II

★(Star Print)

107TH CONGRESS

1ST SESSION S. 1161

To amend the Immigration and Nationality Act to streamline procedures

for the admission and extension of stay of nonimmigrant agricultural

workers; to provide a stable, legal, agricultural workforce; to extend

basic legal protections and better working conditions to more workers;

to provide for a system of one-time, earned adjustment to legal status

for certain agricultural workers; and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 10, 2001

Mr. CRAIG (for himself, Mr. MCCONNELL, Mr. COCHRAN, Mr. ENZI, Mr.

BURNS, Mr. FRIST, and Mr. HUTCHINSON) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to streamline

procedures for the admission and extension of stay of

nonimmigrant agricultural workers; to provide a stable,

legal, agricultural workforce; to extend basic legal protections and better working conditions to more workers;

to provide for a system of one-time, earned adjustment

to legal status for certain agricultural 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; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘Agricultural Job Opportunity Benefits and Security Act

4 of 2001’’.

5 (b) TABLE OF CONTENTS.—The table of contents for

6 this division is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I—ADJUSTMENT TO LAWFUL STATUS

Sec. 101. Agricultural workers.

Sec. 102. Correction of Social Security records.

TITLE II—REFORM OF H–2A WORKER PROGRAM

Sec. 201. Amendment to the Immigration and Nationality Act.

TITLE III—MISCELLANEOUS PROVISIONS

Sec. 301. Determination and use of user fees.

Sec. 302. Regulations.

Sec. 303. Effective date.

7 SEC. 2. DEFINITIONS.

8 In this division:

9 (1) AGRICULTURAL EMPLOYMENT.—The term

10 ‘‘agricultural employment’’ means any service or ac11 tivity that is considered to be agricultural under sec12 tion 3(f) of the Fair Labor Standards Act of 1938

13 (29 U.S.C. 203(f)) or agricultural labor under sec14 tion 3121(g) of the Internal Revenue Code of 1986

15 (26 U.S.C. 3121(g)). For purposes of this para16 graph, agricultural employment includes employment

17 under section 101(a)(15)(H)(ii)(a) of the Immigra-
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1 tion and Nationality Act (8 U.S.C.

2 1101(a)(15)(H)(ii)(a)).

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

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

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

6 United States worker from a job if the employer lays

7 off the worker from a job for which the H–2A work8 er or workers is or are sought.

9 (3) ELIGIBLE.—The term ‘‘eligible’’, when used

10 with respect to an individual, means an individual

11 who is not an unauthorized alien (as defined in sec12 tion 274A(h)(3) of the Immigration and Nationality

13 Act (8 U.S.C. 1324a(h)(3))).

14 (4) EMPLOYER.—The term ‘‘employer’’ means

15 any person or entity, including any farm labor con16 tractor and any agricultural association, that em17 ploys workers in agricultural employment.

18 (5) H–2A WORKER.—The term ‘‘H–2A worker’’

19 means a nonimmigrant described in section

20 101(a)(15)(H)(ii)(a) of the Immigration and Nation21 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

22 (6) JOB OPPORTUNITY.—The term ‘‘job oppor23 tunity’’ means a job opening for temporary full-time

24 employment at a place in the United States to which

25 United States workers can be referred.
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1 (7) 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 of

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

8 departure, voluntary retirement, contract

9 impossibility (as described in section

10 218A(b)(4)(D) of the Immigration and

11 Nationality Act, as added by section 201 of

12 this division), temporary layoffs due to

13 weather, markets, or other temporary con14 ditions; but

15 (ii) does not include any situation in

16 which the worker is offered, as an alter17 native to such loss of employment, a simi18 lar employment opportunity with the same

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

20 a worker with another employer under sec21 tion 218(b)(2)(E) of the Immigration and

22 Nationality Act, as added by section 201 of

23 this division, with either employer de24 scribed in such section 218(b)(2)(E)) at

25 equivalent or higher compensation and
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1 benefits than the position from which the

2 employee was discharged, regardless of

3 whether or not the employee accepts the

4 offer.

5 (B) STATUTORY CONSTRUCTION.—Nothing

6 in this paragraph is intended to limit an em7 ployee’s rights under a collective bargaining

8 agreement or other employment contract.

9 (8) SECRETARY.—The term ‘‘Secretary’’ means

10 the Secretary of Labor.

11 (9) TEMPORARY.—A worker is employed on a

12 ‘‘temporary’’ basis where the employment is in13 tended not to exceed 10 months.

14 (10) UNITED STATES WORKER.—The term

15 ‘‘United States worker’’ means any worker, whether

16 a United States citizen or national, a lawfully admit17 ted permanent resident alien, or any other alien,

18 who is authorized to work in the job opportunity

19 within the United States, except an alien admitted

20 or otherwise provided status under section

21 101(a)(15)(H)(ii)(a) of the Immigration and Nation22 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

23 (11) WORK DAY.—The term ‘‘work day’’ means

24 any day in which the individual is employed one or

25 more hours in agriculture.
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1 TITLE I—ADJUSTMENT TO

2 LAWFUL STATUS

3 SEC. 101. AGRICULTURAL WORKERS.

4 (a) TEMPORARY RESIDENT STATUS.—

5 (1) IN GENERAL.—Notwithstanding any other

6 provision of law, the Attorney General shall adjust

7 the status of an alien who qualifies under this sub8 section to that of an alien lawfully admitted for tem9 porary residence if the Attorney General determines

10 that the following requirements are satisfied with re11 spect to the alien:

12 (A) PERFORMANCE OF AGRICULTURAL EM13 PLOYMENT IN THE UNITED STATES.—The alien

14 must establish that the alien has performed ag15 ricultural employment in the United States for

16 at least 900 hours or 150 work days, whichever

17 is less, during any 12 consecutive months dur18 ing the 18-month period ending on July 4,

19 2001.

20 (B) APPLICATION PERIOD.—The alien

21 must apply for such adjustment during the 18-

22 month application period beginning on the 1st

23 day of the 7th month that begins after the date

24 of the enactment of this Act.
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1 (C) ADMISSIBLE AS IMMIGRANT.—The

2 alien must establish that the alien is otherwise

3 admissible to the United States under section

4 212 of the Immigration and Nationality Act (8

5 U.S.C. 1182), except as otherwise provided

6 under subsection (e)(2).

7 (2) AUTHORIZED TRAVEL.—During the period

8 an alien is in lawful temporary resident status

9 granted under this subsection, the alien has the

10 right to travel abroad (including commutation from

11 a residence abroad) in the same manner as an alien

12 lawfully admitted for permanent residence.

13 (3) AUTHORIZED EMPLOYMENT.—During the

14 period an alien is in lawful temporary resident sta15 tus granted under this subsection, the alien shall be

16 provided an ‘‘employment’’ authorized endorsement

17 or other appropriate work permit, in the same man18 ner as an alien lawfully admitted for permanent resi19 dence.

20 (4) TERMINATION OF TEMPORARY RESIDENT

21 STATUS.—During the period of temporary resident

22 status granted an alien under this subsection, the

23 Attorney General may terminate such status only

24 upon a determination under this division that the

25 alien is deportable.
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1 (5) RECORD OF EMPLOYMENT.—

2 (A) IN GENERAL.—Each employer of a

3 worker whose status is adjusted under this sub4 section annually shall—

5 (i) provide a written record of employ6 ment to the alien; and

7 (ii) provide a copy of such record to

8 the Immigration and Naturalization Serv9 ice.

10 (B) SUNSET.—The obligation under sub11 paragraph (A) terminates on October 31, 2008.

12 (b) RIGHTS OF ALIENS GRANTED TEMPORARY RESI13 DENT STATUS.—

14 (1) IN GENERAL.—Except as otherwise pro15 vided in this subsection, an alien who acquires the

16 status of an alien lawfully admitted for temporary

17 residence under subsection (a), such status not hav18 ing changed, shall be considered to be an alien law19 fully admitted for permanent residence for purposes

20 of any law other than any provision of the Immigra21 tion and Nationality Act (8 U.S.C. 1101 et seq.).

22 (2) TERMS OF EMPLOYMENT RESPECTING

23 ALIENS ADMITTED UNDER THIS SECTION.—

24 (A) PROHIBITION.—No alien whose status

25 is adjusted under subsection (a) may be termi-
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1 nated from employment by any employer during

2 the period of temporary resident status except

3 for just cause.

4 (B) TREATMENT OF COMPLAINTS.—

5 (i) ESTABLISHMENT OF PROCESS.—

6 The Attorney General shall establish a

7 process for the receipt, initial review, and

8 disposition in accordance with this sub9 paragraph of complaints by aliens granted

10 temporary resident status under subsection

11 (a) who allege that they have been termi12 nated without just cause. No proceeding

13 shall be conducted under this subpara14 graph with respect to a termination unless

15 the Attorney General determines that the

16 complaint was filed not later than 6

17 months after the date of the termination.

18 (ii) INITIATION OF ARBITRATION.—If

19 the Attorney General finds that a com20 plaint has been filed in accordance with

21 clause (i) and there is reasonable cause to

22 believe that the complainant was termi23 nated without just cause, the Attorney

24 General shall initiate binding arbitration

25 proceedings by requesting the Federal Me-
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1 diation and Conciliation Service to appoint

2 a mutual arbitrator from the roster of ar3 bitrators maintained by such Service for

4 the geographical area in which the em5 ployer is located. The procedure and rules

6 of such Service shall be applicable to the

7 selection of such arbitrator and to such ar8 bitration proceedings. The Attorney Gen9 eral shall pay the fee and expenses of the

10 arbitrator.

11 (iii) ARBITRATION PROCEEDINGS.—

12 The arbitrator shall conduct the pro13 ceeding in accordance with the policies and

14 procedures promulgated by the American

15 Arbitration Association applicable to pri16 vate arbitration of employment disputes.

17 The arbitrator shall make findings respect18 ing whether the termination was for just

19 cause. The arbitrator may not find that

20 the termination was for just cause unless

21 the employer so demonstrates by a prepon22 derance of the evidence. If the arbitrator

23 finds that the termination was not for just

24 cause, the arbitrator shall make a specific

25 finding of the number of days or hours of
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1 work lost by the employee as a result of

2 the termination. The arbitrator shall have

3 no authority to order any other remedy, in4 cluding, but not limited to, reinstatement,

5 back pay, or front pay to the affected em6 ployee. Within 30 days from the conclusion

7 of the arbitration proceeding, the arbi8 trator shall transmit the findings in the

9 form of a written opinion to the parties to

10 the arbitration and the Attorney General.

11 Such findings shall be final and conclusive,

12 and no official or court of the United

13 States shall have the power or jurisdiction

14 to review any such findings.

15 (iv) EFFECT OF ARBITRATION FIND16 INGS.—If the Attorney General receives a

17 finding of an arbitrator that an employer

18 has terminated an alien granted temporary

19 resident status under subsection (a) with20 out just cause, the Attorney General shall

21 credit the alien for the number of days or

22 hours of work lost for purposes of the re23 quirement of subsection (c)(1).

