I 

108TH CONGRESS 

1ST SESSION H. R. 3604

To simplify the process for admitting temporary alien agricultural workers 

under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality 

Act, to increase access to such workers, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 21, 2003

Mr. GOODLATTE (for himself, Mr. STENHOLM, Mr. LUCAS of Oklahoma, Mr. 

GUTKNECHT, Mr. BLUNT, Mr. GALLEGLY, Mr. OSBORNE, Mr. BURNS, 

Mr. CHOCOLA, Mr. NETHERCUTT, Mr. SMITH of Michigan, Mr. KINGSTON, Mr. BARTLETT of Maryland, Mr. BROWN of South Carolina, Mr. 

UPTON, Mr. CAMP, Mr. YOUNG of Alaska, Mr. COLLINS, Mr. BAKER, 

Mrs. JO ANN DAVIS of Virginia, Mr. DUNCAN, Mr. FORBES, Mr. GARRETT of New Jersey, Mr. HERGER, Mr. HOEKSTRA, Mr. JANKLOW, Mr. 

JONES of North Carolina, Mr. KELLER, Mrs. MILLER of Michigan, Mr. 

OXLEY, Mr. SOUDER, Mr. TIBERI, and Mr. WICKER) introduced the following bill; which was referred to the Committee on the Judiciary, and 

in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL

To simplify the process for admitting temporary alien agricultural workers under section 101(a)(15)(H)(ii)(a) of 

the Immigration and Nationality Act, to increase access 

to such workers, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Temporary Agricul3 tural Labor Reform Act of 2003’’. 

4 SEC. 2. ADMISSION OF TEMPORARY H–2A WORKERS. 

5 (a) IN GENERAL.—Section 218 of the Immigration 

6 and Nationality Act (8 U.S.C. 1188) is amended to read 

7 as follows: 

8 ‘‘ADMISSION OF TEMPORARY H–2A WORKERS

9 ‘‘SEC. 218. (a) APPLICATION.—No alien may be ad10 mitted as an H–2A worker (as defined in subsection 

11 (x)(2)) unless the employer has filed with the Secretary 

12 of Labor an application stating the following: 

13 ‘‘(1) TEMPORARY OR SEASONAL LABOR OR

14 SERVICES.—The agricultural employment for which 

15 the H–2A worker or workers is or are sought is tem16 porary or seasonal, the number of workers sought, 

17 and the wage rate and conditions under which they 

18 will be employed. 

19 ‘‘(2) BENEFITS, WAGE, AND WORKING CONDI20 TIONS.—The employer will provide, at a minimum, 

21 the benefits, wages, and working conditions required 

22 by subsection (n) to all workers employed in the jobs 

23 for which the H–2A worker or workers is or are 

24 sought and to all other workers in the same occupa25 tion at the place of employment. 
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1 ‘‘(3) NONDISPLACEMENT OF UNITED STATES

2 WORKERS.—The employer did not displace and will 

3 not displace a United States worker employed by the 

4 employer during the period of employment and dur5 ing a period of 30 days preceding the period of em6 ployment in the occupation at the place of employ7 ment for which the employer seeks approval to em8 ploy H–2A workers. 

9 ‘‘(4) POSITIVE RECRUITMENT.—The employer 

10 has made positive recruitment efforts within a multi11 state region of traditional or expected labor supply. 

12 The obligation to engage in positive recruitment 

13 under this paragraph shall terminate on the date the 

14 H–2A workers depart for the employer’s place of 

15 employment. 

16 ‘‘(5) OFFERS TO UNITED STATES WORKERS.—

17 The employer has offered or will offer the job for 

18 which the nonimmigrant is, or the nonimmigrants 

19 are, sought to any eligible United States worker who 

20 applies and is equally or better qualified for the job 

21 and who will be available at the time and place of 

22 need. 

23 ‘‘(6) 50 PERCENT RULE.—The employer will 

24 provide employment to any qualified United States 

25 worker who applies to the employer until 50 percent 
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1 of the period of the work contract under which the 

2 H–2A worker who is in the job was hired has 

3 elapsed. 

4 ‘‘(7) PROVISION OF INSURANCE.—If the job for 

5 which the nonimmigrant is, or the nonimmigrants 

6 are, sought is not covered by State workers’ com7 pensation law, the employer will provide, at no cost 

8 to the worker, insurance covering injury and disease 

9 arising out of, and in the course of, the worker’s em10 ployment which will provide benefits at least equal to 

11 those provided under the State workers’ compensa12 tion law for comparable employment. 

13 ‘‘(8) REQUIREMENTS FOR PLACEMENT OF H–2A

14 WORKERS WITH OTHER EMPLOYERS.—The employer 

15 will not place the nonimmigrant with another em16 ployer unless—

17 ‘‘(A) the nonimmigrant performs duties in 

18 whole or in part at 1 or more work sites owned, 

19 operated, or controlled by such other employer; 

20 ‘‘(B) there are indicia of an employment 

21 relationship between the nonimmigrant and 

22 such other employer; and 

23 ‘‘(C) the employer has inquired of the 

24 other employer as to whether, and has no actual 

25 knowledge or notice that, during the period of 
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1 employment and for a period of 30 days pre2 ceding the period of employment, the other em3 ployer has displaced or intends to displace a

4 United States worker employed by the other 

5 employer in the occupation at the place of em6 ployment for which the employer seeks approval 

7 to employ H–2A workers. 

