II

105TH CONGRESS

2D SESSION S. 1698

To amend the Immigration and Nationality Act to create a new nonimmigrant

category for temporary agricultural workers admitted pursuant to a labor

condition attestation.

IN THE SENATE OF THE UNITED STATES

MARCH 3, 1998

Mr. COVERDELL 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 create

a new nonimmigrant category for temporary agricultural

workers admitted pursuant to a labor condition attestation.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Farmers’ Temporary

5 Employment Assistance Act’’.
2

•S 1698 IS

1 SEC. 2. NEW NONIMMIGRANT H–2C CATEGORY FOR TEM2 PORARY AGRICULTURAL WORKERS.

3 (a) ESTABLISHMENT OF NEW CLASSIFICATION.—

4 Section 101(a)(15)(H)(ii) of the Immigration and Nation5 ality Act (8 U.S.C. 1101(a)(15)(ii)) is amended—

6 (1) by striking ‘‘or (b)’’ and inserting ‘‘(b)’’;

7 and

8 (2) by adding at the end the following: ‘‘or (c)

9 having a residence in a foreign country which he has

10 no intention of abandoning who is coming tempo11 rarily to the United States pursuant to section 218A

12 to perform such agricultural labor or services of a

13 temporary or seasonal nature;’’.

14 (b) NO FAMILY MEMBERS PERMITTED.—Section

15 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended by

16 striking ‘‘specified in this paragraph’’ and inserting ‘‘spec17 ified in this subparagraph (other than in clause (ii)(c))’’.

18 SEC. 3. ALTERNATIVE AGRICULTURAL TEMPORARY WORK19 ER PROCESS USING ATTESTATIONS.

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

21 Act is amended by inserting after section 218 the follow22 ing:

23 ‘‘ALTERNATIVE AGRICULTURAL TEMPORARY WORKER

24 PROGRAM

25 ‘‘SEC. 218A. (a) CONDITION FOR THE EMPLOYMENT

26 OF H–2C ALIENS.—
3

•S 1698 IS

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

2 or provided status as an H–2C alien (as defined in

3 subsection (n)(4)) unless—

4 ‘‘(A) the employment of the alien is cov5 ered by a currently valid labor condition attes6 tation which—

7 ‘‘(i) is filed by the employer, or by an

8 association on behalf of the employer, for

9 the occupation in which the alien will be

10 employed;

11 ‘‘(ii) has been accepted by the State

12 employment security agency having juris13 diction over the area of intended employ14 ment; and

15 ‘‘(iii) states each of the items de16 scribed in paragraph (2) and includes in17 formation identifying the employer or asso18 ciation and agricultural job opportunities

19 involved;

20 ‘‘(B) the employer is not disqualified from

21 employing H–2C aliens pursuant to subsection

22 (h); and

23 ‘‘(C) the employer has not, during the past

24 2 years, been found by the Attorney General to

25 have employed any aliens in violation of section
4

•S 1698 IS

1 274A(a), including aliens admitted pursuant to

2 this section.

3 ‘‘(2) CONTENTS OF LABOR CONDITION ATTES4 TATION.—Each labor condition attestation filed by,

5 or on behalf of, an employer shall include the follow6 ing:

7 ‘‘(A) WAGE RATE.—The employer will pay

8 H–2C aliens and all other workers in the occu9 pation not less than the prevailing wage for

10 similarly employed workers in the area of em11 ployment, and not less than the applicable Fed12 eral, State or local statutory minimum wage.

13 ‘‘(B) WORKING CONDITIONS.—The em14 ployment of H–2C aliens will not adversely af15 fect the working conditions of similarly em16 ployed workers in the area of employment.

17 ‘‘(C) LIMITATION ON EMPLOYMENT.—An

18 H–2C alien will not be employed in any job op19 portunity which is not temporary or seasonal,

20 and will not be employed by the employer in

21 any job opportunity for more than 10 months

22 in any 12-consecutive-month period.

23 ‘‘(D) NO LABOR DISPUTE.—No H–2C

24 alien will be employed in any job opportunity

25 which is vacant because its former occupant is
5

•S 1698 IS

1 involved in a strike, lockout or work stoppage

2 in the course of a labor dispute in the occupa3 tion at the place of employment.

4 ‘‘(E) NOTICE.—The employer, at the time

5 of filing the attestation, has provided notice of

6 the attestation to workers employed in the occu7 pation in which H–2C aliens will be employed.

8 ‘‘(F) JOB ORDERS.—The employer will file

9 one or more job orders for the occupation (or

10 occupations) covered by the attestation with the

11 State employment security agency no later than

12 the day on which the employer first employs

13 any H–2C aliens in the occupation.

14 ‘‘(G) PREFERENCE TO DOMESTIC WORK15 ERS.—The employer will give preference to

16 able, willing, and qualified United States work17 ers who apply to the employer and are available

18 at the time and place needed, for the first 25

19 days after the filing of the job order in an occu20 pation or until 5 days before the date employ21 ment of workers in the occupation begins,

22 whichever occurs later.

23 ‘‘(3) GENERAL ACCOUNTING OFFICE RE24 PORTS.—Beginning 1 year after the effective date of

25 this section, and annually thereafter, the Comptrol-
6

•S 1698 IS

1 ler General shall prepare and transmit to the Con2 gress a report describing the results of a review of

3 the implementation and enforcement of this section

4 during the preceding 12-month period, for the pur5 pose of determining if—

6 ‘‘(A) such provisions have been carried out

7 satisfactorily;

8 ‘‘(B) the program has ensured an adequate

9 and timely supply of qualified, eligible workers

10 at the time and place needed for employers;

11 ‘‘(C) the program has ensured that imple12 mentation of the program is not displacing

13 United States agricultural workers or diminish14 ing the terms and conditions of employment of

15 United States agricultural workers; and

16 ‘‘(D) an unnecessary regulatory burden

17 has been created for employers hiring workers

18 admitted under this section.