24 (v) TREATMENT OF ATTORNEYS’

25 FEES.—The parties shall bear the cost of
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1 their own attorneys’ fees involved in the

2 litigation of the complaint.

3 (vi) NONEXCLUSIVE REMEDY.—The

4 complaint process provided for in this sub5 paragraph is in addition to any other

6 rights an employee may have in accordance

7 with applicable law.

8 (vii) EFFECT ON OTHER ACTIONS OR

9 PROCEEDINGS.—Any finding of fact or

10 law, judgment, conclusion, or final order

11 made by an arbitrator in the proceeding

12 before the Attorney General shall not be

13 conclusive or binding in any separate or

14 subsequent action or proceeding between

15 the employee and the employee’s current or

16 prior employer brought before an arbi17 trator, administrative agency, court, or

18 judge of any State or the United States,

19 regardless of whether the prior action was

20 between the same or related parties or in21 volved the same facts, except that the arbi22 trator’s specific finding of the number of

23 days or hours of work lost by the employee

24 as a result of the employment termination
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1 may be referred to the Attorney General

2 pursuant to clause (iv).

3 (C) CIVIL PENALTIES.—

4 (i) IN GENERAL.—If the Secretary

5 finds, after notice and opportunity for a

6 hearing, that an employer of a worker

7 whose status has been adjusted under sub8 section (a) has failed to provide the record

9 of employment required under subsection

10 (a)(5) or has provided a false statement of

11 material fact in such a record, the em12 ployer shall be subject to a civil money

13 penalty in an amount not to exceed $1,000

14 per violation.

15 (ii) LIMITATION.—The penalty appli16 cable under clause (i) for failure to provide

17 records shall not apply unless the alien has

18 provided the employer with evidence of em19 ployment authorization granted under this

20 section.

21 (c) ADJUSTMENT TO PERMANENT RESIDENCE.—

22 (1) AGRICULTURAL WORKERS.—

23 (A) IN GENERAL.—Except as provided in

24 subparagraph (B), the Attorney General shall

25 adjust the status of any alien granted lawful
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1 temporary resident status under subsection (a)

2 to that of an alien lawfully admitted for perma3 nent residence if the Attorney General deter4 mines that the following requirements are satis5 fied:

6 (i) QUALIFYING AGRICULTURAL EM7 PLOYMENT.—The alien has performed at

8 least 900 hours or 150 work days, which9 ever is less, of agricultural employment in

10 the United States in each of 4 years dur11 ing the 6-year period beginning on Novem12 ber 1, 2001.

13 (ii) ANNUAL RESIDENCY, IN GEN14 ERAL.—The alien may not be present in

15 the United States for more than an aggre16 gate of 300 days in any calendar year.

17 (iii) EXCEPTIONS.—The 300-day-per18 year limitation in clause (ii) shall not apply

19 in the case of any alien who, under regula20 tions established as necessary by the Attor21 ney General—

22 (I) has established a permanent

23 residence in the United States and

24 has a minor child who was born in the

25 United States prior to the date of en-
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1 actment of this Act who resides in the

2 alien’s household; or

3 (II) remains in the United States

4 to perform full-time agricultural or

5 nonagricultural employment; or

6 (III) is actively seeking employ7 ment; or

8 (IV) is prevented from leaving

9 the United States because of a serious

10 medical condition.

11 (iv) APPLICATION PERIOD.—The alien

12 applies for adjustment of status not later

13 than October 31, 2008.

14 (v) PROOF.—In meeting the require15 ments of clauses (i), (ii), and (iii), an alien

16 may submit the record of employment de17 scribed in subsection (a)(5) or such docu18 mentation as may be submitted under sub19 section (d)(3).

20 (vi) DISABILITY.—In determining

21 whether an alien has met the requirements

22 of clauses (i), (ii), and (iii), the Attorney

23 General shall credit the alien with any

24 work days lost because the alien is unable

25 to work due to injury or disease arising out
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1 of and in the course of the alien’s employ2 ment during the qualifying period, if the

3 alien can establish such disabling injury or

4 disease through medical records.

5 (B) GROUNDS FOR DENIAL OF ADJUST6 MENT OF STATUS.—The Attorney General may

7 deny an alien adjustment to permanent resident

8 status, and provide for termination of the tem9 porary resident status granted such alien under

10 subsection (a), if—

11 (i) the Attorney General finds by a

12 preponderance of the evidence that the ad13 justment to temporary resident status was

14 the result of fraud or willful misrepresenta15 tion, as described in section

16 212(a)(6)(C)(i) of the Immigration and

17 Nationality Act (8 U.S.C.

18 1182(a)(6)(C)(i)); or

19 (ii) the alien—

20 (I) commits an act that makes

21 the alien inadmissible to the United

22 States under section 212 of the Immi23 gration and Nationality Act (8 U.S.C.

24 1182), except as provided under sub25 section (e)(2); or
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1 (II) is convicted of a felony or 3

2 or more misdemeanors committed in

3 the United States.

4 (C) GROUNDS FOR REMOVAL.—Any alien

5 granted temporary resident status under sub6 section (a) who does not apply for adjustment

7 of status under this subsection before the expi8 ration of the application period described in

9 subparagraph (A)(iv), or who fails to meet the

10 other requirements of subparagraph (A) by the

11 end of the applicable period, is deportable and

12 may be removed under section 240 of the Immi13 gration and Nationality Act (8 U.S.C. 1229a).

14 (d) APPLICATIONS FOR ADJUSTMENT OF STATUS.—

15 (1) TO WHOM MAY BE MADE.—

16 (A) WITHIN THE UNITED STATES.—The

17 Attorney General shall provide that—

18 (i) applications for adjustment of sta19 tus under subsection (a) may be filed—

20 (I) with the Attorney General,

21 but only if the applicant is rep22 resented by an attorney; or

23 (II) with a qualified designated

24 entity (designated under paragraph

25 (2)), but only if the applicant consents
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1 to the forwarding of the application to

2 the Attorney General; and

3 (ii) applications for adjustment of sta4 tus under subsection (c) shall be filed di5 rectly with the Attorney General.

6 (B) OUTSIDE THE UNITED STATES.—The

7 Attorney General, in cooperation with the Sec8 retary of State, shall establish a procedure

9 whereby an alien may apply for adjustment of

10 status under subsection (a) at an appropriate

11 consular office outside the United States.

12 (C) PRELIMINARY APPLICATIONS.—

13 (i) IN GENERAL.—During the applica14 tion period described in subsection

15 (a)(1)(B), the Attorney General may grant

16 admission to the United States as a tem17 porary resident and provide an ‘‘employ18 ment authorized’’ endorsement or other ap19 propriate work permit to any alien who

20 presents a preliminary application for ad21 justment of status under subsection (a) at

22 a designated port of entry on the southern

23 land border of the United States. An alien

24 who does not enter through a port of entry
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1 is subject to deportation and removal as

2 otherwise provided in this division.

3 (ii) DEFINITION.—For purposes of

4 clause (i), the term ‘‘preliminary applica5 tion’’ means a fully completed and signed

6 application which contains specific infor7 mation concerning the performance of

8 qualifying employment in the United

9 States, together with the payment of the

10 appropriate fee and the submission of pho11 tographs and the documentary evidence

12 which the applicant intends to submit as

13 proof of such employment.

14 (iii) ELIGIBILITY.—An applicant

15 under clause (i) must be otherwise admis16 sible to the United States under subsection

17 (e)(2) and must establish to the satisfac18 tion of the examining officer during an

19 interview that the applicant’s claim to eli20 gibility for agricultural worker status is

21 credible.

22 (D) TRAVEL DOCUMENTATION.—The At23 torney General shall provide each alien whose

24 status is adjusted under this section with a
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1 counterfeit-resistant document of authorization

2 to enter or reenter the United States.

3 (2) DESIGNATION OF ENTITIES TO RECEIVE AP4 PLICATIONS.—

5 (A) IN GENERAL.—For purposes of receiv6 ing applications under subsection (a), the Attor7 ney General—

8 (i) shall designate qualified farm labor

9 organizations and associations of employ10 ers; and

11 (ii) may designate such other persons

12 as the Attorney General determines are

13 qualified and have substantial experience,

14 demonstrate competence, and have tradi15 tional long-term involvement in the prepa16 ration and submittal of applications for ad17 justment of status under section 209, 210,

18 or 245 of the Immigration and Nationality

19 Act, Public Law 89–732, Public Law 95–

20 145, or the Immigration Reform and Con21 trol Act of 1986.

22 (B) REFERENCES.—Organizations, asso23 ciations, and persons designated under subpara24 graph (A)0 are referred to in this division as

25 ‘‘qualified designated entities’’.
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1 (3) PROOF OF ELIGIBILITY.—

2 (A) IN GENERAL.—An alien may establish

3 that the alien meets the requirement of sub4 section (a)(1)(A) or subsection (c)(1)(A)

5 through government employment records or

6 records supplied by employers or collective bar7 gaining organizations, and other reliable docu8 mentation as the alien may provide. The Attor9 ney General shall establish special procedures to

10 properly credit work in cases in which an alien

11 was employed under an assumed name.

12 (B) DOCUMENTATION OF WORK HIS13 TORY.—(i) An alien applying for adjustment of

14 status under subsection (a)(1) or subsection

15 (c)(1) has the burden of proving by a prepon16 derance of the evidence that the alien has

17 worked the requisite number of hours or days

18 (as required under subsection (a)(1)(A) or sub19 section (c)(1)(A)).

20 (ii) If an employer or farm labor con21 tractor employing such an alien has kept proper

22 and adequate records respecting such employ23 ment, the alien’s burden of proof under clause

24 (i) may be met by securing timely production of
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1 those records under regulations to be promul2 gated by the Attorney General.

3 (iii) An alien can meet such burden of

4 proof if the alien establishes that the alien has

5 in fact performed the work described in sub6 section (a)(1)(A) or subsection (c)(1)(A) by

7 producing sufficient evidence to show the extent

8 of that employment as a matter of just and rea9 sonable inference.

10 (4) TREATMENT OF APPLICATIONS BY QUALI11 FIED DESIGNATED ENTITIES.—Each qualified des12 ignated entity must agree to forward to the Attorney

13 General applications filed with it in accordance with

14 paragraph (1)(A)(ii) but not to forward to the Attor15 ney General applications filed with it unless the ap16 plicant has consented to such forwarding. No such

17 entity may make a determination required by this

18 section to be made by the Attorney General. Upon

19 the request of the alien, a qualified designated entity

20 shall assist the alien in obtaining documentation of

21 the work history of the alien.