8 ‘‘(9) STRIKE OR LOCKOUT.—There is not a 

9 strike or lockout in the course of a labor dispute 

10 which, under regulations promulgated by the Sec11 retary of Labor, precludes the provision of the cer12 tification described in section 101(a)(15)(H)(ii)(a). 

13 ‘‘(10) PREVIOUS VIOLATIONS.—The employer 

14 has not, during the previous two-year period, em15 ployed H–2A workers and substantially violated a 

16 material term or condition of approval with respect 

17 to the employment of domestic or nonimmigrant 

18 workers, as determined by the Secretary of Labor 

19 after notice and opportunity for a hearing. 

20 ‘‘(b) STATEMENT OF LIABILITY.—The application 

21 form shall include a clear statement explaining the liability 

22 under this section of a employer who places an H–2A 

23 worker with another employer if the other employer dis24 places a United States worker in violation of the condition 

25 described in subsection (a)(8). 
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1 ‘‘(c) PUBLICATION.—The employer shall make avail2 able for public examination, within one working day after 

3 the date on which an application under this paragraph is 

4 filed, at the employer’s principal place of business or work5 site, a copy of each such application (and such accom6 panying documents as are necessary). 

7 ‘‘(d) LIST.—The Secretary shall compile, on a cur8 rent basis, a list (by employer) of the applications filed 

9 under subsection (a). Such list shall include the wage rate, 

10 number of aliens sought, period of intended employment, 

11 and date of need. The Secretary shall make such list avail12 able for public examination in Washington, DC. 

13 ‘‘(e) SPECIAL RULES FOR CONSIDERATION OF AP14 PLICATIONS.—The following rules shall apply in the case 

15 of the filing and consideration of an application under sub16 section (a): 

17 ‘‘(1) DEADLINE FOR FILING APPLICATIONS.—

18 The Secretary of Labor may not require that the ap19 plication be filed more than 45 days before the first 

20 date the employer requires the labor or services of 

21 the H–2A worker or workers. 

22 ‘‘(2) REVIEW.—The Secretary of Labor shall 

23 review such an application only for completeness and 

24 obvious inaccuracies. 
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1 ‘‘(3) ISSUANCE OF APPROVAL.—Unless the Sec2 retary finds that the application is incomplete or ob3 viously inaccurate, the Secretary shall provide the 

4 certification described in section 

5 101(a)(15)(H)(ii)(a) within 7 days of the date of the 

6 filing of the application. 

7 ‘‘(f) ROLES OF AGRICULTURAL ASSOCIATIONS.—

8 ‘‘(1) PERMITTING FILING BY AGRICULTURAL

9 ASSOCIATIONS.—An application to import an alien 

10 as a temporary agricultural worker may be filed by 

11 an association of agricultural producers which use 

12 agricultural services. 

13 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

14 EMPLOYERS.—If an association is a joint or sole em15 ployer of temporary agricultural workers, such work16 ers may be transferred among its producer members 

17 to perform agricultural services of a temporary or 

18 seasonal nature for which the application was ap19 proved. 

20 ‘‘(3) TREATMENT OF VIOLATIONS.—

21 ‘‘(A) MEMBER’S VIOLATION DOES NOT

22 NECESSARILY DISQUALIFY ASSOCIATION OR

23 OTHER MEMBERS.—If an individual producer 

24 member of a joint employer association is deter25 mined to have committed an act that is in viola-
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1 tion of the conditions for approval with respect 

2 to the member’s application, the denial shall 

3 apply only to that member of the association 

4 unless the Secretary determines that the asso5 ciation or other member participated in, had 

6 knowledge of, or reason to know of, the viola7 tion. 

8 ‘‘(B) ASSOCIATION’S VIOLATION DOES NOT

9 NECESSARILY DISQUALIFY MEMBERS.—

10 ‘‘(i) If an association representing ag11 ricultural producers as a joint employer is 

12 determined to have committed an act that 

13 is in violation of the conditions for ap14 proval with respect to the association’s ap15 plication, the denial shall apply only to the 

16 association and does not apply to any indi17 vidual producer member of the association 

18 unless the Secretary determines that the 

19 member participated in, had knowledge of, 

20 or reason to know of, the violation. 

21 ‘‘(ii) If an association of agricultural 

22 producers approved as a sole employer is 

23 determined to have committed an act that 

24 is in violation of the conditions for ap25 proval with respect to the association’s ap-
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1 plication, no individual producer member 

2 of such association may be the beneficiary 

3 of the services of temporary alien agricul4 tural workers admitted under this section 

5 in the commodity and occupation in which 

6 such aliens were employed by the associa7 tion which was denied approval during the 

8 period such denial is in force, unless such 

9 producer member employs such aliens in 

10 the commodity and occupation in question 

11 directly or through an association which is 

12 a joint employer of such workers with the 

13 producer member. 

14 ‘‘(g) EXPEDITED ADMINISTRATIVE APPEALS OF

15 CERTAIN DETERMINATIONS.—Regulations shall provide 

16 for an expedited procedure for the review of a denial of 

17 approval under this section, or at the applicant’s request, 

18 for a de novo administrative hearing respecting the denial. 