19 ‘‘(b) FILING A LABOR CONDITION ATTESTATION.—

20 ‘‘(1) FILING BY EMPLOYERS.—Any employer in

21 the United States is eligible to file a labor condition

22 attestation.

23 ‘‘(2) FILING BY ASSOCIATIONS ON BEHALF OF

24 EMPLOYER MEMBERS.—An agricultural association

25 may file a labor condition attestation as an agent on
7

•S 1698 IS

1 behalf of its members. Such an attestation filed by

2 an agricultural association acting as an agent for its

3 members, when accepted, shall apply to those em4 ployer members of the association that the associa5 tion certifies to the State employment security agen6 cy are members of the association and have agreed

7 in writing to comply with the requirements of this

8 section.

9 ‘‘(3) PERIOD OF VALIDITY.—A labor condition

10 attestation is valid from the date on which it is ac11 cepted by the State employment security agency for

12 the period of time requested by the employer, but

13 not to exceed 12 months.

14 ‘‘(4) WHERE TO FILE.—A labor condition attes15 tation shall be filed with the State employment secu16 rity agency having jurisdiction over the area of in17 tended employment of the workers covered by the at18 testation. If an employer, or the members of an as19 sociation of employers, will be employing workers in

20 an area or areas covered by more than one such

21 agency, the attestation shall be filed with each such

22 agency having jurisdiction over an area where the

23 workers will be employed.

24 ‘‘(5) DEADLINE FOR FILING.—A labor condi25 tion attestation may be filed at any time up to 12
8

•S 1698 IS

1 months prior to the date of the employer’s antici2 pated need for workers in the occupation (or occupa3 tions) covered by the attestation.

4 ‘‘(6) FILING FOR MULTIPLE OCCUPATIONS.—A

5 labor condition attestation may be filed for one or

6 more occupations and cover one or more periods of

7 employment.

8 ‘‘(7) MAINTAINING REQUIRED DOCUMENTA9 TION.—

10 ‘‘(A) BY EMPLOYERS.—Each employer cov11 ered by an accepted labor condition attestation

12 must maintain a file of the documentation re13 quired in subsection (c) for each occupation in14 cluded in an accepted attestation covering the

15 employer. The documentation shall be retained

16 for a period of one year following the expiration

17 of an accepted attestation. The employer shall

18 make the documentation available to represent19 atives of the Secretary during normal business

20 hours.

21 ‘‘(B) BY ASSOCIATIONS.—In complying

22 with subparagraph (A), documentation main23 tained by an association filing a labor condition

24 attestation on behalf of an employer shall be

25 deemed to be maintained by the employer.
9

•S 1698 IS

1 ‘‘(8) WITHDRAWAL.—

2 ‘‘(A) COMPLIANCE WITH ATTESTATION OB3 LIGATIONS.—An employer covered by an ac4 cepted labor condition attestation for an occu5 pation shall comply with the terms and condi6 tions of the attestation from the date the attes7 tation is accepted and continuing throughout

8 the period any persons are employed in an occu9 pation covered by such an accepted attestation,

10 whether or not H–2C aliens are employed in the

11 occupation, unless the attestation is withdrawn.

12 ‘‘(B) TERMINATION OF OBLIGATIONS.—An

13 employer may withdraw a labor condition attes14 tation in total, or with respect to a particular

15 occupation covered by the attestation. An asso16 ciation may withdraw such an attestation with

17 respect to one or more of its members. To with18 draw an attestation the employer or association

19 must notify in writing the State employment se20 curity agency office with which the attestation

21 was filed of the withdrawal of the attestation.

22 An employer who withdraws an attestation, or

23 on whose behalf an attestation is withdrawn by

24 an association, is relieved of the obligations un25 dertaken in the attestation with respect to the
10

•S 1698 IS

1 occupation (or occupations) with respect to

2 which the attestation was withdrawn, upon ac3 knowledgement by the appropriate State em4 ployment security agency of receipt of the with5 drawal notice. An attestation may not be with6 drawn with respect to any occupation while any

7 H–2C aliens covered by that attestation is em8 ployed in the occupation.

9 ‘‘(C) OBLIGATIONS UNDER OTHER STAT10 UTES.—Any obligation incurred by the em11 ployer under any other law or regulation as a

12 result of recruitment of United States workers

13 under an offer of terms and conditions of em14 ployment required by the H–2C program is un15 affected by withdrawal of a labor condition at16 testation.

17 ‘‘(c) EMPLOYER RESPONSIBILITIES AND REQUIRE18 MENTS FOR EMPLOYING H–2C NONIMMIGRANTS.—

19 ‘‘(1) REQUIREMENT TO PAY THE PREVAILING

20 WAGE.—

21 ‘‘(A) EFFECT OF THE ATTESTATION.—

22 Employers shall pay each worker in an occupa23 tion covered by an accepted labor condition at24 testation at least the prevailing wage in the oc25 cupation in the area of intended employment.
11

•S 1698 IS

1 The preceding sentence does not require em2 ployers to pay all workers in the occupation the

3 same wage. The employer may, in the sole dis4 cretion of the employer, maintain pay differen5 tials based on experience, tenure with the em6 ployer, skill, or any other work-related factor, if

7 the differential is not based on a criterion for

8 which discrimination is prohibited by the law

9 and all workers in the covered occupation re10 ceive at least the prevailing wage.

11 ‘‘(B) PAYMENT OF STATE EMPLOYMENT

12 SECURITY AGENCY DETERMINED WAGE SUFFI13 CIENT.—The employer may request and obtain

14 a prevailing wage determination from the State

15 employment security agency. If the employer re16 quests such a determination, and pays the wage

17 determined, such payment shall be considered

18 sufficient to meet the requirement of this para19 graph if the H–2C workers—

20 ‘‘(i) are employed in the occupation

21 for which the employer possesses an ac22 cepted labor condition attestation, and for

23 which the employer or association pos24 sesses a prevailing wage determination by

25 the State employment security agency, and
12

•S 1698 IS

1 ‘‘(ii) are being paid at least the pre2 vailing wage so determined.