22 (5) LIMITATION ON ACCESS TO INFORMA23 TION.—Files and records prepared for purposes of

24 this subsection by qualified designated entities oper25 ating under this subsection are confidential and the
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1 Attorney General and the Immigration and Natu2 ralization Service shall not have access to such files

3 or records relating to an alien without the consent

4 of the alien, except as allowed by a court order

5 issued pursuant to paragraph (6).

6 (6) CONFIDENTIALITY OF INFORMATION.—

7 (A) IN GENERAL.—Except as otherwise

8 provided in this subsection, neither the Attor9 ney General, nor any other official or employee

10 of the Department of Justice, or bureau or

11 agency thereof, may—

12 (i) use the information furnished by

13 the applicant pursuant to an application

14 filed under this section, the information

15 provided to the applicant by a person des16 ignated under paragraph (2)(A), or any in17 formation provided by an employer or

18 former employer, for any purpose other

19 than to make a determination on the appli20 cation, or for enforcement of paragraph

21 (7);

22 (ii) make any publication whereby the

23 information furnished by any particular in24 dividual can be identified; or
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1 (iii) permit anyone other than the

2 sworn officers and employees of the De3 partment of Justice, or bureau or agency

4 thereof, or, with respect to applications

5 filed with a qualified designated entity,

6 that qualified designated entity, to examine

7 individual applications.

8 (B) CRIME.—Whoever knowingly uses,

9 publishes, or permits information to be exam10 ined in violation of this paragraph shall be fined

11 not more than $10,000.

12 (7) PENALTIES FOR FALSE STATEMENTS IN AP13 PLICATIONS.—

14 (A) CRIMINAL PENALTY.—Whoever—

15 (i) files an application for adjustment

16 of status under subsection (a) or (c) and

17 knowingly and willfully falsifies, conceals,

18 or covers up a material fact or makes any

19 false, fictitious, or fraudulent statements

20 or representations, or makes or uses any

21 false writing or document knowing the

22 same to contain any false, fictitious, or

23 fraudulent statement or entry; or
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1 (ii) creates or supplies a false writing

2 or document for use in making such an ap3 plication;

4 shall be fined in accordance with title 18,

5 United States Code, or imprisoned not more

6 than 5 years, or both.

7 (B) INADMISSIBILITY.—An alien who is

8 convicted of a crime under subparagraph (A)

9 shall be considered to be inadmissible to the

10 United States on the ground described in sec11 tion 212(a)(6)(C)(i) of the Immigration and

12 Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

13 (8) ELIGIBILITY FOR LEGAL SERVICES.—Sec14 tion 504(a)(11) of Public Law 104–134 (110 Stat.

15 1321–53 et seq.) shall not be construed to prevent

16 a recipient of funds under the Legal Services Cor17 poration Act (42 U.S.C. 2996 et seq.) from pro18 viding legal assistance directly related to an applica19 tion for adjustment of status under this section.

20 (9) APPLICATION FEES.—

21 (A) FEE SCHEDULE.—The Attorney Gen22 eral shall provide for a schedule of fees that—

23 (i) shall be charged for the filing of

24 applications for adjustment under sub25 sections (a) and (c); and
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1 (ii) may be charged by qualified des2 ignated entities to help defray the costs of

3 services provided to such applicants.

4 (B) PROHIBITION ON EXCESS FEES BY

5 QUALIFIED DESIGNATED ENTITIES.—A quali6 fied designated entity may not charge any fee

7 in excess of, or in addition to, the fees author8 ized under subparagraph (A)(ii) for services

9 provided to applicants.

10 (C) DISPOSITION OF FEES.—

11 (i) IN GENERAL.—There is established

12 in the general fund of the Treasury a sepa13 rate account, which shall be known as the

14 ‘‘Agricultural Worker Immigration Status

15 Adjustment Account’’. Notwithstanding

16 any other provision of law, there shall be

17 deposited as offsetting receipts into the ac18 count all fees collected under subparagraph

19 (A)(i).

20 (ii) USE OF FEES FOR APPLICATION

21 PROCESSING.—Amounts deposited in the

22 ‘‘Agricultural Worker Immigration Status

23 Adjustment Account’’ shall remain avail24 able to the Attorney General until ex-
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1 pended for processing applications for ad2 justment under subsections (a) and (c).

3 (e) WAIVER OF NUMERICAL LIMITATIONS AND CER4 TAIN GROUNDS FOR INADMISSIBILITY.—

5 (1) NUMERICAL LIMITATIONS DO NOT APPLY.—

6 The numerical limitations of sections 201 and 202

7 of the Immigration and Nationality Act (8 U.S.C.

8 1151 and 1152) shall not apply to the adjustment

9 of aliens to lawful permanent resident status under

10 this section.

11 (2) WAIVER OF CERTAIN GROUNDS OF INAD12 MISSIBILITY.—In the determination of an alien’s ad13 missibility under subsection (a)(1)(C) or an alien’s

14 eligibility for adjustment of status under subsection

15 (c)(1)(B)(ii)(I), the following rules shall apply:

16 (A) GROUNDS OF EXCLUSION NOT APPLI17 CABLE.—The provisions of paragraphs (5),

18 (6)(A), (7)(A), and (9)(B) of section 212(a) of

19 the Immigration and Nationality Act (8 U.S.C.

20 1182(a)) shall not apply.

21 (B) WAIVER OF OTHER GROUNDS.—

22 (i) IN GENERAL.—Except as provided

23 in clause (ii), the Attorney General may

24 waive any other provision of such section

25 212(a) in the case of individual aliens for
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1 humanitarian purposes, to ensure family

2 unity, or when it is otherwise in the public

3 interest.

4 (ii) GROUNDS THAT MAY NOT BE

5 WAIVED.—The following provisions of such

6 section 212(a) may not be waived by the

7 Attorney General under clause (i):

8 (I) Subparagraphs (A) and (B)

9 of paragraph (2) (relating to crimi10 nals).

11 (II) Paragraph (4) (relating to

12 aliens likely to become public

13 charges).

14 (III) Paragraph (2)(C) (relating

15 to drug offenses).

16 (IV) Paragraph (3) (relating to

17 security and related grounds), except

18 subparagraph (E).

19 ‘‘(iii) CONSTRUCTION.—Nothing in

20 this subparagraph shall be construed as af21 fecting the authority of the Attorney Gen22 eral other than under this subparagraph to

23 waive provisions of such section 212(a).

24 (C) SPECIAL RULE FOR DETERMINATION

25 OF PUBLIC CHARGE.—An alien is not ineligible
29

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1 for adjustment of status under this section by

2 reason of a ground of inadmissibility under sec3 tion 212(a)(4) of the Immigration and Nation4 ality Act if the alien demonstrates a history of

5 employment in the United States evidencing

6 self-support without reliance on public cash as7 sistance.

8 (f) TEMPORARY STAY OF REMOVAL AND WORK AU9 THORIZATION FOR CERTAIN APPLICANTS.—

10 (1) BEFORE APPLICATION PERIOD.—Effective

11 on the date of the enactment of this Act, the Attor12 ney General shall provide that, in the case of an

13 alien who is apprehended before the beginning of the

14 application period described in subsection (a)(1)(B)

15 and who can establish a nonfrivolous case of eligi16 bility to have the alien’s status adjusted under sub17 section (a) (but for the fact that the alien may not

18 apply for such adjustment until the beginning of

19 such period), until the alien has had the opportunity

20 during the first 30 days of the application period to

21 complete the filing of an application for adjustment,

22 the alien—

23 (A) may not be removed; and

24 (B) shall be granted authorization to en25 gage in employment in the United States and
30

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1 be provided an ‘‘employment authorized’’ en2 dorsement or other appropriate work permit for

3 such purpose.

4 (2) DURING APPLICATION PERIOD.—The Attor5 ney General shall provide that, in the case of an

6 alien who presents a nonfrivolous application for ad7 justment of status under subsection (a) during the

8 application period described in subsection (a)(1)(B),

9 including an alien who files such an application

10 within 30 days of the alien’s apprehension, and until

11 a final determination on the application has been

12 made in accordance with this section, the alien—

13 (A) may not be removed; and

14 (B) shall be granted authorization to en15 gage in employment in the United States and

16 be provided an ‘‘employment authorized’’ en17 dorsement or other appropriate work permit for

18 such purpose.

19 (g) ADMINISTRATIVE AND JUDICIAL REVIEW.—

20 (1) IN GENERAL.—There shall be no adminis21 trative or judicial review of a determination respect22 ing an application for adjustment of status under

23 subsection (a) or (c) except in accordance with this

24 subsection.

25 (2) ADMINISTRATIVE REVIEW.—
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1 (A) SINGLE LEVEL OF ADMINISTRATIVE

2 APPELLATE REVIEW.—The Attorney General

3 shall establish an appellate authority to provide

4 for a single level of administrative appellate re5 view of such a determination.

6 (B) STANDARD FOR REVIEW.—Such ad7 ministrative appellate review shall be based

8 solely upon the administrative record estab9 lished at the time of the determination on the

10 application and upon such additional or newly

11 discovered evidence as may not have been avail12 able at the time of the determination.

13 (3) JUDICIAL REVIEW.—

14 (A) LIMITATION TO REVIEW OF RE15 MOVAL.—There shall be judicial review of such

16 a denial only in the judicial review of an order

17 of removal under section 242 of the Immigra18 tion and Nationality Act (8 U.S.C. 1252).

19 (B) STANDARD FOR JUDICIAL REVIEW.—

20 Such judicial review shall be based solely upon

21 the administrative record established at the

22 time of the review by the appellate authority

23 and the findings of fact and determinations

24 contained in such record shall be conclusive un25 less the applicant can establish abuse of discre-
32

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1 tion or that the findings are directly contrary to

2 clear and convincing facts contained in the

3 record considered as a whole.

4 (h) DISSEMINATION OF INFORMATION ON ADJUST5 MENT PROGRAM.—Beginning not later than the 1st day

6 of the application period described in subsection (a)(1)(B),

7 the Attorney General, in cooperation with qualified des8 ignated entities, shall broadly disseminate information re9 specting the benefits that aliens may receive under this

10 section and the requirements to be satisfied to obtain such

11 benefits.

12 (i) REGULATIONS.—The Attorney General shall issue

13 regulations to implement this section not later than the

14 1st day of the 7th month that begins after the date of

15 the enactment of this Act.

16 (j) EFFECTIVE DATE.—This section shall take effect

17 on the date that regulations are issued implementing this

18 section on an interim or other basis.

19 SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS.

20 (a) IN GENERAL.—Section 208(d)(1) of the Social

21 Security Act (42 U.S.C. 408(d)(1)) is amended—

22 (1) in subparagraph (B), by striking ‘‘or’’ at

23 the end of clause (ii);

24 (2) in subparagraph (C), by inserting ‘‘or’’ at

25 the end;
33

S 1161 IS1S

1 (3) by inserting after subparagraph (C) the fol2 lowing:

3 ‘‘(D) whose status is adjusted to that of lawful

4 temporary resident under the Agricultural Job Op5 portunity, Benefits, and Security Act of 2001,’’; and

6 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or

7 in the case of an alien described in subparagraph

8 (D), if such conduct is alleged to have occurred prior

9 to the date on which the alien became lawfully ad10 mitted for temporary residence.’’.

