II 

109TH CONGRESS 

1ST SESSION S. 2087 

To amend the Immigration and Nationality Act to provide for the employment 

of foreign agricultural workers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 13, 2005 

Mr. CHAMBLISS 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 provide 

for the employment of foreign 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, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Agricultural Employment and Workforce Protection Act 

6 of 2005’’. 

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

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—BORDER SECURITY 
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Sec. 101. Comprehensive plan to control the borders of the United States. 

Sec. 102. Use of Department of Defense equipment for surveillance of international land borders of the United States. 

Sec. 103. Ports of entry. 

Sec. 104. Additional customs and border protection officers. 

Sec. 105. Interior enforcement. 

Sec. 106. Expanding category of inadmissible aliens. 

TITLE II—TEMPORARY H–2A WORKERS 

Sec. 201. Definition. 

Sec. 202. Admission of temporary H–2A workers. 

Sec. 203. Legal assistance from the Legal Services Corporation. 

TITLE III—BLUE CARD PROGRAM 

Sec. 301. Admission of necessary agricultural workers. 

Sec. 302. Effective date. 

1 TITLE I—BORDER SECURITY 

2 SEC. 101. COMPREHENSIVE PLAN TO CONTROL THE BOR3 DERS OF THE UNITED STATES. 

4 (a) IN GENERAL.—The Secretary of Homeland Secu5 rity shall prepare and submit to Congress, at the earliest 

6 practicable date, a comprehensive plan to— 

7 (1) establish operational control of the borders 

8 of the United States; and 

9 (2) effectively enforce the immigration laws of 

10 the United States in the interior of the United 

11 States. 

12 (b) CONTENTS.—The plan described in subsection (a) 

13 shall include— 

14 (1) detailed strategies; 

15 (2) time lines for implementation; and 

16 (3) cost estimates for such activities. 
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1 (c) INTERIM PLAN.—The mandates contained in this 

2 title shall serve as an interim plan until Congress enacts 

3 legislation to implement the comprehensive plan submitted 

4 by the Secretary of Homeland Security under subsection 

5 (a). 

6 SEC. 102. USE OF DEPARTMENT OF DEFENSE EQUIPMENT 

7 FOR SURVEILLANCE OF INTERNATIONAL 

8 LAND BORDERS OF THE UNITED STATES. 

9 (a) AVAILABILITY OF EQUIPMENT.—The Secretary 

10 of Homeland Security, in collaboration with the Secretary 

11 of Defense, shall develop and implement a plan to provide 

12 military support to civilian law enforcement agencies, in13 cluding the use of unmanned aerial vehicles, other surveil14 lance equipment, and other equipment of the Department 

15 of Defense, to assist the surveillance activities of the De16 partment of Homeland Security at and near the inter17 national land borders of the United States. 

18 (b) REPORTS.— 

19 (1) INITIAL REPORT.—Not later than 6 months 

20 after the date of enactment of this Act, the Sec21 retary of Homeland Security and the Secretary of 

22 Defense shall submit a joint report to Congress, 

23 which describes the use of Department of Defense 

24 equipment to assist the surveillance efforts of the 
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1 Department of Homeland Security and to support 

2 the plan developed under subsection (a). 

3 (2) ANNUAL REPORTS.—Not later than 1 year 

4 after the date of enactment of this Act, and annually 

5 thereafter until the Secretary of Homeland Security 

6 can procure the equipment necessary to achieve 

7 operational control of the international land borders 

8 of the United States, the Secretary of Homeland Se9 curity and the Secretary of Defense shall submit 

10 joint reports to Congress that describe— 

11 (A) the types of equipment and other sup12 port utilized for border security; and 

13 (B) the effectiveness of such equipment 

14 and support. 

15 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

16 are authorized to be appropriated such sums as may be 

17 necessary to carry out this section. 

18 SEC. 103. PORTS OF ENTRY. 

19 (a) CONSTRUCTION AUTHORIZED.—The Secretary of 

20 Homeland Security may construct not more than 30 addi21 tional land ports of entry along the northern and southern 

22 international land borders of the United States at loca23 tions to be determined by the Secretary if such construc24 tion will enhance the border security of the United States. 
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1 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as may be 

3 necessary to carry out subsection (a). 

4 SEC. 104. ADDITIONAL CUSTOMS AND BORDER PROTEC5 TION OFFICERS. 

6 In addition to the positions authorized by section 

7 5202 of the Intelligence Reform and Terrorism Prevention 

8 Act of 2004 (Public Law 108–458; 118 Stat. 3734), the 

9 Secretary of Homeland Security shall, for each of the fis10 cal years between fiscal year 2007 and 2011, increase by 

11 no less than 250 the number of positions for full-time ac12 tive duty Customs and Border Protection Officers. 

13 SEC. 105. INTERIOR ENFORCEMENT. 

14 (a) STATE AND LOCAL IMMIGRATION LAW ENFORCE15 MENT.— 

16 (1) IN GENERAL.—Notwithstanding any other 

17 provision of law, appropriately trained law enforce18 ment personnel of a State or a unit of local govern19 ment are authorized to investigate, identify, appre20 hend, arrest, detain, or transfer to Federal custody 

21 aliens in the United States (including the transpor22 tation of such aliens across State lines to detention 

23 centers), for the purpose of assisting in the enforce24 ment of the immigration laws of the United States 
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1 in the normal course of carrying out the law enforce2 ment duties of such personnel. 

3 (2) REIMBURSEMENT OF COSTS.—The Sec4 retary of Homeland Security shall reimburse States 

5 and units of local government for all reasonable 

6 costs incurred by that State or local government to 

7 carry out the activities described in paragraph (1). 

8 (b) FEDERAL CUSTODY OF ILLEGAL ALIENS APPRE9 HENDED BY STATE OR LOCAL LAW ENFORCEMENT.— 

10 Title II of the Immigration and Nationality Act is amend11 ed by adding after section 240C the following: 

12 ‘‘TRANSFER OF ILLEGAL ALIENS FROM STATE TO

13 FEDERAL CUSTODY

14 ‘‘SEC. 240D. (a) IN GENERAL.—If the head of a law 

15 enforcement entity of a State, or a political subdivision 

16 of a State, requests the Secretary of Homeland Security 

17 to take an illegal alien into Federal custody, the Secretary 

18 shall— 

19 ‘‘(1) not later than 72 hours after such request 

20 is received from the State, take such alien into the 

21 custody of the Federal Government and incarcerate 

22 the alien; or 

23 ‘‘(2) request the relevant State or local law en24 forcement agency to temporarily detain or transport 

25 the illegal alien to a location for transfer to Federal 

26 custody. 
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1 ‘‘(b) DESIGNATED INCARCERATION FACILITY.—The 

2 Secretary of Homeland Security shall designate not less 

3 than 1 Federal, State, or local prison or jail or a private 

4 contracted prison or detention facility within each State 

5 as the central facility for that State to transfer custody 

6 of criminal or illegal aliens to the Department of Home7 land Security. 

8 ‘‘(c) REIMBURSEMENT TO STATES AND LOCAL GOV9 ERNMENTS.—The Department of Homeland Security shall 

10 reimburse each State or a political subdivision of a State 

11 for all reasonable expenses incurred by the State or polit12 ical subdivision in the detention and transportation of a 

13 criminal or illegal alien.’’. 

14 (c) IMMIGRATION AND CUSTOMS ENFORCEMENT IN15 VESTIGATIVE PERSONNEL.— 

16 (1) ADDITIONAL POSITIONS AUTHORIZED.—In 

17 addition to the positions authorized by section 5203 

18 of the Intelligence Reform and Terrorism Prevention 

19 Act of 2004 (Public Law 108–458; 118 Stat. 3734), 

20 the Secretary of Homeland Security shall, for each 

21 of fiscal years 2007 through 2011, increase by not 

22 less than 400 the number of investigative personnel 

23 within the Department of Homeland Security re24 sponsible for investigating immigration status viola25 tions. 
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1 (2) AUTHORIZATION OF APPROPRIATIONS.— 

2 There are authorized to be appropriated for each of 

3 fiscal years 2007 through 2011 such sums as may 

4 be necessary to carry out this subsection. 

5 (d) LISTING OF IMMIGRATION VIOLATORS IN THE

6 NATIONAL CRIME INFORMATION CENTER DATABASE.— 

7 (1) IN GENERAL.—Not later than 180 days 

8 after the date of enactment of this Act, the Sec9 retary of Homeland Security shall provide the Na10 tional Crime Information Center of the Federal Bu11 reau of Investigation (referred to in this section as 

12 the ‘‘NCIC’’) with information related to— 

13 (A) any alien against whom a final order 

14 of removal has been issued; 

15 (B) any alien who is subject to a voluntary 

16 departure agreement that has become invalid 

17 under section 240B(a)(2) of the Immigration 

18 and Nationality Act (8 U.S.C. 1229c(a)(2)); 

19 and 

20 (C) any alien whose visa has been revoked. 

21 (2) REQUIREMENT TO PROVIDE AND USE IN22 FORMATION.—The information provided to the 

23 NCIC under paragraph (1) shall be entered into the 

24 Immigration Violators File of the NCIC database if 

25 a name and date of birth are available for the indi-
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1 vidual, regardless of whether the alien received no2 tice of a final order of removal or the alien has al3 ready been removed. 

4 (3) REMOVAL OF INFORMATION.—If an indi5 vidual is granted cancellation of removal under sec6 tion 240A of the Immigration and Nationality Act 

7 (8 U.S.C. 1229b) or is granted permission to legally 

8 enter the United States after a voluntary departure 

9 under section 240B of such Act (8 U.S.C. 1229c), 

10 any information entered into the NCIC database in 

11 accordance with this subsection shall be promptly re12 moved. 

13 (e) INCREASING FEDERAL DETENTION SPACE.— 

14 (1) CONSTRUCTION OR ACQUISITION OF DETEN15 TION FACILITIES.— 

16 (A) IN GENERAL.—In addition to facilities 

17 being used for the detention of aliens as of the 

18 date of enactment of this Act, the Secretary of 

19 Homeland Security shall construct or acquire 

20 20 detention facilities in the United States with 

21 sufficient capacity to detain a combined total of 

22 not less than 200,000 individuals at any time. 

23 Such facilities shall be used for aliens detained 

24 pending removal or a decision on removal of 

25 such aliens from the United States. 
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1 (B) DETERMINATION OF LOCATION.—The 

2 location of each detention facility built or ac3 quired pursuant to this paragraph shall— 

4 (i) be determined by the senior officer 

5 responsible for detention and removal oper6 ations of the Department of Homeland Se7 curity, subject to the approval of the Sec8 retary of Homeland Security; and 

9 (ii) enable the Department to in10 crease, to the maximum extent practicable, 

11 the annual rate and level of removals of il12 legal aliens from the United States. 

13 (C) USE OF INSTALLATIONS UNDER BASE

14 CLOSURE LAWS.—In acquiring detention facili15 ties under this paragraph, the Secretary of 

16 Homeland Security shall consider the transfer 

17 of appropriate portions of military installations 

18 approved for closure or realignment under the 

19 Defense Base Closure and Realignment Act of 

20 1990 (part A of title XXIX of Public Law 101– 

21 510; 10 U.S.C. 2687 note) for use in accord22 ance with subparagraph (A). 