3 ‘‘(C) RELIANCE ON WAGE SURVEY.—In

4 lieu of the procedures of subparagraph (B), an

5 employer may rely on other information, such

6 as an employer generated prevailing wage sur7 vey and determination, which meets criteria

8 specified by the Secretary by regulation. In the

9 event of a complaint that the employer has

10 failed to pay the required wage, the Secretary

11 shall investigate to determine if the information

12 upon which the employer relied complied with

13 the criteria for prevailing wage determinations.

14 ‘‘(D) ALTERNATE METHODS OF PAYMENT

15 PERMITTED.—

16 ‘‘(i) IN GENERAL.—A prevailing wage

17 may be expressed as an hourly wage, a

18 piece rate, a task rate (described in clause

19 (ii)), or other incentive pay system, includ20 ing a group rate (described in clause (iii)).

21 The requirement to pay at least the pre22 vailing wage in the occupation and area of

23 intended employment does not require an

24 employer to pay by the method of pay in

25 which the prevailing rate is expressed.
13

•S 1698 IS

1 However, if the employer adopts a method

2 of pay other than the prevailing rate, the

3 burden of proof is on the employer to dem4 onstrate that the employer’s method of pay

5 is designed to produce earnings equivalent

6 to the earnings that would result from pay7 ment of the prevailing rate.

8 ‘‘(ii) TASK RATE.—For purposes of

9 this subparagraph, a task rate is an incen10 tive payment based on a unit of work per11 formed such that the incentive rate varies

12 with the level of effort required to perform

13 individual units of work.

14 ‘‘(iii) GROUP RATE.—For purposes of

15 this subparagraph, a group rate is an in16 centive payment system in which the pay17 ment is shared among a group of workers

18 working together to perform the task.

19 ‘‘(E) REQUIRED DOCUMENTATION.—The

20 employer or association shall document compli21 ance with this paragraph by retaining on file

22 the employer or association’s request for a de23 termination by a State employment security

24 agency and the prevailing wage determination

25 received from such agency or other information
14

•S 1698 IS

1 upon which the employer or association relied to

2 assure compliance with the prevailing wage re3 quirement.

4 ‘‘(2) REQUIREMENT TO PROVIDE HOUSING AND

5 TRANSPORTATION.—

6 ‘‘(A) EFFECT OF THE ATTESTATION.—The

7 employment of H–2C aliens shall not adversely

8 affect the working conditions of United States

9 workers similarly employed in the area of in10 tended employment. The employer’s obligation

11 not to adversely affect working conditions shall

12 continue for the duration of the period of em13 ployment by the employer of any H–2C aliens

14 in the occupation and area of intended employ15 ment. An employer will be deemed to be in com16 pliance with this attestation if the employer of17 fers at least the benefits required by subpara18 graphs (B) through (D). The previous sentence

19 does not require an employer to offer more than

20 such benefits.

21 ‘‘(B) HOUSING REQUIRED.—

22 ‘‘(i) HOUSING OFFER.—The employer

23 must offer to H–2C aliens and United

24 States workers recruited from beyond nor25 mal recruiting distance housing, or a hous-
15

•S 1698 IS

1 ing allowance, if it is prevailing practice in

2 the occupation and area of intended em3 ployment to offer housing or a housing al4 lowance to workers who are recruited from

5 beyond normal commuting distance.

6 ‘‘(ii) HOUSING STANDARDS.—If the

7 employer offers housing to such workers,

8 the housing shall meet (at the option of

9 the employer) applicable Federal farm

10 labor housing standards or applicable local

11 or State standards for rental, public ac12 commodation, or other substantially simi13 lar class of habitation.

14 ‘‘(iii) CHARGES FOR HOUSING.—An

15 employer who offers housing to such work16 ers may charge an amount equal to the

17 fair market value (but not greater than the

18 employer’s actual cost) for utilities and

19 maintenance, or such lesser amount as per20 mitted by law.

21 ‘‘(iv) HOUSING ALLOWANCE AS AL22 TERNATIVE.—In lieu of offering housing to

23 such workers, at the employer’s sole discre24 tion on an individual basis, the employer

25 may provide a reasonable housing allow-
16

•S 1698 IS

1 ance. An employer who offers a housing al2 lowance to such a worker under this sub3 paragraph shall not be deemed to be a

4 housing provider under section 203 of the

5 Migrant and Seasonal Agricultural Worker

6 Protection Act (29 U.S.C. 1823) merely by

7 virtue of providing such housing allowance.

8 ‘‘(v) SECURITY DEPOSIT.—The re9 quirement, if any, to offer housing to such

10 a worker under this subparagraph shall

11 not preclude an employer from requiring a

12 reasonable deposit to protect against gross

13 negligence or willful destruction of prop14 erty, as a condition for providing such

15 housing.

16 ‘‘(vi) DAMAGES.—An employer who

17 offers housing to such a worker shall not

18 be precluded from requiring a worker

19 found to have been responsible for damage

20 to such housing which is not the result of

21 normal wear and tear related to habitation

22 to reimburse the employer for the reason23 able cost of repair of such damage.

24 ‘‘(C) TRANSPORTATION.—If the employer

25 provides transportation arrangements or assist-
17

•S 1698 IS

1 ance to H–2C aliens, the employer must offer

2 to provide the same transportation arrange3 ments or assistance (generally comparable in

4 expense and scope) for other individuals em5 ployed by the employer in the occupation at the

6 place of employment who were recruited from

7 beyond normal commuting distance.

8 ‘‘(D) WORKERS’ COMPENSATION.—If the

9 employment covered by a labor condition attes10 tation is not covered by the State workers’ com11 pensation law, the employer must provide, at no

12 cost to the worker, insurance covering injury

13 and disease arising out of and in the course of

14 the workers’ employment which will provide

15 benefits at least equal to those provided under

16 the State workers’ compensation law for com17 parable employment.