19 ‘‘(h) MISCELLANEOUS PROVISIONS.— 

20 ‘‘(1) WITHHOLDING OF DOMESTIC WORKERS.—

21 No person or entity shall willfully and knowingly 

22 withhold domestic workers prior to the arrival of H–

23 2A workers in order to force the hiring of domestic 

24 workers under subsection (a)(6). 
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1 ‘‘(2) ENDORSEMENT OF DOCUMENTS.—The 

2 Secretary of Homeland Security shall provide for the 

3 endorsement of entry and exit documents of non4 immigrants described in section 101(a)(15)(H)(ii)(a)

5 as may be necessary to carry out this section and 

6 to provide notice for purposes of section 274A. 

7 ‘‘(3) PREEMPTION OF STATE LAWS.—The pro8 visions of subsections (a) and (c) of section 214 and 

9 the provisions of this section preempt any State or 

10 local law regulating admissibility of nonimmigrant 

11 workers. 

12 ‘‘(4) FEES.—The Secretary of Labor may re13 quire by regulation, as a condition of approving the 

14 application, the payment of a fee to recover the rea15 sonable costs of processing applications. 

16 ‘‘(i) FAILURES TO MEET CONDITIONS.—If the Sec17 retary of Labor finds, after notice and opportunity for a 

18 hearing, a failure to meet a condition of subsection (a), 

19 or a material misrepresentation of fact in an application 

20 under subsection (a)—

21 ‘‘(1) the Secretary of Labor shall notify the 

22 Secretary of such finding and may, in addition, im23 pose such other administrative remedies (including 

24 civil money penalties in an amount not to exceed 
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1 $1,000 per violation) as the Secretary of Labor de2 termines to be appropriate; and 

3 ‘‘(2) the Secretary may disqualify the employer 

4 from the employment of H–2A workers for a period 

5 of 1 year. 

6 ‘‘(j) WILLFUL FAILURES AND WILLFUL MISREPRE7 SENTATIONS.—If the Secretary of Labor finds, after no8 tice and opportunity for hearing, a willful failure to meet 

9 a condition of subsection (a), or a willful misrepresenta10 tion of a material fact in an application under subsection 

11 (a), or a violation of subsection (h)(1)—

12 ‘‘(1) the Secretary of Labor shall notify the 

13 Secretary of such finding and may, in addition, im14 pose such other administrative remedies (including 

15 civil money penalties in an amount not to exceed 

16 $5,000 per violation) as the Secretary of Labor de17 termines to be appropriate; 

18 ‘‘(2) the Secretary of Labor may seek appro19 priate legal or equitable relief to effectuate the pur20 poses of subsection (h)(1); and 

21 ‘‘(3) the Secretary may disqualify the employer 

22 from the employment of H–2A workers for a period 

23 of 2 years. 

24 ‘‘(k) DISPLACEMENT OF UNITED STATES WORK25 ERS.—If the Secretary of Labor finds, after notice and 
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1 opportunity for hearing, a willful failure to meet a condi2 tion of subsection (a) or a willful misrepresentation of a 

3 material fact in an application under subsection (a), in 

4 the course of which failure or misrepresentation the em5 ployer displaced a United States worker employed by the 

6 employer during the period of employment on the employ7 er’s application under subsection (a) or during the period 

8 of 30 days preceding such period of employment—

9 ‘‘(1) the Secretary of Labor shall notify the 

10 Secretary of such finding and may, in addition, im11 pose such other administrative remedies (including 

12 civil money penalties in an amount not to exceed 

13 $15,000 per violation) as the Secretary of Labor de14 termines to be appropriate; and 

15 ‘‘(2) the Secretary may disqualify the employer 

16 from the employment of H–2A workers for a period 

17 of 3 years. 

18 ‘‘(l) LIMITATIONS ON CIVIL MONEY PENALTIES.—

19 The Secretary of Labor shall not impose total civil money 

20 penalties with respect to an application under subsection 

21 (a) in excess of $90,000. 

22 ‘‘(m) FAILURES TO PAY WAGES OR REQUIRED BEN23 EFITS.—If the Secretary of Labor finds, after notice and 

24 opportunity for a hearing, that the employer has failed to 

25 pay the wages, or provide the housing allowance, transpor-
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1 tation, subsistence reimbursement, or guarantee of em2 ployment, required under subsection (a)(2) the Secretary 

3 of Labor shall assess payment of back wages, or other re4 quired benefits, due any United States worker or H–2A 

5 worker employed by the employer in the specific employ6 ment in question. The back wages or other required bene7 fits under section subsection (a)(2) shall be equal to the 

8 difference between the amount that should have been paid 

9 and the amount that actually was paid to such worker. 

10 ‘‘(n) MINIMUM BENEFITS, WAGES, AND WORKING

11 CONDITIONS.—

12 ‘‘(1) PREFERENTIAL TREATMENT OF ALIENS

13 PROHIBITED.—Employers seeking to hire United 

14 States workers shall offer the United States workers 

15 no less than the same benefits, wages, and working 

16 conditions that the employer is offering, intends to 

17 offer, or will provide to H–2A workers. Conversely, 

18 no job offer may impose on United States workers 

19 any restrictions or obligations which will not be im20 posed on the employer’s H–2A workers. 

21 ‘‘(2) REQUIRED WAGES.—

22 ‘‘(A) An employer applying for workers 

23 under subsection (a) shall offer to pay, and 

24 shall pay, all workers in the occupation for 
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1 which the employer has applied for workers, not 

2 less than the prevailing wage. 

3 ‘‘(B) In complying with subparagraph (A), 

4 an employer may request and obtain a pre5 vailing wage determination from the State em6 ployment security agency. 