11 (b) EFFECTIVE DATE.—The amendment made by

12 subsection (a) shall take effect on the 1st day of the 7th

13 month that begins after the date of the enactment of this

14 Act.

15 TITLE II—REFORM OF H–2A

16 WORKER PROGRAM

17 SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION18 ALITY ACT.

19 (a) IN GENERAL.—The Immigration and Nationality

20 Act is amended by striking section 218 (8 U.S.C. 1188)

21 and inserting the following:

22 ‘‘H–2A EMPLOYER APPLICATIONS

23 ‘‘SEC. 218. (a) APPLICATIONS TO THE SEC24 RETARY.—

25 ‘‘(1) IN GENERAL.—No alien may be admitted

26 to the United States as an H–2A worker, or other-
34

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1 wise provided status as an H–2A worker, unless the

2 employer has filed with the Secretary an application

3 containing—

4 ‘‘(A) the assurances described in sub5 section (b);

6 ‘‘(B) a description of the nature and loca7 tion of the work to be performed;

8 ‘‘(C) the anticipated period (expected be9 ginning and ending dates) for which workers

10 will be needed; and

11 ‘‘(D) the number of job opportunities in

12 which the employer seeks to employ workers.

13 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap14 plication filed under paragraph (1) shall be accom15 panied by a copy of the job offer describing the

16 wages and other terms and conditions of employ17 ment and the bona fide occupational qualifications

18 that must be possessed by a worker to be employed

19 in the job opportunity in question.

20 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA21 TIONS.—The assurances referred to in subsection (a)(1)

22 are the following:

23 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL24 LECTIVE BARGAINING AGREEMENTS.—With respect
35

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1 to a job opportunity that is covered under a collec2 tive bargaining agreement:

3 ‘‘(A) UNION CONTRACT DESCRIBED.—The

4 job opportunity is covered by a union contract

5 which was negotiated at arm’s length between a

6 bona fide union and the employer.

7 ‘‘(B) NO STRIKE OR LOCKOUT.—The spe8 cific job opportunity for which the employer is

9 requesting H–2A workers is not vacant because

10 the former occupant is on strike or being locked

11 out in the course of a labor dispute.

12 ‘‘(C) NOTIFICATION OF BARGAINING REP13 RESENTATIVES.—The employer, at the time of

14 filing the application, has provided notice of the

15 filing under this paragraph to the bargaining

16 representative of the employer’s employees in

17 the occupational classification at the place or

18 places of employment for which aliens are

19 sought.

20 ‘‘(D) TEMPORARY OR SEASONAL JOB OP21 PORTUNITIES.—The job opportunity is tem22 porary or seasonal.

23 ‘‘(E) OFFERS TO UNITED STATES WORK24 ERS.—The employer has offered or will offer

25 the job to any eligible United States worker
36

S 1161 IS1S

1 who applies and is equally or better qualified

2 for the job for which the nonimmigrant is, or

3 the nonimmigrants are, sought and who will be

4 available at the time and place of need.

5 ‘‘(F) PROVISION OF INSURANCE.—If the

6 job opportunity is not covered by the State

7 workers’ compensation law, the employer will

8 provide, at no cost to the worker, insurance cov9 ering injury and disease arising out of, and in

10 the course of, the worker’s employment which

11 will provide benefits at least equal to those pro12 vided under the State’s workers’ compensation

13 law for comparable employment.

14 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

15 COLLECTIVE BARGAINING AGREEMENTS.—With re16 spect to a job opportunity that is not covered under

17 a collective bargaining agreement:

18 ‘‘(A) NO STRIKE OR LOCKOUT.—The spe19 cific job opportunity for which the employer is

20 requesting H–2A workers is not vacant because

21 the former occupant is on strike or being locked

22 out in the course of a labor dispute.

23 ‘‘(B) TEMPORARY OR SEASONAL JOB OP24 PORTUNITIES.—The job opportunity is tem25 porary or seasonal.
37

S 1161 IS1S

1 ‘‘(C) BENEFIT, WAGE, AND WORKING CON2 DITIONS.—The employer will provide, at a min3 imum, the benefits, wages, and working condi4 tions required by section 218A to all workers

5 employed in the job opportunities for which the

6 employer has applied under subsection (a) and

7 to all other workers in the same occupation at

8 the place of employment.

9 ‘‘(D) NONDISPLACEMENT OF UNITED

10 STATES WORKERS.—The employer did not dis11 place and will not displace a United States

12 worker employed by the employer during the

13 period of employment and for a period of 30

14 days preceding the period of employment in the

15 occupation at the place of employment for

16 which the employer seeks approval to employ

17 H–2A workers.

18 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

19 NONIMMIGRANT WITH OTHER EMPLOYERS.—

20 The employer will not place the nonimmigrant

21 with another employer unless—

22 ‘‘(i) the nonimmigrant performs du23 ties in whole or in part at one or more

24 work sites owned, operated, or controlled

25 by such other employer;
38

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1 ‘‘(ii) there are indicia of an employ2 ment relationship between the non3 immigrant and such other employer; and

4 ‘‘(iii) the employer has inquired of the

5 other employer as to whether, and has no

6 actual knowledge or notice that, during the

7 period of employment and for a period of

8 30 days preceding the period of employ9 ment, the other employer has displaced or

10 intends to displace a United States worker

11 employed by the other employer in the oc12 cupation at the place of employment for

13 which the employer seeks approval to em14 ploy H–2A workers; however, nothing in

15 this paragraph shall limit the rights of a

16 joint employer association under section

17 201(c).

18 ‘‘(F) STATEMENT OF LIABILITY.—The ap19 plication form shall include a clear statement

20 explaining the liability under subparagraph (E)

21 of an employer if the other employer described

22 in such subparagraph displaces a United States

23 worker as described in such subparagraph.

24 ‘‘(G) PROVISION OF INSURANCE.—If the

25 job opportunity is not covered by the State
39

S 1161 IS1S

1 workers’ compensation law, the employer will

2 provide, at no cost to the worker, insurance cov3 ering injury and disease arising out of and in

4 the course of the worker’s employment which

5 will provide benefits at least equal to those pro6 vided under the State’s workers’ compensation

7 law for comparable employment.

8 ‘‘(H) EMPLOYMENT OF UNITED STATES

9 WORKERS.—

10 ‘‘(i) RECRUITMENT.—The employer

11 has taken or will take the following steps

12 to recruit United States workers for the

13 job opportunities for which the H–2A non14 immigrant is, or H–2A nonimmigrants are,

15 sought:

16 ‘‘(I) CONTACTING FORMER

17 WORKERS.—The employer shall make

18 reasonable efforts through the sending

19 of a letter by United States Postal

20 Service mail, or otherwise, to contact

21 any United States worker the em22 ployer employed during the previous

23 season in the occupation at the place

24 of intended employment for which the

25 employer is applying for workers and
40

S 1161 IS1S

1 has made the availability of the em2 ployer’s job opportunities in the occu3 pation at the place of intended em4 ployment known to such previous

5 workers, unless the worker was termi6 nated from employment by the em7 ployer for a lawful job-related reason

8 or abandoned the job before the work9 er completed the period of employ10 ment of the job opportunity for which

11 the worker was hired.

12 ‘‘(II) FILING A JOB OFFER WITH

13 THE LOCAL OFFICE OF THE STATE

14 EMPLOYMENT SECURITY AGENCY.—

15 Not later than 28 days prior to the

16 date on which the employer desires to

17 employ an H–2A worker in a tem18 porary or seasonal agricultural job op19 portunity, the employer shall submit a

20 copy of the job offer described in sub21 section (a)(2) to the local office of the

22 State employment security agency

23 which serves the area of intended em24 ployment and authorize the posting of

25 the job opportunity on ‘America’s Job
41

S 1161 IS1S

1 Bank’ or other electronic job registry,

2 except that nothing in this subclause

3 shall require the employer to file an

4 interstate job order under section 653

5 of title 20, Code of Federal Regula6 tions.

7 ‘‘(III) ADVERTISING OF JOB OP8 PORTUNITIES.—Not later than 14

9 days prior to the date on which the

10 employer desires to employ an H–2A

11 worker in a temporary or seasonal ag12 ricultural job opportunity, the em13 ployer shall advertise the availability

14 of the job opportunities for which the

15 employer is seeking workers in a pub16 lication in the local labor market that

17 is likely to be patronized by potential

18 farm workers.

19 ‘‘(IV) EMERGENCY PROCE20 DURES.—The Secretary shall, by reg21 ulation, provide a procedure for ac22 ceptance and approval of applications

23 in which the employer has not com24 plied with the provisions of this sub25 paragraph because the employer’s
42

S 1161 IS1S

1 need for H–2A workers could not rea2 sonably have been foreseen.

3 ‘‘(ii) JOB OFFERS.—The employer has

4 offered or will offer the job to eligible

5 United States workers who apply and are

6 equally or better qualified for the job for

7 which nonimmigrants are sought, and who

8 will be available at the time and place of

9 need.

10 ‘‘(iii) PERIOD OF EMPLOYMENT.—The

11 employer will continue to offer the job to

12 eligible United States workers who are

13 equally or better qualified for the jobs for

14 which nonimmigrants are sought during

15 the period begining on the date on which

16 the foreign worker departs for the employ17 er’s place of employment and ending on

18 the date on which 50 percent of the period

19 of employment for which the foreign work20 er who is in the job was hired has elapsed,

21 subject to the following requirements:

22 ‘‘(I) PROHIBITION.—No person

23 or entity shall willfully and knowingly

24 withhold United States workers prior

25 to the arrival of H–2A workers in
43

S 1161 IS1S

1 order to force the hiring of United

2 States workers under this clause.

3 ‘‘(II) COMPLAINTS.—Upon re4 ceipt of a complaint by an employer

5 that a violation of subclause (I) has

6 occurred, the Secretary shall imme7 diately investigate. The Secretary

8 shall, within 36 hours of the receipt of

9 the complaint, issue findings con10 cerning the alleged violation. If the

11 Secretary finds that a violation has

12 occurred, the Secretary shall imme13 diately suspend the application of this

14 clause with respect to that certifi15 cation for that date of need.

16 ‘‘(III) PLACEMENT OF UNITED

17 STATES WORKERS.—Prior to referring

18 a United States worker to an em19 ployer during the period described in

20 the matter preceding subclause (I),

21 the Secretary shall make all reason22 able efforts to place the United States

23 worker in an open job acceptable to

24 the worker, if there are similarr job

25 opportunities pending with the job
44

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1 service in the area of intended em2 ployment.