18 ‘‘(E) REQUIRED DOCUMENTATION.—

19 ‘‘(i) HOUSING AND TRANSPOR20 TATION.—No specific documentation is re21 quired to be maintained to evidence com22 pliance with the requirements of subpara23 graphs (B) and (C). In the event of a com24 plaint alleging a failure to comply with

25 such a requirement, the burden of proof
18

•S 1698 IS

1 shall be on the employer to show that the

2 employer offered the required benefit to

3 the complainant, or that the employer was

4 not required by the terms of this para5 graph to offer such benefit to the com6 plainant.

7 ‘‘(ii) WORKERS’ COMPENSATION.—

8 The employer shall maintain copies of cer9 tificates of insurance evidencing compli10 ance with subparagraph (D) throughout

11 the period of validity of the labor condition

12 attestation.

13 ‘‘(3) REQUIREMENT TO EMPLOY ALIENS IN

14 TEMPORARY OR SEASONAL AGRICULTURAL JOB OP15 PORTUNITIES.—

16 ‘‘(A) LIMITATIONS.—

17 ‘‘(i) IN GENERAL.—The employer may

18 employ H–2C aliens only in agricultural

19 employment which is temporary or sea20 sonal.

21 ‘‘(ii) SEASONAL BASIS.—For purposes

22 of this section, labor is performed on a sea23 sonal basis where, ordinarily, the employ24 ment pertains to or is of the kind exclu25 sively performed at certain seasons or peri-
19

•S 1698 IS

1 ods of the year and which, from its nature,

2 may not be continuous or carried on

3 throughout the year.

4 ‘‘(iii) TEMPORARY BASIS.—For pur5 poses of this section, a worker is employed

6 on a temporary basis where the employ7 ment is intended not to exceed 10 months.

8 ‘‘(B) REQUIRED DOCUMENTATION.—No

9 specific documentation is required to dem10 onstrate compliance with the requirement of

11 subparagraph (A). In the event of a complaint,

12 the burden of proof shall fall on the employer

13 to show that the employment meets such re14 quirement.

15 ‘‘(4) REQUIREMENT NOT TO EMPLOY ALIENS IN

16 JOB OPPORTUNITIES VACANT BECAUSE OF A LABOR

17 DISPUTE.—

18 ‘‘(A) IN GENERAL.—No H–2C alien may

19 be employed in any job opportunity which is va20 cant because its former occupant is involved in

21 a strike, lockout, or work stoppage in the

22 course of a labor dispute in the occupation at

23 the place of employment.

24 ‘‘(B) REQUIRED DOCUMENTATION.—No

25 specific documentation is required to dem-
20

•S 1698 IS

1 onstrate compliance with the requirement of

2 subparagraph (A). In the event of a complaint,

3 the burden of proof shall fall on the employer

4 to show that the job opportunity in which the

5 H–2C alien was employed was not vacant be6 cause the former occupant was on strike, locked

7 out, or participating in a work stoppage in the

8 course of a labor dispute in the occupation at

9 the place of employment.

10 ‘‘(5) NOTICE OF FILING OF LABOR CONDITION

11 ATTESTATION AND SUPPORTING DOCUMENTATION.—

12 ‘‘(A) IN GENERAL.—The employer shall—

13 ‘‘(i) provide notice of the filing of a

14 labor condition attestation to the appro15 priate certified bargaining agent (if any)

16 which represents workers of the employer

17 in the occupation (or occupations) at the

18 place of employment covered by the attes19 tation; or

20 ‘‘(ii) in the case where no such bar21 gaining agent exists, post notice of the fil22 ing of such an attestation in at least two

23 conspicuous locations where applications

24 for employment are accepted.
21

•S 1698 IS

1 ‘‘(B) PERIOD FOR POSTING.—The require2 ment for a posting under subparagraph (A)(ii)

3 begins on the day the attestation is filed, and

4 continues through the period during which the

5 employer’s job order is required to remain ac6 tive pursuant to paragraph (6)(A).

7 ‘‘(C) REQUIRED DOCUMENTATION.—The

8 employer shall maintain a copy of the notice

9 provided to the bargaining agent (if any), to10 gether with evidence that the notice was pro11 vided (such as a signed receipt of evidence of

12 attempt to send the notice by certified or reg13 istered mail). In the case where no certified

14 bargaining agent described in subparagraph

15 (A)(i) exists, the employer shall retain a copy of

16 the posted notice, together with information as

17 to the dates and locations where the notice was

18 displayed.

19 ‘‘(6) REQUIREMENT TO FILE A JOB ORDER.—

20 ‘‘(A) EFFECT OF THE ATTESTATION.—The

21 employer, or an association acting as agent for

22 its members, shall file the information nec23 essary to complete a local job order for each oc24 cupation covered by an accepted labor condition

25 attestation with the appropriate local office of
22

•S 1698 IS

1 the State employment security agency having

2 jurisdiction over the area of intended employ3 ment, or with the State office of such an agency

4 if workers will be employed in an area within

5 the jurisdiction of more than one local office of

6 such an agency. The job orders shall remain on

7 file for 25 calendar days or until 5 calendar

8 days before the anticipated date of need for

9 workers in the occupation covered by the job

10 order, whichever occurs later. The job order

11 shall provide at least the minimum terms and

12 conditions of employment required for partici13 pation in the H–2C program.

14 ‘‘(B) DEADLINE FOR FILING.—A job order

15 shall be filed under subparagraph (A) no later

16 than the date on which the employer files a pe17 tition with the Attorney General for admission

18 or extension of stay for aliens to be employed

19 in the occupation for which the order is filed.