23 (2) TECHNICAL AND CONFORMING AMEND24 MENT.—Section 241(g)(1) of the Immigration and 

25 Nationality Act (8 U.S.C. 1231(g)(1)) is amended 
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1 by striking ‘‘may expend’’ and inserting ‘‘shall ex2 pend’’. 

3 (3) AUTHORIZATION OF APPROPRIATIONS.— 

4 There are authorized to be appropriated such sums 

5 as may be necessary to carry out this section. 

6 SEC. 106. EXPANDING CATEGORY OF INADMISSIBLE 

7 ALIENS. 

8 (a) CRIMINAL STREET GANGS.—Section 212(a)(2) of 

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

10 1182(a)(2)) is amended by adding at the end the fol11 lowing: 

12 ‘‘(J) ALIENS WHO ARE MEMBERS OF

13 CRIMINAL STREET GANGS.—Any alien who is a 

14 member of a criminal street gang (as defined in 

15 section 521(a) of title 18, United States Code) 

16 is inadmissible.’’. 

17 (b) DEPORTING CRIMINAL STREET GANG MEM18 BERS.—Section 237(a)(2) of the Immigration and Nation19 ality Act (8 U.S.C. 1227(a)(2)) is amended by adding at 

20 the end the following: 

21 ‘‘(F) ALIENS WHO ARE MEMBERS OF

22 CRIMINAL STREET GANGS.—Any alien who is a 

23 member of a criminal street gang (as defined in 

24 section 521(a) of title 18, United States Code) 

25 is deportable.’’. 
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1 (c) CRIMINAL ALIENS.—Any alien convicted of a fel2 ony or a misdemeanor in the United States is ineligible 

3 to receive a visa and ineligible to be admitted to the United 

4 States. 

5 TITLE II—TEMPORARY H–2A 

6 WORKERS 

7 SEC. 201. DEFINITION. 

8 Section 101(a)(15)(H)(ii)(a) of the Immigration and 

9 Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is 

10 amended— 

11 (1) by striking ‘‘and including agricultural labor 

12 defined in section 3121(g) of the Internal Revenue 

13 Code of 1954’’ and inserting ‘‘, which shall include 

14 labor and services relating to commodities, livestock, 

15 dairy, forestry, landscaping, fishing, and the proc16 essing of meat, poultry, and fish, and agricultural 

17 labor (as defined in section 3121(g) of the Internal 

18 Revenue Code of 1986),’’; and 

19 (2) by striking ‘‘, of a temporary or seasonal 

20 nature’’. 

21 SEC. 202. ADMISSION OF TEMPORARY H–2A WORKERS. 

22 (a) PROCEDURE FOR ADMISSION.— 

23 (1) IN GENERAL.—Section 218 of the Immigra24 tion and Nationality Act (8 U.S.C. 1188) is amend25 ed to read as follows: 
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1 ‘‘ADMISSION OF TEMPORARY H–2A WORKERS

2 ‘‘SEC. 218. (a) DEFINITIONS.—In this section and 

3 section 218A: 

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

5 of employment’ means the area within normal com6 muting distance of the work site or physical location 

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

8 performed. If such work site or location is within a 

9 Metropolitan Statistical Area, any place within such 

10 area shall be considered to be within the area of em11 ployment. 

12 ‘‘(2) DISPLACE.—In the case of a petition with 

13 respect to an H–2A worker filed by an employer, the 

14 employer ‘displaces’ a United States worker from a 

15 job if the employer lays off the worker from a job 

16 that is essentially equivalent to the job for which the 

17 H-2A worker is sought. A job shall not be consid18 ered to be essentially equivalent to another job un19 less the job— 

20 ‘‘(A) involves essentially the same respon21 sibilities as the other job; 

22 ‘‘(B) was held by a United States worker 

23 with substantially equivalent qualifications and 

24 experience; and 
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1 ‘‘(C) is located in the same area of employ2 ment as the other job. 

3 ‘‘(3) ELIGIBLE INDIVIDUAL.—The term ‘eligible 

4 individual’ means an individual who is not an unau5 thorized alien (as defined in section 274A(h)(3)) 

6 with respect to the employment of the individual. 

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

8 an employer who hires workers to perform agricul9 tural employment. 

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

11 means a nonimmigrant described in section 

12 101(a)(15)(H)(ii)(a). 

13 ‘‘(6) LAY OFF.— 

14 ‘‘(A) IN GENERAL.—The term ‘lay off’— 

15 ‘‘(i) means to cause a worker’s loss of 

16 employment, other than through a dis17 charge for inadequate performance, viola18 tion of workplace rules, cause, voluntary 

19 departure, voluntary retirement, or the ex20 piration of a grant or contract (other than 

21 a temporary employment contract entered 

22 into in order to evade a condition described 

23 in paragraph (3) or (7) of subsection (b)); 

24 and 
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1 ‘‘(ii) does not include any situation in 

2 which the worker is offered, as an alter3 native to such loss of employment, a simi4 lar employment opportunity with the same 

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

6 a worker with another employer under sub7 section (h)(2), with either employer de8 scribed in such subsection) at equivalent or 

9 higher compensation and benefits than the 

10 position from which the employee was dis11 charged, regardless of whether or not the 

12 employee accepts the offer. 

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

14 paragraph is intended to limit an employee’s 

15 rights under a collective bargaining agreement 

16 or other employment contract. 

17 ‘‘(7) LEVEL II H–2A WORKER.—The term ‘Level 

18 II H–2A worker’ means a nonimmigrant described 

19 in section 101(a)(15)(H)(ii)(a) who— 

20 ‘‘(A) has been employed as an H–2A work21 er for at least 3 years; 

22 ‘‘(B) has not violated a material term or 

23 condition of employment as an H–2A worker; 

24 ‘‘(C) works in a supervisory capacity; and 
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1 ‘‘(D) meets minimum skill levels in the oc2 cupation in which they are employed, as deter3 mined, by regulation, by the Secretary of 

4 Labor, based on surveys conducted by State 

5 workforce agencies. 

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

7 wage’ means the wage rate that includes the 51st 

8 percentile of employees with similar experience and 

9 qualifications in the agricultural occupation in the 

10 area of intended employment, expressed in terms of 

11 the prevailing method of pay for the occupation in 

12 the area of intended employment. 

13 ‘‘(9) UNITED STATES WORKER.—The term 

14 ‘United States worker’ means any worker who is a 

15 national of the United States, an alien lawfully ad16 mitted for permanent residence, and any other alien 

17 authorized to work in the relevant job opportunity 

18 within the United States, except— 

19 ‘‘(A) an alien admitted or otherwise pro20 vided status under section 101(a)(15)(H)(ii)(a); 

21 and 

22 ‘‘(B) an alien provided blue card status 

23 under section 218B. 

24 ‘‘(b) APPLICATION.—An alien may not be admitted 

25 as an H–2A worker unless the employer has filed with the 
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1 Secretary of Homeland Security a petition attesting to the 

2 following: 

3 ‘‘(1) TEMPORARY WORK OR SERVICES.— 

4 ‘‘(A) IN GENERAL.—The employer is seek5 ing to employ a specific number of agricultural 

6 workers on a temporary basis and will provide 

7 compensation to such workers at a specified 

8 wage rate and under specified conditions. 

9 ‘‘(B) SKILLED WORKERS.—If the worker is 

10 a Level II H–2A worker, the employer will re11 cruit the worker separately and the attestation 

12 will delineate separate wage rate and conditions 

13 of employment for such worker. 

14 ‘‘(C) DEFINITION.—For purposes of this 

15 paragraph, a worker is employed on a tem16 porary basis if the employer intends to employ 

17 the worker for an 11–month contract period. 

18 ‘‘(2) BENEFITS, WAGES, AND WORKING CONDI19 TIONS.—The employer will provide, at a minimum, 

20 the benefits, wages, and working conditions required 

21 by subsection (k) to all workers employed in the jobs 

22 for which the H–2A worker is sought and to all 

23 other temporary workers in the same occupation at 

24 the place of employment. 
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1 ‘‘(3) NONDISPLACEMENT OF UNITED STATES

2 WORKERS.—The employer did not displace and will 

3 not displace a United States worker employed by the 

4 employer during the period of employment of the H– 

5 2A worker and during the 30-day period imme6 diately preceding such period of employment in the 

7 occupation at the place of employment for which the 

8 employer seeks approval to employ H–2A workers. 

9 ‘‘(4) RECRUITMENT.— 

10 ‘‘(A) IN GENERAL.—The employer— 

11 ‘‘(i) conducted adequate recruitment 

12 in the area of employment before filing the 

13 attestation; and 

14 ‘‘(ii) was unsuccessful in locating a 

15 qualified United States worker for the job 

16 opportunity for which the H–2A worker is 

17 sought. 

18 ‘‘(B) OTHER REQUIREMENTS.—The ade19 quate recruitment requirement under subpara20 graph (A) is satisfied if the employer places— 

21 ‘‘(i) a job order with the America’s 

22 Job Bank Program of the Department of 

23 Labor; and 

24 ‘‘(ii) a Sunday advertisement in a 

25 newspaper of general circulation that is 
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1 likely to be patronized by a potential work2 er in the area of intended employment. 

3 ‘‘(C) ADVERTISEMENT REQUIREMENT.— 

4 The advertisement requirement under subpara5 graph (B)(ii) is satisfied if the advertisement— 

6 ‘‘(i) names the employer; 

7 ‘‘(ii) directs applicants to report or 

8 send resumes, as appropriate for the occu9 pation, to the employer; 

10 ‘‘(iii) provides a description of the va11 cancy that is specific enough to apprise 

12 United States workers of the job oppor13 tunity for which certification is sought; 

14 ‘‘(iv) describes the geographic area 

15 with enough specificity to apprise appli16 cants of any travel requirements and where 

17 applicants will likely have to reside to per18 form the job; 

19 ‘‘(v) states the rate of pay, which 

20 shall not be less than the wage paid for the 

21 occupation in the area of intended employ22 ment; and 

23 ‘‘(vi) offers wages, terms, and condi24 tions of employment, which are at least as 

25 favorable to those offered to the alien. 
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1 ‘‘(D) END OF RECRUITMENT REQUIRE2 MENT.—The requirement to recruit United 

3 States workers shall terminate on the first day 

4 of the contract period that work begins. 

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

6 The employer has offered or will offer the job for 

7 which the nonimmigrant is sought to any eligible 

8 United States worker who— 

9 ‘‘(A) applies; 

10 ‘‘(B) is at least as qualified for the job as 

11 the nonimmigrant; and 

12 ‘‘(C) will be available at the time and place 

13 of need. 

14 ‘‘(6) PROVISION OF INSURANCE.—If the job for 

15 which the H–2A worker is sought is not covered by 

16 State workers’ compensation law, the employer will 

17 provide, at no cost to the worker, insurance covering 

18 injury and disease arising out of, and in the course 

19 of, the worker’s employment, which will provide ben20 efits at least equal to those provided under the State 

21 workers’ compensation law for comparable employ22 ment. 

23 ‘‘(7) STRIKE OR LOCKOUT.—There is not a 

24 strike or lockout in the course of a labor dispute 

25 which, under regulations promulgated by the Sec-
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1 retary of Labor, precludes the hiring of H–2A work2 ers. 

