH industry is located, the 
figure is 57%.\4\
---------------------------------------------------------------------------
    \3\ See id. at 39.
    \4\ See Commission at 44.
---------------------------------------------------------------------------
    The need for this labor is not spread out evenly over the 
year. Most is required at harvest time. An extreme example is 
provided by cantaloupe cultivation in Imperial County, 
California. One acre requires 1 to 2 hours of labor per month 
in the off season, but 180 hours at peak harvest.\5\ The 
Commission on Agricultural workers reported that:
---------------------------------------------------------------------------
    \5\ See id. at 46 n.9.

        The labor force at a commercial FVH farm typically 
        includes a small tier of year-round workers. On larger 
        operations, this includes laborers, supervisors, and 
        professional managers and marketers. This ``core'' 
        labor force is supplemented by a larger group of 
        regularly returning workers who, for a few weeks or 
        months, performs a characteristic mix of crop tasks. . 
        . . The majority of the work is usually done by a third 
        group of workers, a tier of ``peripheral,'' or 
        temporarily hired workers who are relied upon to meet 
        labor demand spikes, particularly during the 
        harvest.\6\
---------------------------------------------------------------------------
    \6\ Id. at 51.

    FVH farmers rely on seasonal hiring that employs between 1 
and 2 million workers annually.\7\ What are the characteristics 
of the average seasonal agricultural worker? In 1994-95: 65% 
were Mexican-born, 69% were foreign-born, 18% were white-U.S. 
born, 10% were Hispanic-U.S. born, 2% were black-U.S. born, 81% 
were male, 67% were under 35.\8\ Almost all the new entrants to 
this employment (approximately 200,000-300,000 each year) are 
immigrants--whether legal or illegal.\9\ As many as two thirds 
of the three million legal Mexican immigrants over the 10 years 
from the mid-1980's to the mid-1990's have had at least one job 
in U.S. agriculture.\10\
---------------------------------------------------------------------------
    \7\ See Martin, IRCA and Agriculture: Hopes, Fears, and Realities 
(hereinafter cited as ``Hopes''), in Immigration Reform and U.S. 
Agriculture 21, 37 n.4 (Martin et al. eds., 1995). Of course, other 
farmers--and ranchers--also make use of seasonal agricultural workers.
    \8\ See U.S. Department of Labor, Office of the Assistant Secretary 
for Policy, A Profile of U.S. Farmworkers: Demographics, Household 
Composition, Income and Use of Services 3 (1997).
    \9\ See Hopes at 22.
    \10\ See Martin & Taylor, Guest Worker Programs and Policies 4 
(1995).
---------------------------------------------------------------------------
    What are the wages of these workers? The average wage in 
1998 for hired farmworkers was $6.18.\11\ Seventeen percent of 
seasonal agricultural workers are paid by the piece, as are 46% 
of harvest workers.\12\ Many of these workers will stitch 
together employment from a series of jobs, often following the 
harvests of different fruits and vegetables around the country.
---------------------------------------------------------------------------
    \11\ See H.R. 4548, the ``Agricultural Opportunities Act'': Hearing 
Before the Subcomm. on Immigration and Claims of the House Comm. on the 
Judiciary, 106th Cong., 2nd Sess. (June 15, 2000)(hereinafter cited as 
``Hearing on H.R. 4548'') (statement of John Fraser, Deputy Wage and 
Hour Administrator, Employment Standards Administration, U.S. 
Department of Labor).
    \12\ See Commission at 97.
---------------------------------------------------------------------------
    How many illegal aliens are now in the fields? In 1998-99, 
52% of seasonal agricultural workers admitted to being illegal, 
up from 7% in 1989.\13\ James Holt, an economist and consultant 
to the National Council of Agricultural Employers, has 
testified that ``[e]vidence based on INS enforcement actions 
and verification of Social Security cards by the Social 
Security Administration often results in 60 to 80 percent or 
more of workers' documents being determined to be invalid or 
not pertaining to the person who presented them.'' \14\
---------------------------------------------------------------------------
    \13\ See U.S. Department of Labor, Office of the Assistant 
Secretary for Policy, Findings from the National Agricultural Workers 
Survey 1997-1998: A Demographic and Employment Profile of United States 
Farmworkers (2000).
    \14\ Hearing on H.R. 4548.
---------------------------------------------------------------------------
    Is there presently a shortage of seasonal agricultural 
workers? James Holt has stated that:

        The combination of increased INS enforcement activity, 
        the verification programs of the Social Security 
        Administration, shortages of legal U.S. workers of 
        unprecedented proportions and an unworkable program for 
        the legal admission of alien workers are having serious 
        negative consequences on the agricultural industry and 
        the agricultural work force. Increased border 
        enforcement, increased interior enforcement and 
        increased SSA verification activity have led to 
        reduction in labor availability and destabilization of 
        the agricultural work force. These trends will 
        continue. The increase in border enforcement personnel 
        authorized by [the Illegal Immigration Reform and 
        Immigrant Responsibility Act of 1996] will not be 
        complete until FY 2002. The SSA plans to continue 
        lowering its threshold for rejection of employer tax 
        returns due to name/number mismatches. These factors, 
        coupled with the extraordinarily high levels of 
        nonagricultural employment, have resulted in increasing 
        frequency of farm labor shortages and crop losses and 
        precipitated a problem which is rapidly reaching crisis 
        proportions.\15\
---------------------------------------------------------------------------
    \15\ Id. (emphasis in original).

    The Department of Labor believes there is an oversupply of 
farm labor.\16\ In a 1997 report, the General Accounting Office 
stated that ``[t]here appears to be no national agricultural 
labor shortage now, although localized labor shortages may 
exist for individual crops and in specific geographical 
areas.'' \17\ The GAO based its conclusion that major shortages 
will not develop on the theory that future INS enforcement 
efforts are unlikely to significantly reduce the number of 
illegal alien farmworkers.\18\ Even if this prediction proves 
true, it is not good public policy to endorse a labor supply 
mechanism that relies on illegal labor. Such a reliance fosters 
contempt for the law. In addition, growers deserve a legal and 
predictable workforce for seasonal labor needs.
---------------------------------------------------------------------------
    \16\ Id. (statement of John Fraser).
    \17\ U.S. General Accounting Office, H-2A Agricultural Guestworker 
Program: Changes Could Improve Services to Employers and Better Protect 
Workers 24 (Dec. 1997) (hereinafter cited as ``1997 GAO Report''). See 
also Temporary Agricultural Work Visa Programs: Hearing Before the 
Subcomm. on Immigration and Claims of the House Judiciary Comm., 105th 
Cong., 1st Sess. 35 (1997)(statement of Bruce Goldstein, Executive 
Director, Farmworker Justice Fund)(hereinafter cited as ``1997 
Hearing'').
    \18\ See 1997 GAO Report at 30. Recently, the GAO reaffirmed this 
conclusion, based on the facts that, in 1999, only 7% of INS 
investigations of employers were directed at agricultural employers, 
and that INS was phasing out worksite investigations as an interior 
enforcement priority. Hearing on H.R. 4548 (testimony of Cynthia 
Fagnoni, Director, Education, Workforce, and Income Security Issues, 
Health, Education, and Human Services Division, U.S. General Accounting 
Office).
---------------------------------------------------------------------------

           II. The H-2A Temporary Agricultural Worker Program

    The Immigration Reform and Control Act of 1986's ``H-2A'' 
temporary agricultural worker program took effect in June 1987. 
The program, a modification of the H-2 program implemented by 
the Immigration and Nationality Act of 1952, allows for aliens 
to come to perform agricultural labor or services of a 
temporary or seasonal nature.\19\ The Attorney General can 
approve an employer's petition for an alien only after the 
employer has applied to the Secretary of Labor for a 
certification that:
---------------------------------------------------------------------------
    \19\ INA sec. 101(a)(15)(H)(ii).

          (A) there are not sufficient workers who are able, 
        willing, and qualified, and who will be available at 
        the time and place needed, to perform the labor or 
        services involved in the petition, and
          (B) the employment of the alien in such labor or 
        services will not adversely affect the wages and 
        working conditions of workers in the United States 
        similarly employed.\20\
---------------------------------------------------------------------------
    \20\ INA sec. 218(a)(1).

    A certification cannot be issued by the Secretary (1) 
during a strike or lockout, (2) if the employer has in the 
previous 2 year period substantially violated a material term 
or condition of a labor certification, (3) where the worker 
will not be covered under worker's compensation unless the 
employer has given assurances that it will provide adequate 
insurance, or (4) if the employer has not made positive 
recruitment efforts within a region of traditional or expected 
labor supply where the Secretary finds that there are a 
significant number of qualified United States workers, who, if 
recruited, would be willing to work (this is in addition to the 
circulation through the interstate employment service system of 
the employer's job offer).\21\ The employer's job offer to U.S. 
workers shall offer no less than the same benefits, wages, and 
working conditions offered to H-2A workers.\22\
---------------------------------------------------------------------------
    \21\ INA sec. 218(b).
    \22\ 20 C.F.R. sec. 655.102(a).
---------------------------------------------------------------------------
    Among additional requirements, (1) charges for food cannot 
exceed $5.26 per day,\23\ (2) free transportation must be 
provided between living quarters and worksites,\24\ (3) the 
employer shall guarantee to offer H-2As work for at least three 
fourths of the workdays of the period the work contract is in 
effect,\25\ (4) free housing must be provided to the H-2As 
meeting applicable standards,\26\ (5) wages, if paid by the 
hour, must be at least the adverse effect wage rate (the annual 
weighed average hourly wage rate for field and livestock 
workers for the region as determined by the Department of 
Agriculture), the prevailing hourly rate, or the minimum wage, 
whichever is highest,\27\ and (6) wages, if paid at a piece 
rate, must be supplemented if necessary to equal at least what 
the worker would have to be paid if he were paid hourly and 
must also not be less than the prevailing piece rate.\28\
---------------------------------------------------------------------------
    \23\ 20 C.F.R. sec. 655.102(b)(4).
    \24\ 20 C.F.R. sec. 655.102(b)(5)(iii).
    \25\ 20 C.F.R. sec. 655.102(b)(6)(i).
    \26\ INA sec. 218(c)(4).
    \27\ 20 C.F.R. secs. 655.100(b), .102(b)(9)(i), .107.
    \28\ 20 C.F.R. 655.102 (b)(9)(ii)(A).
---------------------------------------------------------------------------
    The Labor Department cannot require that applications be 
filed more than 60 days before the first date that the H-2As 
are needed.\29\ Applications must be approved not later than 20 
days before the date the aliens are needed if the employer has 
met the certification criteria and the employer ``does not 
have, or has not been provided with referrals of, qualified 
eligible individuals who have indicated their availability to 
perform such labor or services. . . .'' \30\ Normally, an 
alien's stay can be for up to 1 year.\31\
---------------------------------------------------------------------------
    \29\ INA sec. 218(c)(1). The Department plans to modify its 
regulations to require only a 45 day period. Hearing on H.R. 4548 
(statement of John Fraser).
    \30\ INA sec. 218(c)(3).
    \31\ 20 C.F.R. sec. 655.100(c)(2)(iii).
---------------------------------------------------------------------------
    Expedited procedures are provided for denials or 
revocations of certifications.\32\ The Secretary of Labor can 
assess penalties and seek injunctive relief and specific 
performance of contractual obligations.\33\
---------------------------------------------------------------------------
    \32\ INA sec. 218(e).
    \33\ INA sec. 218(g)(2).
---------------------------------------------------------------------------
    Expectations were that applications would be made for 
200,000 or more aliens each year.\34\ In 1996, only 9,635 
aliens were admitted under the program.\35\ While utilization 
has increased somewhat since 1996 (the Department of Labor 
certified 41,827 workers in 1999, compared with 17,557 in 
1996),\36\ it has never reached expectations.
---------------------------------------------------------------------------
    \34\ See Guestworker Programs and Policies at 9.
    \35\ See Immigration and Naturalization Service, 1997 Statistical 
Yearbook of the Immigration and Naturalization Service 120.
    \36\ See Hearing on H.R. 4548 (statement of Cynthia Fagnoni).
---------------------------------------------------------------------------
    Why the low numbers? James Holt has testified that:

        The current H-2A temporary agricultural worker program 
        is not working for three principal reasons. One is the 
        structural problems built into the program. [The 
        Department of Labor] ignored some of the most important 
        of the H-2A streamlining provisions of the Immigration 
        Reform and Control [Act. Second, t]he program is 
        administered in a highly adversarial fashion. DOL 
        regards H-2A applicants as potential, if not actual, 
        lawbreakers and acts as though its mission is to keep 
        employers out of the program rather than to help them 
        use this program which Congress provided. The third 
        reason the program is not working has to do with 
        compliance enforcement and litigation. So-called 
        farmworker advocates have for years strongly opposed 
        the H-2A program. They have made both DOL and H-2A 
        users targets for harassment and litigation. They have 
        attempted to accomplish in the courts what they were 
        unable to accomplish in Congress. Unfortunately the 
        U.S. Department of Labor seems to have adopted the same 
        attitude, and in some cases it appears that the two 
        groups have been working together to try to intimidate 
        employers into not using the program or abandoning 
        it.\37\
---------------------------------------------------------------------------
    \37\ 1997 Hearing at 17.