3 ‘‘(iv) STATUTORY CONSTRUCTION.—

4 Nothing in this subparagraph shall be con5 strued to prohibit an employer from using

6 such legitimate selection criteria relevant

7 to the type of job that are normal or cus8 tomary to the type of job involved so long

9 as such criteria are not applied in a dis10 criminatory manner.

11 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

12 OF EMPLOYER MEMBERS.—

13 ‘‘(1) IN GENERAL.—An agricultural association

14 may file an application under subsection (a) on be15 half of one or more of its employer members that

16 the association certifies in its application has or have

17 agreed in writing to comply with the requirements of

18 this section and sections 218A through 218C.

19 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

20 EMPLOYERS.—If an association filing an application

21 under paragraph (1) is a joint or sole employer of

22 the temporary or seasonal agricultural workers re23 quested on the application, the certifications granted

24 under subsection (e)(2)(B) to the association may be

25 used for the certified job opportunities of any of its
45

S 1161 IS1S

1 producer members named on the application, and

2 such workers may be transferred among such pro3 ducer members to perform the agricultural services

4 of a temporary or seasonal nature for which the cer5 tifications were granted.

6 ‘‘(d) WITHDRAWAL OF APPLICATIONS.—

7 ‘‘(1) IN GENERAL.—An employer may withdraw

8 an application under subsection (a), except that if

9 the employer is an agricultural association, the asso10 ciation may withdraw an application under sub11 section (a) with respect to one or more of its mem12 bers. To withdraw an application, the employer or

13 association shall notify the Secretary in writing, and

14 the Secretary shall acknowledge in writing the re15 ceipt of such withdrawal notice. An employer who

16 withdraws an application under subsection (a), or on

17 whose behalf an application is withdrawn, is relieved

18 of the obligations undertaken in the application.

19 ‘‘(2) LIMITATION.—An application may not be

20 withdrawn while any alien provided status under sec21 tion 101(a)(15)(H)(ii)(a) pursuant to such applica22 tion is employed by the employer.

23 ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.—

24 Any obligation incurred by an employer under any

25 other law or regulation as a result of the recruit-
46

S 1161 IS1S

1 ment of United States workers or H–2A workers

2 under an offer of terms and conditions of employ3 ment required as a result of making an application

4 under subsection (a) is unaffected by withdrawal of

5 such application.

6 ‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.—

7 ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The

8 employer shall make available for public examina9 tion, within 1 working day after the date on which

10 an application under subsection (a) is filed, at the

11 employer’s principal place of business or work site,

12 a copy of each such application (and such accom13 panying documents as are necessary).

14 ‘‘(2) RESPONSIBILITY OF THE SECRETARY.—

15 ‘‘(A) COMPILATION OF LIST.—The Sec16 retary shall compile, on a current basis, a list

17 (by employer and by occupational classification)

18 of the applications filed under this subsection.

19 Such list shall include the wage rate, number

20 of workers sought, period of intended employ21 ment, and date of need. The Secretary shall

22 make such list available for examination in the

23 District of Columbia.

24 ‘‘(B) REVIEW OF APPLICATIONS.—The

25 Secretary shall review such an application only
47

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1 for completeness and obvious inaccuracies. Un2 less the Secretary finds that the application is

3 incomplete or obviously inaccurate, the Sec4 retary shall certify that the intending employer

5 has filed with the Secretary an application as

6 described in subsection (a). Such certification

7 shall be provided within 7 days of the filing of

8 the application.

9 ‘‘H–2A EMPLOYMENT REQUIREMENTS

10 ‘‘SEC. 218A. (a) PREFERENTIAL TREATMENT OF

11 ALIENS PROHIBITED.—Employers seeking to hire United

12 States workers shall offer the United States workers no

13 less than the same benefits, wages, and working conditions

14 that the employer is offering, intends to offer, or will pro15 vide to H–2A workers. Conversely, no job offer may im16 pose on United States workers any restrictions or obliga17 tions which will not be imposed on the employer’s H–2A

18 workers.

19 ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING

20 CONDITIONS.—Except in cases where higher benefits,

21 wages, or working conditions are required by the provi22 sions of subsection (a), in order to protect similarly em23 ployed United States workers from adverse effects with

24 respect to benefits, wages, and working conditions, every

25 job offer which must accompany an application under sec-
48

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1 tion 218 shall include each of the following benefit, wage,

2 and working condition provisions:

3 ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A

4 HOUSING ALLOWANCE.—

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

6 under section 218(a) for H–2A workers shall

7 offer to provide housing at no cost to all work8 ers in job opportunities for which the employer

9 has applied under that section and to all other

10 workers in the same occupation at the place of

11 employment, whose place of residence is beyond

12 normal commuting distance.

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

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

15 the employer’s election, provide housing that

16 meets applicable Federal standards for tem17 porary labor camps or secure housing that

18 meets applicable local standards for rental or

19 public accommodation housing or other sub20 stantially similar class of habitation, or in the

21 absence of applicable local standards, State

22 standards for rental or public accommodation

23 housing or other substantially similar class of

24 habitation. In the absence of applicable local or
49

S 1161 IS1S

1 State standards, Federal temporary labor camp

2 standards shall apply.

3 ‘‘(C) FAMILY HOUSING.—When it is the

4 prevailing practice in the occupation and area

5 of intended employment to provide family hous6 ing, family housing shall be provided to workers

7 with families who request it.

8 ‘‘(D) WORKERS ENGAGED IN THE RANGE

9 PRODUCTION OF LIVESTOCK.—The Secretary

10 shall issue regulations that address the specific

11 requirements for the provision of housing to

12 workers engaged in the range production of

13 livestock.

14 ‘‘(E) LIMITATION.—Nothing in this para15 graph shall be construed to require an employer

16 to provide or secure housing for persons who

17 were not entitled to such housing under the

18 temporary labor certification regulations in ef19 fect on June 1, 1986.

20 ‘‘(F) CHARGES FOR HOUSING.—

21 ‘‘(i) CHARGES FOR PUBLIC HOUS22 ING.—If public housing provided for mi23 grant agricultural workers under the aus24 pices of a local, county, or State govern25 ment is secured by an employer, and use of
50

S 1161 IS1S

1 the public housing unit normally requires

2 charges from migrant workers, such

3 charges shall be paid by the employer di4 rectly to the appropriate individual or enti5 ty affiliated with the housing’s manage6 ment.

7 ‘‘(ii) DEPOSIT CHARGES.—Charges in

8 the form of deposits for bedding or other

9 similar incidentals related to housing shall

10 not be levied upon workers by employers

11 who provide housing for their workers.

12 However, an employer may require a work13 er found to have been responsible for dam14 age to such housing which is not the result

15 of normal wear and tear related to habi16 tation to reimburse the employer for the

17 reasonable cost of repair of such damage.

18 ‘‘(G) HOUSING ALLOWANCE AS ALTER19 NATIVE.—

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

21 housing pursuant to subparagraph (A), the

22 employer may provide a reasonable housing

23 allowance, but only if the requirement of

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

25 a worker seeking assistance in locating
51

S 1161 IS1S

1 housing, the employer shall make a good

2 faith effort to assist the worker in identi3 fying and locating housing in the area of

4 intended employment. An employer who of5 fers a housing allowance to a worker, or

6 assists a worker in locating housing which

7 the worker occupies, pursuant to this

8 clause shall not be deemed a housing pro9 vider under section 203 of the Migrant and

10 Seasonal Agricultural Worker Protection

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

12 providing such housing allowance. How13 ever, no housing allowance may be used for

14 housing which is owned or controlled by

15 the employer.

16 ‘‘(ii) CERTIFICATION.—The require17 ment of this clause is satisfied if the Gov18 ernor of the State certifies to the Secretary

19 that there is adequate housing available in

20 the area of intended employment for mi21 grant farm workers, and H–2A workers,

22 who are seeking temporary housing while

23 employed at farm work. Such certification

24 shall expire after 3 years unless renewed

25 by the Governor of the State.
52

S 1161 IS1S

1 ‘‘(iii) AMOUNT OF ALLOWANCE.—

2 ‘‘(I) NONMETROPOLITAN COUN3 TIES.—If the place of employment of

4 the workers provided an allowance

5 under this subparagraph is a non6 metropolitan county, the amount of

7 the housing allowance under this sub8 paragraph shall be equal to the state9 wide average fair market rental for

10 existing housing for nonmetropolitan

11 counties for the State, as established

12 by the Secretary of Housing and

13 Urban Development pursuant to sec14 tion 8(c) of the United States Hous15 ing Act of 1937 (42 U.S.C. 1437f(c)),

16 based on a 2-bedroom dwelling unit

17 and an assumption of 2 persons per

18 bedroom.

19 ‘‘(II) METROPOLITAN COUN20 TIES.—If the place of employment of

21 the workers provided an allowance

22 under this paragraph is in a metro23 politan county, the amount of the

24 housing allowance under this subpara25 graph shall be equal to the statewide
53

S 1161 IS1S

1 average fair market rental for existing

2 housing for metropolitan counties for

3 the State, as established by the Sec4 retary of Housing and Urban Devel5 opment pursuant to section 8(c) of

6 the United States Housing Act of

7 1937 (42 U.S.C. 1437f(c)), based on

8 a 2-bedroom dwelling unit and an as9 sumption of 2 persons per bedroom.

10 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.—

11 ‘‘(A) TO PLACE OF EMPLOYMENT.—A

12 worker who completes 50 percent of the period

13 of employment of the job opportunity for which

14 the worker was hired shall be reimbursed by the

15 employer for the cost of the worker’s transpor16 tation and subsistence from the place from

17 which the worker came to work for the em18 ployer (or place of last employment, if the

19 worker traveled from such place) to the place of

20 employment.

21 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A

22 worker who completes the period of employment

23 for the job opportunity involved shall be reim24 bursed by the employer for the cost of the

25 worker’s transportation and subsistence from
54

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1 the place of employment to the place from

2 which the worker, disregarding intervening em3 ployment, came to work for the employer, or to

4 the place of next employment, if the worker has

5 contracted with a subsequent employer who has

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

7 transportation and subsistence to such subse8 quent employer’s place of employment.

9 ‘‘(C) LIMITATION.—

10 ‘‘(i) AMOUNT OF REIMBURSEMENT.—

11 Except as provided in clause (ii), the

12 amount of reimbursement provided under

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

14 alien shall not exceed the lesser of—

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

16 or alien of the transportation and sub17 sistence involved; or

18 ‘‘(II) the most economical and

19 reasonable common carrier transpor20 tation charges and subsistence costs

21 for the distance involved.

22 ‘‘(ii) DISTANCE TRAVELED.—No reim23 bursement under subparagraph (A) or (B)

24 shall be required if the distance traveled is

25 100 miles or less, or the worker is not re-
55

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1 siding in employer-provided housing or

2 housing secured through an allowance as

3 provided in paragraph (1)(G).