3 ‘‘(8) PREVIOUS VIOLATIONS.—The employer 

4 has not, during the previous 5-year period, employed 

5 H–2A workers and knowingly violated a material 

6 term or condition of approval with respect to the 

7 employment of domestic or nonimmigrant workers, 

8 as determined by the Secretary of Labor after notice 

9 and opportunity for a hearing. 

10 ‘‘(c) PUBLIC EXAMINATION.—Not later than 1 work11 ing day after the date on which a petition under this sec12 tion is filed, the employer shall make a copy of each such 

13 petition (and any necessary accompanying documents) 

14 available for public examination, at the employer’s prin15 cipal place of business or worksite. 

16 ‘‘(d) LIST.— 

17 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

18 Security shall maintain a list of the petitions filed 

19 under subsection (b), which shall— 

20 ‘‘(A) be sorted by employer; and 

21 ‘‘(B) include the number of H–2A workers 

22 sought, the wage rate, the period of intended 

23 employment, and the date of need for each 

24 alien. 
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1 ‘‘(2) AVAILABILITY.—The Secretary of Home2 land Security shall, at least monthly, submit a copy 

3 of the list described in paragraph (1) to the Sec4 retary of Labor, who shall make the list available for 

5 public examination. 

6 ‘‘(e) PETITIONING FOR ADMISSION.— 

7 ‘‘(1) IN GENERAL.—An employer, or an asso8 ciation acting as an agent or joint employer for its 

9 members, that seeks the admission into the United 

10 States of an H–2A worker shall file with the Sec11 retary of Homeland Security a petition that includes 

12 the attestations described in subsection (b). 

13 ‘‘(2) CONSIDERATION OF PETITIONS.—For each 

14 petition filed and considered under this subsection— 

15 ‘‘(A) the Secretary of Homeland Security 

16 may not require such petition to be filed more 

17 than 28 days before the first date the employer 

18 requires the labor or services of the H–2A 

19 worker; and 

20 ‘‘(B) unless the Secretary of Homeland Se21 curity determines that the petition is incomplete 

22 or obviously inaccurate, the Secretary, not later 

23 than 7 days after the date on which such peti24 tion was filed, shall either approve or deny the 

25 petition. 
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1 ‘‘(3) EXPEDITED ADJUDICATION.—The Sec2 retary of Homeland Security shall— 

3 ‘‘(A) establish a procedure for expedited 

4 adjudication of petitions filed under this sub5 section; and 

6 ‘‘(B) not later than 7 working days after 

7 such filing, transmit, by fax, cable, or other 

8 means assuring expedited delivery, a copy of no9 tice of action on the petition— 

10 ‘‘(i) in the case of approved petitions, 

11 to the petitioner, the Secretary of Labor, 

12 and to the appropriate immigration officer 

13 at the port of entry or United States con14 sulate where the petitioner has indicated 

15 that the alien beneficiary or beneficiaries 

16 will apply for a visa or admission to the 

17 United States; 

18 ‘‘(ii) in the case of denied petitions, to 

19 the petitioner, including reasons for the de20 nial and instructions on how to appeal 

21 such denial. 

22 ‘‘(4) PETITION AGREEMENTS.—By filing an H– 

23 2A petition, a petitioner and each employer consents 

24 to allow access to the site where the labor is being 
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1 performed for the purpose of determining compli2 ance with H–2A requirements. 

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

4 ‘‘(1) PERMITTING FILING BY AGRICULTURAL

5 ASSOCIATIONS.—A petition to hire an alien as a 

6 temporary agricultural worker may be filed by an as7 sociation of agricultural employers which use agri8 cultural services. 

9 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

10 EMPLOYERS.—If an association is a joint or sole em11 ployer of temporary agricultural workers, such work12 ers may be transferred among its members to per13 form agricultural services of a temporary nature for 

14 which the petition was approved. 

15 ‘‘(3) STATEMENT OF LIABILITY.—The petition 

16 shall include a clear statement explaining the liabil17 ity under this section of an employer who places an 

18 H–2A worker with another employer authorized to 

19 employ H–2A workers if the other employer dis20 places a United States worker in violation of this 

21 section. 

22 ‘‘(4) TREATMENT OF VIOLATIONS.— 

23 ‘‘(A) INDIVIDUAL MEMBER.—If an indi24 vidual member of a joint employer association 

25 violates any condition for approval with respect 
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1 to the member’s petition, the Secretary of 

2 Homeland Security shall deny such petition 

3 only with respect to that member of the associa4 tion unless the Secretary of Labor determines 

5 that the association or other member partici6 pated in, had knowledge of, or had reason to 

7 know of the violation. 

8 ‘‘(B) ASSOCIATION OF AGRICULTURAL EM9 PLOYERS.— 

10 ‘‘(i) JOINT EMPLOYER.—If an associa11 tion representing agricultural employers as 

12 a joint employer violates any condition for 

13 approval with respect to the association’s 

14 petition, the Secretary of Homeland Secu15 rity shall deny such petition only with re16 spect to the association and may not apply 

17 the denial to any individual member of the 

18 association, unless the Secretary of Labor 

19 determines that the member participated 

20 in, had knowledge of, or had reason to 

21 know of the violation. 

22 ‘‘(ii) SOLE EMPLOYER.—If an associa23 tion of agricultural employers approved as 

24 a sole employer violates any condition for 

25 approval with respect to the association’s 
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1 petition, no individual member of such as2 sociation may be the beneficiary of the 

3 services of temporary alien agricultural 

4 workers admitted under this section in the 

5 occupation in which such aliens were em6 ployed by the association which was denied 

7 approval during the period such denial is 

8 in force, unless such member employs such 

9 aliens in the occupation in question di10 rectly or through an association which is a 

11 joint employer of such workers with the 

12 member. 

13 ‘‘(g) EXPEDITED ADMINISTRATIVE APPEALS.—The 

14 Secretary of Homeland Security shall issue regulations to 

15 provide for an expedited procedure— 

16 ‘‘(1) for the review of a denial of a petition 

17 under this section by the Secretary; or 

18 ‘‘(2) at the applicant’s request, for a de novo 

19 administrative hearing respecting the denial. 

20 ‘‘(h) MISCELLANEOUS PROVISIONS.— 

21 ‘‘(1) REQUIREMENTS FOR PLACEMENT OF H–2A

22 WORKERS WITH OTHER EMPLOYERS.—A non23 immigrant who is admitted into the United States as 

24 an H–2A worker may be transferred to another em25 ployer that has attested to the Secretary of Home-
27 

•S 2087 IS

1 land Security that the employer has filed a petition 

2 under this section and is in compliance with this sec3 tion. The Secretary of Homeland Security and the 

4 Secretary of State shall issue regulations to establish 

5 a process for the approval and reissuance of visas 

6 for transferred H–2A workers, as necessary. 

7 ‘‘(2) ENDORSEMENT OF DOCUMENTS.—The 

8 Secretary of Homeland Security shall provide for the 

9 endorsement of entry and exit documents of H–2A 

10 workers as may be necessary to carry out this sec11 tion and to provide notice for purposes of section 

12 274A. 

13 ‘‘(3) PREEMPTION OF STATE LAWS.—The pro14 visions of subsection (a) and (c) of section 214 and 

15 the provisions of this section preempt any State or 

16 local law regulating admissibility of nonimmigrant 

17 workers. 

18 ‘‘(4) FEES.— 

19 ‘‘(A) IN GENERAL.—The Secretary of 

20 Homeland Security may require, as a condition 

21 of approving the petition, the payment of a fee, 

22 in accordance with subparagraph (B), to re23 cover the reasonable cost of processing peti24 tions. 

25 ‘‘(B) FEE BY TYPE OF EMPLOYEE.— 
28 

•S 2087 IS

1 ‘‘(i) SINGLE EMPLOYER.—An em2 ployer whose petition for temporary alien 

3 agricultural workers is approved shall, for 

4 each approved petition, pay a fee that— 

5 ‘‘(I) subject to subclause (II), is 

6 equal to $100 plus $10 for each ap7 proved H–2A worker; and 

8 ‘‘(II) does not exceed $1,000. 

9 ‘‘(ii) ASSOCIATION.—Each employer10 member of a joint employer association 

11 whose petition for temporary agricultural 

12 aliens is approved shall, for each such ap13 proved petition, pay a fee that— 

14 ‘‘(I) subject to subclause (II), is 

15 equal to $100 plus $10 for each ap16 proved H–2A worker; and 

17 ‘‘(II) does not exceed $1,000. 

18 ‘‘(iii) LIMITATION ON ASSOCIATION

19 FEES.—A joint employer association under 

20 clause (ii) shall not be charged a separate 

21 fee. 

22 ‘‘(C) METHOD OF PAYMENT.—The fees 

23 collected under this paragraph shall be paid by 

24 check or money order to the Department of 

25 Homeland Security. In the case of employers of 
29 

•S 2087 IS

1 H–2A workers that are members of a joint em2 ployer association applying on their behalf, the 

3 aggregate fees for all employers of H–2A work4 ers under the petition may be paid by 1 check 

5 or money order. 

6 ‘‘(D) INCREASE IN FEES.—For calendar 

7 year 2007 and each subsequent calendar year, 

8 the dollar amounts in subparagraph (B) may be 

9 increased by an amount equal to— 

10 ‘‘(i) such dollar amount; multiplied by 

11 ‘‘(ii) the percentage by which the av12 erage of the Consumer Price Index for all 

13 urban consumers (United States city aver14 age) for the 12-month period ending with 

15 August of the preceding calendar year ex16 ceeds such average for the 12-month pe17 riod ending with August 2005. 

18 ‘‘(5) EMPLOYMENT VERIFICATION PROGRAM.— 

19 ‘‘(A) IN GENERAL.—Not later than 12 

20 months after the date of enactment of this 

21 paragraph, the Secretary of Homeland Security 

22 shall establish a mandatory employment 

23 verification program for all employers of H–2A 

24 workers to verify the eligibility of all individuals 

25 hired by each such employer, including those 
30 

•S 2087 IS

1 who present an H–2A visa to work in the 

2 United States. 

3 ‘‘(B) EMPLOYER COMPLIANCE.—Each em4 ployer of an H–2A worker shall comply with the 

5 requirements promulgated by the Secretary of 

6 Homeland Security to verify the identity and 

7 employment eligibility of all individuals hired. 

8 ‘‘(C) REGULATIONS.—In carrying out the 

9 program under this paragraph, the Secretary of 

10 Homeland Security shall promulgate regulations 

11 to require each employer to verify the employ12 ment eligibility of each employee hired 

13 through— 

14 ‘‘(i) a secure Internet site; 

15 ‘‘(ii) a machine capable of reading the 

16 H–2A visa, which shall serve as the identi17 fication and employment eligibility docu18 ment for each H–2A alien; or 

19 ‘‘(iii) a toll-free telephone number to 

20 check the accuracy of any social security 

21 number presented to the employer. 

22 ‘‘(6) EMPLOYER-BASED APPLICATION FOR PER23 MANENT RESIDENCE.— 

24 ‘‘(A) IN GENERAL.—The employer of a 

25 Level II H–2A worker who has been employed 
31 

•S 2087 IS

1 in such status for not less than 5 years may file 

2 an application for an employment-based adjust3 ment of status under section 245(k) for such 

4 worker. 

