II

104TH CONGRESS

2D SESSION S. 2174

To amend the Immigration and Nationality Act with respect to the admission

of temporary H–2A workers.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 30, 1996

Mr. CRAIG 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 with respect

to the admission of temporary H–2A workers.

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

3 SECTION 1. CONSIDERATIONS IN THE APPROVAL OF H–2A

4 PETITIONS.

5 Section 218(a) (8 U.S.C. 1188(a)) of the Immigra6 tion and Nationality Act is amended—

7 (1) by redesignating paragraph (2) as para8 graph (3); and

9 (2) by inserting after paragraph (1) the follow10 ing:
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1 ‘‘(2) In considering an employer’s petition for

2 admission of H–2A aliens, the Attorney General

3 shall consider the certification decision of the Sec4 retary of Labor and shall consider any countervail5 ing evidence submitted by the employer with respect

6 to the nonavailability of United States workers and

7 the employer’s compliance with the requirements of

8 this section, and may consult with the Secretary of

9 Agriculture.’’.

10 SEC. 2. CONDITION FOR DENIAL OF LABOR CERTIFI11 CATION.

12 Section 218(b)(4) (8 U.S.C. 1188(b)(4)) of the Immi13 gration and Nationality Act is amended to read as follows:

14 ‘‘(4) DETERMINATION BY THE SECRETARY.—

15 The Secretary determines that the employer has not

16 filed a job offer for the position to be filled by the

17 alien with the appropriate local office of the State

18 employment security agency having jurisdiction over

19 the area of intended employment, or with the State

20 office of such an agency if the alien will be employed

21 in an area within the jurisdiction of more than one

22 local office of such an agency, which meets the cri23 teria of paragraph (5).

24 ‘‘(5) REQUIRED TERMS AND CONDITIONS OF

25 EMPLOYMENT.—The Secretary determines that the
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1 employer’s job offer does not meet one or more of

2 the following criteria:

3 ‘‘(A) REQUIRED RATE OF PAY.—The em4 ployer has offered to pay H–2A aliens and all

5 other workers in the occupation in the area of

6 intended employment an adverse effect wage

7 rate of not less than the median rate of pay for

8 similarly employed workers in the area of in9 tended employment.

10 ‘‘(B) PROVISION OF HOUSING.—

11 ‘‘(i) IN GENERAL.—The employer has

12 offered to provide housing to H–2A aliens

13 and those workers not reasonably able to

14 return to their residence within the same

15 day, without charge to the worker. The

16 employer may, at the employer’s option,

17 provide housing meeting applicable Federal

18 standards for temporary labor camps, or

19 provide rental or public accommodation

20 type housing which meets applicable local

21 or state standards for such housing.

22 ‘‘(ii) HOUSING ALLOWANCE AS ALTER23 NATIVE.—In lieu of offering the housing

24 required in clause (i), the employer may

25 provide a reasonable housing allowance to
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1 workers not reasonably able to return to

2 their place of residence within the same

3 day, but only if the Secretary determines

4 that housing is reasonably available within

5 the approximate area of employment. An

6 employer who offers a housing allowance

7 pursuant to this subparagraph shall not be

8 deemed to be a housing provider under sec9 tion 203 of the Migrant and Seasonal Ag10 ricultural Worker Protection Act (29

11 U.S.C. 1823) merely by virtue of providing

12 such housing allowance.

13 ‘‘(iii) SPECIAL HOUSING STANDARDS

14 FOR SHORT DURATION EMPLOYMENT.—

15 The Secretary shall promulgate special

16 regulations permitting the provision of

17 short-term temporary housing for workers

18 employed in occupations in which employ19 ment is expected to last 40 days or less.

20 ‘‘(iv) TRANSITIONAL PERIOD FOR

21 PROVISION OF SPECIAL HOUSING STAND22 ARDS IN OTHER EMPLOYMENT.—For a pe23 riod of five years after the date of enact24 ment of this section, the Secretary shall

25 approve the provision of housing meeting
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1 the standards described in clause (iii) in

2 occupations expected to last longer than 40

3 days in areas where available housing

4 meeting the criteria described in subpara5 graph (i) is found to be insufficient.