7 ‘‘(C) In lieu of the procedure described in 

8 subparagraph (B), an employer may rely on 

9 other wage information, including a survey of 

10 the prevailing wages of workers in the occupa11 tion in the area of intended employment that 

12 has been conducted or funded by the employer 

13 or a group of employers, that meets criteria 

14 specified by the Secretary of Labor in regula15 tions. 

16 ‘‘(D) An employer who obtains such pre17 vailing wage determination, or who relies on a 

18 qualifying survey of prevailing wages, and who 

19 pays the wage determined to be prevailing, shall 

20 be considered to have complied with the re21 quirement of subparagraph (A). 

22 ‘‘(E) No worker shall be paid less than the 

23 greater of the prevailing wage or the applicable 

24 State minimum wage. 
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1 ‘‘(3) REQUIREMENT TO PROVIDE HOUSING OR A

2 HOUSING ALLOWANCE.—

3 ‘‘(A) IN GENERAL.—An employer applying 

4 for workers under subsection (a) shall offer to 

5 provide housing at no cost to all workers in job 

6 opportunities for which the employer has ap7 plied under that section and to all other work8 ers in the same occupation at the place of em9 ployment, whose place of residence is beyond 

10 normal commuting distance. 

11 ‘‘(B) TYPE OF HOUSING.—In complying 

12 with subparagraph (A), an employer may, at 

13 the employer’s election, provide housing that 

14 meets applicable Federal standards for tem15 porary labor camps or secure housing that 

16 meets applicable local standards for rental or 

17 public accommodation housing or other sub18 stantially similar class of habitation, or in the 

19 absence of applicable local standards, State 

20 standards for rental or public accommodation 

21 housing or other substantially similar class of 

22 habitation. In the absence of applicable local or 

23 State standards, Federal temporary labor camp 

24 standards shall apply. 
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1 ‘‘(C) WORKERS ENGAGED IN THE RANGE

2 PRODUCTION OF LIVESTOCK.—The Secretary of 

3 Labor shall issue regulations that address the 

4 specific requirements for the provision of hous5 ing to workers engaged in the range production 

6 of livestock. 

7 ‘‘(D) LIMITATION.—Nothing in this para8 graph shall be construed to require an employer

9 to provide or secure housing for persons who 

10 were not entitled to such housing under the 

11 temporary labor certification regulations in ef12 fect on June 1, 1986. 

13 ‘‘(E) HOUSING ALLOWANCE AS ALTER14 NATIVE.—

15 ‘‘(i) IN GENERAL.—In lieu of offering 

16 housing pursuant to subparagraph (A), the 

17 employer may provide a reasonable housing 

18 allowance, but only if the requirement of 

19 clause (ii) is satisfied. Upon the request of 

20 a worker seeking assistance in locating 

21 housing, the employer shall [make a good 

22 faith effort to] assist the worker in identi23 fying and locating housing in the area of 

24 intended employment. An employer who of25 fers a housing allowance to a worker, or 
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1 assists a worker in locating housing which 

2 the worker occupies, pursuant to this 

3 clause shall not be deemed a housing pro4 vider under section 203 of the Migrant and 

5 Seasonal Agricultural Worker Protection 

6 Act (29 U.S.C. 1823) solely by virtue of 

7 providing such housing allowance. How8 ever, no housing allowance may be used for 

9 housing which is owned or controlled by 

10 the employer. 

11 ‘‘(ii) CERTIFICATION.—The require12 ment of this clause is satisfied if the Gov13 ernor of the State certifies to the Secretary 

14 of Labor that there is adequate housing 

15 available in the area of intended employ16 ment for migrant farm workers, and H–2A 

17 workers, who are seeking temporary hous18 ing while employed at farm work. Such 

19 certification shall expire after 3 years un20 less renewed by the Governor of the State. 

21 ‘‘(iii) AMOUNT OF ALLOWANCE.—

22 ‘‘(I) NONMETROPOLITAN COUN23 TIES.—If the place of employment of 

24 the workers provided an allowance 

25 under this subparagraph is a non-
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1 metropolitan county, the amount of 

2 the housing allowance under this sub3 paragraph shall be equal to the state4 wide average fair market rental for 

5 existing housing for nonmetropolitan 

6 counties for the State, as established 

7 by the Secretary of Housing and 

8 Urban Development pursuant to sec9 tion 8(c) of the United States Hous10 ing Act of 1937 (42 U.S.C. 1437f(c)), 

11 based on a 2-bedroom dwelling unit 

12 and an assumption of 2 persons per 

13 bedroom. 

14 ‘‘(II) METROPOLITAN COUN15 TIES.—If the place of employment of 

16 the workers provided an allowance 

17 under this paragraph is in a metro18 politan county, the amount of the 

19 housing allowance under this subpara20 graph shall be equal to the statewide 

21 average fair market rental for existing 

22 housing for metropolitan counties for 

23 the State, as established by the Sec24 retary of Housing and Urban Devel25 opment pursuant to section 8(c) of 
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1 the United States Housing Act of 

2 1937 (42 U.S.C. 1437f(c)), based on 

3 a 2-bedroom dwelling unit and an as4 sumption of 2 persons per bedroom. 

5 ‘‘(4) REIMBURSEMENT OF TRANSPORTATION.—

6 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

7 worker shall be reimbursed by the employer for 

8 the cost of the worker’s transportation and sub9 sistence from the place from which the worker 

10 came to work for the employer (or place of last 

11 employment, if the worker traveled from such 

12 place) to the place of employment. 

