II

107TH CONGRESS

1ST SESSION S. 1442

To amend the Immigration and Nationality Act to impose a limitation on

the wage that the Secretary of Labor may require an employer to

pay an alien who is an H–2A nonimmigrant agricultural worker.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 20, 2001

Mr. MILLER 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 impose

a limitation on the wage that the Secretary of Labor

may require an employer to pay an alien who is an

H–2A nonimmigrant agricultural worker.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Wage Equity Act of

5 2001’’.
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1 SEC. 2. LIMITATION ON H–2A NONIMMIGRANT WAGE RE2 QUIREMENT.

3 (a) CONDITIONS FOR APPROVAL OF H–2A PETI4 TIONS.—Section 218(a) of the Immigration and Nation5 ality Act (8 U.S.C. 1188(a)) is amended by redesignating

6 paragraph (2) as paragraph (3) and by inserting after

7 paragraph (1) the following new paragraph:

8 ‘‘(2)(A) In making the certification described in para9 graph (1), the Secretary of Labor may not require an em10 ployer to pay workers more than the greater of—

11 ‘‘(i) the prevailing wage for seasonal agricul12 tural workers in the occupation in the area of in13 tended employment, or

14 ‘‘(ii) the greater of the hourly wage described in

15 section 6(a)(1) of the Fair Labor Standards Act of

16 1938 (29 U.S.C. 206(a)(1)), or the applicable State

17 minimum wage.

18 ‘‘(B) In complying with subparagraph (A)(i), an em19 ployer (or the employer’s agent) may request and obtain

20 a prevailing wage determination from the State employ21 ment security agency. An employer who obtains such a

22 determination and pays the wage determined to be pre23 vailing shall be considered to have met the requirement

24 of subparagraph (A)(i).

25 ‘‘(C) In lieu of the procedure described in subpara26 graph (B), an employer may rely on other wage informa-
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1 tion, including a survey of the prevailing wages of workers

2 in the occupation in the area of intended employment that

3 has been conducted or funded by the employer or a group

4 of employers, that meets criteria specified by the Secretary

5 of Labor in regulations.

6 ‘‘(D) If the prevailing wage described in subpara7 graph (A)(i) is an hourly wage, the employer may pay

8 workers in the occupation by an incentive method of pay

9 such as a piece rate, task rate, group incentive rate, or

10 other incentive method, if the average hourly earnings of

11 the employer’s workers paid by such incentive method,

12 taken as a group, are at least equal to the prevailing hour13 ly wage required by subparagraph (A)(i) for the hours

14 worked at the incentive payment method, after making

15 any additions to any worker’s pay required to comply sub16 paragraph (A)(ii).’’.

17 (b) DEFINITIONS.—Section 218(i) of the Immigra18 tion and Nationality Act (8 U.S.C. 1188(i)) is amended

19 by adding at the end the following:

20 ‘‘(3) The term ‘prevailing wage’ means, with re21 spect to an agricultural occupation in an area of in22 tended employment, the rate of wages that includes

23 the 51st percentile of employees with similar experi24 ence and qualifications in the agricultural occupation

25 in the area of intended employment, expressed in
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1 terms of the prevailing method of pay for the occu2 pation in the area of intended employment.’’.

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