6 ‘‘(v) PREEMPTION OF STATE AND

7 LOCAL STANDARDS.—The standards de8 scribed in clauses (ii) and (iii) shall pre9 empt any State and local standards gov10 erning the provision of temporary housing

11 to agricultural workers.

12 ‘‘(C) REIMBURSEMENT OF TRANSPOR13 TATION COSTS.—The employer has offered to

14 reimburse H–2A aliens and workers recruited

15 from beyond normal commuting distance the

16 most economical common carrier transportation

17 charge and reasonable subsistence from the

18 place from which the worker comes to work for

19 the employer, (but not more than the most eco20 nomical common carrier transportation charge

21 from the worker’s normal place of residence) if

22 the worker completes 50 percent of the antici23 pated period of employment. If the worker re24 cruited from beyond normal commuting dis25 tance completes the period of employment, the
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1 employer will provide or pay for the worker’s

2 transportation and reasonable subsistence to

3 the worker’s next place of employment, or to

4 the worker’s normal place of residence, which5 ever is less.

6 ‘‘(D) GUARANTEE OF EMPLOYMENT.—The

7 employer has offered to guarantee the worker

8 employment for at least three-fourths of the

9 workdays of the employer’s actual period of em10 ployment in the occupation. Workers who aban11 don their employment or are terminated for

12 cause shall forfeit this guarantee.

13 ‘‘(6) PREFERENCE FOR UNITED STATES WORK14 ERS.—The employer has not assured on the applica15 tion that the employer will provide employment to all

16 qualified United States workers who apply to the

17 employer and assure that they will be available at

18 the time and place needed until the time the employ19 er’s foreign workers depart for the employer’s place

20 of employment (but not sooner than 5 days before

21 the date workers are needed), and will give pref22 erence in employment to United States workers who

23 are immediately available to fill job opportunities

24 that become available after the date work in the oc25 cupation begins.’’.
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1 SEC. 3. SPECIAL RULES APPLICABLE TO THE ISSUANCE OF

2 LABOR CERTIFICATIONS.

3 Section 218(c) (8 U.S.C. 1188(c)) of the Immigration

4 and Nationality Act is amended to read as follows:

5 ‘‘(c) SPECIAL RULES APPLICABLE TO THE ISSUANCE

6 OF LABOR CERTIFICATIONS.—The following rules shall

7 apply to the issuance of labor certifications by the Sec8 retary under this section:

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

10 The Secretary may not require that the application

11 be filed more than 40 days before the first date the

12 employer requires the labor or services of the H–2A

13 worker.

14 ‘‘(2) NOTICE WITHIN SEVEN DAYS OF DEFI15 CIENCIES.—

16 ‘‘(A) The employer shall be notified in

17 writing within seven calendar days of the date

18 of filing, if the application does not meet the

19 criteria described in subsection (b) for approval.

20 ‘‘(B) If the application does not meet such

21 criteria, the notice shall specify the specific de22 ficiencies of the application and the Secretary

23 shall provide an opportunity for the prompt re24 submission of a modified application.

25 ‘‘(3) ISSUANCE OF CERTIFICATION.—
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1 ‘‘(A) The Secretary shall provide to the

2 employer, not later than 20 days before the

3 date such labor or services are first required to

4 be performed, the certification described in sub5 section (a)(1)—

6 ‘‘(i) with respect to paragraph

7 (a)(1)(A) if the employer’s application

8 meets the criteria described in subsection

9 (b), or a statement of the specific reasons

10 why such certification cannot be made, and

11 ‘‘(ii) with respect to subsection

12 (a)(1)(B), to the extent that the employer

13 does not actually have, or has not been

14 provided with the names, addresses and

15 Social Security numbers of workers re16 ferred to the employer who are able, will17 ing and qualified and have indicated they

18 will be available at the time and place

19 needed to perform such labor or services

20 on the terms and conditions of the job

21 offer approved by the Secretary. For each

22 worker referred, the Secretary shall also

23 provide the employer with information suf24 ficient to permit the employer to contact

25 the referred worker for the purpose of re-
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1 confirming the worker’s availability for

2 work at the time and place needed.