5 ‘‘(B) EFFECT OF APPLICATION.—A Level 

6 II H–2A worker for whom an application is 

7 filed under subparagraph (A) may continue to 

8 be employed in such status until— 

9 ‘‘(i) such application has been adju10 dicated; or 

11 ‘‘(ii) such worker has violated any 

12 provision of this section. 

13 ‘‘(i) FAILURE TO MEET CONDITIONS.— 

14 ‘‘(1) IN GENERAL.—The Secretary of Labor 

15 shall be responsible for conducting investigations 

16 and random audits of employer work sites to ensure 

17 compliance with the requirements of the H–2A pro18 gram and all other requirements under this Act. All 

19 monetary fines levied against violating employers 

20 shall be paid to the Department of Labor and used 

21 to enhance the Department of Labor’s investigatory 

22 and auditing power. 

23 ‘‘(2) PENALTIES FOR FAILURE TO MEET CONDI24 TIONS.—If the Secretary of Labor finds, after notice 

25 and opportunity for a hearing, a failure to meet any 
32 

•S 2087 IS

1 condition under subsection (b), or a material mis2 representation of fact in a petition under subsection 

3 (b)— 

4 ‘‘(A) the Secretary of Labor— 

5 ‘‘(i) shall notify the Secretary of 

6 Homeland Security of such finding; and 

7 ‘‘(ii) may impose such other adminis8 trative remedies, including civil money pen9 alties in an amount not to exceed $1,000 

10 per violation, as the Secretary of Labor de11 termines to be appropriate; and 

12 ‘‘(B) the Secretary of Homeland Security 

13 may disqualify the employer from the employ14 ment of H–2A workers for a period of 1 year. 

15 ‘‘(3) PENALTIES FOR WILLFUL FAILURE.—If 

16 the Secretary of Labor finds, after notice and oppor17 tunity for a hearing, a willful failure to meet a mate18 rial condition of subsection (b) or a willful misrepre19 sentation of a material fact in a petition under sub20 section (b)— 

21 ‘‘(A) the Secretary of Labor— 

22 ‘‘(i) shall notify the Secretary of 

23 Homeland Security of such finding; and 

24 ‘‘(ii) may impose such other adminis25 trative remedies, including civil money pen-
33 

•S 2087 IS

1 alties in an amount not to exceed $5,000 

2 per violation, as the Secretary of Labor de3 termines to be appropriate; and 

4 ‘‘(B) the Secretary of Homeland Security 

5 may— 

6 ‘‘(i) disqualify the employer from the 

7 employment of H–2A workers for a period 

8 of 2 years; 

9 ‘‘(ii) for a second violation, disqualify 

10 the employer from the employment of H– 

11 2A workers for a period of 5 years; and 

12 ‘‘(iii) for a third violation, perma13 nently disqualify the employer from the 

14 employment of H–2A workers. 

15 ‘‘(4) PENALTIES FOR DISPLACEMENT OF

16 UNITED STATES WORKERS.—If the Secretary of 

17 Labor finds, after notice and opportunity for a hear18 ing, a willful failure to meet a material condition of 

19 subsection (b) or a willful misrepresentation of a 

20 material fact in a petition under subsection (b), in 

21 the course of which failure or misrepresentation the 

22 employer displaced a United States worker employed 

23 by the employer during the period of employment on 

24 the employer’s petition under subsection (b), or dur-
34 

•S 2087 IS

1 ing the period of 30 days preceding such period of 

2 employment— 

3 ‘‘(A) the Secretary of Labor— 

4 ‘‘(i) shall notify the Secretary of 

5 Homeland Security of such finding; and 

6 ‘‘(ii) may impose such other adminis7 trative remedies, including civil money pen8 alties in an amount not to exceed $15,000 

9 per violation, as the Secretary of Labor de10 termines to be appropriate; and 

11 ‘‘(B) the Secretary of Homeland Security 

12 may— 

13 ‘‘(i) disqualify the employer from the 

14 employment of H–2A workers for a period 

15 of 5 years; and 

16 ‘‘(ii) for a second violation, perma17 nently disqualify the employer from the 

18 employment of H–2A workers. 

19 ‘‘(5) LIMITATIONS ON CIVIL MONEY PEN20 ALTIES.—The Secretary of Labor may not impose 

21 total civil money penalties with respect to a petition 

22 under subsection (b) in excess of $90,000. 

23 ‘‘(j) FAILURE TO PAY WAGES OR REQUIRED BENE24 FITS.— 
35 

•S 2087 IS

1 ‘‘(1) IN GENERAL.—The Secretary of Labor 

2 shall be responsible for conducting investigations 

3 and random audits of employer work sites to ensure 

4 compliance with the requirements of the H–2A pro5 gram. 

6 ‘‘(2) ASSESSMENT.—If the Secretary of Labor 

7 finds, after notice and opportunity for a hearing, 

8 that the employer has failed to pay the wages or 

9 provide the housing allowance, transportation, sub10 sistence reimbursement, or guarantee of employment 

11 attested by the employer under subsection (b)(2), 

12 the Secretary of Labor shall assess payment of back 

13 wages, or other required benefits, due any United 

14 States worker or H–2A worker employed by the em15 ployer in the specific employment in question. 

16 ‘‘(3) AMOUNT.—The back wages or other re17 quired benefits described in paragraph (2)— 

18 ‘‘(A) shall be equal to the difference be19 tween the amount that should have been paid 

20 and the amount that was paid to such worker; 

21 and 

22 ‘‘(B) shall be distributed to the worker to 

23 whom such wages are due. 

24 ‘‘(k) MINIMUM WAGES, BENEFITS, AND WORKING

25 CONDITIONS.— 
36 

•S 2087 IS

1 ‘‘(1) PREFERENTIAL TREATMENT OF ALIENS

2 PROHIBITED.— 

3 ‘‘(A) IN GENERAL.—Each employer seek4 ing to hire United States workers shall offer 

5 such workers not less than the same benefits, 

6 wages, and working conditions that the em7 ployer is offering, intends to offer, or will pro8 vide to H–2A workers. No job offer may impose 

9 on United States workers any restrictions or 

10 obligations which will not be imposed on the 

11 employer’s H–2A workers. The benefits, wages, 

12 and other terms and conditions of employment 

13 described in this subsection shall be provided in 

14 connection with employment under this section. 

15 ‘‘(B) INTERPRETATION.—Every interpreta16 tion and determination made under this section 

17 or under any other law, regulation, or interpre18 tative provision regarding the nature, scope, 

19 and timing of the provision of these and any 

20 other benefits, wages, and other terms and con21 ditions of employment shall be made so that— 

22 ‘‘(i) the services of workers to their 

23 employers and the employment opportuni24 ties afforded to workers by the employers, 

25 including those employment opportunities 
37 

•S 2087 IS

1 that require United States workers or H– 

2 2A workers to travel or relocate in order to 

3 accept or perform employment— 

4 ‘‘(I) mutually benefit such work5 ers, as well as their families, and em6 ployers; and 

7 ‘‘(II) principally benefit neither 

8 employer nor employee; and 

9 ‘‘(ii) employment opportunities within 

10 the United States benefit the United 

11 States economy. 

12 ‘‘(2) REQUIRED WAGES.— 

13 ‘‘(A) IN GENERAL.—Each employer apply14 ing for workers under subsection (b) shall pay 

15 not less than the greater of— 

16 ‘‘(i) the prevailing wage to all workers 

17 in the occupation for which the employer 

18 has applied for workers; or 

19 ‘‘(ii) the applicable State minimum 

20 wage. 

21 ‘‘(B) WAGES FOR LEVEL II H–2A WORK22 ERS.—Each employer applying for Level II H– 

23 2A workers under subsection (b) shall pay such 

24 workers not less than the prevailing wage, as 

25 determined by the Secretary of Labor. 
38 

•S 2087 IS

1 ‘‘(C) DETERMINATION OF WAGES.—An 

2 employer seeking to comply with subparagraph 

3 (A) may— 

4 ‘‘(i) request and obtain a prevailing 

5 wage determination from the State employ6 ment agency; or 

7 ‘‘(ii) rely on other wage information, 

8 including a survey of the prevailing wages 

9 of workers in the occupation in the area of 

10 employment that has been conducted or 

11 funded by the employer or a group of em12 ployers, using the methodology used by the 

13 Secretary of Labor to establish Occupa14 tional Employment and Wage estimate, 

15 and any other criteria specified in regula16 tions issued by the Secretary of Labor. 

17 ‘‘(D) COMPLIANCE.—An employer shall be 

18 considered to have complied with the require19 ment under subparagraph (A) if the employer— 

20 ‘‘(i)(I) obtains a prevailing wage de21 termination under subparagraph (C)(i); or 

22 ‘‘(II) relies on a qualifying survey of 

23 prevailing wages; and 

24 ‘‘(ii) pays such prevailing wage. 

25 ‘‘(3) HOUSING REQUIREMENT.— 
39 

•S 2087 IS

1 ‘‘(A) IN GENERAL.—Except as provided 

2 under subparagraph (F), each employer apply3 ing for workers under subsection (b) shall offer 

4 to provide housing at no cost to— 

5 ‘‘(i) all workers in job opportunities 

6 for which the employer has applied under 

7 subsection (b); and 

8 ‘‘(ii) all other workers in the same oc9 cupation at the same place of employment, 

10 whose place of residence is beyond normal 

11 commuting distance. 

12 ‘‘(B) COMPLIANCE.—An employer meets 

13 the requirement under subparagraph (A) if the 

14 employer— 

15 ‘‘(i) provides the workers with housing 

16 that meets applicable Federal standards 

17 for temporary labor camps; or 

18 ‘‘(ii) secures housing for the workers 

19 that— 

20 ‘‘(I) meets applicable local stand21 ards for rental or public accommoda22 tion housing, or other substantially 

23 similar class of habitation; or 

24 ‘‘(II) in the absence of applicable 

25 local standards, meets State stand-
40 

•S 2087 IS

1 ards for rental or public accommoda2 tion housing or other substantially 

3 similar class of habitation. 

4 ‘‘(C) INSPECTION.—The employer may re5 quest a certificate of inspection by an approved 

6 Federal or State agency to the Secretary of 

7 Labor not later than 28 days before a worker 

8 is scheduled to occupy housing described in sub9 paragraph (B). Such an inspection, and any 

10 necessary follow up, including at least 1 follow 

11 up visit, shall be performed by the Wage and 

12 Hour Division of the Department of Labor in 

13 a timely manner not later than 28 days after 

14 such a request. 

15 ‘‘(D) RULEMAKING.—The Secretary of 

16 Labor shall issue regulations that address the 

17 specific requirements for the provision of hous18 ing to workers engaged in the range production 

19 of livestock. 