13 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

14 worker who completes the period of employment 

15 for the job opportunity involved shall be reim16 bursed by the employer for the cost of the 

17 worker’s transportation and subsistence from 

18 the place of employment to the place from 

19 which the worker, disregarding intervening em20 ployment, came to work for the employer, or to 

21 the place of next employment, if the worker has 

22 contracted with a subsequent employer who has 

23 not agreed to provide or pay for the worker’s 

24 transportation and subsistence to such subse25 quent employer’s place of employment. 
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1 ‘‘(C) LIMITATION.—

2 ‘‘(i) AMOUNT OF REIMBURSEMENT.—

3 Except as provided in clause (ii), the 

4 amount of reimbursement provided under 

5 subparagraph (A) or (B) to a worker or 

6 alien shall not exceed the lesser of—

7 ‘‘(I) the actual cost to the worker 

8 or alien of the transportation and sub9 sistence involved; or 

10 ‘‘(II) the most economical and 

11 reasonable common carrier transpor12 tation charges and subsistence costs 

13 for the distance involved. 

14 ‘‘(ii) DISTANCE TRAVELED.—No reim15 bursement under subparagraph (A) or (B) 

16 shall be required if the distance traveled is 

17 100 miles or less, or the worker is not re18 siding in employer-provided housing or 

19 housing secured through an allowance as 

20 provided in paragraph (1)(G). 

21 ‘‘(D) EARLY TERMINATION.—If the worker 

22 is laid off or employment is terminated for con23 tract impossibility (as described in paragraph 

24 (5)(D)) before the anticipated ending date of 

25 employment, the employer shall provide the 
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1 transportation and subsistence required by sub2 paragraph (B) and, notwithstanding whether 

3 the worker has completed 50 percent of the pe4 riod of employment, shall provide the transpor5 tation reimbursement required by subparagraph 

6 (A).

7 ‘‘(E) TRANSPORTATION BETWEEN LIVING

8 QUARTERS AND WORK SITE.—The employer 

9 shall provide transportation between the work10 er’s living quarters (i.e., housing provided by 

11 the employer pursuant to paragraph (1), includ12 ing housing provided through a housing allow13 ance) and the employer’s work site without cost 

14 to the worker, and such transportation will be 

15 in accordance with applicable laws and regula16 tions. 

17 ‘‘(5) GUARANTEE OF EMPLOYMENT.—

18 ‘‘(A) OFFER TO WORKER.—The employer 

19 shall guarantee to offer the worker employment 

20 for the hourly equivalent of at least three21 fourths of the work days of the total period of 

22 employment, beginning with the first work day 

23 after the arrival of the worker at the place of 

24 employment and ending on the expiration date 

25 specified in the job offer. For purposes of this 
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1 subparagraph, the hourly equivalent means the 

2 number of hours in the work days as stated in 

3 the job offer and shall exclude the worker’s 

4 Sabbath and Federal holidays. If the employer 

5 affords the United States or H–2A worker less 

6 employment than that required under this para7 graph, the employer shall pay such worker the 

8 amount which the worker would have earned 

9 had the worker, in fact, worked for the guaran10 teed number of hours. 

11 ‘‘(B) FAILURE TO WORK.—Any hours 

12 which the worker fails to work, up to a max13 imum of the number of hours specified in the 

14 job offer for a work day, when the worker has 

15 been offered an opportunity to do so, and all 

16 hours of work actually performed (including vol17 untary work in excess of the number of hours 

18 specified in the job offer in a work day, on the 

19 worker’s Sabbath, or on Federal holidays) may 

20 be counted by the employer in calculating 

21 whether the period of guaranteed employment 

22 has been met. 

23 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

24 TERMINATION FOR CAUSE.—If the worker vol25 untarily abandons employment before the end 
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1 of the contract period, or is terminated for 

2 cause, the worker is not entitled to the ‘three3 fourths guarantee described in subparagraph 

4 (A). 

5 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be6 fore the expiration of the period of employment 

7 specified in the job offer, the services of the 

8 worker are no longer required for reasons be9 yond the control of the employer due to any 

10 form of natural disaster, including but not lim11 ited to a flood, hurricane, freeze, earthquake, 

12 fire, drought, plant or animal disease or pest in13 festation, or regulatory drought, before the 

14 guarantee in subparagraph (A) is fulfilled, the 

15 employer may terminate the worker’s employ16 ment. In the event of such termination, the em17 ployer shall fulfill the employment guarantee in 

18 subparagraph (A) for the work days that have 

19 elapsed from the first work day after the arrival 

20 of the worker to the termination of employ21 ment. In such cases, the employer will make ef22 forts to transfer the United States worker to 

23 other comparable employment acceptable to the 

24 worker. 
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1 ‘‘(o) PETITIONING FOR ADMISSION.—An employer, 

2 or an association acting as an agent or joint employer for 

3 its members, that seeks the admission into the United 

4 States of an H–2A worker must file a petition with the 

5 Secretary. The petition shall be accompanied by the cer6 tification described in section 101(a)(15)(H)(ii)(a). 

7 ‘‘(p) EXPEDITED ADJUDICATION BY THE SEC8 RETARY.—The Secretary shall establish a procedure for 

9 expedited adjudication of petitions filed under subsection 

10 (o) and within 7 working days shall, by fax, cable, or other 

11 means assuring expedited delivery, transmit a copy of no12 tice of action on the petition to the petitioner and, in the 

13 case of approved petitions, to the appropriate immigration 

14 officer at the port of entry or United States consulate (as 

15 the case may be) where the petitioner has indicated that 

16 the alien beneficiary (or beneficiaries) will apply for a visa 

17 or admission to the United States. 