3 ‘‘(B) If, at the time the Secretary deter4 mines that the employer’s job offer meets the

5 criteria described in subsection (b) there are al6 ready unfilled job opportunities in the occupa7 tion and area of intended employment for which

8 the employer is seeking workers, the Secretary

9 shall provide the certification at the same time

10 the Secretary approves the employer’s job

11 offer.’’.

12 SEC. 4. EXPEDITED APPEALS OF CERTAIN DETERMINA13 TIONS.

14 Section 218(e) (8 U.S.C 1188(e)) of the Immigration

15 and Nationality Act is amended to read as follows:

16 ‘‘(e) EXPEDITED APPEALS OF CERTAIN DETERMINA17 TIONS.—The Secretary shall provide by regulation for an

18 expedited procedure for the review of the nonapproval of

19 an employer’s job offer pursuant to subsection (c)(2) and

20 of the denial of certification in whole or in part pursuant

21 to subsection (c)(3) or, at the applicant’s request, a de

22 novo administrative hearing respecting the nonapproval or

23 denial.’’.
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1 SEC. 5. PROCEDURES FOR THE CONSIDERATION OF H–2A

2 PETITIONS.

3 Section 218 of the Immigration and Nationality Act

4 (8 U.S.C. 1188) is amended—

5 (1) by redesignating subsections (f) through (i)

6 as subsections (g) through (j), respectively; and

7 (2) by adding the following after subsection (e):

8 ‘‘(f) PROCEDURES FOR THE CONSIDERATION OF H–

9 2A PETITIONS.—The following procedures shall apply to

10 the consideration of petitions by the Attorney General

11 under this section:

12 ‘‘(1) EXPEDITED PROCESSING OF PETITIONS.—

13 The Attorney General shall provide an expedited

14 procedure for the adjudication of petitions filed

15 under this section, and the notification of visa-issu16 ing consulates where aliens seeking admission under

17 this section will apply for visas and/or ports of entry

18 where aliens will seek admission under this section

19 within 15 calendar days from the date such petition

20 is filed by the employer.

21 ‘‘(2) EXPEDITED AMENDMENTS TO PETI22 TIONS.—The Attorney General shall provide an ex23 pedited procedure for the amendment of petitions to

24 increase the number of workers on or after five days

25 before the employers date of need for the labor or

26 services involved in the petition to replace referred
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1 workers whose continued availability for work at the

2 time and place needed under the terms of the ap3 proved job offer can not be confirmed and to replace

4 referred workers who fail to report for work on the

5 date of need and replace referred workers who aban6 don their employment or are terminated for cause,

7 and for which replacement workers are not imme8 diately available pursuant to subsection (b)(6).’’.

9 SEC. 6. LIMITATION ON EMPLOYER LIABILITY.

10 Section 218(g) (8 U.S.C. 1188(g)) of the Immigra11 tion and Nationality Act is amended—

12 (1) by redesignating paragraph (2) as para13 graph (2)(A); and

14 (2) by inserting after paragraph (2)(A) the fol15 lowing:

16 ‘‘(B) No employer shall be subject to any liabil17 ity or punishment on the basis of an employment ac18 tion or practice by such employer that conforms with

19 the terms and conditions of a job offer approved by

20 the Secretary pursuant to this section, unless and

21 until the employer has been notified that such cer22 tification has been amended or invalidated by a final

23 order of the Secretary or of a court of competent ju24 risdiction.’’.
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1 SEC. 7. LIMITATION ON JUDICIAL REMEDIES.

2 Section 218(h) of the Immigration and Nationality

3 Act (8 U.S.C. 1188(h)) is amended by adding at the end

4 thereof the following:

5 ‘‘(3) No court of the United States shall have

6 jurisdiction to issue any restraining order or tem7 porary or permanent injunction preventing or delay8 ing the issuance by the Secretary of a certification

9 pursuant to this section, or the approval by the At10 torney General of a petition to import an alien as an

11 H–2A worker, or the actual importation of any such

12 alien as an H–2A worker following such approval by

13 the Attorney General.’’.

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