20 ‘‘(E) CONSTRUCTION.—Nothing in this 

21 paragraph shall be construed to require an em22 ployer to provide or secure housing for persons 

23 who were not entitled to such housing under the 

24 temporary labor certification regulations in ef25 fect on June 1, 1986. 
41 

•S 2087 IS

1 ‘‘(F) HOUSING ALLOWANCE.— 

2 ‘‘(i) AUTHORITY.—If the Governor of 

3 a State certifies to the Secretary of Labor 

4 that there is adequate housing available in 

5 the area of intended employment for mi6 grant farm workers, and H–2A workers, 

7 who are seeking temporary housing while 

8 employed in agricultural work, an employer 

9 in such State may, in lieu of offering hous10 ing pursuant to subparagraph (A), provide 

11 a reasonable housing allowance. An em12 ployer who provides a housing allowance to 

13 a worker shall not be required to reserve 

14 housing accommodations for the worker. 

15 ‘‘(ii) ASSISTANCE IN LOCATING HOUS16 ING.—Upon the request of a worker seek17 ing assistance in locating housing, an em18 ployer providing a housing allowance under 

19 clause (i) shall make a good faith effort to 

20 assist the worker in identifying and locat21 ing housing in the area of intended em22 ployment. 

23 ‘‘(iii) LIMITATION.—A housing allow24 ance may not be used for housing that is 

25 owned or controlled by the employer. An 
42 

•S 2087 IS

1 employer who offers a housing allowance to 

2 a worker, or assists a worker in locating 

3 housing which the worker occupies, pursu4 ant to this clause shall not be deemed a 

5 housing provider under section 203 of the 

6 Migrant and Seasonal Agricultural Worker 

7 Protect Act (29 U.S.C. 1823) solely by vir8 tue of providing such housing allowance. 

9 ‘‘(iv) OTHER REQUIREMENTS.— 

10 ‘‘(I) NONMETROPOLITAN COUN11 TY.—If the place of employment of 

12 the workers provided an allowance 

13 under this subparagraph is a non14 metropolitan county, the amount of 

15 the housing allowance under this sub16 paragraph shall be equal to the state17 wide average fair market rental for 

18 existing housing for nonmetropolitan 

19 counties for the State, as established 

20 by the Secretary of Housing and 

21 Urban Development pursuant to sec22 tion 8(c) of the United States Hous23 ing Act of 1937 (42 U.S.C. 1437f(c)), 

24 based on a 2-bedroom dwelling unit 
43 

•S 2087 IS

1 and an assumption of 2 persons per 

2 bedroom. 

3 ‘‘(II) METROPOLITAN COUNTY.— 

4 If the place of employment of the 

5 workers provided an allowance under 

6 this subparagraph is in a metropolitan 

7 county, the amount of the housing al8 lowance under this subparagraph shall 

9 be equal to the statewide average fair 

10 market rental for existing housing for 

11 metropolitan counties for the State, as 

12 established by the Secretary of Hous13 ing and Urban Development pursuant 

14 to section 8(c) of the United States 

15 Housing Act of 1937 (42 U.S.C. 

16 1437f(c)), based on a 2-bedroom 

17 dwelling unit and an assumption of 2 

18 persons per bedroom. 

19 ‘‘(v) INFORMATION.—If the employer 

20 provides a housing allowance to H–2A em21 ployees, the employer shall provide a list to 

22 the Secretary of Homeland Security and 

23 the Secretary of Labor of the names and 

24 local addresses of such workers. 
44 

•S 2087 IS

1 ‘‘(4) REIMBURSEMENT OF TRANSPORTATION

2 COSTS.— 

3 ‘‘(A) REQUIREMENT FOR REIMBURSE4 MENT.—A worker who completes 50 percent of 

5 the period of employment of the job for which 

6 the worker was hired, beginning on the first 

7 day of such employment, shall be reimbursed by 

8 the employer for the cost of the worker’s trans9 portation and subsistence from— 

10 ‘‘(i) the place from which the worker 

11 was approved to enter the United States to 

12 the location at which the work for the em13 ployer is performed; or 

14 ‘‘(ii) if the worker traveled from a 

15 place in the United States at which the 

16 worker was last employed, from such place 

17 of last employment to the location at which 

18 the work for the employer is performed. 

19 ‘‘(B) TIMING OF REIMBURSEMENT.—Reim20 bursement to the worker of expenses for the 

21 cost of the worker’s transportation and subsist22 ence to the place of employment under subpara23 graph (A) shall be considered timely if such re24 imbursement is made not later than the work25 er’s first regular payday after a worker com-
45 

•S 2087 IS

1 pletes 50 percent of the period of employment 

2 of the job opportunity as provided under this 

3 paragraph. 

4 ‘‘(C) ADDITIONAL REIMBURSEMENT.—A 

5 worker who completes the period of employment 

6 for the job opportunity involved shall be reim7 bursed by the employer for the cost of the 

8 worker’s transportation and subsistence from 

9 the work site to the place where the worker was 

10 approved to enter the United States to work for 

11 the employer. If the worker has contracted with 

12 a subsequent employer, the previous and subse13 quent employer shall share the cost of the work14 er’s transportation and subsistence from work 

15 site to work site. 

16 ‘‘(D) AMOUNT OF REIMBURSEMENT.—The 

17 amount of reimbursement provided to a worker 

18 or alien under this paragraph shall be equal to 

19 the lesser of— 

20 ‘‘(i) the actual cost to the worker or 

21 alien of the transportation and subsistence 

22 involved; or 

23 ‘‘(ii) the most economical and reason24 able common carrier transportation 
46 

•S 2087 IS

1 charges and subsistence costs for the dis2 tance involved. 

3 ‘‘(E) REIMBURSEMENT FOR LAID OFF

4 WORKERS.—If the worker is laid off or employ5 ment is terminated for contract impossibility 

6 (as described in paragraph (5)(D)) before the 

7 anticipated ending date of employment, the em8 ployer shall provide— 

9 ‘‘(i) the transportation and subsist10 ence required under subparagraph (C); and 

11 ‘‘(ii) notwithstanding whether the 

12 worker has completed 50 percent of the pe13 riod of employment, the transportation re14 imbursement required under subparagraph 

15 (A). 

16 ‘‘(F) TRANSPORTATION.—The employer 

17 shall provide transportation between the work18 er’s living quarters and the employer’s work site 

19 without cost to the worker in accordance with 

20 applicable laws and regulations. 

21 ‘‘(G) CONSTRUCTION.—Nothing in this 

22 paragraph shall be construed to require an em23 ployer to reimburse visa, passport, consular, or 

24 international border-crossing fees incurred by 

25 the worker or any other fees associated with the 
47 

•S 2087 IS

1 worker’s lawful admission into the United 

2 States to perform employment. 

3 ‘‘(5) EMPLOYMENT GUARANTEE.— 

4 ‘‘(A) IN GENERAL.— 

5 ‘‘(i) REQUIREMENT.—Each employer 

6 applying for workers under subsection (b) 

7 shall guarantee to offer the worker employ8 ment for the hourly equivalent of not less 

9 than 75 percent of the work hours during 

10 the total anticipated period of employment, 

11 beginning with the first work day after the 

12 arrival of the worker at the place of em13 ployment and ending on the expiration 

14 date specified in the job offer. 

15 ‘‘(ii) FAILURE TO MEET GUAR16 ANTEE.—If the employer affords the 

17 United States worker or the H–2A worker 

18 less employment than that required under 

19 this subparagraph, the employer shall pay 

20 such worker the amount which the worker 

21 would have earned if the worker had 

22 worked for the guaranteed number of 

23 hours. 

24 ‘‘(iii) PERIOD OF EMPLOYMENT.—For 

25 purposes of this subparagraph, the term 
48 

•S 2087 IS

1 ‘period of employment’ means the total 

2 number of anticipated work hours and 

3 work days described in the job offer and 

4 shall exclude the worker’s Sabbath and 

5 Federal holidays. 

6 ‘‘(B) CALCULATION OF HOURS.—Any 

7 hours which the worker fails to work, up to a 

8 maximum of the number of hours specified in 

9 the job offer for a work day, when the worker 

10 has been offered an opportunity to do so, and 

11 all hours of work actually performed (including 

12 voluntary work in excess of the number of 

13 hours specified in the job offer in a work day, 

14 on the worker’s Sabbath, or on Federal holi15 days) may be counted by the employer in calcu16 lating whether the period of guaranteed employ17 ment has been met. 

18 ‘‘(C) LIMITATION.—If the worker volun19 tarily abandons employment before the end of 

20 the contract period, or is terminated for cause, 

21 the worker is not entitled to the 75 percent 

22 guarantee described in subparagraph (A). 

23 ‘‘(D) TERMINATION OF EMPLOYMENT.— 

24 ‘‘(i) IN GENERAL.—If, before the expi25 ration of the period of employment speci-
49 

•S 2087 IS

1 fied in the job offer, the services of the 

2 worker are no longer required due to any 

3 form of natural disaster, including flood, 

4 hurricane, freeze, earthquake, fire, 

5 drought, plant or animal disease, pest in6 festation, regulatory action, or any other 

7 reason beyond the control of the employer 

8 before the employment guarantee in sub9 paragraph (A) is fulfilled, the employer 

10 may terminate the worker’s employment. 

11 ‘‘(ii) REQUIREMENTS.—If a worker’s 

12 employment is terminated under clause (i), 

13 the employer shall— 

14 ‘‘(I) fulfill the employment guar15 antee in subparagraph (A) for the 

16 work days that have elapsed during 

17 the period beginning on the first work 

18 day after the arrival of the worker 

19 and ending on the date on which such 

20 employment is terminated; and 

21 ‘‘(II) make efforts to transfer the 

22 United States worker to other com23 parable employment acceptable to the 

24 worker. 

25 ‘‘(l) DISQUALIFICATION.— 
50 

•S 2087 IS

1 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

2 an alien shall be considered inadmissible to the 

3 United States and ineligible for nonimmigrant status 

4 under section 101(a)(15)(H)(ii)(a) if the alien has, 

5 at any time during the previous 5 years, violated a 

6 term or condition of admission into the United 

7 States as a nonimmigrant, including overstaying the 

8 period of authorized admission. 

9 ‘‘(2) WAIVERS.— 

10 ‘‘(A) IN GENERAL.—An alien seeking ad11 mission under section 101(a)(15)(H)(ii)(a) 

12 while outside of the United States shall not be 

13 deemed inadmissible under such section by rea14 son of— 

15 ‘‘(i) paragraph (1); 

16 ‘‘(ii) section 212(a)(6)(C), if such 

17 alien has previously falsely represented 

18 himself or herself to be a citizen of the 

19 United States for the purpose of agricul20 tural employment; or 

21 ‘‘(iii) section 212(a)(9)(B), unless 

22 such alien was deported from the United 

23 States. 

24 ‘‘(B) EFFECTIVE PERIOD OF WAIVER.—If 

25 an alien is admitted to the United States as a 
51 

•S 2087 IS

1 result of a waiver under subparagraph (A), 

2 such waiver shall remain in effect until the 

3 alien subsequently violates— 

4 ‘‘(i) a material provision of this sec5 tion; or 

6 ‘‘(ii) a term or condition of admission 

7 into the United States as a nonimmigrant. 

8 ‘‘(m) PERIOD OF ADMISSION.— 

9 ‘‘(1) IN GENERAL.—An H–2A alien shall be ad10 mitted for an 11-month period of employment, ex11 cluding— 

12 ‘‘(A) a period of not more than 7 days be13 fore the beginning of the period of employment 

14 for the purpose of travel to the work site; and 

15 ‘‘(B) a period of not more than 14 days 

16 after the period of employment for the purpose 

17 of departure or extension based on a subse18 quent offer of employment. 