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

5 is laid off or employment is terminated for con6 tract impossibility (as described in paragraph

7 (4)(D)) before the anticipated ending date of

8 employment, the employer shall provide the

9 transportation and subsistence required by sub10 paragraph (B) and, notwithstanding whether

11 the worker has completed 50 percent of the pe12 riod of employment, shall provide the transpor13 tation reimbursement required by subparagraph

14 (A).

15 ‘‘(E) TRANSPORTATION BETWEEN LIVING

16 QUARTERS AND WORK SITE.—The employer

17 shall offer to provide transportation between

18 the worker’s living quarters (i.e., housing pro19 vided by the employer pursuant to paragraph

20 (1), including housing provided through a hous21 ing allowance) and the employer’s work site

22 without cost to the worker, and such transpor23 tation will be in accordance with applicable laws

24 and regulations.

25 ‘‘(3) REQUIRED WAGES.—
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1 ‘‘(A) IN GENERAL.—An employer applying

2 for workers under section 218(a) shall offer to

3 pay, and shall pay, all workers in the occupa4 tion for which the employer has applied for

5 workers, not less (and is not required to pay

6 more) than the greater of the prevailing wage

7 for seasonal agricultural workers in the occupa8 tion in the area of intended employment or the

9 greater of the hourly wage prescribed under

10 section 6(a)(1) of the Fair Labor Standards

11 Act of 1938 (29 U.S.C. 206(a)(1)) or the appli12 cable State minimum wage.

13 ‘‘(B) In complying with the requirement of

14 subparagraph (A), an employer or the employ15 er’s agent may request and obtain a prevailing

16 wage determination from the State employment

17 security agency. An employer who obtains such

18 a determination and pays the wage determined

19 to be prevailing, shall be considered to have met

20 the requirement of subparagraph (A).

21 ‘‘(C) In lieu of the procedure of paragraph

22 (B), an employer may rely on other wage infor23 mation, including a survey of the prevailing

24 wages of workers in the occupation in the area

25 of intended employment that has been con-
57

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1 ducted or funded by the employer or a group of

2 employers, that meet criteria specified by the

3 Secretary in regulations.

4 ‘‘(D) If the prevailing wage described in

5 subparagraph (A)(i) is an hourly wage, the em6 ployer may pay workers in the occupation by an

7 incentive method of pay such as a piece rate,

8 task rate, group incentive rate, or other incen9 tive method: Provided, That the average hourly

10 earnings of the employer’s workers paid by such

11 incentive method, taken as a group, are at least

12 equal to the prevailing hourly wage required by

13 subparagraph (A)(i) for the hours worked at

14 the incentive payment method, after making

15 any additions to any workers pay required to

16 comply with the requirement of subparagraph

17 (A)(ii).

18 ‘‘(E) DEDUCTIONS.—The employer shall

19 make only those deductions from the worker’s

20 paycheck which are authorized by law or are

21 reasonable and customary in the occupation and

22 area of employment. The job offer shall specify

23 all deductions not required by law which the

24 employer will make from the worker’s paycheck.

25 ‘‘(4) GUARANTEE OF EMPLOYMENT.—
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1 ‘‘(A) OFFER TO WORKER.—The employer

2 shall guarantee to offer the worker employment

3 for the hourly equivalent of at least three4 fourths of the work days of the total period of

5 employment, beginning with the first work day

6 after the arrival of the worker at the place of

7 employment and ending on the expiration date

8 specified in the job offer. For purposes of this

9 subparagraph, the hourly equivalent means the

10 number of hours in the work days as stated in

11 the job offer and shall exclude the worker’s

12 Sabbath and Federal holidays. If the employer

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

14 employment than that required under this para15 graph, the employer shall pay such worker the

16 amount which the worker would have earned

17 had the worker, in fact, worked for the guaran18 teed number of hours.

19 ‘‘(B) FAILURE TO WORK.—Any hours

20 which the worker fails to work, up to a max21 imum of the number of hours specified in the

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

23 been offered an opportunity to do so, and all

24 hours of work actually performed (including vol25 untary work in excess of the number of hours
59

S 1161 IS1S

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

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

3 be counted by the employer in calculating

4 whether the period of guaranteed employment

5 has been met.

6 ‘‘(C) ABANDONMENT OF EMPLOYMENT,

7 TERMINATION FOR CAUSE.—If the worker vol8 untarily abandons employment before the end

9 of the contract period, or is terminated for

10 cause, the worker is not entitled to the ‘three11 fourths guarantee’ described in subparagraph

12 (A).

13 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be14 fore the expiration of the period of employment

15 specified in the job offer, the services of the

16 worker are no longer required for reasons be17 yond the control of the employer due to any

18 form of natural disaster, including but not lim19 ited to a flood, hurricane, freeze, earthquake,

20 fire, drought, plant or animal disease or pest in21 festation, or regulatory drought, before the

22 guarantee in subparagraph (A) is fulfilled, the

23 employer may terminate the worker’s employ24 ment. In the event of such termination, the em25 ployer shall fulfill the employment guarantee in
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1 subparagraph (A) for the work days that have

2 elapsed from the first work day after the arrival

3 of the worker to the termination of employ4 ment. In such cases, the employer will make ef5 forts to transfer the United States worker to

6 other comparable employment acceptable to the

7 worker. If such transfer is not effected, the em8 ployer shall provide the return transportation

9 required in paragraph (2)(D).

10 ‘‘(c) RANGE PRODUCTION OF LIVESTOCK.—Nothing

11 in this section, section 218, section 218B, or section 218C

12 shall preclude the Secretary of Labor and the Attorney

13 General from continuing to apply special procedures and

14 requirements to the admission and employment of aliens

15 in occupations involving the range production of livestock.

16 ‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY

17 OF H–2A WORKERS

18 ‘‘SEC. 218B. (a) PETITIONING FOR ADMISSION.—An

19 employer, or an association acting as an agent or joint

20 employer for its members, that seeks the admission into

21 the United States of an H–2A worker may file a petition

22 with the Attorney General. The petition shall be accom23 panied by an accepted and currently valid certification

24 provided by the Secretary under section 218(e)(2)(B) cov25 ering the petitioner.
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1 ‘‘(b) EXPEDITED ADJUDICATION BY THE ATTORNEY

2 GENERAL.—The Attorney General shall establish a proce3 dure for expedited adjudication of petitions filed under

4 subsection (a) and within 7 working days shall, by fax,

5 cable, or other means assuring expedited delivery, trans6 mit a copy of notice of action on the petition to the peti7 tioner and, in the case of approved petitions, to the appro8 priate immigration officer at the port of entry or United

9 States consulate (as the case may be) where the petitioner

10 has indicated that the alien beneficiary (or beneficiaries)

11 will apply for a visa or admission to the United States.

12 ‘‘(c) CRITERIA FOR ADMISSIBILITY.—

13 ‘‘(1) IN GENERAL.—An H–2A worker shall be

14 considered admissible to the United States if the

15 alien is otherwise admissible under this section, sec16 tion 218, and section 218A, and the alien is not in17 eligible under paragraph (2).

18 ‘‘(2) DISQUALIFICATION.—An alien shall be

19 considered inadmissible to the United States and in20 eligible for nonimmigrant status under section

21 101(a)(15)(H)(ii)(a) if the alien has, at any time

22 during the past 5 years—

23 ‘‘(A) violated a material provision of this

24 section, including the requirement to promptly

25 depart the United States when the alien’s au-
62

S 1161 IS1S

1 thorized period of admission under this section

2 has expired; or

3 ‘‘(B) otherwise violated a term or condition

4 of admission into the United States as a non5 immigrant, including overstaying the period of

6 authorized admission as such a nonimmigrant.

7 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW8 FUL PRESENCE.—

9 ‘‘(A) IN GENERAL.—An alien who has not

10 previously been admitted into the United States

11 pursuant to this section, and who is otherwise

12 eligible for admission in accordance with para13 graphs (1) and (2), shall not be deemed inad14 missible by virtue of section 212(a)(9)(B). If an

15 alien described in the preceding sentence is

16 present in the United States, the alien may

17 apply from abroad for H–2A worker status, but

18 may not be granted that status by adjustment

19 in the United States.

20 ‘‘(B) MAINTENANCE OF WAIVER.—An

21 alien provided an initial waiver of ineligibility

22 pursuant to subparagraph (A) shall remain eli23 gible for such waiver unless the alien violates

24 the terms of this section or again becomes ineli25 gible under section 212(a)(9)(B) by virtue of
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1 unlawful presence in the United States after

2 the date of the initial waiver of ineligibility pur3 suant to subparagraph (A).

4 ‘‘(d) PERIOD OF ADMISSION.—

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

6 for the period of employment in the application, cer7 tified by the Secretary pursuant to section

8 218(e)(2)(B), not to exceed 10 months, supple9 mented by a period of up to 1 week before the begin10 ning of the period of employment (to be granted for

11 the purpose of travel to the work site) and a period

12 of 14 days following the period of employment (to be

13 granted for the purpose of departure or extension

14 based on a subsequent offer of employment), except

15 that—

16 ‘‘(A) the alien is not authorized to be em17 ployed during such 14-day period except in the

18 employment for which the alien was previously

19 authorized; and

20 ‘‘(B) the total period of employment, in21 cluding such 14-day period, may not exceed 10

22 months.

23 ‘‘(2) CONSTRUCTION.—Nothing in this sub24 section shall limit the Attorney General’s authority
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1 to extend the stay of the alien under any other pro2 vision of this Act.

3 ‘‘(e) ABANDONMENT OF EMPLOYMENT.—

4 ‘‘(1) IN GENERAL.—An alien admitted or pro5 vided status under section 101(a)15)(H)(ii)(a) who

6 abandons the employment which was the basis for

7 such admission or status shall be considered to have

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

9 worker and shall depart the United States or be sub10 ject to removal under section 237(a)(1)(C)(i).

11 ‘‘(2) REPORT BY EMPLOYER.—The employer

12 (or association acting as agent for the employer)

13 shall notify the Attorney General within 7 days of an

14 H–2A worker’s having prematurely abandoned em15 ployment.

16 ‘‘(3) REMOVAL BY THE ATTORNEY GENERAL.—

17 The Attorney General shall promptly remove from

18 the United States any H–2A worker who violates

19 any term or condition of the worker’s nonimmigrant

20 status.

21 ‘‘(4) VOLUNTARY TERMINATION.—Notwith22 standing paragraph (1), an alien may voluntarily

23 terminate his or her employment if the alien prompt24 ly departs the United States upon termination of

25 such employment.
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1 ‘‘(f) REPLACEMENT OF ALIEN.—

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

3 notice to the Attorney General required by sub4 section (e)(2), the Secretary of State shall promptly

5 issue a visa to, and the Attorney General shall admit

6 into the United States, an eligible alien designated

7 by the employer to replace an H–2A worker—

8 ‘‘(A) who abandons or prematurely termi9 nates employment; or

10 ‘‘(B) whose employment is terminated

11 after a United States worker is employed pur12 suant to section 218(b)(2)(H)(iii), if the United

13 States worker voluntarily departs before the

14 end of the period of intended employment or if

15 the employment termination is for a lawful job16 related reason.