20 ‘‘(C) REQUIRED DOCUMENTATION.—The

21 office of the State employment security agency

22 which the employer or association provides with

23 information necessary to file a local job order

24 shall provide the employer with evidence that

25 the information was provided in a timely man-
23

•S 1698 IS

1 ner as required by this paragraph, and the em2 ployer or association shall retain such evidence

3 for each occupation in which H–2C aliens are

4 employed.

5 ‘‘(7) REQUIREMENT TO GIVE PREFERENCE TO

6 QUALIFIED UNITED STATES WORKERS.—

7 ‘‘(A) FILING 30 DAYS OR MORE BEFORE

8 DATE OF NEED.—If a job order is filed 30 days

9 or more before the anticipated date of need for

10 workers in an occupation covered by a labor

11 condition attestation and for which the job

12 order has been filed, the employer shall offer to

13 employ able, willing, and qualified United

14 States workers who apply to the employer and

15 who will be available at the time and place

16 needed for the job opportunities covered by the

17 attestation until 5 calendar days before the an18 ticipated date of need for workers in the occu19 pation, or until the employer’s job opportunities

20 in the occupation are filled with qualified

21 United States workers, if that occurs more than

22 5 days before the anticipated date of need for

23 workers in the occupation.

24 ‘‘(B) FILING FEWER THAN 30 DAYS BE25 FORE DATE OF NEED.—If a job order is filed
24

•S 1698 IS

1 fewer than 30 days before the anticipated date

2 of need for workers in an occupation covered by

3 such an attestation and for which a job order

4 has been filed, the employer shall offer to em5 ploy able, willing, and qualified United States

6 workers who are or will be available at the time

7 and place needed during the first 25 days after

8 the job order is filed or until the employer’s job

9 opportunities in the occupation are filled with

10 United States workers, whichever occurs earlier,

11 regardless of whether any of the job opportuni12 ties may already be occupied by H–2C aliens.

13 ‘‘(C) FILING VACANCIES.—An employer

14 may fill a job opportunity in an occupation cov15 ered by an accepted labor condition attestation

16 which remains or becomes vacant after expira17 tion of the required preference period specified

18 in subparagraph (A) or (B) of paragraph (6)

19 without regard to such preference.

20 ‘‘(D) JOB-RELATED REQUIREMENTS.—No

21 employer shall be required to initially employ a

22 worker who fails to meet lawful job-related em23 ployment criteria, nor to continue the employ24 ment of a worker who fails to meet lawful job25 related standards of conduct and performance,
25

•S 1698 IS

1 including failure to meet minimum productivity

2 standards after a 3-day break-in period.

3 ‘‘(E) REQUIRED DOCUMENTATION.—No

4 specific documentation is required to dem5 onstrate compliance with the requirements of

6 this paragraph. In the event of a complaint, the

7 burden of proof shall be on the complainant to

8 show that the complainant applied for the job

9 and was available at the time and place needed.

10 If the complainant makes such a showing, the

11 burden of proof shall be on the employer to

12 show that the complainant was not qualified or

13 that the preference period had expired.

14 ‘‘(d) REQUIREMENTS OF NOTICE OF CERTAIN

15 BREAKS IN EMPLOYMENT.—

16 ‘‘(1) IN GENERAL.—The employer (or the asso17 ciation acting as agent for the employer) shall notify

18 the Attorney General within 7 days if an H–2C alien

19 prematurely abandons the alien’s employment.

20 ‘‘(2) OUT-OF-STATUS.—An H–2C alien who

21 abandons the alien’s employment shall be considered

22 to have failed to maintain nonimmigrant status as

23 an alien described in section 101(a)(15)(H)(ii)(c)

24 and shall leave the United States or be subject to

25 deportation under section 237(a)(1)(C)(i).
26

•S 1698 IS

1 ‘‘(e) ACCEPTANCE BY STATE EMPLOYMENT SECU2 RITY AGENCY.—The State employment security agency

3 shall review labor condition attestations submitted by em4 ployers or associations pursuant to this section only for

5 completeness and obvious inaccuracies. Unless such an

6 agency finds that the application is incomplete or obvi7 ously inaccurate, the agency shall accept the attestation

8 within 7 days of the date of filing of the attestation, and

9 return a copy to the applicant marked ‘accepted’.

10 ‘‘(f) PUBLIC REGISTRY.—The Secretary shall main11 tain a registry of all accepted labor condition attestations

12 and make such registry available for public inspection.

13 ‘‘(g) RESPONSIBILITIES OF STATE EMPLOYMENT SE14 CURITY AGENCIES.—

15 ‘‘(1) DISSEMINATION OF LABOR MARKET IN16 FORMATION.—The Secretary shall direct State em17 ployment security agencies to disseminate non18 employer-specific information about potential labor

19 needs based on accepted attestations filed by em20 ployers. Such dissemination shall be separate from

21 the clearance of job orders through the Interstate

22 and Intrastate Clearance Systems, and shall create

23 no obligations for employers except as provided in

24 this section.
27

•S 1698 IS

1 ‘‘(2) REFERRAL OF WORKERS ON STATE EM2 PLOYMENT SECURITY AGENCY JOB ORDERS.—Such

3 agencies holding job orders filed by employers cov4 ered by approved labor condition attestations shall

5 be authorized to refer any able, willing, and qualified

6 eligible job applicant who will be available at the

7 time and place needed and who is authorized to

8 work in the United States, including H–2C aliens

9 who are seeking additional work in the United

10 States and whose eligibility to remain in the United

11 States pursuant to subsection (i) has not expired, on

12 job orders filed by holders of accepted attestations.

13 ‘‘(h) ENFORCEMENT AND PENALTIES.—

14 ‘‘(1) ENFORCEMENT AUTHORITY.—

15 ‘‘(A) INVESTIGATION OF COMPLAINTS.—

16 The Secretary shall establish a process for the

17 receipt, investigation, and disposition of com18 plaints respecting an employer’s failure to meet

19 a condition specified in subsection (a) or an em20 ployer’s misrepresentation of material facts in

21 such an application. Complaints may be filed by

22 any aggrieved person or organizations (includ23 ing bargaining representatives). No investiga24 tion or hearing shall be conducted on a com25 plaint concerning such a failure or misrepresen-
28

•S 1698 IS

1 tation unless the complaint was filed not later

2 than two years after the date of the failure or

3 misrepresentation, respectively. The Secretary

4 shall conduct an investigation under this sub5 paragraph if there is reasonable cause to believe

6 that such a failure or misrepresentation has oc7 curred.