18 ‘‘(q) DISQUALIFICATION.—

19 ‘‘(1) Subject to paragraph (2), an alien shall be 

20 considered inadmissible to the United States and in21 eligible for nonimmigrant status under section 

22 101(a)(15)(H)(ii)(a) if the alien has, at any time 

23 during the past 5 years, violated a term or condition 

24 of admission into the United States as a non-
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1 immigrant, including overstaying the period of au2 thorized admission. 

3 ‘‘(2) WAIVERS.—

4 ‘‘(A) IN GENERAL.—An alien outside the 

5 United States, and seeking admission under 

6 section 101(a)(15)(H)(ii)(a) shall not be 

7 deemed inadmissible under such section by rea8 son of paragraph (1) or section 212(a)(9)(B). A 

9 waiver under this subparagraph may be granted 

10 only once to an individual alien. 

11 ‘‘(B) LIMITATION.—In any case in which 

12 an alien is admitted to the United States upon 

13 having a ground of inadmissibility waived under 

14 subparagraph (A), such waiver shall be consid15 ered to remain in effect unless the alien again 

16 violates a material provision of this section or 

17 otherwise violates a term or condition of admis18 sion into the United States as a nonimmigrant, 

19 in which case such waiver shall terminate. 

20 ‘‘(r) PERIOD OF ADMISSION.—

21 ‘‘(1) IN GENERAL.—The alien shall be admitted 

22 for the period of employment in the application 

23 under subsection (a), not to exceed 10 months, sup24 plemented by a period of up to 1 week before the be25 ginning of the period of employment (to be granted 
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1 for the purpose of travel to the work site) and a pe2 riod of 14 days following the period of employment 

3 (to be granted for the purpose of departure or exten4 sion based on a subsequent offer of employment), ex5 cept that—

6 ‘‘(A) the alien is not authorized to be em7 ployed during such 14-day period except in the

8 employment for which the alien was previously 

9 authorized; and 

10 ‘‘(B) the total period of employment, in11 cluding such 14-day period, may not exceed 10 

12 months. 

13 ‘‘(2) CONSTRUCTION.—Nothing in this sub14 section shall limit the authority of the Secretary to 

15 extend the stay of the alien under any other provi16 sion of this Act. 

17 ‘‘(s) ABANDONMENT OF EMPLOYMENT.—

18 ‘‘(1) IN GENERAL.—An alien admitted or pro19 vided status under section 101(a)(15)(H)(ii)(a) who 

20 abandons the employment which was the basis for 

21 such admission or status shall be considered to have 

22 failed to maintain nonimmigrant status as an H–2A 

23 worker and shall depart the United States or be sub24 ject to removal under section 237(a)(1)(C)(i). 
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1 ‘‘(2) REPORT BY EMPLOYER.—The employer 

2 (or association acting as agent for the employer) 

3 shall notify the Secretary within 7 days of an H–2A 

4 worker’s having prematurely abandoned employ5 ment. 

6 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec7 retary shall promptly remove from the United States 

8 any H–2A worker who violates any term or condi9 tion of the worker’s nonimmigrant status. 

10 ‘‘(4) VOLUNTARY TERMINATION.—Notwith11 standing paragraph (1), an alien may voluntarily 

12 terminate his or her employment if the alien prompt13 ly departs the United States upon termination of 

14 such employment. 

15 ‘‘(t) REPLACEMENT OF ALIEN.—

16 ‘‘(1) IN GENERAL.—Upon presentation of the 

17 notice to the Secretary required by subsection (q)(2), 

18 the Secretary of State shall promptly issue a visa to, 

19 and the Secretary shall admit into the United 

20 States, an eligible alien designated by the employer 

21 to replace an H–2A worker—

22 ‘‘(A) who abandons or prematurely termi23 nates employment; or 

24 ‘‘(B) whose employment is terminated 

25 after a United States worker is employed pur-
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•HR 3604 IH 

1 suant to subsection (a)(6), if the United States 

2 worker voluntarily departs before the end of the 

3 period of intended employment or if the employ4 ment termination is for a lawful job-related rea5 son. 

6 ‘‘(2) CONSTRUCTION.—Nothing in this sub7 section is intended to limit any preference required 

8 to be accorded United States workers under any 

9 other provision of this Act. 

10 ‘‘(u) IDENTIFICATION DOCUMENT.—

11 ‘‘(1) IN GENERAL.—Each alien authorized to be 

12 admitted under section 101(a)(15)(H)(ii)(a) shall be 

13 provided an identification and employment eligibility 

14 document to verify eligibility for employment in the 

15 United States and verify such person’s proper iden16 tity. 

17 ‘‘(2) REQUIREMENTS.—No identification and 

18 employment eligibility document may be issued 

19 which does not meet the following requirements: 

20 ‘‘(A) The document shall be capable of re21 liably determining whether—

22 ‘‘(i) the individual with the identifica23 tion and employment eligibility document 

24 whose eligibility is being verified is in fact 

25 eligible for employment; 
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•HR 3604 IH 

1 ‘‘(ii) the individual whose eligibility is 

2 being verified is claiming the identity of 

3 another person; and 

4 ‘‘(iii) the individual whose eligibility is 

5 being verified is authorized to be admitted 

6 into, and employed in, the United States 

7 as an H–2A worker. 