    The General Accounting Office has found that ``a large 
number of Labor's certifications are issued too late to ensure 
that employers will be able to get workers by the specified 
date of need.'' \38\ The Department of Labor ``has acknowledged 
problems with the current H-2A program and is working 
administratively . . . to reengineer and streamline the program 
to better assure growers an adequate, predictable labor supply. 
. . .'' \39\
---------------------------------------------------------------------------
    \38\ 1997 GAO Report at 46.
    \39\ Hearing on H.R. 4548 (statement of John Fraser).
---------------------------------------------------------------------------

         III. H.R. 4548, the ``Agricultural Opportunities Act''

    H.R. 4548 would create a 3-year pilot program for 
agricultural guest workers using a new ``H-2C'' visa, with no 
cap on the number of visas available annually. Each visa would 
be valid for up to 10 months, plus an additional 2-month 
extension if necessary.
    The bill would create a central registry of American 
agricultural workers maintained by the Labor Department. When 
qualified American workers were not available from the 
registry, growers would be allowed to recruit and employ alien 
labor under the H-2C program. As James Holt notes:

          The registry mechanism offers significant 
        improvements over the current labor certification 
        system. One of the most important of these is 
        timeliness. Currently, employers seeking H-2A workers 
        are required to file a labor certification application 
        a minimum of 45 days in advance of the date workers are 
        needed. This is followed by the cumbersome procedures 
        for processing job orders and recruiting U.S. workers. 
        . . .
          The registry mechanism is based on searching a 
        computerized data bank of workers who have already 
        indicated their interest in agricultural 
        employment.\40\
---------------------------------------------------------------------------
    \40\ Id.

    At least 28 days before workers are needed, a grower would 
have to apply for American workers from the registry before he 
could bring in H-2C workers. The grower's application would 
have to include assurances that the work is temporary or 
seasonal, that he will advertise locally for American workers 
and contact former workers, and that he is not using aliens as 
strikebreakers.
    The Labor Department would then refer a sufficient number 
of qualified American workers from the registry by 7 days 
before the grower's date of need, or, if there is a shortfall, 
notify the Departments of Justice and State of the number of H-
2C visas that must be issued to eligible aliens to make up the 
difference. If the Labor Department failed to process the 
application in time, the grower could apply directly to the 
State and Justice Departments for issuance of the necessary 
visas. The bill also provides expedited emergency procedures 
for obtaining H-2C workers if American workers referred from 
the registry are unwilling or unable to perform the job, or if 
a grower encounters unexpected and urgent labor requirements.
    The Attorney General would be required to establish a 
verification system to ensure that growers who hire H-2C 
workers do not also hire illegal aliens.
    The bill would require growers to pay H-2C workers 
prevailing wages, provide them with housing or a housing 
allowance, and reimburse them for transportation costs. Each H-
2C worker would be given a reliable identification document 
that is counterfeit-resistant, tamper-resistant, and compatible 
with Federal law enforcement databases. The Attorney General 
would be required to verify that H-2C workers depart from the 
United States after the expiration of their visas.

                                Hearings

    The committee's Subcommittee on Immigration and Claims held 
1 day of hearings on H.R. 4548 on June 15, 2000. Testimony was 
received from Rep. Pombo; Mr. John R. Fraser, U.S. Department 
of Labor; Ms. Cindy Fagnoni, U.S. General Accounting Office; 
Dr. James S. Holt, National Council of Agricultural Employers; 
Mr. Robert Dolibois, American Nursery and Landscape 
Association; Mr. Mark Krikorian, Center for Immigration 
Studies; Mr. Marcos Camacho, United Farmworkers Union; Ms. 
Michelle Williamson, Williamson Berry Farms; Mr. Dewey L. 
Hukill, Texas Farm Bureau; Mr. William Buchanan, American 
Council for Immigration Reform; and Ms. Cecilia Munoz, National 
Council of La Raza, with additional material submitted by five 
individuals and organizations.

                        Committee Consideration

    On July 27, 2000, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 4548, as amended, by a vote of seven to zero, a 
quorum being present. On September 19-20, 2000, the committee 
met in open session and ordered favorably reported the bill 
H.R. 4548 with amendment by a recorded vote of 16 to 11, a 
quorum being present.

                         Votes of the Committee

    One amendment was defeated by voice vote. The amendment, 
offered by Mr. Berman, would have placed an annual cap of 
100,000 on the number of H-2C visas to be granted.
    There were seven recorded votes during the committee's 
consideration of H.R. 4585, as follows:
    1. Two amendments offered by Ms. Jackson Lee, en bloc, to 
make the registry of U.S. workers created by H.R. 4548 non-
exclusive, so that growers could not rely on the registry as 
their sole source of U.S. workers. Defeated 12-17.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............  ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             12              17   ..............
----------------------------------------------------------------------------------------------------------------

    2. Amendment offered by Ms. Jackson Lee to require growers 
to provide housing rather than a housing allowance for foreign 
workers. Adopted 14-13.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............  ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             14              13   ..............
----------------------------------------------------------------------------------------------------------------

    3. Amendment offered by Ms. Jackson Lee to require growers 
to pay workers for 3/4 of the anticipated labor period even if 
less work is offered. Adopted 15-13.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............  ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             15              13   ..............
----------------------------------------------------------------------------------------------------------------

    4. Amendment offered by Mr. Berman to require growers to 
pay higher ``adverse effect wage rates'' to workers. Defeated 
13-17.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............  ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             13              17   ..............
----------------------------------------------------------------------------------------------------------------

    5. Amendment offered by Mr. Gallegly to allow growers to 
provide a housing allowance (rather than housing) when the 
State Governor certifies that housing is available. Adopted 17-
14.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Ms. Bono........................................................              X   ..............  ..............
Mr. Bachus......................................................              X   ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Berman......................................................  ..............              X   ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............              X   ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             17              14   ..............
----------------------------------------------------------------------------------------------------------------

    6. Amendment offered by Mr. Barr to strike the provision 
placing the burden of proof on the U.S. government when denying 
an H-2C visa based on the applicant's previous unlawful 
presence in the U.S. Adopted 24-5.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Ms. Bono........................................................              X   ..............  ..............
Mr. Bachus......................................................              X   ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............  ..............  ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             24               5   ..............
----------------------------------------------------------------------------------------------------------------

    7. Vote on Final Passage. Adopted by a vote of 16-11.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................              X   ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Berman......................................................  ..............              X   ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             16              11   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 4548, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 27, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4548, the 
Agricultural Opportunities Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Carla Pedone, 
who can be reached at 226-2820.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Democratic Member
H.R. 4548--Agricultural Opportunities Act.

                                SUMMARY

    H.R. 4548 would amend the Immigration and Nationality Act 
by creating a new temporary H-2C visa for nonimmigrant 
agricultural workers under a three-year pilot program. This new 
visa would be an alternative to the existing H-2A visa for 
those types of workers. The bill intends to increase the number 
of legal nonimmigrant farmworkers by streamlining the process 
for determining labor force needs and issuing visas.
    The bill would specify procedures that employers must 
follow to make use of this new pool of workers. The Department 
of Labor (DOL) would be mandated to create and maintain a 
central registry of American agricultural workers, who would 
have to apply for inclusion. Employers with job opportunities 
would have to check with DOL's registry to determine whether 
American workers would be available, able, and willing to fill 
those jobs before they would be allowed to hire aliens under 
the H-2C program. The Department of Justice (DOJ) would have to 
ensure that all workers on the registry are authorized to be 
employed in the United States and that employers applying for 
H-2C visas did not hire undocumented aliens as well. Fees would 
be paid by employers to use the registry and to hire aliens. 
Those fees would offset the federal government's cost to 
administer the program. The bill would also require several 
studies.
    CBO estimates that implementation of H.R. 4548 would reduce 
discretionary spending by $6 million over the 2001-2005 period. 
Outlays would increase by about $6 million to pay for the 
studies and the new registry, but that amount would be more 
than offset by estimated savings of about $12 million for 
administrative costs that would be shifted to direct spending.
    CBO estimates that enactment of the bill would increase net 
direct spending by $2 million over the five-year period. Agency 
spending is estimated to increase by $124 million, but most of 
that spending would be offset by a net increase in receipts of 
$122 million. Because the bill would affect direct spending, 
pay-as-you-go procedures would apply.
    H.R. 4548 contains no new intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act, 
and would impose no costs on state, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 4548 is shown in 
Table 1. The costs of this legislation would fall within budget 
functions 150 (international affairs), 500 (education, 
training, employment, and social services), and 750 
(administration of justice).

                           BASIS OF ESTIMATE

    CBO assumes that H.R. 4548 will be enacted by early in 
October 2000, which would make it effective from October 2001 
through early in October 2004. Authorized amounts are assumed 
to be appropriated by the beginning of the fiscal year.
Spending Subject to Appropriation
    CBO estimates that enacting H.R. 4548 would decrease 
discretionary spending by about $6 million over the 2001-2005 
period, because savings in administrative costs are expected to 
more than offset the cost of several mandated studies.
    Costs of Studies and Commission. H.R. 4548 would direct 
several federal agencies and a newly established commission to 
conduct four studies, which would be conducted over a three-
year period. In addition, the General Accounting Office would 
have to evaluate the program no later than four years after the 
date of enactment. Assuming a cost per study of about $500,000 
plus an additional $750,000 per year to staff the commission, 
CBO estimates that these provisions would require 
appropriations of about $5 million over the 2001-2005 period. 
Outlays over the period would increase by the same amount.
    Savings to Department of Labor from not Issuing H-2A Visas. 
Under current law, the Department of Labor spends about $4 
million each year to reimburse state agencies for costs 
incurred in administering the H-2A visa program. Those costs 
are considered discretionary. CBO expects that if H.R. 4548 
were enacted and fully implemented, employers would shift from 
H-2A visas to H-2C visas because the application process would 
be more streamlined and the total cost per immigrant worker 
might be lower. Under H.R. 4548, however, the administrative 
costs would be considered direct spending, to be financed by 
user fees. As a result, CBO estimates that budget authority for 
discretionary expenditures would decrease by $12 million over 
the course of the three-year pilot program.

                                TABLE 1. ESTIMATED BUDGETARY EFFECTS OF H.R. 4548
----------------------------------------------------------------------------------------------------------------
                                                                        By fiscal year, in millions of dollars
                                                                    --------------------------------------------
                                                                       2001     2002     2003     2004     2005
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Cost of Mandated Studies and Commission                                    0        2        1        2        0
  Estimated Authorization Level
  Estimated Outlays                                                        0        *        2        3        *

Savings to Department of Labor from Not Issuing                            0       -2       -5       -5        0
H-2A Visas
  Estimated Authorization Level
  Estimated Outlays                                                        0       -2       -4       -5        *

Cost of Establishing Registry                                              1        0        0        0        0
  Estimated Authorization Level
  Estimated Outlays                                                        1        *        0        0        0

  Total Proposed Change                                                    1        0       -4       -3        0
    Estimated Authorization Level
    Estimated Outlays                                                      1       -2       -3       -2        *
CHANGES IN DIRECT SPENDING
Proposed Changes in Spending                                               0       19       31       32        0
  Department of Labor
    Estimated Budget Authority
    Estimated Outlays                                                      0       17       30       32        3

  Department of Justice                                                    0       12       15       15        0
    Estimated Budget Authority
    Estimated Outlays                                                      0       11       15       15        1

  Department of State                                                      0        3        6        6        0
    Estimated Budget Authority
    Estimated Outlays                                                      0        3        6        6        0

  Savings to Department of Justice and State from                          0       -3       -6       -6        0
  Not Issuing H-2A Visas
    Estimated Budget Authority
    Estimated Outlays                                                      0       -3       -6       -6        0

    Total Proposed Change                                                  0       31       46       47        0
      Estimated Budget Authority
      Estimated Outlays                                                    0       28       44       47        5

Proposed Changes in Offsetting Receipts                                    0      -28      -56      -56        0
  Fee Collections under H.R. 4548
    Estimated Budget Authority
    Estimated Outlays                                                      0      -28      -56      -56        0

  Loss of Fee Collections from H-2A visas                                  0        4        7        7        0
    Estimated Budget Authority
    Estimated Outlays                                                      0        4        7        7        0

    Total Proposed Changes in Offsetting Receipts                          0      -24      -49      -49        0
      Estimated Budget Authority
      Estimated Outlays                                                    0      -24      -49      -49        0

      Total Changes in Direct Spending                                     0        7       -3       -2        0
        Estimated Budget Authority
        Estimated Outlays                                                  0        4       -5       -2        5
CHANGES IN REVENUES
Civil Penalties                                                            *        *        *        *        *
----------------------------------------------------------------------------------------------------------------
Note: Components may not add to totals because of rounding.
* = Less than $500,000 per year.