8 ‘‘(B) WRITTEN NOTICE OF FINDINGS AND

9 OPPORTUNITY FOR APPEAL.—After an inves10 tigation has been conducted, the Secretary shall

11 issue a written determination as to whether or

12 not any violation described in subparagraph (A)

13 has been committed. The Secretary’s deter14 mination shall be served on the complainant

15 and the employer, and shall provide an oppor16 tunity for an appeal of the Secretary’s decision

17 to an administrative law judge, who may con18 duct a de novo hearing.

19 ‘‘(2) REMEDIES.—

20 ‘‘(A) BACK WAGES.—Upon a final deter21 mination that the employer has failed to pay

22 wages as required under this section, the Sec23 retary may assess payment of back wages due

24 to any United States worker or H–2C alien em25 ployed by the employer in the specific employ-
29

•S 1698 IS

1 ment in question. The back wages shall be

2 equal to the difference between the amount that

3 should have been paid and the amount that ac4 tually was paid to such worker.

5 ‘‘(B) FAILURE TO PAY WAGES.—Upon a

6 final determination that the employer has failed

7 to pay the wages required under this section,

8 the Secretary may assess a civil money penalty

9 up to $1,000 for each failure, and may rec10 ommend to the Attorney General the disquali11 fication of the employer from the employment

12 of H–2C aliens for a period of time determined

13 by the Secretary not to exceed 1 year.

14 ‘‘(C) OTHER VIOLATIONS.—If the Sec15 retary, as a result of an investigation pursuant

16 to a complaint, determines that an employer

17 covered by an accepted labor condition attesta18 tion has—

19 ‘‘(i) filed an attestation which mis20 represents a material fact; or

21 ‘‘(ii) failed to meet a condition speci22 fied in subsection (a),

23 the Secretary may assess a civil money penalty

24 not to exceed $1,000 for each violation. In de25 termining the amount of civil money penalty to
30

•S 1698 IS

1 be assessed, the Secretary shall consider the se2 riousness of the violation, the good faith of the

3 employer, the size of the business of the em4 ployer being charged, the history of previous

5 violations by the employer, whether the em6 ployer obtained a financial gain from the viola7 tion, whether the violation was willful, and

8 other relevant factors.

9 ‘‘(D) PROGRAM DISQUALIFICATION.—

10 ‘‘(i) 3-YEARS FOR SECOND VIOLA11 TION.—Upon a second final determination

12 that an employer has failed to pay the

13 wages required under this section, the Sec14 retary shall report such determination to

15 the Attorney General and the Attorney

16 General shall disqualify the employer from

17 the employment of H–2C aliens for a pe18 riod of 3 years.

19 ‘‘(ii) PERMANENT FOR THIRD VIOLA20 TION.—Upon a third final determination

21 that an employer has failed to pay the

22 wages required under this section, the Sec23 retary shall report such determination to

24 the Attorney General and the Attorney

25 General shall disqualify the employer from
31

•S 1698 IS

1 any subsequent employment of H–2C

2 aliens.

3 ‘‘(3) ROLE OF ASSOCIATIONS.—

4 ‘‘(A) VIOLATION BY A MEMBER OF AN AS5 SOCIATION.—An employer on whose behalf a

6 labor condition attestation is filed by an asso7 ciation acting as its agent is fully responsible

8 for such attestation, and for complying with the

9 terms and conditions of this section, as though

10 the employer had filed the attestation itself. If

11 such an employer is determined to have violated

12 a requirement of this section, the penalty for

13 such violation shall be assessed against the em14 ployer who committed the violation and not

15 against the association or other members of the

16 association.

17 ‘‘(B) VIOLATION BY AN ASSOCIATION ACT18 ING AS AN EMPLOYER.—If an association filing

19 a labor condition attestation on its own behalf

20 as an employer is determined to have commit21 ted a violation under this subsection which re22 sults in disqualification from the program under

23 paragraph (2)(D), no individual member of

24 such association may be the beneficiary of the

25 services of an H–2C alien in an occupation in
32

•S 1698 IS

1 which such alien was employed by the associa2 tion during the period such disqualification is in

3 effect, unless such member files a labor condi4 tion attestation as an individual employer or

5 such an attestation is filed on the employer’s

6 behalf by an association with which the em7 ployer has an agreement that the employer will

8 comply with the requirements of this section.

9 ‘‘(i) PROCEDURE FOR ADMISSION OR EXTENSION OF

10 H–2C ALIENS.—

11 ‘‘(1) ALIENS WHO ARE OUTSIDE THE UNITED

12 STATES.—

13 ‘‘(A) PETITIONING FOR ADMISSION.—An

14 employer or an association acting as agent for

15 its members who seeks the admission into the

16 United States of H–2C aliens may file a peti17 tion with the District Director of the Immigra18 tion and Naturalization Service having jurisdic19 tion over the location where the aliens will be

20 employed. The petition shall be accompanied by

21 an accepted and currently valid labor condition

22 attestation covering the petitioner. The petition

23 may be for named or unnamed individual or

24 multiple beneficiaries.
33

•S 1698 IS

1 ‘‘(B) EXPEDITED ADJUDICATION BY DIS2 TRICT DIRECTOR.—If an employer’s petition for

3 admission of H–2C aliens is correctly filled out,

4 and the employer is not ineligible to employ H–

5 2C aliens, the District Director (or the Direc6 tor’s designee) shall approve the petition within

7 3 working days of receipt of the petition and

8 accepted labor condition attestation and imme9 diately (by fax, cable, or other means assuring

10 expedited delivery) transmit a copy of the ap11 proved petition to the petitioner and to the ap12 propriate immigration officer at the port of

13 entry or United States consulate (as the case

14 may be) where the petitioner has indicated that

15 the alien beneficiary (or beneficiaries) will apply

16 for a visa or admission to the United States.