17 ‘‘(2) CONSTRUCTION.—Nothing in this sub18 section is intended to limit any preference required

19 to be accorded United States workers under any

20 other provision of this Act.

21 ‘‘(g) IDENTIFICATION DOCUMENT.—

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

23 admitted under section 101(a)(15)(H)(ii)(a) shall,

24 upon receipt of a visa, be given an identification and

25 employment eligibility document to verify eligibility
66

S 1161 IS1S

1 for employment in the United States and verify such

2 person’s proper identity.

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

4 employment eligibility document may be issued

5 which does not meet the following requirements:

6 ‘‘(A) The document shall be capable of re7 liably determining whether—

8 ‘‘(i) the individual with the identifica9 tion and employment eligibility document

10 whose eligibility is being verified is in fact

11 eligible for employment;

12 ‘‘(ii) the individual whose eligibility is

13 being verified is claiming the identity of

14 another person; and

15 ‘‘(iii) the individual whose eligibility is

16 being verified is authorized to be admitted

17 into, and employed in, the United States

18 as an H–2A worker.

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

20 is resistant to counterfeiting and to tampering.

21 ‘‘(C) The document shall—

22 ‘‘(i) be compatible with other data23 bases of the Attorney General for the pur24 pose of excluding aliens from benefits for

25 which they are not eligible and determining
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1 whether the alien is unlawfully present in

2 the United States; and

3 ‘‘(ii) be compatible with law enforce4 ment databases to determine if the alien

5 has been convicted of criminal offenses.

6 ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE

7 UNITED STATES.—

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

9 seeks approval to employ an aliean in H–2A status

10 who is lawfully present in the United States pursu11 ant to this division of pursuant to sec.

12 101(a)(15)(H)(ii) of the Immigration and Natu13 ralization Act (8 U.S.C. 1101(a)), the petition filed

14 by the employer or an association pursuant to sub15 section (a), shall request an extension of the alien’s

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

17 ‘‘(2) LIMITATION ON FILING A PETITION FOR

18 EXTENSION OF STAY.—A petition may not be filed

19 for an extension of the alien’s stay—

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

21 or

22 ‘‘(B) to a date that is more than 3 years

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

24 the United States under this section.
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1 ‘‘(3) WORK AUTHORIZATION UPON FILING A

2 PETITION FOR EXTENSION OF STAY.—In the case of

3 an alien who is lawfully present in the United

4 States, the alien is authorized to commence the em5 ployment described in a petition under paragraph

6 (1) on the date on which the petition is filed. For

7 purposes of the preceding sentence, the term ‘file’

8 means sending the petition by certified mail via the

9 United States Postal Service, return receipt re10 quested, by guaranteed commercial delivery which

11 will provide the employer with a documented ac12 knowledgment of the date of sending the petition.

13 The employer shall provide a copy of the employer’s

14 petition to the alien, who shall keep the petition with

15 the alien’s identification and employment eligibility

16 document as evidence that the petition has been filed

17 and that the alien is authorized to work in the

18 United States. Upon approval of a petition for an

19 extension of stay or change in the alien’s authorized

20 employment, the Attorney General shall provide a

21 new or updated employment eligibility document to

22 the alien indicating the new validity date, after

23 which the alien is not required to retain a copy of

24 the petition.
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S 1161 IS1S

1 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA2 TION OF ALIENS WITHOUT VALID IDENTIFICATION

3 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex4 pired identification and employment eligibility docu5 ment, together with a copy of an petition for exten6 sion of stay or change in the alien’s authorized em7 ployment that complies with the requirements of

8 paragraph (1), shall constitute a valid work author9 ization document for a period of not more than 60

10 days beginning on the date on which such petition

11 is filed, after which time only a currently valid iden12 tification and employment eligibility document shall

13 be acceptable.

14 ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN

15 STATUS.—

16 ‘‘(A) MAXIMUM PERIOD.—The maximum

17 continuous period of authorized status as an

18 H–2A worker (including any extensions) is 3

19 years.

20 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

21 UNITED STATES.—

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

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

24 United States whose period of authorized

25 status as an H–2A worker (including any
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1 extensions) has expired, the alien may not

2 again apply for admission to the United

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

4 has remained outside the United States for

a continuous period equal to at least 1 5 ⁄5

6 the duration of the alien’s previous period

7 of authorized status as an H–2A worker

8 (including any extensions).

9 ‘‘(ii) EXCEPTION.—Clause (i) shall

10 not apply in the case of an alien if the

11 alien’s period of authorized status as an

12 H–2A worker (including any extensions)

13 was for a period of not more than 10

14 months and such alien has been outside

15 the United States for at least 2 months

16 during the 12 months preceding the date

17 the alien again is applying for admission to

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

19 ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED AS

20 SHEEPHERDERS.—Notwithstanding any other provision

21 of this section, aliens admitted under section

22 101(a)(15)(H)(ii)(a) for employment as sheepherders—

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

24 months;
71

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1 ‘‘(2) may be extended for a continuous period

2 of up to 3 years; and

3 ‘‘(3) shall not be subject to the requirements of

4 subsection (h)(5) relating to periods of absence from

5 the United States.

6 ‘‘WORKER PROTECTIONS AND LABOR STANDARDS

7 ENFORCEMENT

8 ‘‘SEC. 218C. (a) ENFORCEMENT AUTHORITY.—

9 ‘‘(1) INVESTIGATION OF COMPLAINTS.—

10 ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY

11 COMPLAINTS.—The Secretary shall establish a

12 process for the receipt, investigation, and dis13 position of complaints respecting a petitioner’s

14 failure to meet a condition specified in section

15 218(b), or an employer’s misrepresentation of

16 material facts in an application under section

17 218(a). Complaints may be filed by any ag18 grieved person or organization (including bar19 gaining representatives). No investigation or

20 hearing shall be conducted on a complaint con21 cerning such a failure or misrepresentation un22 less the complaint was filed not later than 12

23 months after the date of the failure, or mis24 representation, respectively. The Secretary shall

25 conduct an investigation under this subpara26 graph if there is reasonable cause to believe
72

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1 that such a failure or misrepresentation has oc2 curred.

3 ‘‘(B) DETERMINATION ON COMPLAINT.—

4 Under such process, the Secretary shall provide,

5 within 30 days after the date such a complaint

6 is filed, for a determination as to whether or

7 not a reasonable basis exists to make a finding

8 described in subparagraph (C), (D), (E), or

9 (F). If the Secretary determines that such a

10 reasonable basis exists, the Secretary shall pro11 vide for notice of such determination to the in12 terested parties and an opportunity for a hear13 ing on the complaint, in accordance with section

14 556 of title 5, United States Code, within 60

15 days after the date of the determination. If

16 such a hearing is requested, the Secretary shall

17 make a finding concerning the matter not later

18 than 60 days after the date of the hearing. In

19 the case of similar complaints respecting the

20 same applicant, the Secretary may consolidate

21 the hearings under this subparagraph on such

22 complaints.

23 ‘‘(C) FAILURES TO MEET CONDITIONS.—If

24 the Secretary finds, after notice and oppor25 tunity for a hearing, a failure to meet a condi-
73

S 1161 IS1S

1 tion of paragraph (1)(A), (1)(B), (1)(D),

2 (1)(F), (2)(A), (2)(B), or (2)(G) of section

3 218(b), a substantial failure to meet a condition

4 of paragraph (1)(C) or (E), or paragraph

5 (2)(C), (2)(D), (2)(E), or (2)(H) of section

6 218(b), or a material misrepresentation of fact

7 in an application under section 218(a)—

8 ‘‘(i) the Secretary shall notify the At9 torney General of such finding and may, in

10 addition, impose such other administrative

11 remedies (including civil money penalties in

12 an amount not to exceed $1,000 per viola13 tion) as the Secretary determines to be ap14 propriate; and

15 ‘‘(ii) the Attorney General may dis16 qualify the employer from the employment

17 of aliens described in section

18 101(A)(15)(H)(ii)(a) for a period of 1

19 year.

20 ‘‘(D) WILLFUL FAILURES AND WILLFUL

21 MISREPRESENTATIONS.—If the Secretary finds,

22 after notice and opportunity for hearing, a will23 ful failure to meet a condition of section 218(b),

24 a willful misrepresentation of a material fact in
74

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1 an application under section 218(a), or a viola2 tion of subsection (b)—

3 ‘‘(i) the Secretary shall notify the At4 torney General of such finding and may, in

5 addition, impose such other administrative

6 remedies (including civil money penalties in

7 an amount not to exceed $5,000 per viola8 tion) as the Secretary determines to be ap9 propriate; and

10 ‘‘(ii) the Attorney General may dis11 qualify the employer from the employment

12 of H–2A workers for a period of 2 years.

13 ‘‘(E) DISPLACEMENT OF UNITED STATES

14 WORKERS.—If the Secretary finds, after notice

15 and opportunity for hearing, a willful failure to

16 meet a condition of section 218(b) or a willful

17 misrepresentation of a material fact in an appli18 cation under section 218(a), in the course of

19 which failure or misrepresentation the employer

20 displaced a United States worker employed by

21 the employer during the period of employment

22 on the employer’s application under section

23 218(a) or during the period of 30 days pre24 ceding such period of employment—
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1 ‘‘(i) the Secretary shall notify the At2 torney General of such finding and may, in

3 addition, impose such other administrative

4 remedies (including civil money penalties in

5 an amount not to exceed $15,000 per vio6 lation) as the Secretary determines to be

7 appropriate; and

8 ‘‘(ii) the Attorney General may dis9 qualify the employer from the employment

10 of H–2A workers for a period of 3 years.

11 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN12 ALTIES.—The Secretary shall not impose total

13 civil money penalties with respect to an applica14 tion under section 218(a) in excess of $90,000.

15 ‘‘(G) FAILURES TO PAY WAGES OR RE16 QUIRED BENEFITS.—If the Secretary finds,

17 after notice and opportunity for a hearing, that

18 the employer has failed to pay the wages, or

19 provide the housing allowance, transportation,

20 subsistence reimbursement, or guarantee of em21 ployment, required under section 218A(b), the

22 Secretary shall assess payment of back wages,

23 or other required benefits, due any United

24 States worker or H–2A worker employed by the

25 employer in the specific employment in ques-
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1 tion. The back wages or other required benefits

2 under section 218A(b) shall be equal to the dif3 ference between the amount that should have

4 been paid and the amount that actually was

5 paid to such worker.

6 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in

7 this section shall be construed as limiting the au8 thority of the Secretary to conduct any compliance

9 investigation under any other labor law, including

10 any law affecting migrant and seasonal agricultural

11 workers, or, in the absence of a complaint under this

12 section, under section 218 or 218A.