    Cost of Establishing Registry. The bill would require DOL 
to create a registry of eligible American workers who seek 
agricultural employment. The registry would be set up as part 
of the already existing databases known as America's Job Bank 
and America's Talent Bank. Therefore, CBO expects the initial 
set-up cost to be modest, around $1 million, to be spent mostly 
during fiscal year 2001.
Direct Spending and Revenues
    H.R. 4548 would place new requirements on the Department of 
Labor and the Department of Justice and would increase the 
number of visas issued by the Department of State. CBO 
estimates that administrative costs associated with this pilot 
program would total around $139 million over the 2001-2005 
period. Those costs would be covered by offsetting receipts 
from fees collected from employers.
    CBO assumes that, once the new procedures were fully 
implemented, all current H-2A visas would be shifted to H-2C 
visas, thereby eliminating direct spending on H-2A visas by the 
Departments of Justice and State as well as the H-2A fees 
collected by those two departments and by the Department of 
Labor. (Under current law, H-2A fees collected by DOL go to the 
Treasury Department and are not used to offset costs incurred 
by DOL.) Taking into account the additional fees and offsetting 
savings, the net increase in direct spending would be $2 
million over the five-year period.
    In addition, DOL's activities to enforce labor standards 
and worker protection requirements could generate revenues in 
the form of civil penalties assessed on employers. However, CBO 
expects those penalties to be less than $500,000 per year.
    Costs to the Department of Labor. H.R. 4548 would require 
that several new tasks be performed by DOL to implement the new 
visa program. CBO estimates that DOL would spend $82 million 
over the 2002-2005 period.
    First, employers who wish to employ aliens under the new 
visa program would have to submit an application to DOL for 
workers from the registry. If DOL approves the application, it 
would search the registry, contact potential workers, and 
assemble a group of workers willing and able to fill the 
employer's needs. If there are not enough available American 
workers, DOL would notify DOJ to admit enough workers with H-2C 
visas to cover the shortfall. DOL would also notify the 
Department of State to issue the necessary visas. Moreover, DOL 
would have to set up a system to collect fees charged to 
employers to participate in the registry and visa program. In 
addition, DOL would have to create a program to investigate 
complaints related to the failure by employers to meet the 
requirements set by the bill regarding wages, transportation, 
and housing and to enforce remedies. CBO estimates that DOL 
would need a total of 100 additional full-time-equivalent 
employees to carry out these extra duties, at a total cost of 
$8 million to $9 million per year.
    Second, DOL would need to reimburse state employment 
agencies for the costs associated with the increased number of 
visa certifications. Information from DOL officials indicates 
that total state administrative costs for the H-2A program in 
1999 amounted to about $4 million. With 41,827 certified 
applicants, this implies an average cost of about $96 per 
applicant. CBO estimates that states' costs per H-2C visa would 
be roughly 50 percent higher, because it would involve starting 
a new program with new regulations. Thus, accounting for 
inflation, the cost in 2002 would be an estimated $156 per H-2C 
visa.
    The number of visas that would be issued under this program 
is difficult to predict. According to the Department of Labor, 
around 52 percent of the 1.8 million farmworkers--or 936,000 
workers--employed in 1999 were undocumented aliens, while fewer 
than 42,000 alien workers had H-2A visas. On the one hand, 
there appears to be some support by employers for the H-2C 
program. On the other hand, however, hiring workers through the 
H-2C program would still be more expensive and cumbersome than 
hiring undocumented workers. For the purposes of this estimate, 
CBO has assumed that, in 2002, 70,000 workers would be issued 
H-2C visas. In 2003 and 2004, CBO assumes that 140,000 workers 
would participate in the program. These figures include workers 
that would otherwise enter with an H-2A visa. As a result, the 
total cost of certifying H-2C visas in 2002 would amount to 
about $11 million, increasing to $23 million by 2004, including 
adjustments for inflation. (Those costs would be partially 
offset by the projected elimination of discretionary spending 
for certifying H-2A visas.)
    Costs to the Department of Justice. The requirements 
imposed on DOJ by H.R. 4548 would increase costs by an 
estimated $42 million over the 2002-2005 period. Those costs 
would be partially offset by a reduction in direct spending for 
H-2A visas of an estimated $11 million.
    H.R. 4548 would direct the Immigration and Naturalization 
Service (INS) of DOJ to certify that all persons on the 
registry established by DOL are authorized to be employed in 
the United States. INS would also have to establish an 
automated system to verify that employers who hire H-2C workers 
do not hire unauthorized workers. Based on information from the 
INS about similar systems developed by the agency, CBO 
estimates that this provision would cost around $4 million in 
fiscal year 2002 and less than $500,000 per year thereafter. In 
addition, CBO estimates that the cost to DOJ of processing H-2C 
visas would be similar to the current cost of H-2A visas, about 
$110 per visa.
    Costs to the State Department. Enactment of H.R. 4548 is 
estimated to result in the issuance of about 70,000 H-2C visas 
in 2002 and 140,000 per year in 2003 and 2004. According to the 
State Department, the cost would be $45 per visa. Therefore, 
the costs incurred by the State Department would amount to an 
estimated $16 million over the five-year period. Those costs 
would be partially offset by a reduction in spending for the H-
2A visas of roughly $4 million over five years.
Offsetting Receipts
    In order to cover the federal costs incurred by the various 
agencies, H.R. 4548 would mandate that employers be charged two 
fees where applicable. All employers applying for workers 
through the central registry would be charged a fee for each 
job that they try to fill. Employers wanting access to H-2C 
workers would be charged an additional fee per H-2C worker. DOL 
would have to establish a fee schedule that would be sufficient 
to cover the total federal direct spending.
    CBO estimates that DOL would need to collect $140 million 
in fees to cover the outlays by the three federal departments. 
At the same time, because H-2A fees would no longer be 
collected, federal receipts from that source would drop by an 
estimated $18 million. Thus, offsetting receipts would increase 
by $122 million over the five-year period.
Revenues
    Under the bill, employers found to violate the various 
requirements imposed on them would be assessed a civil penalty 
of $1,000 per violation. CBO estimates that the total receipts 
from this provision would amount to less than $500,000 per 
year.

                      PAY-AS-YOU-GO CONSIDERATIONS

    Section 252 of the Balanced Budget and Emergency Deficit 
Control Act sets up pay-as-you-go procedures for legislation 
affecting direct spending or receipts. The net changes in 
outlays that are subject to pay-as-you-go procedures are shown 
in the following table.

                                     By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
                                      2000   2001   2002   2003   2004   2005   2006   2007   2008   2009   2010
----------------------------------------------------------------------------------------------------------------
Changes in outlays                       0      0      4     -5     -2      5      0      0      0      0      0
Changes in receipts                      0      0      0      0      0      0      0      0      0      0      0
----------------------------------------------------------------------------------------------------------------

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 4548 contains no new intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments.

                         ESTIMATE PREPARED BY:

Federal Costs: Carla Pedone (226-2820), Mark Grabowicz (226-
        2860)
Impact on State, Local, and Tribal Governments: Susan Tompkins 
        (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)

                         ESTIMATE APPROVED BY:

Robert A. Sunshine
Assistant Director for Budget Analysis

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

Sec. 1. Short Title; Table of Contents.
    The short title for H.R. 4548 is the ``Agricultural 
Opportunities Act.''
Sec. 2. Definitions.
    Section 2 lists the defined terms within H.R. 4548.

                TITLE I--AGRICULTURAL WORKER REGISTRIES

Sec. 101. Agricultural Worker Registries.
    Section 101 requires the Labor Department to establish a 
registry of United States farm workers for each State or region 
to ensure that U.S. workers are referred to available jobs 
before H-2C workers are hired. The registry will verify the 
citizenship or other immigration status of applicants so that 
illegal aliens are not inadvertently included, and the Attorney 
General will also establish a program to ensure that H-2C 
employers do not hire illegal aliens from other sources.
    U.S. workers shall be removed from the registry if they so 
request or if they consistently decline or fail to report for 
employment referrals. Names on the registry shall be kept 
confidential and used only for agricultural employment.

                         TITLE II--H-2C PROGRAM

Sec. 201. Employer Applications and Assurances.
    Section 201 requires growers to apply for workers at least 
28 days before they are needed. Applications shall specify the 
number and qualifications of workers needed, anticipated period 
of employment, and wages and working conditions. Agricultural 
associations may also file applications for workers on behalf 
of employers. Each application shall be accompanied by a 
registry user fee.
    A grower applying for workers shall certify that the jobs 
offered are temporary or seasonal, are not a result of a labor 
dispute, and shall be governed by applicable laws regarding 
hiring, wages, benefits, and working conditions. The grower 
shall also certify that it will advertise locally for U.S. 
workers and contact U.S. workers employed in past seasons.
    The Labor Department shall approve or reject applications 
within 7 days. A grower's application shall be denied if the 
grower, within the previous 3 years, substantially violated its 
obligations under the H-2C program.
Sec. 202. Search of Registry.
    Section 202 provides that upon approving a grower's 
application, the Labor Department shall contact U.S. workers on 
its registry and refer them to the grower by 7 days before the 
date they are needed. If there are not enough qualified and 
interested U.S. workers, the Labor Department shall notify the 
Justice and State Departments of the number of H-2C workers 
needed to make up the shortfall. The grower shall pay an alien 
employment user fee for each H-2C worker needed.
Sec. 203. Issuance of Visas and Admission of Aliens.
    Section 203 provides that upon the Labor Department's 
notification, the State Department shall issue visas to, and 
the Immigration and Naturalization Service (INS) shall admit, 
enough H-2C workers to make up for the shortfall of U.S. 
workers. If the Labor Department fails to act in a timely 
manner, the grower may apply directly to the State and Justice 
Departments, who shall admit the necessary workers within 5 
days.
    If U.S. workers referred by the Labor Department fail to 
report for work, are unwilling or unable to do the work, or 
abandon their employment, a grower may apply for additional H-
2C workers, and the Labor Department shall notify the State and 
Justice Departments of the need within 3 days. The Labor 
Department may also notify the State and Justice Departments of 
an emergency application made by a grower who faces an 
unforeseen need for workers.
Sec. 204. Employment Requirements.
    Section 204 requires growers to pay H-2C workers the 
greater of the ``prevailing wage'' or the ``adverse effect wage 
rate.'' The prevailing wage is the average wage rate of 
employees in an agricultural activity in the area of intended 
employment. The adverse effect wage rate is 5 percent above the 
prevailing rate, if the prevailing rate is less than the prior 
year's average hourly earnings of field and livestock workers 
for the State or region, provided that the adverse rate shall 
not be more than the prior year's average hourly earnings of 
field and livestock workers for the State or region. A 
prevailing wage may be expressed as an hourly wage, a piece 
rate, a task rate, or other incentive payment method, including 
a group rate.
    A grower must provide housing for its workers, and the 
housing shall meet Federal, State, and local standards. 
Alternatively, a grower may provide a housing allowance if the 
State Governor certifies that there is housing available 
locally for farm workers, in which case a grower shall assist 
workers to find housing. The housing allowance shall be equal 
to the statewide average fair market rental for existing 
housing for non-metropolitan counties, as established by the 
Department of Housing and Urban Development.
    A grower shall reimburse reasonable transportation and 
subsistence costs to the place of employment for a worker who 
completes 50 percent of the period of employment. A grower 
shall also reimburse reasonable transportation and subsistence 
costs from the place of employment for a worker who completes 
the period of employment, unless a subsequent employer is 
paying those costs. Reimbursement shall not be required for 
distances under 100 miles or for workers not using grower-
provided housing or housing allowances.
    A grower using H-2C workers shall continue to offer 
employment to U.S. workers until after 50 percent of the 
anticipated period of employment has elapsed, unless similar 
employment in the same area is available for U.S. workers. A 
grower shall also pay workers for at least three-quarters of 
the total work period specified by the employer, even if less 
work is offered, except to a foreign worker displaced by the 
grower's continuing obligation to hire a U.S. worker.
Sec. 205. Program for the Admission of Temporary H-2C Workers.
    Section 205 provides that an otherwise admissible alien 
coming to the U.S. to perform temporary or seasonal 
agricultural labor is eligible for an H-2C visa if the alien 
has not, within the previous 5 years, violated H-2C visa 
requirements or other conditions of admission to the U.S. as a 
non-immigrant. The alien may not be accompanied by family 
members.
    An alien may not receive a subsequent H-2C visa unless the 
alien departed the U.S. before the expiration of the previous 
visa, spent at least 2 months in his or her country of 
nationality or last residence, and verified the foregoing by 
appearing before a U.S. consular officer and surrendering his 
or her expired H-2C identification card. After the INS fully 
implements an entry-exit system as required by the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, 
that system must also verify the alien's compliance with the 
foregoing requirements.
    The duration of the H-2C visa shall be the lesser of the 
period requested by the employer or 10 months. Extensions of 
stay are available so long as the total visa duration does not 
exceed 12 months. The INS shall establish a program to ensure 
that H-2C workers do not overstay their visas.
    An alien who abandons his or her employment shall be 
considered to have failed to maintain legal status as an H-2C 
visa holder. A grower shall notify the INS within 7 days of 
such abandonment, and the INS shall deport aliens who fail to 
maintain legal H-2C status. The INS shall issue additional H-2C 
visas to replace H-2C workers who abandon or prematurely 
terminate their employment.
    Each H-2C worker shall be given a reliable, technologically 
advanced identification card that is counterfeit- and tamper-
resistant. The card shall be compatible with INS and other 
Federal law enforcement databases containing the alien's 
immigration and criminal records, if any.