17 ‘‘(C) UNNAMED BENEFICIARIES SELECTED

18 BY PETITIONER.—The petitioning employer or

19 association or its representative shall approve

20 the issuance of visas to beneficiaries who are

21 unnamed on a petition for admission granted to

22 the employer or association.

23 ‘‘(D) CRITERIA FOR ADMISSIBILITY.—

24 ‘‘(i) IN GENERAL.—An alien shall be

25 admissible under this section if the alien is
34

•S 1698 IS

1 otherwise admissible under this Act and

2 the alien is not debarred pursuant to the

3 provisions of clause (ii).

4 ‘‘(ii) DISQUALIFICATION.—An alien

5 shall be debarred from admission or being

6 provided status as an H–2C alien under

7 this section if the alien has, at any time

8 during the past 5 years—

9 ‘‘(I) violated a material provision

10 of this section, including the require11 ment to promptly depart the United

12 States when the alien’s authorized pe13 riod of admission under this section

14 has expired; or

15 ‘‘(II) otherwise violated a term or

16 condition of admission to the United

17 States as a nonimmigrant, including

18 overstaying the period of authorized

19 admission as such a nonimmigrant.

20 ‘‘(E) PERIOD OF ADMISSION.—The alien

21 shall be admitted for the period requested by

22 the petitioner not to exceed 10 months, or the

23 remaining validity period of the petitioner’s ap24 proved labor condition attestation, whichever is

25 less, plus an additional period of 14 days, dur-
35

•S 1698 IS

1 ing which the alien shall seek authorized em2 ployment in the United States. During the 14-

3 day period following the expiration of the alien’s

4 work authorization, the alien is not authorized

5 to be employed unless the original petitioner or

6 a subsequent petitioner has filed an extension

7 of stay on behalf of the alien pursuant to para8 graph (2).

9 ‘‘(F) ISSUANCE OF IDENTIFICATION AND

10 EMPLOYMENT ELIGIBILITY DOCUMENT.—

11 ‘‘(i) IN GENERAL.—The Attorney

12 General shall cause to be issued to each

13 H–2C alien a card in a form which is re14 sistant to counterfeiting and tampering for

15 the purpose of providing proof of identity

16 and employment eligibility under section

17 274A.

18 ‘‘(ii) DESIGN OF CARD.—Each card

19 issued pursuant to clause (i) shall be de20 signed in such a manner and contain a

21 photograph and other identifying informa22 tion (such as date of birth, sex, and distin23 guishing marks) that would allow an em24 ployer to determine with reasonable cer-
36

•S 1698 IS

1 tainty that the bearer is not claiming the

2 identity of another individual, and shall—

3 ‘‘(I) contain a fingerprint or

4 other biometric identifying data (or

5 both);

6 ‘‘(II) specify the date of the

7 alien’s authorization as an H–2C

8 alien;

9 ‘‘(III) specify the expiration date

10 of the alien’s work authorization; and

11 ‘‘(IV) specify the alien’s admis12 sion number or alien file number.

13 ‘‘(2) EXTENSION OF STAY.—

14 ‘‘(A) APPLICATION FOR EXTENSION OF

15 STAY.—If a petitioner seeks to employ an H–2C

16 alien already in the United States, the peti17 tioner shall file with the Attorney General an

18 application for an extension of the alien’s stay.

19 The application for extension of stay shall be

20 accompanied by a currently valid labor condi21 tion attestation.

22 ‘‘(B) LIMITATION ON FILING AN APPLICA23 TION FOR EXTENSION OF STAY.—An applica24 tion may not be filed for an extension of an

25 alien’s stay for a period of more than 10
37

•S 1698 IS

1 months, or later than a date which is 2 years

2 from the date of the alien’s last admission to

3 the United States as a H–2C alien, whichever

4 occurs first. An application for extension of stay

5 may not be filed during the pendency of an

6 alien’s previous authorized period of employ7 ment, nor after the alien’s authorized stay in

8 the United States has expired.

9 ‘‘(C) WORK AUTHORIZATION UPON FILING

10 AN APPLICATION FOR EXTENSION OF STAY.—

11 An employer may begin employing an alien al12 ready in the United States in H–2C status on

13 the day the employer files its application for ex14 tension of stay. For the purpose of this require15 ment, the term ‘filing’ means sending the appli16 cation by certified mail via the United States

17 Postal Service, return receipt requested, or de18 livered by guaranteed commercial delivery which

19 will provide the employer with a documented ac20 knowledgment of the date of sending and re21 ceipt of the application. The employer shall pro22 vide a copy of the employer’s application for ex23 tension of stay to the alien, who shall keep the

24 application with the alien’s identification and

25 employment eligibility document as evidence
38

•S 1698 IS

1 that the extension has been filed and that the

2 alien is authorized to work in the United

3 States. Upon approval of an application for ex4 tension of stay, the Attorney General shall pro5 vide a new or updated employment eligibility

6 document to the alien indicating the new valid7 ity date, after which the alien is not required

8 to retain a copy of the application for extension

9 of stay.

10 ‘‘(D) LIMITATION ON EMPLOYMENT AU11 THORIZATION OF H–2C ALIENS WITHOUT VALID

12 IDENTIFICATION AND EMPLOYMENT ELIGI13 BILITY DOCUMENT.—An expired identification

14 and employment eligibility document, together

15 with a copy of an application for extension of

16 stay, shall constitute a valid work authorization

17 document for a period of not more than 60

18 days from the date of application for the exten19 sion of stay, after which time only a currently

20 valid identification and employment eligibility

21 document shall be acceptable.