8 ‘‘(B) The document shall be in a form that 

9 is resistant to counterfeiting and to tampering. 

10 ‘‘(C) The document shall—

11 ‘‘(i) be compatible with other data12 bases of the Secretary for the purpose of 

13 excluding aliens from benefits for which 

14 they are not eligible and determining 

15 whether the alien is unlawfully present in 

16 the United States; and 

17 ‘‘(ii) be compatible with law enforce18 ment databases to determine if the alien 

19 has been convicted of criminal offenses. 

20 ‘‘(v) EXTENSION OF STAY OF H–2A ALIENS IN THE

21 UNITED STATES.—

22 ‘‘(1) EXTENSION OF STAY.—If an employer 

23 seeks approval to employ an H–2A alien who is law24 fully present in the United States, the petition filed 

25 by the employer or an association pursuant to sub-
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1 section (o) shall request an extension of the alien’s 

2 stay and a change in the alien’s employment. 

3 ‘‘(2) LIMITATION ON FILING PETITION FOR EX4 TENSION OF STAY.—A petition may not be filed for 

5 an extension of an alien’s stay—

6 ‘‘(A) for a period of more than 10 months; 

7 or 

8 ‘‘(B) to a date that is more than 2 years 

9 after the date of the alien’s last admission to 

10 the United States under this section. 

11 ‘‘(3) WORK AUTHORIZATION UPON FILING PE12 TITION FOR EXTENSION OF STAY.—In the case of an 

13 alien who is lawfully present in the United States, 

14 the alien is authorized to commence the employment 

15 described in a petition under paragraph (1) on the 

16 date on which the petition is filed. For purposes of 

17 the preceding sentence, the term ‘file’ means sending 

18 the petition by certified mail via the United States 

19 Postal Service, return receipt requested, or delivered 

20 by guaranteed commercial delivery which will provide 

21 the employer with a documented acknowledgment of 

22 the date of receipt of the petition. The employer 

23 shall provide a copy of the employer’s petition to the 

24 alien, who shall keep the petition with the alien’s 

25 identification and employment eligibility document 
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•HR 3604 IH 

1 as evidence that the petition has been filed and that 

2 the alien is authorized to work in the United States. 

3 Upon approval of a petition for an extension of stay 

4 or change in the alien’s authorized employment, the 

5 Secretary shall provide a new or updated employ6 ment eligibility document to the alien indicating the

7 new validity date, after which the alien is not re8 quired to retain a copy of the petition. 

9 ‘‘(4) LIMITATION ON AN INDIVIDUAL’S STAY IN

10 STATUS.—

11 ‘‘(A) MAXIMUM PERIOD.—The maximum 

12 continuous period of authorized status as an 

13 H–2A worker (including any extensions) is 2 

14 years. 

15 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

16 THE UNITED STATES.—

17 ‘‘(i) IN GENERAL.—Subject to clause 

18 (ii), in the case of an alien outside the 

19 United States whose period of authorized 

20 status as an H–2A worker (including any 

21 extensions) has expired, the alien may not 

22 again apply for admission to the United 

23 States as an H–2A worker unless the alien 

24 has remained outside the United States for 

a continuous period equal to at least 1 25 ⁄5
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•HR 3604 IH 

1 the duration of the alien’s previous period 

2 of authorized status as an H–2A worker 

3 (including any extensions). 

4 ‘‘(ii) EXCEPTION.—Clause (i) shall 

5 not apply in the case of an alien if the 

6 alien’s period of authorized status as an 

7 H–2A worker (including any extensions) 

8 was for a period of not more than 10 

9 months and such alien has been outside 

10 the United States for at least 2 months 

11 during the 12 months preceding the date 

12 the alien again is applying for admission to 

13 the United States as an H–2A worker. 

14 ‘‘(w) SPECIAL RULES FOR ALIENS EMPLOYED AS

15 SHEEPHERDERS.—Notwithstanding any other provision 

16 of this section, aliens admitted under section 

17 101(a)(15)(H)(ii)(a) for employment as sheepherders—

18 ‘‘(1) may be admitted for a period of 12 

19 months; and 

20 ‘‘(2) shall not be subject to the requirements of 

21 subsection (v)(4)(B). 

22 ‘‘(x) DEFINITIONS.—For purposes of this section: 

23 ‘‘(1) AREA OF EMPLOYMENT.—The term ‘area 

24 of employment’ means the area within normal com25 muting distance of the worksite or physical location 
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•HR 3604 IH 

1 where the work of the H–2A worker is or will be 

2 performed. If such worksite or location is within a 

3 Metropolitan Statistical Area, any place within such 

4 area is deemed to be within the area of employment. 

5 ‘‘(2) ELIGIBLE INDIVIDUAL.—The term ‘eligible 

6 individual’ means, with respect to employment, an 

7 individual who is not an unauthorized alien (as de8 fined in section 274A(h)(3)) with respect to that em9 ployment. 

10 ‘‘(3) DISPLACE.—In the case of an application 

11 with respect to one or more H–2A workers by an 

12 employer, the employer is considered to ‘displace’ a 

13 United States worker from a job if the employer lays 

14 off the worker from a job that is essentially the 

15 equivalent of the job for which the H–2A worker or 

16 workers is or are sought. A job shall not be consid17 ered to be essentially equivalent of another job un18 less it involves essentially the same responsibilities, 

19 was held by a United States worker with substan20 tially equivalent qualifications and experience, and is 

21 located in the same area of employment as the other 

22 job. 