                  TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Enhanced Worker Protections and Labor Standards.
    Section 301 provides that the Labor Department shall 
adjudicate complaints regarding a grower's failure to meet its 
legal obligations under the H-2C program. The Department shall 
conduct expedited investigations and issue written 
determinations regarding serious child labor, wage, and housing 
violations. The Department's decisions shall be appealable to 
administrative law judges.
    The Labor Department may permit the transfer of a worker 
who has filed a complaint against a grower to another grower, 
so long as a replacement worker is provided to the first 
grower, unless that requirement is waived by the first grower.
    A grower who has failed to pay wages may be compelled by 
the Department to pay back wages, fined up to $1,000 per 
occurrence, and be barred from hiring H-2C workers for up to 1 
year. Other violations of the H-2C program may be enjoined, 
fined up to $1,000 per occurrence, and result in up to a 1-year 
bar if the violation is substantial. A second failure to pay 
wages or other substantial violation shall be punished by a 3-
year bar, and a third such violation by a permanent bar to 
hiring H-2C workers.
    If an association of growers acting as an employer is 
barred from hiring H-2C workers, a grower-member of the 
association may not employ H-2C workers in occupations in which 
they were employed by the association, unless the grower 
applies for such workers on its own behalf or through another 
association.
    Section 301 also provides for the conduct of a number of 
joint studies and reports. A new Commission on Housing Migrant 
Agricultural Workers, composed of four growers' 
representatives, four workers' representatives, one 
representative each from the Departments of Labor, Agriculture, 
and Housing and Urban Development (HUD), and a State or local 
official appointed by HUD, shall study the issue of migrant 
farm workers housing and submit a report to Congress within 3 
years. The Commission may also submit interim reports.
    Also due to Congress within 3 years shall be a report on a 
joint study of migrant worker child care and child labor issues 
done by the Departments of Labor, Agriculture, and Health and 
Human Services; a report on a joint study of field sanitation 
standards done by the Labor and Agriculture Departments; and a 
report on a joint study of labor standards violations and 
enforcement done by the Labor and Agriculture Departments.
Sec. 302. Commission.
    Section 302 authorizes the Attorney General to establish a 
commission between the United States and each country providing 
10,000 or more H-2C workers to provide a forum to discuss 
matters of mutual concern.
Sec. 303. Regulations.
    Section 303 requires interagency consultation regarding H-
2C regulations promulgated by the Departments of Justice, 
State, and Labor. All such regulations shall take effect on the 
effective date of the Agricultural Opportunities Act.
Sec. 304. Determination and Use of User Fees.
    Section 304 provides that the Labor Department shall set 
and collect registry user fees and alien employment user fees. 
The registry user fee shall be sufficient to reimburse the 
costs of registration, referral, and validation, and the alien 
employment user fee shall be sufficient to reimburse the costs 
of employing eligible aliens, including the establishment and 
certification of eligible employers, the issuance of 
documentation, and the admission of eligible aliens. Fees shall 
remain available to reimburse costs incurred by the Labor, 
State, Agriculture and Justice Departments, provided that 
reimbursement of enforcement costs shall not exceed 10 percent 
of the Labor Department's direct costs.
Sec. 305. Funding for Startup Costs.
    Startup costs of the agricultural worker registries may be 
paid out of Federal or State funs available under the Wagner-
Peyser Act (29 U.S.C. sec. 49 et seq.) establishing the United 
States Employment Service within the Department of Labor, and 
may be reimbursed from funds collected under Section 304.
Sec. 306. Report to Congress.
    Within 4 years after enactment of the Agricultural 
Opportunities Act, the U.S. General Accounting Office (GAO) 
shall report to Congress regarding the implementation of and 
compliance with the act. The report shall address whether 1) 
the program has ensured that growers have an adequate supply of 
workers, 2) H-2C aliens work only in authorized employment and 
timely depart the U.S. when their visas expire, 3) growers 
comply with program requirements, 4) the H-2C program is not 
adversely affecting U.S. workers, and 5) adequate housing is 
available. The report shall compare wages and working 
conditions of U.S. and H-2C workers with those of unauthorized 
workers and, finally, make recommendations for improving and 
continuing or terminating the H-2C program. An advisory board 
of four growers' representatives and four workers' 
representatives shall advise GAO regarding the preparation of 
its report.
Sec. 307. Effective Date.
    The Agricultural Opportunities Act shall take effect 1 year 
after enactment. Within 180 days after enactment, the Labor 
Department shall report to Congress regarding measures being 
taken and progress made in implementing the act.
Sec. 308. Termination of Program.
    The Agricultural Opportunities Act shall cease to be 
effective 3 years after its effective date under Section 307.

                              Agency Views

                          U.S. Department of Labor,
                                     Washington, DC, July 27, 2000.
Hon. Lamar S. Smith, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Chairman Smith: This letter presents the views of the 
Administration on H.R. 4548, the ``Agricultural Opportunities 
Act,'' which I understand your Subcommittee plans to mark up. 
This bill would establish a new three-year agricultural 
guestworker program as an alternative to the existing H-2A 
temporary nonimmigrant agricultural worker program under the 
Immigration and Nationality Act. The Administration strongly 
opposes enactment of H.R. 4548, and if the bill were presented 
to the President, I would recommend that he veto it.
    The U.S. economy is experiencing a period of unprecedented 
prosperity with the longest economic expansion in our Nation's 
history. Unfortunately, farm workers are not sharing in this 
prosperity as their earnings and working conditions have been 
either stagnant or in decline. The conditions under which farm 
workers live and work are characterized by low wages, sub-
poverty annual earnings, and significant periods of 
unemployment and under-employment. This all adds up to a labor 
force in significant economic distress. H.R. 4548 will not 
ameliorate these serious problems in the agricultural labor 
market, but rather--if enacted--could have the unintended 
consequence of making them worse.
    The President has been and remains opposed to establishing 
a new agricultural guestworker program. This is based on 
serious concerns that legislation like H.R. 4548 would almost 
certainly increase illegal immigration, reduce work 
opportunities for U.S. citizens and other legal residents, and 
depress wages and work standards for American workers. The 
President's position is consistent with the conclusions of two 
Congressionally-created commissions--the bipartisan Commission 
on Immigration Reform, chaired by the late Barbara Jordan, and 
the Commission on Agricultural Workers, which examined this 
issue in the early 1990s--as well as the more recent Binational 
Study on Migration, a joint study by highly respected scholars 
from both Mexico and the U.S. which issued its report in 
September 1997.
    The Administration strongly opposes H.R. 4548 because it 
would shift costs and risks from employers to low-wage workers 
and/or the government. Specifically, this bill would:

         Leliminate the current requirement that 
        agricultural growers recruit workers and create a 
        government run job registry--thereby reducing the 
        growers' obligation to do positive recruitment.

         Lerode U.S. worker wages by capping the 
        adverse effect wage rate at 105% of the locally 
        prevailing wage.

         Leliminate workers' guarantee of pay for at 
        least three-quarters of the work hours/days offered in 
        the employer's contract and allow workers to be 
        terminated without pay at any time for ``lack of 
        work.''

         Lprovide an inadequate mechanism for housing 
        foreign guest workers by allowing growers to provide a 
        housing voucher in lieu of actual housing.

    The Administration has acknowledged problems with the 
current H-2A agricultural guestworker program and is working 
administratively to reengineer and streamline the program to 
better assure growers an adequate, predictable labor supply 
while protecting U.S. farm workers. To this end, the 
Administration has requested $10 million to fund America's 
Agricultural Labor Network (``AgNet'') that would benefit 
growers and workers by having an efficient additional means to 
match workers with employment opportunities. In addition, we 
have published regulations to reduce the length of time that 
employers must file an H-2A application from 60 to 45 days 
before the date when employees are needed; reduced the deadline 
for when employer-provided housing must be available for 
inspection before the date of need; and modified the 
requirement that certified H-2A employers provide notice of the 
exact date on which H-2A employees have departed for the place 
of employment. Also, we along with the Immigration and 
Naturalization Service have just issued a final regulation that 
completes an earlier proposal to delegate authority to 
adjudicate most H-2A petitions to DOL. This change 
significantly reduces the burden to growers when filing for H-
2A workers by removing an entire step from the current process. 
Furthermore, we have made additional administrative changes to 
the H-2A program such as modifications to the positive 
recruitment requirement and intend to consistently meet the 
existing 30-day deadline to issue approved certifications for 
growers.
    As the General Accounting Office (GAO) reported in December 
1997 and most recently reiterated at a hearing before your 
Subcommittee on H.R. 4548, ample supplies of farm labor appear 
to be available in most areas, although there is some 
possibility of localized shortages relating to specific crops 
and geographic areas.
    Based upon the findings of the GAO and bipartisan 
commissions, and the improvements which have been made and will 
continue to be made to the current H-2A program, the 
Administration is strongly opposed to H.R. 4548. The Office of 
Management and Budget advises that there is no objection to the 
presentation of this letter from the standpoint of the 
Administration's program.
            Sincerely,
                      Alexis M. Herman, Secretary of Labor.

                 Executive Office of the President,
                           Office of Management and Budget,
                                Washington, DC, September 13, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the 
Administration's views on H.R. 4548, the ``Agricultural 
Opportunities Act,'' which I understand your Committee plans to 
mark up. The Administration shares the goals of assuring that 
our agricultural labor policy and any reform of the H-2A 
program both provides growers with a predictable and reliable 
labor supply, and assures adequate workplace protections for 
domestic and foreign farm workers. However, this bill would not 
meet these goals and therefore the Administration strongly 
opposes enactment of H.R. 4548. If the bill were presented to 
the President, his senior advisors would recommend that he veto 
it.
    H.R. 4548 would establish a new three-year agricultural 
guest worker program as an alternative to the existing H-2A 
temporary nonimmigrant agricultural worker program under the 
Immigration and Nationality Act. Under this new program, costs 
and risks would be shifted from the growers to farm workers, 
who are among the poorest and most vulnerable workers in our 
society. Specifically, H.R. 4548 would:

         Leliminate the current requirement that 
        agricultural growers recruit workers and create a 
        government run job registry--thereby reducing the 
        growers' obligation to conduct positive recruitment;

         Lerode U.S. worker wages by lowering the 
        required minimum wage and allowing this lower rate to 
        be paid on average to a group of workers;

         Leliminate workers' guarantee of pay for at 
        least three-quarters of the work hours/days offered in 
        the employer's contract and allow workers to be 
        terminated without pay at any time for ``lack of 
        work;'' and,

         Lprovide an inadequate mechanism for housing 
        foreign guest workers by allowing growers to give a 
        housing voucher in lieu of actual housing.