13 ‘‘(b) DISCRIMINATION PROHIBITED.—It is a violation

14 of this subsection for an employer who has filed an appli15 cation under section 218(a), to intimidate, threaten, re16 strain, coerce, blacklist, discharge, or in any other manner

17 discriminate against an employee (which term, for pur18 poses of this subsection, includes a former employee and

19 an applicant for employment) because the employee has

20 disclosed information to the employer, or to any other per21 son, that the employee reasonably believes evidences a vio22 lation of section 218 or 218A or any rule or regulation

23 pertaining to section 218 or 218A, or because the em24 ployee cooperates or seeks to cooperate in an investigation

25 or other proceeding concerning the employer’s compliance
77

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1 with the requirements of section 218 or 218A or any rule

2 or regulation pertaining to either of such sections.

3 ‘‘(c) AUTHORIZATION TO SEEK OTHER APPRO4 PRIATE EMPLOYMENT.—The Secretary and the Attorney

5 General shall establish a process under which an H–2A

6 worker who files a complaint regarding a violation of sub7 section (b) and is otherwise eligible to remain and work

8 in the United States may be allowed to seek other appro9 priate employment in the United States for a period not

10 to exceed the maximum period of stay authorized for such

11 nonimmigrant classification.

12 ‘‘(d) ROLE OF ASSOCIATIONS.—

13 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA14 TION.—An employer on whose behalf an application

15 is filed by an association acting as its agent is fully

16 responsible for such application, and for complying

17 with the terms and conditions of sections 218 and

18 218A, as though the employer had filed the applica19 tion itself. If such an employer is determined, under

20 this section, to have committed a violation, the pen21 alty for such violation shall apply only to that mem22 ber of the association unless the Secretary deter23 mines that the association or other member partici24 pated in, had knowledge, or reason to know of the

25 violation, in which case the penalty shall be invoked
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1 against the association or other association member

2 as well.

3 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

4 AS AN EMPLOYER.—If an association filing an appli5 cation as a sole or joint employer is determined to

6 have committed a violation under this section, the

7 penalty for such violation shall apply only to the as8 sociation unless the Secretary determines that an as9 sociation member or members participated in or had

10 knowledge, or reason to know of the violation, in

11 which case the penalty shall be invoked against the

12 association member or members as well.

13 ‘‘DEFINITIONS

14 ‘‘SEC. 218D. For purposes of sections 218 through

15 218C:

16 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term

17 ‘agricultural employment’ means any service or ac18 tivity that is considered to be agricultural under sec19 tion 3(f) of the Fair Labor Standards Act of 1938

20 (29 U.S.C. 203(f)) or agricultural labor under sec21 tion 3121(g) of the Internal Revenue Code of 1986

22 (26 U.S.C. 3121(g)). For purposes of this para23 graph, agricultural employment includes employment

24 under section 101(a)(15)(H)(ii)(a).

25 ‘‘(2) BONA FIDE UNION.—The term ‘bona fide

26 union’ means any organization in which employees
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1 participate and which exists for the purpose of deal2 ing with employers concerning grievances, labor dis3 putes, wages, rates of pay, hours of employment, or

4 other terms and conditions of work for agricultural

5 employees. Such term does not include an organiza6 tion formed, created, administered, supported, domi7 nated, financed, or controlled by an employer or em8 ployer association or its agents or representatives.

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

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

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

12 United States worker from a job if the employer lays

13 off the worker from a job for which the H–2A work14 er or workers is or are sought.

15 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used

16 with respect to an individual, means an individual

17 who is not an unauthorized alien (as defined in sec18 tion 274A(h)(3)).

19 ‘‘(5) EMPLOYER.—The term ‘employer’ means

20 any person or entity, including any farm labor con21 tractor and any agricultural association, that em22 ploys workers in agricultural employment.

23 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em24 ployer’ means an employer who seeks to hire one or
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S 1161 IS1S

1 more nonimmigrant aliens described in section

2 101(a)(15)(H)(ii)(a).

3 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’

4 means a nonimmigrant described in section

5 101(a)(15)(H)(ii)(a).

6 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor7 tunity’ means a job opening for temporary full-time

8 employment at a place in the United States to which

9 United States workers can be referred.

10 ‘‘(9) LAYS OFF.—

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

12 with respect to a worker—

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

14 of employment, other than through a dis15 charge for inadequate performance, viola16 tion of workplace rules, cause, voluntary

17 departure, voluntary retirement, contract

18 impossibility (as described in section

19 218A(b)(4)(D)), or temporary layoffs due

20 to weather, markets, or other temporary

21 conditions; but

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

23 which the worker is offered, as an alter24 native to such loss of employment, a simi25 lar employment opportunity with the same
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1 employer (or, in the case of a placement of

2 a worker with another employer under sec3 tion 218(b)(2)(E), with either employer de4 scribed in such section) at equivalent or

5 higher compensation and benefits than the

6 position from which the employee was dis7 charged, regardless of whether or not the

8 employee accepts the offer.

9 ‘‘(B) STATUTORY CONSTRUCTION.—Noth10 ing in this paragraph is intended to limit an

11 employee’s rights under a collective bargaining

12 agreement or other employment contract.

13 ‘‘(10) PREVAILING WAGE.—The term ‘pre14 vailing wage’ means, with respect to an agricultural

15 occupation in an area of intended employment, the

16 rate of wages that includes the 51st percentile of

17 employees with similar experience and qualifications

18 in the agricultural occupation in the area of in19 tended employment, expressed in terms of the pre20 vailing method of pay for the occupation in the area

21 of intended employment.

22 ‘‘(11) REGULATORY DROUGHT.—The term ‘reg23 ulatory drought’ means a decision subsequent to the

24 filing of the application under section 218 by an en25 tity not under the control of the employer making
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1 such filing which restricts the employer’s access to

2 water for irrigation purposes and reduces or limits

3 the employer’s ability to product an agricultural

4 commodity, thereby reducing the need for labor.

5 ‘‘(12) SEASONAL.—Labor is performed on a

6 ‘seasonal’ basis if—

7 (A) ordinarily, it pertains to or is of the

8 kind exclusively performed at certain seasons or

9 periods of the year; and

10 (B) from its nature, it may not be contin11 uous or carried on throughout the year.

12 ‘‘(13) SECRETARY.—The term ‘Secretary’

13 means the Secretary of Labor.

14 ‘‘(14) TEMPORARY.—A worker is employed on a

15 ‘temporary’ basis where the employment is intended

16 not to exceed 10 months.

17 ‘‘(15) UNITED STATES WORKER.—The term

18 ‘United States worker’ means any worker, whether

19 a United States citizen or national, a lawfully admit20 ted permanent resident alien, or any other alien,

21 who is authorized to work in the job opportunity

22 within the United States, except an alien admitted

23 or otherwise provided status under section

24 101(a)(15)(H)(ii)(a).’’.
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1 (b) TABLE OF CONTENTS.—The table of contents of

2 the Immigration and Nationality Act (8 U.S.C. 1101 et

3 seq.) is amended by striking the item relating to section

4 218 and inserting the following:

‘‘Sec. 218. H–2A employer applications.

‘‘Sec. 218A. H–2A employment requirements.

‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers.

‘‘Sec. 218C. Worker protections and labor standards enforcement.

‘‘Sec. 218D. Definitions.’’.

5 TITLE III—MISCELLANEOUS

6 PROVISIONS

7 SEC. 301. DETERMINATION AND USE OF USER FEES.

8 (a) SCHEDULE OF FEES.—The Secretary shall estab9 lish and periodically adjust a schedule of fees for the em10 ployment of aliens under this division, and a collection

11 process for such fees from employers participating in the

12 program provided under this division. Such fees shall be

13 the only fees chargeable to employers for services provided

14 under this division.

15 (b) DETERMINATION OF SCHEDULE.—

16 (1) IN GENERAL.—The schedule under sub17 section (a) shall reflect a fee rate based on the num18 ber of job opportunities indicated in the employer’s

19 application under section 218 of the Immigration

20 and Nationality Act, as added by section 201 of this

21 division, and sufficient to provide for the direct costs

22 of providing services related to an employer’s au23 thorization to employ eligible aliens pursuant to this
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1 division, to include the certification of eligible em2 ployers, the issuance of documentation, and the ad3 mission of eligible aliens.

4 (2) PROCEDURE.—

5 (A) IN GENERAL.—In establishing and ad6 justing such a schedule, the Secretary shall

7 comply with Federal cost accounting and fee

8 setting standards.

9 (B) PUBLICATION AND COMMENT.—The

10 Secretary shall publish in the Federal Register

11 an initial fee schedule and associated collection

12 process and the cost data or estimates upon

13 which such fee schedule is based, and any sub14 sequent amendments thereto, pursuant to which

15 public comment shall be sought and a final rule

16 issued.

17 (c) USE OF PROCEEDS.—Notwithstanding any other

18 provision of law, all proceeds resulting from the payment

19 of the alien employment user fees shall be available with20 out further appropriation and shall remain available with21 out fiscal year limitation to reimburse the Secretary, the

22 Secretary of State, and the Attorney General for the costs

23 of carrying out section 218 of the Immigration and Na24 tionality Act, as added by section 201 of this division, and

25 the provisions of this division.
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1 SEC. 302. REGULATIONS.

2 (a) REGULATIONS OF THE ATTORNEY GENERAL.—

3 The Attorney General shall consult with the Secretary of

4 Labor and the Secretary of Agriculture on all regulations

5 to implement the duties of the Attorney General under

6 this division.

7 (b) REGULATIONS OF THE SECRETARY OF STATE.—

8 The Secretary of State shall consult with the Attorney

9 General, the Secretary of Labor, and the Secretary of Ag10 riculture on all regulations to implement the duties of the

11 Secretary of State under this division.

12 (c) REGULATIONS OF THE SECRETARY OF LABOR.—

13 The Secretary of Labor shall consult with the Secretary

14 of Agriculture and the Attorney General on all regulations

15 to implement the duties of the Secretary of Labor under

16 this division.

17 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.—

18 All regulations to implement the duties of the Attorney

19 General, the Secretary of State, and the Secretary of

20 Labor under this title and the amendments made by sec21 tions 201 and 301 shall take effect on the effective date

22 of such title and amendments and shall be issued not later

23 than 1 year after the date of the enactment of this Act.

24 SEC. 303. EFFECTIVE DATE.

25 (a) IN GENERAL.—Except as otherwise provided, this

26 title and the amendments made by sections 201 and 301
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1 shall take effect on the date that is 1 year after the date

2 of the enactment of this Act.

3 (b) REPORT.—Not later than 180 days after the date

4 of the enactment of this Act, the Secretary shall prepare

5 and submit to the appropriate committees of the Congress

6 a report that describes the measures being taken and the

7 progress made in implementing this division.

Æ