19 ‘‘(2) EMPLOYMENT LIMITATION.—An alien may 

20 not be employed during the 14-day period described 

21 in paragraph (1)(B) except in the employment for 

22 which the alien was previously authorized. 

23 ‘‘(3) CONSTRUCTION.—Nothing in this sub24 section shall limit the authority of the Secretary of 
52 

•S 2087 IS

1 Homeland Security to extend the stay of an alien 

2 under any other provision of this Act. 

3 ‘‘(n) 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— 

8 ‘‘(A) shall have failed to maintain non9 immigrant status as an H–2A worker; and 

10 ‘‘(B) shall depart the United States or be 

11 subject to removal under section 

12 237(a)(1)(C)(i). 

13 ‘‘(2) REPORT BY EMPLOYER.—Not later than 

14 24 hours after the premature abandonment of em15 ployment by an H–2A worker, the employer or asso16 ciation acting as an agent for the employer shall no17 tify the Secretary of Homeland Security of such 

18 abandonment. 

19 ‘‘(3) REMOVAL.—The Secretary of Homeland 

20 Security shall ensure the prompt removal from the 

21 United States of any H–2A worker who violates any 

22 term or condition of the worker’s nonimmigrant sta23 tus. 

24 ‘‘(4) VOLUNTARY TERMINATION.—Notwith25 standing paragraph (1), an alien may voluntarily 
53 

•S 2087 IS

1 terminate the alien’s employment if the alien 

2 promptly departs the United States upon termi3 nation of such employment. 

4 ‘‘(o) REPLACEMENT OF ALIEN.— 

5 ‘‘(1) IN GENERAL.—Upon notification under 

6 subsection (n)(2)— 

7 ‘‘(A) the Secretary of State shall promptly 

8 issue a visa to an eligible alien designated by 

9 the employer to replace an H–2A worker who 

10 abandons or prematurely terminates employ11 ment; and 

12 ‘‘(B) the Secretary of Homeland Security 

13 shall admit such alien into the United States. 

14 ‘‘(2) CONSTRUCTION.—Nothing in this sub15 section shall limit any preference for which United 

16 States workers are eligible under this Act. 

17 ‘‘(p) IDENTIFICATION DOCUMENT.— 

18 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

19 Security shall provide each alien authorized to be an 

20 H–2A worker with a single machine-readable, tam21 per-resistant, and counterfeit-resistant document 

22 that— 

23 ‘‘(A) authorizes the alien’s entry into the 

24 United States; 
54 

•S 2087 IS

1 ‘‘(B) serves, for the appropriate period, as 

2 an employment eligibility document; and 

3 ‘‘(C) verifies the identity of the alien 

4 through the use of at least 1 biometric identi5 fier. 

6 ‘‘(2) REQUIREMENTS.—The document required 

7 for all aliens authorized to be an H–2A worker— 

8 ‘‘(A) shall be capable of reliably deter9 mining whether— 

10 ‘‘(i) the individual with the document 

11 is in fact eligible for employment as an H12 2A worker; 

13 ‘‘(ii) the individual with the document 

14 is not claiming the identity of another per15 son; and 

16 ‘‘(iii) the individual with the document 

17 is authorized to be admitted into the 

18 United States; and 

19 ‘‘(B) shall be compatible with— 

20 ‘‘(i) other databases of the Secretary 

21 of Homeland Security to prevent an alien 

22 from obtaining benefits for which the alien 

23 is not eligible and determining whether the 

24 alien is unlawfully present in the United 

25 States; and 
55 

•S 2087 IS

1 ‘‘(ii) law enforcement databases to de2 termine if the alien has been convicted of 

3 criminal offenses. 

4 ‘‘(q) EXTENSION OF STAY OF H–2A WORKERS IN

5 THE UNITED STATES.— 

6 ‘‘(1) EXTENSION OF STAY.— 

7 ‘‘(A) AUTHORITY.—An employer may peti8 tion to extend an H–2A worker’s stay for up to 

9 2 consecutive contract periods before the alien 

10 is required to return to the alien’s country of 

11 nationality or country of last residence. 

12 ‘‘(B) REQUEST AN EXTENSION.—If an em13 ployer seeks to employ, or continue to employ, 

14 an H–2A worker who is lawfully present in the 

15 United States, the employer or association shall 

16 request an extension of the alien’s stay not later 

17 than 14 days before the expiration of the period 

18 of authorized employment. 

19 ‘‘(C) LIMITATIONS.—An extension of stay 

20 under this subsection— 

21 ‘‘(i) may only commence upon the ter22 mination of the H–2A worker’s contract 

23 with an employer; 
56 

•S 2087 IS

1 ‘‘(ii) may be effective immediately fol2 lowing the termination of a prior contract; 

3 and 

4 ‘‘(iii) may not exceed 11 months, ex5 cluding the 14-day period provided for 

6 travel or extension due to subsequent em7 ployment. 

8 ‘‘(D) RETURN TO FOREIGN COUNTRY.— 

9 ‘‘(i) REQUIREMENT TO RETURN.—At 

10 the conclusion of 3 contract periods au11 thorized under this section, the alien so 

12 employed may not be employed in the 

13 United States as an H–2A worker until 

14 the alien has returned to the alien’s coun15 try of nationality or country of last resi16 dence for a period of not less than 6 

17 months. 

18 ‘‘(ii) REENTRY.—The alien may be19 come eligible for reentry into the United 

20 States as an H–2A worker after working 

21 in the United States for 2 contract periods 

22 and remaining the alien’s country of na23 tionality or country of last residence for 

24 not less than 4 months. The alien may also 

25 be eligible for re-entry to the United States 
57 

•S 2087 IS

1 as an H–2A worker after working in the 

2 United States for 1 contract period and re3 maining in the alien’s country of nation4 ality or country of last residence for not 

5 less than 2 months. 

6 ‘‘(2) WORK AUTHORIZATION.— 

7 ‘‘(A) IN GENERAL.—An alien who is law8 fully present in the United States on the date 

9 of the filing of a petition to extend the stay of 

10 the alien may commence or continue the em11 ployment described in a petition under para12 graph (1). The employer shall provide a copy of 

13 the employer’s petition for extension of stay to 

14 the alien. The alien shall keep the petition with 

15 the alien’s identification and employment eligi16 bility document as evidence that the petition 

17 has been filed and that the alien is authorized 

18 to work in the United States. 

19 ‘‘(B) EMPLOYMENT ELIGIBILITY DOCU20 MENT.—Upon approval of a petition for an ex21 tension of stay or change in the alien’s author22 ized employment, the Secretary of Homeland 

23 Security shall provide a new or updated employ24 ment eligibility document to the alien indicating 
58 

•S 2087 IS

1 the new validity date, after which the alien is 

2 not required to retain a copy of the petition. 

3 ‘‘(C) FILE DEFINED.—In this paragraph, 

4 the term ‘file’ means sending the petition by 

5 certified mail via the United States Postal Serv6 ice, return receipt requested, or delivering by 

7 guaranteed commercial delivery which will pro8 vide the employer with a documented acknowl9 edgment of the date of receipt of the petition 

10 for an extension of stay. 

11 ‘‘(r) SPECIAL RULE FOR ALIENS EMPLOYED AS

12 LIVESTOCK WORKERS.—Notwithstanding any other provi13 sion of this section, an alien admitted as an H–2A worker 

14 for employment as a sheepherder, goatherder, livestock 

15 worker, or dairy worker may be admitted for a period of 

16 up to 2 years. 

17 ‘‘ADMISSION OF CROSS-BORDER H–2AA WORKERS

18 ‘‘SEC. 218A. (a) DEFINITION.—In this section, the 

19 term ‘H–2AA worker’ means a nonimmigrant described 

20 in section 101(a)(15)(H)(ii)(a) who participates in the 

21 cross-border worker program established under this sec22 tion. 

23 ‘‘(b) INCORPORATION BY REFERENCE.— 

24 ‘‘(1) IN GENERAL.—Except as specifically pro25 vided under paragraph (2), the provisions under sec26 tion 218 shall apply to H–2AA workers. 
59 

•S 2087 IS

1 ‘‘(2) EXCEPTIONS.—The provisions under sub2 sections (b)(1)(B), (k)(2)(B), (k)(3), (k)(4) (except 

3 for subparagraph (G)), and (r) of section 218 shall 

4 not apply to H–2AA workers. 

5 ‘‘(c) MANDATORY ENTRY AND EXIT.—An H–2AA 

6 worker who complies with the provisions of this section— 

7 ‘‘(1) may enter the United States each sched8 uled work day, in accordance with regulations pro9 mulgated by the Secretary of Homeland Security; 

10 and 

11 ‘‘(2) shall exit the United States before the end 

12 of each day of such entrance.’’. 

13 (2) CLERICAL AMENDMENT.—The table of con14 tents of the Immigration and Nationality Act is add15 ing after the item relating to section 218 the fol16 lowing: 

‘‘Sec. 218A. Admission of cross-border H–2AA workers.’’. 

17 (b) RULEMAKING.— 

18 (1) ISSUANCE OF VISAS.—Not later than 180 

19 days after the date of enactment of this Act, the 

20 Secretary of State shall promulgate regulations, in 

21 accordance with the notice and comment provisions 

22 of section 553 of title 5, United States Code, to pro23 vide for uniform procedures for the issuance of visas 

24 by United States consulates and consular officials to 

25 nonimmigrants described in section 
60 

•S 2087 IS

1 101(a)(15)(H)(ii)(a) of the Immigration and Nation2 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)). 

3 (2) H–2AA BORDER CROSSINGS.—The Sec4 retary of Homeland Security shall promulgate regu5 lations to establish a process for workers authorized 

6 to work in the United States under section 218A of 

7 the Immigration and Nationality Act, as added by 

8 subsection (a), to ensure that such workers expedi9 tiously enter and exit the United States during each 

10 work day. 

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

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

13 after the date of enactment of this Act. 

14 SEC. 203. LEGAL ASSISTANCE FROM THE LEGAL SERVICES 

15 CORPORATION. 

16 Section 504 of the Migrant and Seasonal Agricultural 

17 Worker Protection Act (29 U.S.C. 1854) is amended— 

18 (1) by striking subsection (b) and inserting the 

19 following: 

20 ‘‘(b) LEGAL ASSISTANCE.—(1) Upon application by 

21 a complainant and in such circumstances as the court may 

22 deem just, the court may appoint an attorney for such 

23 complainant and may authorize the commencement of the 

24 action. 
61 

•S 2087 IS

1 ‘‘(2) The Legal Services Corporation may not provide 

2 legal assistance for or on behalf of any alien, and may 

3 not provide financial assistance to any person or entity 

4 that provides legal assistance for or on behalf of any alien, 

5 unless the alien— 

6 ‘‘(A) is described in subsection (a); and 

7 ‘‘(B) is present in the United States at the time 

8 the legal assistance is provided. 