    In addition, this bill would likely increase illegal 
immigration, reduce work opportunities for U.S. citizens and 
other legal residents, and depress wages and work standards for 
American workers.
    The President remains strongly opposed to legislation that 
would create a new agricultural guest worker program. This 
position is consistent with the conclusions of two 
congressionally-created commissions--the bipartisan Commission 
on Immigration Reform and the Commission on Agricultural 
Workers--as well as the more recent Binational Study on 
Migration, a joint study by highly respected scholars from both 
Mexico and the U.S., which issued its report in September 1997.
    The Administration has acknowledged problems with the 
current H-2A agricultural guest worker program and has been 
working administratively to reengineer and streamline the 
program to better assure growers an adequate, predictable labor 
supply while protecting U.S. farm workers. For example, the 
President's FY 2001 Budget requested $10 million to fund 
America's Agricultural Labor Network (``AgNet'') an Internet-
based, electronic tool that will facilitate the recruitment of 
agricultural workers by growers and the movement of 
agricultural workers to areas with employment needs. This 
request did not receive support in the House or Senate. In 
addition, the Departments of Labor and Justice have published 
regulations to streamline the application process for growers. 
This too has met resistance from the Congress. The current 
Conference agreement on the Labor, Health and Human Services, 
Education and Related Agencies Appropriations Bill, FY 2001, 
contains a rider blocking these regulations. Congress should 
work with us on these proposals to improve the current H-2A 
program.
    Based on the findings of the bipartisan Commissions and the 
Administration's proposals to make the current H-2A program 
more responsive to growers without weakening workers' 
protections, we believe this bill is unnecessary and would 
likely worsen the current conditions in the agricultural labor 
market. Therefore, the Administration remains strongly opposed 
to H.R. 4548, and if the bill were presented to the President, 
his senior advisors would recommend that he veto it, as noted 
above.
            Sincerely,
                                    Jacob J. Lew, Director.

Identical Letter Sent to The Honorable John Conyers, Jr.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                 IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *

                            TABLE OF CONTENTS

     * * * * * * *

                          Title II--Immigration

     * * * * * * *

   chapter 2--qualifications for admission of aliens; travel control of 
                           citizens and aliens

Sec. 211.  Documentary requirements.
     * * * * * * *
Sec. 218A.  Alternative agricultural temporary worker program.

           *       *       *       *       *       *       *

                            TITLE I--GENERAL

                              definitions

    Section 101. (a) As used in this Act--
    (1)  * * *

           *       *       *       *       *       *       *

    (15) The term ``immigrant'' means every alien except an 
alien who is within one of the following classes of 
nonimmigrant aliens--
            (A) * * *

           *       *       *       *       *       *       *

            (H) an alien (i)(b) subject to section 212(j)(2), 
        who is coming temporarily to the United States to 
        perform services (other than services described in 
        subclause (a) during the period in which such subclause 
        applies and other than services described in subclause 
        (ii)(a) or in subparagraph (O) or (P)) in a specialty 
        occupation described in section 214(i)(1) or as a 
        fashion model, who meets the requirements for the 
        occupation specified in section 214(i)(2) or, in the 
        case of a fashion model, is of distinguished merit and 
        ability, and with respect to whom the Secretary of 
        Labor determines and certifies to the Attorney General 
        that the intending employer has filed with the 
        Secretary an application under section 212(n)(1), or 
        (c) who is coming temporarily to the United States to 
        perform services as a registered nurse, who meets the 
        qualifications described in section 212(m)(1), and with 
        respect to whom the Secretary of Labor determines and 
        certifies to the Attorney General that an unexpired 
        attestation is on file and in effect under section 
        212(m)(2) for the facility (as defined in section 
        212(m)(6)) for which the alien will perform the 
        services; or (ii)(a) having a residence in a foreign 
        country which he has no intention of abandoning who is 
        coming temporarily to the United States to perform 
        agricultural labor or services, as defined by the 
        Secretary of Labor in regulations and including 
        agricultural labor defined in section 3121(g) of the 
        Internal Revenue Code of 1954 and agriculture as 
        defined in section 3(f) of the Fair Labor Standards Act 
        of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal 
        nature, [or (b)] (b) having a residence in a foreign 
        country which he has no intention of abandoning who is 
        coming temporarily to the United States to perform 
        other temporary service or labor if unemployed persons 
        capable of performing such service or labor cannot be 
        found in this country, but this clause shall not apply 
        to graduates of medical schools coming to the United 
        States to perform services as members of the medical 
        profession; or (c) having a residence in a foreign 
        country which he has no intention of abandoning who is 
        coming temporarily to the United States pursuant to 
        section 218A to perform such agricultural labor or 
        services of a temporary or seasonal nature; or (iii) 
        having a residence in a foreign country which he has no 
        intention of abandoning who is coming temporarily to 
        the United States as a trainee, other than to receive 
        graduate medical education or training, in a training 
        program that is not designed primarily to provide 
        productive employment; and the alien spouse and minor 
        children of any such alien [specified in this 
        paragraph] specified in this subparagraph (other than 
        in clause (ii)(c)) if accompanying him or following to 
        join him;

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                        TITLE II--IMMIGRATION

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 Chapter 2--Qualifications for Admission of Aliens; Travel Control of 
Citizens and Aliens

           *       *       *       *       *       *       *

           alternative agricultural temporary worker program

    Sec. 218A. (a) Procedure for Admission of Aliens Who Are 
Outside the United States.--
            (1) Criteria for admissibility.--
                    (A) In general.--An alien described in 
                section 101(a)(15)(H)(ii)(c) of the Immigration 
                and Nationality Act shall be admissible under 
                this section if the alien is designated 
                pursuant to section 203 of the Agricultural 
                Opportunities Act, otherwise admissible under 
                this Act, and the alien is not ineligible under 
                subparagraph (B) or (C).
                    (B) Disqualification.--An alien shall be 
                ineligible for admission to the United States 
                or being provided status under this section if 
                the alien has, at any time during the past 5 
                years--
                            (i) violated a material provision 
                        of this section, including the 
                        requirement to promptly depart the 
                        United States when the alien's 
                        authorized period of admission under 
                        this section has expired; or
                            (ii) otherwise violated a term or 
                        condition of admission to the United 
                        States as a nonimmigrant, including 
                        overstaying the period of authorized 
                        admission as such a nonimmigrant.
                    (C) Foreign residence requirement.--
                            (i) In general.--No alien admitted 
                        as a nonimmigrant under section 
                        101(a)(15)(H)(ii)(c) or acquiring such 
                        status after admission shall be 
                        eligible to receive another 
                        nonimmigrant visa under such section 
                        until it is established that the 
                        alien--
                                    (I) departed the United 
                                States before the expiration of 
                                the alien's authorization to 
                                remain in the United States as 
                                such a nonimmigrant; and
                                    (II) has resided and been 
                                physically present in the 
                                country of the person's 
                                nationality or last residence 
                                for an aggregate of at least 2 
                                months after the expiration of 
                                such authorization.
                            (ii) Appearance before consular 
                        officer.--No alien admitted as a 
                        nonimmigrant under section 
                        101(a)(15)(H)(ii)(c) or acquiring such 
                        status after admission shall be 
                        eligible to apply for another 
                        nonimmigrant visa under such section 
                        until the alien, at least 2 months 
                        after the expiration of the alien's 
                        authorization to remain in the United 
                        States as such a nonimmigrant--
                                    (I) appears before a 
                                consular officer in the country 
                                described in clause (i)(II);
                                    (II) verifies his or her 
                                identity by presenting to the 
                                consular officer the 
                                identification and employment 
                                eligibility document provided 
                                under subsection (a)(4); and
                                    (III) surrenders that 
                                document to the consular 
                                officer.
                            (iii) Entry and exit data system.--
                        After the Attorney General fully 
                        implements the integrated entry and 
                        exit data system under section 110 of 
                        the Illegal Immigration Reform and 
                        Immigrant Responsibility Act of 1996 (8 
                        U.S.C. 1221 note), no alien admitted as 
                        a nonimmigrant under section 
                        101(a)(15)(H)(ii)(c) or acquiring such 
                        status after admission shall be 
                        eligible to receive another 
                        nonimmigrant visa under such section 
                        unless the data in such system 
                        establish that--
                                    (I) the requirement of 
                                clause (i)(I) has been 
                                satisfied;
                                    (II) at least 2 months have 
                                elapsed since the expiration of 
                                the alien's authorization to 
                                remain in the United States as 
                                such a nonimmigrant; and
                                    (III) during that 2-month 
                                period, the alien has not 
                                entered or attempted to enter 
                                the United States.
            (2) Period of admission.--The alien shall be 
        admitted for the period requested by the employer not 
        to exceed 10 months, or the ending date of the 
        anticipated period of employment on the employer's 
        application for registered workers, whichever is less.
            (3) Abandonment of employment.--
                    (A) In general.--An alien admitted or 
                provided status under this section who abandons 
                the employment which was the basis for such 
                admission or status shall be considered to have 
                failed to maintain nonimmigrant status as an 
                alien described in section 101(a)(15)(H)(ii)(c) 
                and shall depart the United States or be 
                subject to removal under section 
                237(a)(1)(C)(i).
                    (B) Report by employer.--The employer (or 
                association acting as agent for the employer) 
                shall notify the Attorney General within 7 days 
                of an alien admitted or provided status under 
                this Act pursuant to an application to the 
                Secretary under section 201 of the Agricultural 
                Opportunities Act who prematurely abandons the 
                alien's employment.
                    (C) Removal by the attorney general.--The 
                Attorney General shall promptly remove from the 
                United States aliens admitted pursuant to 
                section 101(a)(15)(H)(ii)(c) who have failed to 
                maintain nonimmigrant status or who have 
                otherwise violated the terms of a visa issued 
                under this title.
                    (D) Voluntary termination.--Notwithstanding 
                the provisions of subparagraph (A), an alien 
                may voluntarily terminate his or her employment 
                if the alien promptly departs the United States 
                upon termination of such employment.
                    (E) Replacement of alien.--Upon 
                presentation of the notice to the Attorney 
                General required by subparagraph (B), the 
                Secretary of State shall promptly issue a visa 
                to, and the Attorney General shall admit, an 
                eligible alien designated by the employer to 
                replace an alien who abandons or prematurely 
                terminates employment.
            (4) Identification document and identification 
        system.--
                    (A) In general.--Each alien admitted under 
                this section shall, upon receipt of a visa, be 
                given an identification and employment 
                eligibility document to verify eligibility for 
                employment in the United States and verify such 
                person's proper identity.
                    (B) Requirements.--No identification and 
                employment eligibility document may be issued 
                and no identification system may be implemented 
                which does not meet the following requirements:
                            (i) The document and system shall 
                        be capable of reliably determining 
                        whether--
                                    (I) the individual with the 
                                identification and employment 
                                eligibility document whose 
                                eligibility is being verified 
                                is in fact eligible for 
                                employment,
                                    (II) the individual whose 
                                eligibility is being verified 
                                is claiming the identity of 
                                another person, and
                                    (III) the individual whose 
                                eligibility is being verified 
                                has been properly admitted 
                                under this section.
                            (ii) The document shall be in the 
                        form that is resistant to 
                        counterfeiting and to tampering.
                            (iii) The document shall 
                        incorporate, at a minimum, the features 
                        of the most technologically advanced 
                        identification documents issued under 
                        this Act on the date of the enactment 
                        of the Agricultural Opportunities Act 
                        that are designed--
                                    (I) to prevent 
                                counterfeiting;
                                    (II) to prevent tampering; 
                                and
                                    (III) to ensure that a 
                                person proffering the document 
                                as identification is the person 
                                to whom the document was 
                                issued.
                            (iv) The document and system 
                        shall--
                                    (I) be compatible with 
                                other Immigration and 
                                Naturalization Service 
                                databases and other Federal 
                                Government databases for the 
                                purpose of excluding aliens 
                                from benefits for which they 
                                are not eligible and to 
                                determine whether the alien is 
                                illegally present in the United 
                                States, and
                                    (II) be compatible with law 
                                enforcement databases to 
                                determine if the alien has been 
                                convicted of criminal offenses.
    (b) Extension of Stay of Aliens in the United States.--
            (1) Extension of stay.--If an employer with respect 
        to whom a report or application described in section 
        203(a)(1) of the Agricultural Opportunities Act has 
        been submitted seeks to employ an alien who has 
        acquired status under this section and who is lawfully 
        present in the United States, the employer shall file 
        with the Attorney General an application for an 
        extension of the alien's stay or a change in the 
        alien's authorized employment. The application shall be 
        accompanied by a copy of the appropriate report or 
        application described in section 203 of the 
        Agricultural Opportunities Act.
            (2) Limitation on filing an application for 
        extension of stay.--An application may not be filed to 
        extend an alien's stay if the granting of the 
        application would permit the alien's period of 
        authorized admission as a nonimmigrant described in 
        section 101(a)(15)(H)(ii)(c) to exceed 12 months.
            (3) Work authorization upon filing an application 
        for extension of stay.--An employer may begin employing 
        an alien who is present in the United States who has 
        acquired status under this Act on the day the employer 
        files an application for extension of stay. For the 
        purpose of this requirement, the term ``filing'' means 
        sending the application by certified mail via the 
        United States Postal Service, return receipt requested, 
        or delivered by guaranteed commercial delivery which 
        will provide the employer with a documented 
        acknowledgment of the date of sending and receipt of 
        the application. The employer shall provide a copy of 
        the employer's application to the alien, who shall keep 
        the application with the alien's identification and 
        employment eligibility document as evidence that the 
        application has been filed and that the alien is 
        authorized to work in the United States. Upon approval 
        of an application for an extension of stay or change in 
        the alien's authorized employment, the Attorney General 
        shall provide a new or updated employment eligibility 
        document to the alien indicating the new validity date, 
        after which the alien is not required to retain a copy 
        of the application.
            (4) Limitation on employment authorization of 
        aliens without valid identification and employment 
        eligibility card.--An expired identification and 
        employment eligibility document, together with a copy 
        of an application for extension of stay or change in 
        the alien's authorized employment that complies with 
        the requirements of paragraph (1), shall constitute a 
        valid work authorization document for a period of not 
        more than 60 days from the date of application for the 
        extension of stay, after which time only a currently 
        valid identification and employment eligibility 
        document shall be acceptable.
            (5) Maximum period of authorized admission.--In the 
        case of a nonimmigrant described in section 
        101(a)(15)(H)(ii)(c) who is granted an extension of 
        stay under this subsection, the period of authorized 
        admission as such a nonimmigrant may not exceed 12 
        months.