23 ‘‘(4) H–2A WORKER.—The term ‘H–2A worker’ 

24 means a nonimmigrant described in section 

25 101(a)(15)(H)(ii)(a). 
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•HR 3604 IH 

1 ‘‘(5) LAYS OFF.—

2 ‘‘(A) IN GENERAL.—The term ‘lays off’, 

3 with respect to a worker—

4 ‘‘(i) means to cause the worker’s loss 

5 of employment, other than through a dis6 charge for inadequate performance, viola7 tion of workplace rules, cause, voluntary 

8 departure, voluntary retirement, or the ex9 piration of a grant or contract (other than 

10 a temporary employment contract entered 

11 into in order to evade a condition described 

12 in paragraph (3) or (8) of subsection (a); 

13 but 

14 ‘‘(ii) does not include any situation in 

15 which the worker is offered, as an alter16 native to such loss of employment, a simi17 lar employment opportunity with the same 

18 employer (or, in the case of a placement of 

19 a worker with another employer under sub20 section (a)(8), with either employer de21 scribed in such subsection) at equivalent or 

22 higher compensation and benefits than the 

23 position from which the employee was dis24 charged, regardless of whether or not the 

25 employee accepts the offer. 
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•HR 3604 IH 

1 ‘‘(B) CONSTRUCTION.—Nothing in this 

2 paragraph is intended to limit an employee’s 

3 rights under a collective bargaining agreement 

4 or other employment contract. 

5 ‘‘(6) PREVAILING WAGE.—The term ‘prevailing 

6 wage’ means, with respect to an agricultural occupa7 tion in an area of intended employment, the rate of 

8 wages that includes the 51st percentile of employees 

9 with similar experience and qualifications in the ag10 ricultural occupation in the area of intended employ11 ment, expressed in terms of the prevailing method of 

12 pay for the occupation in the area of intended em13 ployment. 

14 ‘‘(7) UNITED STATES WORKER.—The term 

15 ‘United States worker’ means an employee who—

16 ‘‘(A) is a citizen or national of the United 

17 States; or 

18 ‘‘(B) is an alien who is lawfully admitted 

19 for permanent residence, is admitted as a ref20 ugee under section 207, is granted asylum 

21 under section 208, or is an immigrant otherwise 

22 authorized, by this Act or by the Secretary of 

23 Homeland Security, to be employed.’’. 

24 (b) CONFORMING AMENDMENT.—Section 

25 101(a)(15)(H)(ii)(a) of the Immigration and Nationality 
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•HR 3604 IH 

1 Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended by strik2 ing ‘‘seasonal nature, or (b)’’ and inserting ‘‘seasonal na3 ture, and with respect to whom the Secretary of Labor 

4 determines and certifies to the Secretary of Homeland Se5 curity that the intending employer has filed with the Sec6 retary an application under section 218(a), or (b)’’.

7 (c) EFFECTIVE DATE.—The amendments made by 

8 this section shall take effect on the date that is 180 days 

9 after the date of the enactment of this Act. 

10 SEC. 3. EMERGENCY GRANTS TO ASSIST EMPLOYERS WITH 

11 H–2A TRANSPORTATION COSTS. 

12 Subtitle D of the Consolidated Farm and Rural De13 velopment Act (7 U.S.C. 1981 et seq.) is amended by add14 ing at the end the following: 

15 ‘‘SEC. 379E. EMERGENCY GRANTS TO ASSIST EMPLOYERS 

16 WITH H–2A TRANSPORTATION COSTS. 

17 ‘‘(a) IN GENERAL.—The Secretary of Agriculture 

18 may make grants, not to exceed $1,000,000 annually, to 

19 employers of H–2A workers for the purpose of reimburs20 ing the employers for the amounts paid to H–2A workers 

21 under section 218(n)(4)(B) of the Immigration and Na22 tionality Act (8 U.S.C. 1188) if, before the expiration of 

23 the period of employment specified in the job offer, the 

24 services of the worker are no longer required for reasons 

25 beyond the control of the employer due to any form of 
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•HR 3604 IH 

1 natural disaster, including but not limited to a flood, hur2 ricane, freeze, earthquake, fire, drought, plant or animal 

3 disease or pest infestation, or regulatory drought. 

4 ‘‘(b) FUNDING.—The grants described in subsection 

5 (a) shall be made out of the funds, facilities and authori6 ties of the Commodity Credit Corporation to the extent 

7 that such funds are provided in advance through an appro8 priations act.’’. 

9 SEC. 4. ESTABLISHMENT OF H–2A OMBUDSMAN. 

10 Subtitle D of the Consolidated Farm and Rural De11 velopment Act (7 U.S.C. 1981 et seq.), as amended by 

12 section 3 of this Act, is amended by adding at the end 

13 the following: 

14 ‘‘SEC. 379F. ESTABLISHMENT OF H–2A OMBUDSMAN. 

15 ‘‘OMBUDSMAN.—The Secretary shall establish an H–

16 2A Worker Program Ombudsman within the Office of Ag17 riculture Labor Affairs, Office of the Chief Economist, 

18 U.S. Department of Agriculture. The H–2A Ombudsman 

19 shall help resolve disputes and other conflicts between con20 tracted H–2A workers and their employers, other than al21 leged violations of conditions required under section 

22 218(a) of the Immigration and Nationality Act (8 U.S.C. 

23 1188(a)).’’.

Æ