9 ‘‘(3)(A) No party may bring a civil action for dam10 ages or other complaint on behalf of a nonimmigrant de11 scribed in section 101(a)(15)(H)(ii)(a) of the Immigration 

12 and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) un13 less— 

14 ‘‘(i) the party makes a request to the Federal 

15 Mediation and Conciliation Service or an equivalent 

16 State program (as defined by the Secretary of 

17 Labor) not later than 90 days before bringing the 

18 action to assist the parties in reaching a satisfactory 

19 resolution of all issues involving parties to the dis20 pute; and 

21 ‘‘(ii) the parties to the dispute have attempted, 

22 in good faith, mediation or other non-binding dis23 pute resolution of all issues involving all such par24 ties. 
62 

•S 2087 IS

1 ‘‘(B) If the mediator finds that an agricultural em2 ployer, agricultural association, or farm labor contractor 

3 has corrected a violation of the Migrant and Seasonal Ag4 ricultural Worker Protection Act (29 U.S.C. 1854) or of 

5 a regulation under such Act not later than 14 days after 

6 the date on which such agricultural employer, agricultural 

7 association, or farm labor contractor was notified in writ8 ing of such violation, no action may be brought under such 

9 Act with respect to such violation. 

10 ‘‘(C) Any settlement reached through the mediation 

11 process described in subparagraph (A) shall preclude any 

12 right of action arising out of the same facts between the 

13 parties in any Federal or State court or administrative 

14 proceeding. 

15 ‘‘(4) An employer of a nonimmigrant described in sec16 tion 101(a)(15)(H)(ii)(a) of the Immigration and Nation17 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) shall not be re18 quired to permit any recipient of grants or contracts under 

19 section 1007 of the Legal Services Corporation Act (42 

20 U.S.C. 2996f), or any employee of such recipient, to enter 

21 upon the employer’s property unless such recipient or em22 ployee has a prearranged appointment with a particular 

23 worker. 

24 ‘‘(5) The employer of a nonimmigrant described in 

25 section 101(a)(15)(H)(ii)(a) of the Immigration and Na-
63 

•S 2087 IS

1 tionality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) shall post 

2 the contact information of the Legal Services Corporation 

3 in the dwelling and at the work site of each nonimmigrant 

4 employee. 

5 ‘‘(6) There are authorized to be appropriated for each 

6 fiscal year such sums as may be necessary to carry out 

7 this subsection.’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(g)(1) If a defendant prevails in an action under this 

10 section in which the plaintiff is represented by an attorney 

11 who is employed by the Legal Services Corporation or any 

12 entity receiving funds from the Legal Services Corpora13 tion, such entity or the Legal Services Corporation shall 

14 award to the prevailing defendant fees and other expenses 

15 incurred by the defendant in connection with the action. 

16 ‘‘(2) As used in this subsection, the term ‘fees and 

17 other expenses’ has the meaning given the term in section 

18 504(b)(1)(A) of title 5, United States Code. 

19 ‘‘(3) The court shall take whatever steps necessary, 

20 including the imposition of sanctions, to ensure compli21 ance with this subsection.’’. 
64 

•S 2087 IS

1 TITLE III—BLUE CARD 

2 PROGRAM 

3 SEC. 301. ADMISSION OF NECESSARY AGRICULTURAL 

4 WORKERS. 

5 (a) IN GENERAL.—Chapter 2 of title II of the Immi6 gration and Nationality Act (8 U.S.C. 1181 et seq.) is 

7 amended by inserting after section 218A, as added by sec8 tion 202, the following: 

9 ‘‘BLUE CARD PROGRAM

10 ‘‘SEC. 218B. (a) DEFINITIONS.—As used in this sec11 tion— 

12 ‘‘(1) the term ‘agricultural employment’ means 

13 any service or activity that is considered agricultural 

14 under section 3(f) of the Fair Labor Standards Act 

15 of 1938 (29 U.S.C. 203(f)), agricultural labor under 

16 section 3121(g) of the Internal Revenue Code of 

17 1986 (26 U.S.C. 3121(g)), and labor and services 

18 relating to commodities, livestock, dairy, forestry, 

19 landscaping, fishing, and the processing of meat, 

20 poultry, and fish; 

21 ‘‘(2) the term ‘blue card status’ means the sta22 tus of an alien who has been— 

23 ‘‘(A) lawfully admitted for a temporary pe24 riod for agricultural employment under sub25 section (b); and 
65 

•S 2087 IS

1 ‘‘(B) issued a tamper-resistant, machine2 readable document that— 

3 ‘‘(i) serves as the alien’s visa, employ4 ment authorization, and travel documenta5 tion; and 

6 ‘‘(ii) contains such biometrics as are 

7 required by the Secretary; 

8 ‘‘(3) the term ‘employer’ means any person or 

9 entity, including any farm labor contractor and any 

10 agricultural association, that employs workers in ag11 ricultural employment; 

12 ‘‘(4) the term ‘Secretary’ means the Secretary 

13 of Homeland Security; and 

14 ‘‘(5) the term ‘United States worker’ means 

15 any worker, including a national of the United 

16 States, a lawfully admitted permanent resident alien, 

17 and any other alien authorized to work in the rel18 evant job opportunity within the United States, ex19 cept— 

20 ‘‘(A) an alien admitted or otherwise pro21 vided status under section 101(a)(15)(H)(ii)(a); 

22 ‘‘(B) an alien admitted or otherwise pro23 vided status as an H–2AA worker; and 

24 ‘‘(C) an alien provided status under this 

25 section. 
66 

•S 2087 IS

1 ‘‘(b) BLUE CARD PROGRAM.— 

2 ‘‘(1) IN GENERAL.—Notwithstanding any other 

3 provision of law, the Secretary may confer blue card 

4 status upon an alien who qualifies under this sub5 section if, not later than 6 months after the date of 

6 enactment of this section, the petitioning employer 

7 attests and the Secretary determines that the 

8 alien— 

9 ‘‘(A) performed at least 1600 hours of ag10 ricultural employment in the United States for 

11 that employer during 2005; 

12 ‘‘(B) except as otherwise provided under 

13 paragraph (2), is otherwise admissible to the 

14 United States under section 212; and 

15 ‘‘(C) has never been convicted of a felony 

16 or a misdemeanor in the United States. 

17 ‘‘(2) DETERMINATION.—In determining an 

18 alien’s eligibility for Blue Card status, the Secretary 

19 shall— 

20 ‘‘(A) conduct a background investigation of 

21 the alien, including a review of evidence sub22 mitted by the petitioning employer in support of 

23 the attestation that the alien meets the min24 imum work requirements; and 
67 

•S 2087 IS

1 ‘‘(B) interview the alien and require the 

2 alien to answer questions concerning the 

3 alien’s— 

4 ‘‘(i) physical and mental health; 

5 ‘‘(ii) criminal history and gang mem6 bership; 

7 ‘‘(iii) immigration history; 

8 ‘‘(iv) involvement with groups or indi9 viduals that have engaged in terrorism, 

10 genocide, persecution, or who seek the 

11 overthrow of the United States govern12 ment; 

13 ‘‘(v) voter registration history; 

14 ‘‘(vi) claims to United States citizen15 ship; and 

16 ‘‘(vii) tax history. 

17 ‘‘(3) WAIVER OF CERTAIN GROUNDS FOR INAD18 MISSIBILITY.—In determining an alien’s eligibility 

19 for blue card status under paragraph (1)(C)— 

20 ‘‘(A) the provisions of paragraphs (5), 

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

22 shall not apply; 

23 ‘‘(B) the provisions of section 212(a)(6)(C) 

24 shall not apply with respect to prior or current 

25 agricultural employment; and 
68 

•S 2087 IS

1 ‘‘(C) the Secretary may not waive para2 graph (1),(2), or (3) of section 212(a) unless 

3 such waiver is permitted under another provi4 sion of law. 

5 ‘‘(4) PETITIONS.— 

6 ‘‘(A) IN GENERAL.—An employer seeking 

7 blue card status under this section for an alien 

8 employee shall file a named petition for blue 

9 card status with the Secretary. 

10 ‘‘(B) EMPLOYER PETITION.—An employer 

11 filing a petition under subparagraph (A) shall— 

12 ‘‘(i) pay a registration fee of $3,000; 

13 ‘‘(ii) pay a processing fee to cover the 

14 actual costs incurred in adjudicating the 

15 petition; 

16 ‘‘(iii) include an affidavit signed by 

17 the beneficiary of the petition— 

18 ‘‘(I) that certifies, under penalty 

19 of perjury under the laws of the 

20 United States, that the application 

21 and any evidence submitted with it is 

22 true and correct and that authorizes 

23 the release of any information con24 tained in the petition and attached 
69 

•S 2087 IS

1 evidence for law enforcement pur2 poses; and 

3 ‘‘(II) that includes a waiver of 

4 rights that explains to the alien that, 

5 in exchange for the discretionary ben6 efit of Blue Card status, the alien 

7 agrees to waive any right to adminis8 trative or judicial review or appeal of 

9 a determination by the Department of 

10 Homeland Security regarding the 

11 alien’s eligibility for Blue Card status; 

12 and 

13 ‘‘(iv) provide an attestation, valid for 

14 not less than 60 days, that the employer— 

15 ‘‘(I) conducted adequate recruit16 ment in the area of intended employ17 ment before filing the petition; and 

18 ‘‘(II) was unsuccessful in locating 

19 qualified United States workers for 

20 the job opportunity for which the cer21 tification is sought. 

22 ‘‘(C) ADEQUATE RECRUITMENT.— 

23 ‘‘(i) MINIMUM REQUIREMENT.—The 

24 adequate recruitment requirement under 
70 

•S 2087 IS

1 subparagraph (B)(iii) is satisfied if the em2 ployer— 

3 ‘‘(I) places a job order with the 

4 America’s Job Bank Program of the 

5 Department of Labor; and 

6 ‘‘(II) places a Sunday advertise7 ment in a newspaper of general cir8 culation that is likely to be patronized 

9 by a potential worker in the area of 

10 intended employment. 

11 ‘‘(ii) ADVERTISEMENT REQUIRE12 MENT.—An advertisement under clause 

13 (i)(II) shall— 

14 ‘‘(I) name the employer; 

15 ‘‘(II) direct applicants to report 

16 or send resumes, as appropriate for 

17 the occupation, to the employer; 

18 ‘‘(III) provide a description of 

19 the vacancy that is specific enough to 

20 apprise United States workers of the 

21 job opportunity for which certification 

22 is sought; 

23 ‘‘(IV) describe the geographic 

24 area with enough specificity to apprise 

25 applicants of any travel requirements 
71 

•S 2087 IS

1 and where applicants will likely have 

2 to reside to perform the job; 

3 ‘‘(V) state the rate of pay, which 

4 must equal or exceed the wage paid to 

5 the H–2A employees in the occupation 

6 in the area of intended employment; 

7 and 

8 ‘‘(VI) offer wages, terms, and 

9 conditions of employment, which are 

10 at least as favorable as those offered 

11 to the alien. 

12 ‘‘(D) ADJUDICATION OF PETITIONS.—The 

13 Secretary of Homeland Security shall ensure 

14 that— 

15 ‘‘(i) the petitioning process is secure 

16 and incorporates anti-fraud protections; 

17 and 

18 ‘‘(ii) all petitions for Blue Card status 

19 are processed not later than 12 months 

20 after the date of enactment of this section. 