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                            Dissenting Views

    We strongly dissent from H.R. 4548, the so-called 
``Agricultural Opportunities Act,'' which constitutes a 
dangerous step back to the days of the Bracero program when 
migrant farm workers were little more than indentured servants 
to agricultural employers. At a time when there is no evidence 
of a shortage of U.S. farm workers, the legislation would gut 
the minimal protections in the current H-2A program (designed 
to protect domestic and foreign workers), reduce wages, and 
result in a substantial increase in illegal immigration.
    H.R. 4548 is opposed by the administration; in fact, the 
President's senior advisors are recommending that the President 
veto any legislation including H.R. 4548.\1\ In addition, the 
bill is opposed by over 170 national, State and local groups 
with an interest in immigration, labor, civil rights, religious 
and environmental policy, including the AFL-CIO,\2\ United Farm 
Workers,\3\ National Council of La Raza,\4\ American Bar 
Association,\5\ Farmworker Justice Fund, U.S. Catholic 
Conference, Mexican American Legal Defense and Education 
Fund,\6\ Asian Pacific American Labor Alliance, League of 
United Latin American Citizens, National Center for Farmworker 
Health, Service Employees International Union, Institute for 
Agriculture and Trade Policy, and United Methodist Church.\7\
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    \1\ Letter to Rep. John Conyers, Jr., from Jacob J. Lew, Director, 
Office of Management and Budget, Executive Office of the President 
(Sept. 13, 2000) (letter on file with the committee); Letter to Rep. 
Lamar Smith from Alexis M. Herman, Secretary, U.S. Dept. of Labor (July 
27, 2000)(letter on file with the committee).
    \2\ Letter to Chairman Henry Hyde from Peggy Taylor, Director, AFL-
CIO Department of Legislation (Sept. 11, 2000) (letter on file with the 
committee).
    \3\ Letter to Rep. John Conyers from Arturo Rodriguez, President, 
United Farm Workers of America (Sept. 18, 2000) (letter on file with 
the committee).
    \4\ Letter to House Judiciary Committee Member from Raul Yzaguirre, 
President and CEO, National Council of La Raza (Sept. 11, 2000) (letter 
on file with the committee).
    \5\ Letter to Chairman Henry Hyde from Robert D. Evans, Director, 
American Bar Assoc. Governmental Affairs Office (Sept. 11, 2000) 
(letter on file with the committee).
    \6\ Letter to Members of the U.S. House of Representatives from 
Bruce Goldstein, Co-Executive Director, Farmworker Justice Fund, Inc. 
(July 21, 2000) (letter on file with the committee).
    \7\ Letter to Speaker Dennis Hastert (Feb. 15, 2000) (letter from 
national, State and local organizations opposing a new temporary 
foreign agricultural worker program) (letter on file with the 
committee).
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    H.R. 4548 proposes to restructure the farm labor market 
through the use of a new ``guest worker'' program that 
ultimately will replace the current H-2A program. Directly 
contrary to this proposal, the U.S. Commission on Immigration 
Reform, chaired by the late Barbara Jordan, concluded that a 
new agricultural guest worker program would be a ``grievous 
mistake.'' \8\ The Jordan Commission further wrote that:
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    \8\ U.S. Commission on Immigration Reform, Legal Immigration: 
Setting Priorities, p. 173 (1995); see also U.S. Commission on 
Immigration Reform, Becoming an American: Immigration and Immigrant 
Policy, pp. 94-95 (1997). The Commission on Agricultural Workers, in 
its final report in 1992, also recommended against a new guestworker 
program. Instead, it made recommendations to stabilize the agricultural 
work force by improving wages and working conditions to attract and 
retain farm workers and sustain improvements in productivity.

        Even if labor shortages develop, the Commission would 
        be cautious about recommendations for a guestworker 
        program. Guestworker programs effectively expand rural 
        poverty. Moreover, guestworker programs are predicated 
        on limitations on the freedom of those who are invited 
        to enter and work. Experience has shown that such 
        limitations are incompatible with the values of 
        democratic societies worldwide. For that very reason, 
        ``temporary'' guest workers tend to become permanent 
        residents, de facto or even de jure. We cannot ignore 
        the inconsistency between the stated intent of 
        guestworker programs and their actual consequences.\9\
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    \9\ U.S. Commission on Immigration Reform, Legal Immigration: 
Setting Priorities, p. 173.

In our view, H.R. 4548 creates a guest worker program that 
realizes the worst fears of the Jordan Commission. For these 
and the reasons set forth herein, we strongly reject the 
legislation.
Background and Description of the Current Guest Worker Program and H.R. 
        4548
    United States agricultural employers, since the end of the 
Civil War, have repeatedly sought ways to hire foreign workers 
as a significant part of their seasonal workforce. The present 
legislative effort may be seen in that context. Between 1942 
and 1964, many Mexican farm workers worked legally in the 
United States under the U.S.-Mexico agreement known as the 
Bracero program, a temporary foreign agricultural worker 
program that was established initially to meet World War II 
labor shortages. When this program peaked in the last half of 
the 1950's, it employed more than 400,000 workers a year. Many 
guest workers received less than the minimum wage, were housed 
in dilapidated shacks and were dismissed and shipped home if 
they spoke up for their rights. After employers deducted for 
food, housing and transportation, some braceros netted less 
than $100 for a season's work. The Bracero program was repealed 
in 1964, after an Edward R. Murrow documentary called ``Harvest 
of Shame'' exposed abuses by the growers, including unpaid 
wages, poor housing, and the physical toll of ``stoop labor.''
    Since that time, the only legal temporary foreign 
agricultural worker program in the United States has been the 
permanent H-2/H-2A program.\10\ The current H-2A program 
permits the admission of foreign agricultural workers to 
perform work that is temporary in nature, provided that U.S. 
workers are not available. It is administered by the Department 
of Labor's Employment and Training Administration (``DOL/ETA'') 
and the Department of Justice's (``DOJ'') Immigration and 
Naturalization Service (``INS''). The H-2A program requires an 
affirmative search for available U.S. workers and a 
determination that admitting foreign workers will not adversely 
affect the wages and working conditions of similarly-employed 
U.S. workers. To ensure that U.S. workers' wages and conditions 
are not undermined by the availability of foreign workers, and 
to avoid exploitation of the foreign guest workers, the H-2A 
program includes minimum standards regarding wages, housing, 
reimbursement of travel costs, and a minimum work guarantee for 
all workers--foreign and domestic.
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    \10\ The program began during World War II on the East Coast, was 
designated as an ``H-2'' program in 1952, and then as an ``H-2A'' 
program in the Immigration Reform and Control Act of 1986 (IRCA). 
Section 101(a)(15)(H)(ii)(A) of the Immigration and Nationality Act, 8 
U.S.C Sec. 1101(a)(15)(H)(ii)(A). The substantive terms appear 
primarily in section 218 of the INA, 8 U.S.C. Sec. 1188. In 1986, IRCA 
contained a ``special agricultural worker'' (SAW) program, negotiated 
between agricultural worker and employer representatives, that granted 
legal immigration status to 1.1 million formerly undocumented workers 
who could prove that they had performed farm work.
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    H.R. 4548 establishes a new guest worker pilot program 
(known as H-2C),\11\ and significantly alters worker 
protections applicable to foreign and domestic workers. H-2C 
eliminates positive recruitment and preference requirements 
relating to U.S. workers and instead allows employers to hire 
an unlimited number of foreign guest workers if they are unable 
to retain a sufficient number of domestic workers through a 
proposed new job registry.\12\ The bill pares back on worker 
protections currently provided under the H-2A program. Among 
other things, H.R. 4548 creates a complex new wage formula that 
will result in lower wages than current law,\13\ allows 
employers to in many cases substitute a housing allowance for 
actual housing,\14\ and reduces employee travel reimbursement 
requirements.\15\ Finally, the bill includes some modest 
enforcement requirements \16\ and establishes several studies 
to consider the problems involved in housing migrant 
agricultural workers, issues related to the adequacy of 
education and day care for the children of migrant agricultural 
workers, the problem of field sanitation standards, and to 
evaluate the implementation of the pilot program.
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    \11\ H.R. 4548 establishes a new nonimmigrant visa (H-2C) category 
for foreign agricultural workers under a three-year pilot program. H.R. 
4548, Sec. 205. To be eligible for the H-2C visa category, a person 
must be seeking a temporary position as a seasonal agricultural worker 
in the United States. Id. Sec. 205(a). The foreign worker must 
demonstrate that he has a permanent residence abroad and that he has no 
intention of abandoning his foreign residence. Id. Sec. 205(a).
    \12\ H.R. 4548 requires DOL to establish a computer database of 
registries (by State or region of United States) for U.S. workers who 
are available for temporary seasonal agricultural work. Id. 
Sec. 101(b). Workers apply for inclusion in the registry of the State 
where they reside and then ask that their names be submitted to any 
additional States where they intend to seek employment. Id. 
Sec. 101(a). DOL then verifies with DOJ that workers included in the 
registries are authorized to be employed in the United States. Id. 
Sec. 101(b). Agricultural employers are able to apply to DOL for the 
referral of eligible U.S. workers. Id. Sec. 201(a)(1). DOL then 
conducts a search of the appropriate registries to identify qualified 
U.S. workers and determines whether such U.S. workers are interested in 
the open position. Id. Sec. 202(a). Within 21 days, DOL must notify the 
employer of any U.S. workers who are willing to accept the position. 
Id. Sec. 202(b). No positive recruitment (i.e., the advertising of open 
positions or other effort to find workers) is required of the employer. 
Further, agricultural employers may refuse to hire qualified U.S. 
workers if the applicant fails to register with a job registry. Id. 
Sec. 101(b)(6).
    The bill removes certain protections for U.S. workers that exist in 
current law. In particular, in some cases employers who apply for 
registered workers do not need to offer employment to qualified U.S. 
workers if the worker applies before 50 percent of the anticipated 
period of employment has elapsed. Id. Sec. 204(e)(2). Moreover, DOL is 
required to make ``all reasonable efforts'' to find an opening for a 
registered worker before making a referral to an employer that puts the 
employer in the position of hiring a U.S. worker for a position already 
filled by a foreign worker. Id. Sec. 204(e)(3).
    A U.S. employer is immediately eligible to hire foreign guest 
workers if DOL is unable to refer sufficient number of U.S. workers 
from the job registry. Id. Sec. 203. In such cases, DOL submits a 
report to the employer and the State Department indicating the number 
of additional workers needed by the U.S. employer. In turn, the State 
Department issues H-2C visas to qualified foreign agricultural workers 
to fill the employers' remaining job opportunities. Id. Sec. 203.
    \13\ H.R. 4548 proposes a complicated new wage requirement that 
substantially differs from current law. Employers are required to offer 
and pay the higher of the local ``prevailing wage'' for the particular 
job, or the ``adverse effect wage rate'' (``AEWR''). Id. 
Sec. 204(a)(1). The employer cannot pay less than he Federal or State 
minimum wage. Under current law, the AEWR generally ensures that the 
wage being offered to guest workers is not lower than, and thus does 
not reduce, the prevailing wage rate for U.S. workers. The bill, 
however, redefines the term ``adverse effect wage rate'' to install an 
arbitrary methodology (at most, 5% above the local prevailing wage 
formula).
    In determining the prevailing wage for a position, an employer may 
rely on an employer-generated prevailing wage survey. Id. 
Sec. 204(a)(3). Additionally, the bill permits employers to pay the 
average of the hourly earnings of the workers, taken as a group. Id. 
Sec. 204(a)(4)(B). Thus, an employer may pay individuals below the 
required wage rate as long as the group of workers on average earns the 
required rate. The bill does not guarantee any particular rate of pay 
to an individual worker.
    \14\ Employers are required to provide housing or a housing 
allowance to their agricultural. The housing shall be at no cost to the 
worker and must meet Federal, State and local standards, including 
Federal standards for temporary workers. Id. Sec. 204(b). This housing 
requirement exists under current law. However, the bill has an 
additional provision which permits employers to provide workers with a 
housing allowance in lieu of housing. If the Governor of the State 
where the employment is located certifies that housing is available in 
the area of intended employment, the employer may provide workers with 
a housing allowance. Id. Sec. 204(c). The allowance must be ``equal to 
the statewide average fair market rental for existing housing for 
nonmetropolitan counties for the States in which the employment occurs 
. . . based on a 2-bedroom dwelling unit and as assumption of 2 persons 
per bedroom.'' Id. Sec. 204(c)(4). ``Nonmetropolitan counties'' are 
established by the Housing and Urban Development Department. Id.
    \15\ A U.S. worker referred by a job registry or foreign guest 
worker, who travels more than 100 miles to the job, must be reimbursed 
by the employer for the cost of the worker's transportation from the 
worker's permanent place of residence or place of last employment. Id. 
Sec. 204(d). The worker is only entitled to reimbursement if he 
completes 50% of the job's period of employment. Id. In the case of the 
foreign worker, his place of residence is deemed to be the place where 
he departed the foreign country or where the visa was issued (i.e., the 
U.S.-Mexican border) rather than his actual place of residence. Id. 
Sec. 204(d)(3).
    \16\ The bill requires that an identification document and 
identification system be developed to verify the eligibility and 
identity of nonimmigrant agricultural workers admitted under this 
program. The bill also requires DOJ to develop a procedure to verify 
that H-2C workers depart from the United States when their authorized 
period of stay expires. The bill also establishes an administrative 
complaint mechanism that limits the type and scope of the Secretary's 
enforcement efforts.
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            I. There Is No Shortage of Agricultural Workers

    As a threshold matter, we would note that there is no 
shortage of domestic agricultural workers that would justify 
this drastic legislation. Indeed, the evidence points precisely 
to the opposite conclusion--there is a continuing glut of 
agricultural workers, who earn below poverty level wages while 
enduring inordinately difficult work under arduous working 
conditions. The conditions of agricultural workers in this 
country continue to be characterized as a ``harvest of shame'' 
forty years after that phrase was made famous by Edward R. 
Murrow's documentary.\17\
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    \17\ See ``Napa Facing Harvest of Shame,'' S.F. Examiner (Sept. 26, 
2000).
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    Recent and reliable information from the National 
Agricultural Workers Survey shows that the situation of farm 
workers has continued to decline: wages have stagnated, annual 
earnings remain beneath the poverty level, and farm workers 
face chronic unemployment. Consider the following:
         LIn 1997-98, most farm workers held only one 
        farm job per year and were employed in agriculture for 
        less than half a year.
         LEven in July, when demand for farm labor 
        peaks in many parts of the country, just over half of 
        the total farm workforce held agricultural jobs.
         LSince 1990-92, the average work year in 
        agriculture has decreased from 26 to 24 weeks; while 
        the number of weeks in nonagricultural employment has 
        fallen from eight to five. Basically, another month of 
        unemployment has been added to the farm worker misery 
        index.
    At the same time, despite a strong economy and record 
prosperity, farm worker wages have lost ground relative to 
those of workers in the private, nonfarm sector. Adjusted for 
inflation, the average real hourly wage of farm workers has 
dropped from $6.89 to $6.18. Consequently, farm workers have 
lost 11 percent of their purchasing power over the last decade.
    In addition, a 1998 General Accounting Office study found 
that unemployment in twenty counties accounting for about half 
of the fruits, tree nuts and vegetables grown in the United 
States was so high that they either qualified for a Food Stamp 
waiver or were designated as a labor surplus area.
    In California, the unemployment rates in eighteen 
agricultural counties continue to be nearly double the 
statewide average even during peak harvest months.\18\ The 
California Rural Legal Assistant Foundation (CRLAF) has 
conducted surveys of farm workers in certain raisin and grape 
producing counties during harvests in the last 3 years. These 
surveys have consistently found that there are available farm 
workers who are not being recruited by employers. In fact, 
employers are doing a poor job of making their work 
opportunities known. Unfortunately, H.R. 4548 does not offer 
solutions to reducing farm worker unemployment and poverty; 
instead, it guarantees a perpetuation of these severe problems.
---------------------------------------------------------------------------
    \18\ State of California, Employment Development Department, Report 
400C, 1989-1999.
---------------------------------------------------------------------------

  II. The Legislation Would Harm all Workers by Weakening Protections 
         Relating to Wages, Housing, and Travel Reimbursements

    H.R. 4548 would harm domestic and foreign migrant farm 
workers in a number of respects. Most significantly, it would 
reduce their wages, it would deny them fair and adequate 
housing, and it would cause them to bear increased travel 
expenses. We believe that, at a time when several hundred 
thousand farm workers already earn less than the poverty level, 
and face poor housing and working conditions, it is wholly 
inappropriate to reduce these critical worker protections.
Wages
    In terms of wages, the legislation adopts a formula that 
permits employers to pay substantially less than under the H-2A 
program, and then creates loopholes to offer an even lower 
wage. Under the current H-2A program, employers must offer and 
pay U.S. and foreign workers the highest of three wage rates: 
(1) the State or Federal minimum hourly wage, (2) the local 
prevailing wage for the particular job, and (3) the adverse 
effect wage rate or ``AEWR'' (the ``adverse effect'' concept is 
based on the principal that foreign workers should not be 
permitted to depress the wage rates of U.S. workers--i.e., 
citizens and legal immigrants). H.R. 4548 weakens these core 
wage protections available under current law in several 
important and significant ways.
    First, the bill alters the definition of ``adverse effect'' 
wage so that it equals the prevailing wage (or, in some limited 
circumstances, the prevailing wage plus 5%). Since the adverse 
effect wage is typically higher than local prevailing wages 
paid by H-2A employers, eliminating this standard will depress 
wages for agricultural workers generally.
    Second, H.R. 4548 permits employers to determine prevailing 
wages by relying on an employer-generated prevailing wage 
survey. In an industry known for its informal record keeping 
and ``off the books'' employment, it is questionable whether it 
is appropriate to allow the employers to conduct the surveys 
that determine the prevailing wage.\19\
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    \19\ H.R. 4548, Sec. 204(a)(2).
---------------------------------------------------------------------------
    Third, H.R. 4548 contains a large ``loophole'' that permits 
employers to show that their employees, as a group, on average, 
earned the same level of earnings that they would have earned 
if they had been paid the actual prevailing wage. Under current 
H-2A law, if the prevailing wage is $6.50 per hour, all workers 
must be offered the prevailing wage of $6.50 per hour or the 
AEWR, whichever is higher. By contrast, an H-2C employer could 
pay some workers less than $6.50 per hour, as long as the group 
of employees averaged at least $6.50 per hour. In other words, 
under the proposed H-2C system, many individual workers will 
not be entitled to the prevailing wage or its equivalent.
    It is because of these concerns that the AFL-CIO has 
observed:

        With the disparity between pay requirements in current 
        law and the proposed agricultural guestworker program, 
        tens of thousands of farm workers would be very likely 
        to experience pay cuts. For example, the AFL-CIO has 
        estimated that in North Carolina alone, more than ten 
        thousand farm workers--H-2A and similarly-employed U.S. 
        workers--could experience a nearly 20 percent pay cut 
        under the reduced minimum wage provisions of the 
        proposed H-2C program.
Housing
    During the days of the Bracero program, migrant workers 
slept in fields and ditches because no housing was available. 
Though housing guarantees were written into Bracero contracts, 
the requirements were poorly enforced and routinely 
circumvented.\20\ If the committee-reported bill is enacted 
into law, we risk returning to these horrors and abuses.
---------------------------------------------------------------------------
    \20\ ``As a result of official complacency and employer reluctance 
rural California was for many years spotted with rundown bracero camps. 
In the delta region of the San Joaquin temporary camps were set up 
among the mosquito-infested sloughs. Barns and stables were converted 
to human habitation. Former Wetback hideouts were fitted with plank 
bunks, a faucet and other standard equipment. Empty warehouses and 
abandoned garages were refurbished for a season.'' Ernesto Galarza, 
Merchants of Labor--The Mexican Bracero Story 194-95 (1964)
---------------------------------------------------------------------------
    This is because, under H.R. 4548, if the Governor certifies 
that adequate housing exists within the area of employment, the 
employer once again will not need to provide workers with 
housing. Instead, the employer can provide either housing or a 
housing allowance to the migrant farm workers.\21\ Though the 
certification may assist in having employers provide housing 
where none exists, it remains possible that such a 
certification will be issued even though particular parts of an 
area have adequate housing while other parts covered by the 
certification do not. Certainly, providing workers with a 
housing allowance when no housing exists is a hollow gesture. 
Moreover, assuming affordable housing does exist, few landlords 
will be willing to offer the short-term rentals needed by farm 
workers.
---------------------------------------------------------------------------
    \21\ H.R. 4548, 204(b)(2). Under current law, H-2A employers are 
required to provide housing without charge to those workers who are not 
reasonably able to return to their residence within the same day. If 
provided by the employer, the housing must comply fully with Federal 
standards issued by the Department of Labor for farm labor housing, as 
well as State housing standards. The Judiciary Committee adopted an 
amendment offered by Rep. Gallegly that permitted H-2C employers to 
provide a housing allowance only when the Governor of their State 
determined that farm worker housing is available.
---------------------------------------------------------------------------
    Of even greater concern is that the amount of the housing 
allowance required in H.R. 4548 often will be completely 
inadequate because it is based on a formula that yields less 
than the actual cost of housing in the areas where farm workers 
will be employed. The bill states that the allowance will be 
equal to the ``statewide average fair market rental for 
existing housing for non-metropolitan counties for the State in 
which the employment occurs.'' \22\ Several major agricultural 
production counties, such as Fresno County, California, are 
categorized by HUD as ``metropolitan'' even though they are 
largely rural. These ``metropolitan'' counties often have much 
higher rental costs than the non-metropolitan counties. As a 
result, housing allowances are based on rental costs in non-
metropolitan counties even though much of the available housing 
is in the more expensive metropolitan counties. In practical 
terms, workers in such areas would receive about $4 per day 
toward housing, an unacceptably low amount.
---------------------------------------------------------------------------
    \22\ H.R. 4548, 204(b)(6)(D).
---------------------------------------------------------------------------
Travel Expenses
    Currently, the H-2A program requires employers to reimburse 
workers for their costs of transportation to the place of 
employment once they complete one-half the season, and to pay 
the workers' transportation to their homeland upon completion 
of the entire season. In addition, the H-2A regulations require 
employers to advance to U.S. workers the costs of 
transportation to the place of employment if such advances are 
made to foreign workers. These provisions offer financial 
assistance to workers who are traveling long distances to 
accept low-paying jobs, help ensure that temporary foreign 
workers will return home, and prevent employers from 
discriminating against U.S. workers and in favor of foreign 
workers regarding transportation benefits.
    H.R. 4548 would require employers to reimburse costs of 
transportation to the place of employment after the first half 
of the season and payment of the costs of transportation home 
at the end of the season, but only for foreign workers and for 
U.S. workers who were referred through a job registry.\23\ 
Those U.S. workers who obtained the job by applying directly to 
the employer or through other methods outside a job registry 
would not be entitled to the transportation benefit. Further, 
H.R. 4548 does not address the issue of transportation cost 
advances. Moreover, employers would be free to offer 
transportation benefits to foreign workers that are not offered 
to U.S. workers. Because many employers prefer to hire foreign 
workers, such discriminatory benefits are likely to be used to 
recruit foreign workers and avoid U.S. workers.
---------------------------------------------------------------------------
    \23\ Id. Sec. 204(c)(1)-(2).
---------------------------------------------------------------------------
    Other problems include the amount of the transportation 
cost payment. H.R. 4548 creates the fiction that the workers' 
``residence shall be deemed to be the place where the alien was 
issued the visa.'' \24\ Because the workers in Mexico receive 
the H-2C visa at the U.S.-Mexican border, but can live very far 
from the border, they will be denied the actual costs of their 
transportation, making it more unlikely that they will return 
to Mexico. Illustrating the concerns with this provision, 
United Farm Workers has testified: ``Under [H.R. 4548] a worker 
can be recruited in his home in southern Mexico, told to report 
to the U.S. consulate in Calexico to be issued his visa and 
then travel to the Imperial Valley, a journey of hundreds of 
miles and not receive any transportation reimbursement (the 
Imperial Valley is less than 100 miles from Calexico). 
Moreover, there is nothing in [H.R. 4548] that prevents the 
employer from actually charging the worker for this 
transportation.'' \25\
---------------------------------------------------------------------------
    \24\ Id. Sec. 204(c)(3)(C).
    \25\ Hearing on H.R. 4548, the ``Agricultural Opportunities Act,'' 
Before the Subcomm. on Immig. and Claims of the House Comm. on the 
Judiciary, 106th Cong., 2d. Sess. (June 15, 2000) (testimony of Marcos 
Camacho, General Counsel, United Farm Workers).
---------------------------------------------------------------------------