21 ‘‘(E) NOTIFICATION OF ADJUDICATION.— 

22 The Secretary shall provide notification of an 

23 adjudication of a petition filed for an alien to 

24 the alien and to the employer who filed such pe25 tition. 
72 

•S 2087 IS

1 ‘‘(F) EFFECT OF DENIAL.—If the Sec2 retary denies a petition filed for an alien, such 

3 alien shall return to the country of the alien’s 

4 nationality or last residence outside the United 

5 States. 

6 ‘‘(5) BLUE CARD STATUS.— 

7 ‘‘(A) BLUE CARD.— 

8 ‘‘(i) ALL-IN-ONE CARD.—The Sec9 retary, in conjunction with the Secretary of 

10 State, shall develop a single machine-read11 able, tamper-resistant document that— 

12 ‘‘(I) authorizes the alien’s entry 

13 into the United States; 

14 ‘‘(II) serves, during the period an 

15 alien is in blue card status, as an em16 ployment authorized endorsement or 

17 other appropriate work permit for ag18 ricultural employment; and 

19 ‘‘(III) serves as an entry and exit 

20 document to be used in conjunction 

21 with a proper visa or as a visa and as 

22 other appropriate travel and entry 

23 documentation using biometric identi24 fiers that meet the biometric identifier 
73 

•S 2087 IS

1 standards jointly established by the 

2 Secretary of State and the Secretary. 

3 ‘‘(ii) BIOMETRICS.— 

4 ‘‘(I) SUBMISSION OF IDENTI5 FIERS.—After a petition is filed by an 

6 employer and receipt of such petition 

7 is confirmed by the Secretary, the 

8 alien, in order to further adjudicate 

9 the petition, shall submit 2 biometric 

10 identifiers (such as a fingerprint and 

11 a digital photograph), as required by 

12 the Secretary, to an application sup13 port center, which the Secretary shall 

14 establish in each State. 

15 ‘‘(II) PROCESS.—The Secretary 

16 shall prescribe a process for the sub17 mission of a biometric identifier to be 

18 incorporated electronically into an em19 ployer’s prior electronic filing of a pe20 tition. The Secretary shall prescribe 

21 an alternative process for employers 

22 to file a petition in a manner other 

23 than electronic filing, as needed. 

24 ‘‘(B) DOCUMENT REQUIREMENTS.—The 

25 Secretary shall issue a blue card that is— 
74 

•S 2087 IS

1 ‘‘(i) capable of reliably determining if 

2 the individual with the blue card whose eli3 gibility is being verified is— 

4 ‘‘(I) eligible for employment; 

5 ‘‘(II) claiming the identity of an6 other person; and 

7 ‘‘(III) authorized to be admitted; 

8 and 

9 ‘‘(ii) compatible with— 

10 ‘‘(I) other databases maintained 

11 by the Secretary to exclude aliens 

12 from benefits for which the aliens are 

13 not eligible and determine whether the 

14 alien is unlawfully present in the 

15 United States; and 

16 ‘‘(II) law enforcement databases 

17 to determine if the alien has been con18 victed of criminal offenses. 

19 ‘‘(C) AUTHORIZED TRAVEL.— 

20 ‘‘(i) IN GENERAL.—An alien may 

21 make brief visits outside the United States 

22 during the period in which the alien is in 

23 blue card status, in accordance with such 

24 regulations as are established by the Sec-
75 

•S 2087 IS

1 retary, in conjunction with the Secretary of 

2 State. 

3 ‘‘(ii) READMISSION.—An alien may be 

4 readmitted to the United States after a 

5 visit described in clause (i) without having 

6 to obtain a visa if the alien presents the 

7 alien’s blue card document. 

8 ‘‘(iii) EFFECT OF TRAVEL.—Such pe9 riods of time spent outside the United 

10 States shall not cause the period of blue 

11 card status in the United States to be ex12 tended. 

13 ‘‘(D) PORTABILITY.— 

14 ‘‘(i) IN GENERAL.—During the period 

15 in which an alien is in blue card status, the 

16 alien issued a blue card may accept new 

17 employment upon the Secretary’s receipt of 

18 a petition filed by an employer on behalf of 

19 the alien. Employment authorization shall 

20 continue for such alien until such petition 

21 is adjudicated. 

22 ‘‘(ii) EFFECT OF DENIAL.—If a peti23 tion filed under clause (i) is denied and the 

24 alien has ceased employment with the pre25 vious employer, the authorization under 
76 

•S 2087 IS

1 clause (i) shall terminate and the alien 

2 shall be required to return to the country 

3 of the alien’s nationality or last residence. 

4 ‘‘(iii) FEE.—A fee may be required by 

5 the Secretary to cover the actual costs in6 curred in adjudicating a petition under this 

7 subparagraph. No other fee may be re8 quired under this subparagraph. 

9 ‘‘(E) ANNUAL CHECK IN.—The employer 

10 of an alien in blue card status who has been 

11 employed for 1 year in blue card status shall 

12 confirm the alien’s continued status with the 

13 Secretary electronically or in writing. Such con14 firmation will not require a further labor attes15 tation. 

16 ‘‘(F) TERMINATION OF BLUE CARD STA17 TUS.—The Secretary may terminate the blue 

18 card status of an alien upon a determination by 

19 the Secretary that— 

20 ‘‘(i) without the appropriate waiver, 

21 the granting of blue card status was the 

22 result of fraud or willful misrepresentation 

23 (as described in section 212(a)(6)(C)(i); 
77 

•S 2087 IS

1 ‘‘(ii) the alien is convicted of a felony 

2 or a misdemeanor committed in the United 

3 States; or 

4 ‘‘(iii) the alien is deportable or inad5 missible under any other provision of this 

6 Act. 

7 ‘‘(6) PERIOD OF AUTHORIZED ADMISSION.— 

8 ‘‘(A) IN GENERAL.—An alien may be 

9 granted blue card status for a period not to ex10 ceed 2 years. 

11 ‘‘(B) RETURN TO COUNTRY.—At the end 

12 of the period referred to in subparagraph (A), 

13 the alien shall return to the country of nation14 ality or last residence. 

15 ‘‘(C) ELIGIBILITY FOR NONIMMIGRANT

16 VISA.—Upon returning to the country of na17 tionality or last residence under subparagraph 

18 (B), the alien may apply for an H–2A visa, an 

19 H–2AA visa, or any other nonimmigrant visa. 

20 ‘‘(D) REPORTING REQUIREMENT.—Not 

21 later than 24 hours after an alien with blue 

22 card status ceases to be employed by an em23 ployer, such employer shall notify the Secretary 

24 of such cessation of employment. The Secretary 
78 

•S 2087 IS

1 shall provide electronic means for making such 

2 notification. 

3 ‘‘(E) LOSS OF EMPLOYMENT.— 

4 ‘‘(i) IN GENERAL.—The blue card sta5 tus of an alien shall terminate if the alien 

6 is not employed for 60 or more consecutive 

7 days. 

8 ‘‘(ii) RETURN TO COUNTRY.—An alien 

9 whose period of authorized admission ter10 minates under clause (i) shall return to the 

11 country of the alien’s nationality or last 

12 residence. 

13 ‘‘(7) GROUNDS FOR ELIGIBILITY.— 

14 ‘‘(A) BAR TO FUTURE VISAS FOR CONDI15 TION VIOLATIONS.—If an alien having blue card 

16 status violates any term or condition of such 

17 status, the alien shall not be eligible for such 

18 status or for future immigrant and non-immi19 grant status, as determined by the Secretary. 

20 ‘‘(B) ALIENS IN H–2A STATUS.—Any alien 

21 in lawful H–2A status between January 1, 

22 2005 and December 31, 2006 shall be ineligible 

23 for blue card status. 

24 ‘‘(8) BAR OF CHANGE OR ADJUSTMENT OF STA25 TUS.— 
79 

•S 2087 IS

1 ‘‘(A) IN GENERAL.—An alien having blue 

2 card status shall not be eligible to change or 

3 adjust status in the United States. 

4 ‘‘(B) LOSS OF ELIGIBILITY.—An alien hav5 ing blue card status shall lose eligibility for 

6 such status if the alien— 

7 ‘‘(i) files a petition to adjust status to 

8 legal permanent residence in the United 

9 States; or 

10 ‘‘(ii) requests a consular processing 

11 for an immigrant or non-immigrant visa 

12 outside the United States. 

13 ‘‘(9) JUDICIAL REVIEW.—There shall be no ju14 dicial review of a denial of blue card status. 

15 ‘‘(c) SAFE HARBOR.— 

16 ‘‘(1) SAFE HARBOR FOR ALIEN.—An alien for 

17 whom a nonfrivolous petition is filed under this sec18 tion— 

19 ‘‘(A) shall be granted employment author20 ization pending final adjudication of the peti21 tion; 

22 ‘‘(B) may not be detained, determined in23 admissible, or deportable, or removed pending 

24 final adjudication of the petition for blue card 

25 status, unless the alien commits an act which 
80 

•S 2087 IS

1 renders the alien ineligible for such blue card 

2 status; and 

3 ‘‘(C) may not be considered an unauthor4 ized alien (as defined in section 274(h)(3)) if 

5 the alien is in possession of a copy of a petition 

6 for status until such petition is adjudicated. 

7 ‘‘(2) SAFE HARBOR FOR EMPLOYER.— 

8 ‘‘(A) TAX LIABILITY.—An employer that 

9 files a petition for blue card status for an alien 

10 shall not be subject to civil and criminal tax li11 ability relating directly to the employment of 

12 such alien. 

13 ‘‘(B) EMPLOYMENT RECORDS.—An em14 ployer that provides unauthorized aliens with 

15 copies of employment records or other evidence 

16 of employment pursuant to the petition shall 

17 not be subject to civil and criminal liability pur18 suant to section 274A for employing such au19 thorized aliens.’’. 

20 (b) CLERICAL AMENDMENT.—The table of contents 

21 of the Immigration and Nationality Act is amended by in22 serting after the item relating to section 218A, as added 

23 by section 202, the following: 

‘‘Sec. 218B. Blue card program.’’. 

24 (c) PENALTIES FOR FALSE STATEMENTS.—Section 

25 1546 of title 18, United States Code, is amended— 
81 

•S 2087 IS

1 (1) by redesignating subsection (c) as sub2 section (d); and 

3 (2) by inserting after subsection (b) the fol4 lowing: 

5 ‘‘(c) Any person, including the alien who is the bene6 ficiary of a petition, who— 

7 ‘‘(1) files a petition under section 218B(b)(3) of 

8 the Immigration and Nationality Act; and 

9 ‘‘(2)(A) knowingly and willfully falsifies, con10 ceals, or covers up a material fact related to such a 

11 petition; 

12 ‘‘(B) makes any false, fictitious, or fraudulent 

13 statements or representations, or makes or uses any 

14 false writing or document knowing the same to con15 tain any false, fictitious, or fraudulent statement or 

16 entry related to such a petition; or 

17 ‘‘(C) creates or supplies a false writing or docu18 ment for use in making such a petition, 

19 shall be fined in accordance with this title, imprisoned not 

20 more than 5 years, or both.’’. 

21 SEC. 302. EFFECTIVE DATE. 

22 This title shall take effect on the date that is 6 

23 months after the date of enactment of this Act. 

Æ