   III. The Legislation Would Harm Domestic Workers in Particular by 
        Eliminating Affirmative Recruitment and Preference Rules

    The legislation also would do particular and marked harm to 
domestic agricultural workers. This is because it would 
eliminate critical safeguards for U.S. workers, such as 
affirmative recruitment and job preference rules, and undermine 
employee negotiating rights.
Elimination of Affirmative Recruitment
    Guestworker programs are intended to fill labor shortages. 
Consequently, the current H-2A statute requires employers to 
engage in ``positive recruitment'' of U.S. workers. This 
requires that employers attempt to locate job applicants and 
hire them--and use the Federal-State Employment Service, before 
hiring foreign guest workers. H.R. 4548, however, would not 
require such recruitment inside the United States. Instead, the 
bill calls for the establishment of a new government 
bureaucracy, a Federal-State system of ``job registries'' 
devoted solely to the agricultural industry. This would allow 
all agricultural employers in the United States to hire foreign 
migrants if an insufficient number of U.S. workers are 
available in the job registry.
    There are numerous problems with this approach. First and 
foremost, under the bill, all agricultural employers could 
reject qualified U.S. workers who applied for a job directly to 
the employer, or through a nonprofit group, a union, or a labor 
contractor. Moreover, the job registry could have as little as 
14 days to recruit U.S. migrant workers before the employer 
would get access to guestworker visas. Yet, growers could 
recruit guestworkers for months.
    This core concern was noted by the Department of Labor, 
when they testified that under H.R. 4548:

        for the first time, and in contrast to all other 
        employment situations in the country--would shift the 
        burden of finding workers from the employer to the 
        government. Agricultural employers desiring to hire 
        foreign guestworker would have no obligation to find 
        U.S. workers on their own behalf except to apply to the 
        government-operated registry, advertise (on behalf of 
        the registry) in a local publication, and make 
        ``reasonable efforts'' to contact workers employed in 
        the previous season. Under H.R. 4548, the government 
        would only have 14 days to find an employer's workers, 
        may only search for such workers registered in the 
        State where the work is to be performed, and must 
        contact each potentially qualified worker to obtain a 
        commitment to accept the offered job. Failure to 
        overcome the obstacles to effectively operating an 
        electronic job matching service in the agricultural 
        labor market would allow the employer to obtain its 
        workforce abroad.\26\
---------------------------------------------------------------------------
    \26\ June 15, 2000 Hearing (testimony of John R. Fraser, Deputy 
Administrator, Wage and House Division, Employment Standards Admin, 
Dep't of Labor).

    Second, the bill's intention to have farm workers referred 
to jobs through computer databases is impractical. Farm workers 
generally do not possess computers or access to the Internet, 
often are isolated from places where computers and modems are 
available, and usually do not have the knowledge, education or 
skills to utilize a computer-based job referral system even if 
they obtained access to a computer and the Internet.\27\ As 
Rep. Howard Berman (D-CA) has noted, ``the registry would work 
only if every domestic farm worker who desperately seeks these 
jobs had a laptop computer to receive messages about employers 
seeking workers in the very short turnaround time allotted for 
the registry referral.''
---------------------------------------------------------------------------
    \27\ We note that if a worker who is registered turns down 3 job 
referrals within a 3 month period, then the worker's name is removed 
from the registry. 101(b)(8). Thus, a worker who rejects two referrals 
because he is employed, and rejects a third referral because the wage 
rate is too low, will be removed from the list.
---------------------------------------------------------------------------
    In addition, assuming the resources were assigned to 
establish and maintain the job registries, it would take 
several years for the system to become operational. In the 
meantime, the failure of the job registries to send workers to 
these employers would trigger the obligation of the INS to 
deliver visas to the employers. The issuance of visas should be 
based on the failure of bona fide recruitment efforts, not on 
the failure to establish these new job registries.
Job Preferences
    H.R. 4548 also weakens provisions in current law that 
guarantee that U.S. workers have an opportunity to fill jobs 
before they are 50% complete. Under the H-2A program, an 
employer must employ a U.S. worker if the worker applies for a 
position held by a guest worker before 50% of the total time 
period for the job has elapsed. The so-called ``50% rule'' is 
the primary method of ensuring that U.S. workers are given a 
job preference in the hiring process. In 1986, Congress ordered 
the Secretary of Labor to study this protection to determine 
whether the benefits of it outweighed the costs. After 
conducting a cost-benefit survey of the impact of the rule, the 
Bush administration retained the preference in the H-2A 
program. Unfortunately, H.R. 4548 does not include a similar 
provision.\28\
---------------------------------------------------------------------------
    \28\ Rep. Sheila Jackson Lee (D-TX) offered an amendment to include 
the 50% rule in H.R. 4548 to ensure that some U.S. worker protections 
are included in the new guest worker program. The amendment was 
defeated by the Majority by a vote of 17-12.
---------------------------------------------------------------------------
    Indeed, H.R. 4548 contains provisions that are contrary to 
the 50% rule's job preference. For example, an employer ``shall 
not be obligated'' to offer a job to qualified, eligible U.S. 
workers who are referred by job registries if the registry is 
able to refer that qualified U.S. worker to other employers 
``that offer substantially similar terms and conditions of 
employment.'' \29\ Similarly, the Secretary will be obligated 
to ``make all reasonable efforts'' to refer a U.S. farm worker 
to a job other than the H-2C employer's job if the employer has 
already ``committed to'' hiring a foreign worker.\30\ Due to 
these ``employer'' protections, employers can establish 
recruitment networks in foreign countries to avoid hiring 
migrant workers from inside the United States.
---------------------------------------------------------------------------
    \29\ H.R. 4548, Sec. 204(d)(2)(C).
    \30\ Id. Sec. 204(d)(4).
---------------------------------------------------------------------------
General Impact on Employee Rights
    Beyond weakening specific worker protections, as a general 
matter, it seems clear that by making it easier and less 
expensive for employers to retain large pools of migrant farm 
workers, this will further reduce the negotiating leverage, and 
wages and benefits available to U.S. workers. The bill does 
this first by increasing the supply of workers and reducing 
their wages. This puts American workers in an almost impossible 
position in terms of seeking to enhance their own wages and 
benefits.
    Second, the bill makes it that much more difficult for 
workers to organize and negotiate collectively. This is because 
guest workers, and, as a result, U.S. workers, lack the 
bargaining power to improve wages and working conditions. 
During the Subcommittee on Immigration and Claims hearing on 
the bill, United Farm Workers explained that:

        The fundamental flaw in [guest worker] programs is that 
        workers are not free to change employers and offer 
        their labor in a free labor market. Without union 
        representation, the best protection that most farm 
        workers have from abusive working conditions is the 
        right to walk away from a bad employer and find work 
        elsewhere. Guest workers don't have that right. This is 
        really the underlying issue here. In some ways, guest 
        workers are in a worse position to protect their rights 
        even than undocumented workers.'' \31\
---------------------------------------------------------------------------
    \31\ June 15, 2000 Hearing (testimony of Marcos Camacho, General 
Counsel, United Farm Workers).

    Many guest workers fear that if they demand better wages or 
working conditions, they will be fired and deported, or that 
the employers will not request a visa for them in the following 
year. As workers with limited education, English-language 
capacity or job skills, their economic bargaining power is 
limited. This in turn has a negative impact on the bargaining 
power of their U.S. counterparts.

     IV. The Legislation Will Lead to Increased Illegal Immigration

    Although proponents would argue that the legislation will 
encourage legal entry, it is far more likely that it will lead 
to a massive increase in illegal immigration as hundreds of 
thousands of persons choose to overstay their temporary visas. 
This was the case with the Bracero program. For example, 
historian Otey M. Scruggs observed in a study covering the 
years 1942 to 1947: ``the Bracero program, instead of diverting 
the flow of [illegal aliens] into legal channels, as Mexican 
officials had hoped, actually stimulated unlawful emigration.''
    The Department of Labor agrees with this analysis, having 
testified:

        Experts and academics who study migration flows 
        generally agree that guestworker programs establish 
        migratory networks and paths that increase illegal 
        immigration. Guestworkers tend to come and stay in the 
        receiving country. The program resulting from H.R. 4548 
        would be no different. And it would make it easier for 
        foreign agricultural workers admitted under the program 
        to become illegal workers by overstaying in this 
        country.\32\
---------------------------------------------------------------------------
    \32\ Id. (Testimony of John M. Fraser, U.S. Department of Labor).

    We need not look any further than our country's own 
experience to conclude that illegal immigration results from 
guest worker programs.\33\ The reasons why foreign guest 
workers do not return home are numerous. Some unauthorized 
immigrants do not wish to face the risk of returning home and 
having to cross the border again. Others would be barred for up 
to 10 years from reentering the country legally under an H-2C 
program because they currently have been in the United States 
unlawfully. Further, law enforcement makes little effort to 
identify farm workers here unlawfully and employers under the 
H-2C program would have no obligation to ensure that guest 
workers returned abroad upon completion of the work.\34\ Though 
the working conditions of farm workers are poor by any 
standard, foreign workers often are eager to accept jobs in the 
United States in an effort to reach our country. Such an 
eagerness to live in the United States merely suggests the 
underlying truth that foreign agricultural will not return to 
their home country.
---------------------------------------------------------------------------
    \33\ According to some estimates, approximately 800,000 of the 1.6 
million farm workers in the United States are undocumented workers.
    \34\ Indeed, the GAO concluded that INS enforcement efforts are not 
likely to significantly reduce the availability of agricultural labor. 
GAO-H-2A Guestworker Program, GAO/HEHS-98-20, Dec. 31, 1997 at 30; and 
GAO followup report in letter to Rep. Howard Berman, September 10, 
1998, GAO/HEHS-98-236R, ``Employer Experiences with H-2A.''
---------------------------------------------------------------------------
    The modest enforcement provisions included in the bill will 
be of little use in stemming the flow of illegal immigration. 
Under current law, in addition to paying return transportation 
costs, H-2A employers must notify the government when their 
guest workers leave the grower to return to their country of 
origin. H.R. 4548, however, would put the employer under no 
obligation to ensure the workers it imported leave the U.S. 
upon completion of the work.
    To address concerns regarding illegal immigration, Rep. 
Berman offered an amendment to cap the number of new guest 
workers at 100,000 per year. This resulted in a stunning 
admission by the subcommittee Chair that the actual expected 
flow of aliens could be one million persons per year:

          Rep. Smith: The pilot program without a numerical cap 
        provides an opportunity to accurately gauge the United 
        States' need for foreign agricultural labor, and I urge 
        my colleagues to oppose this amendment. The 100,000 cap 
        in the amendment is not nearly enough to meet the 
        demand which is estimated at closer to 1 million.
                                        * * *
          Rep. Berman: One of the arguments we have for 
        immigration laws is that we want to protect American 
        jobs. I thought that included farm workers, who are the 
        lowest-paid workers in America today . . . ; let's have 
        the cap.
          The chairman of the subcommittee [Smith] indicates 
        that the cap is inadequate, that we may need up to a 
        million new guest workers to come into the country to 
        do agricultural work, notwithstanding the fact that 
        there is no serious evidence that any substantial 
        number of those new guest workers will return to the 
        home country; notwithstanding that there is no evidence 
        that the undocumented workers now in this country will 
        leave and notwithstanding the fact that employer 
        sanctions is a farce because of the presence of forged 
        documents.
          So I'll conclude my comments with those and urge 
        adoption of the amendment.

    Rep. Berman's realistic and modest amendment unfortunately 
was defeated. Therefore, our concerns with the likelihood of 
illegal immigration resulting from the new H-2C guest worker 
program remain.

                               Conclusion

    We are in favor of protecting the migrant farm workers who 
perform back-breaking work to harvest our Nation's crops and 
believe that foreign and domestic workers must be treated 
fairly and with dignity. We also recognize a need to address 
the concerns of agricultural employers and workers with the 
current program. A new guest worker program that threatens to 
return us to the horrors of the discredited Bracero program is 
not the answer. The program proposed in H.R. 4548 would 
increase vastly the number of undocumented workers in the 
United States, depress the wages of migrant workers, eliminate 
the employer-provided housing requirement and remove other 
worker protections that exist under current law. For these 
reasons, we must oppose H.R. 4548.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.

                                  
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