22 ‘‘(3) LIMITATION ON AN INDIVIDUAL’S STAY IN

23 H–2C STATUS.—An alien having status as an H–2C

24 alien may not have the status extended for a contin25 uous period longer than 2 years unless the alien re-
39

•S 1698 IS

1 mains outside the United States for an uninter2 rupted period of 6 months. An absence from the

3 United States may break the continuity of the period

4 for which an H–2C visa is valid. If the alien has re5 sided in the United States 10 months or less, an ab6 sence breaks the continuity of the period if it lasts

7 for at least 2 months. If the alien has resided in the

8 United States 10 months or more, an absence

9 breaks the continuity of the period if it lasts for at

10 least one-fifth the duration of the stay.

11 ‘‘(j) TRUST FUND TO ASSURE WORKER RETURN.—

12 ‘‘(1) ESTABLISHMENT.—There is established in

13 the Treasury of the United States a trust fund (in

14 this section referred to as the ‘Trust Fund’) for the

15 purpose of providing a monetary incentive for H–2C

16 aliens to return to their country of origin upon expi17 ration of their visas under this section.

18 ‘‘(2) WITHHOLDING OF WAGES; PAYMENT INTO

19 THE TRUST FUND.—

20 ‘‘(A) IN GENERAL.—Employers of H–2C

21 aliens shall—

22 ‘‘(i) withhold from the wages of their

23 H–2C alien workers an amount equivalent

24 to 25 percent of the wages of each H–2C

25 alien worker and pay such withheld
40

•S 1698 IS

1 amount into the Trust Fund in accordance

2 with paragraph (3); and

3 ‘‘(ii) pay to the Trust Fund an

4 amount equivalent to the Federal tax on

5 the wages paid to H–2C aliens that the

6 employer would be obligated to pay under

7 the Federal Unemployment Tax Act and

8 the Federal Insurance Contributions Act.

9 Amounts withheld under clause (i) shall be

10 maintained in such interest bearing account

11 with such a financial institution as the Attorney

12 General shall specify.

13 ‘‘(3) DISTRIBUTION OF FUNDS.—Amounts paid

14 into the Trust Fund on behalf of a worker, and held

15 pursuant to paragraph (2)(A)(i) and interest earned

16 thereon, shall be paid by the Attorney General to the

17 worker if—

18 ‘‘(A) the worker applies to the Attorney

19 General (or the designee of the Attorney Gen20 eral) for payment within 30 days of the expira21 tion of the alien’s last authorized stay in the

22 United States as a H–2C alien;

23 ‘‘(B) in such application the worker estab24 lishes that the worker has complied with the

25 terms and conditions of this section; and
41

•S 1698 IS

1 ‘‘(C) in connection with the application,

2 the worker tenders the identification and em3 ployment authorization card issued to the work4 er pursuant to subsection (i)(1)(F) and estab5 lishes that the worker is identified as the per6 son to whom the card was issued based on the

7 biometric identification information contained

8 on the card.

9 ‘‘(4) ADMINISTRATIVE EXPENSES.—The

10 amounts paid into the Trust Fund and held pursu11 ant to paragraph (2)(A)(ii), and interest earned

12 thereon, shall be paid to the Attorney General, the

13 Secretary of Labor, and the Secretary of State in

14 amounts equivalent to the expenses incurred by such

15 officials in the administration of section

16 101(a)(15)(H)(ii)(c) and this section.

17 ‘‘(5) REGULATIONS.—The Attorney General

18 shall prescribe regulations to carry out this sub19 section.

20 ‘‘(k) INVESTMENT OF TRUST FUND.—

21 ‘‘(1) IN GENERAL.—It shall be the duty of the

22 Secretary of the Treasury to invest such portion of

23 the Trust Fund as is not, in the Secretary’s judg24 ment, required to meet current withdrawals. Such

25 investments may be made only in interest-bearing
42

•S 1698 IS

1 obligations of the United States or in obligations

2 guaranteed as to both principal and interest by the

3 United States. For such purpose, such obligations

4 may be acquired—

5 ‘‘(A) on original issue at the price; or

6 ‘‘(B) by purchase of outstanding obliga7 tions at the market price.

8 The purposes for which obligations of the United

9 States may be issued under chapter 31 of title 31,

10 United States Code, are hereby extended to author11 ize the issuance at par of special obligations exclu12 sively to the Trust Fund. Such special obligations

13 shall bear interest at a rate equal to the average

14 rate of interest, computed as to the end of the cal15 endar month next preceding the date of such issue,

16 borne by all marketable interest-bearing obligations

17 of the United States then forming a part of the pub18 lic debt, except that where such average rate is not

19 a multiple of one-eighth of 1 percent next lower than

20 such average rate. Such special obligations shall be

21 issued only if the Secretary of the Treasury deter22 mines that the purchase of other interest-bearing ob23 ligations of the United States, or of obligations

24 guaranteed as to both principal and interest by the
43

•S 1698 IS

1 United States on original issue or at the market

2 price, is not in the public interest.

3 ‘‘(2) SALE OF OBLIGATION.—Any obligation ac4 quired by the Trust Fund (except special obligations

5 issued exclusively to the Trust Fund) may be sold by

6 the Secretary of the Treasury at the market price,

7 and such special obligations may be redeemed at par

8 plus accrued interest.

9 ‘‘(3) CREDITS TO TRUST FUND.—The interest

10 on, and the proceeds from the sale or redemption of,

11 any obligations held in the Trust Fund shall be

12 credited to and form a part of the Trust Fund.

13 ‘‘(4) REPORT TO CONGRESS.—It shall be the

14 duty of the Secretary of the Treasury to hold the

15 Trust Fund, and (after consultation with the Attor16 ney General) to report to the Congress each year on

17 the financial condition and the results of the oper18 ations of the Trust Fund during the preceding fiscal

19 year and on its expected condition and operations

20 during the next fiscal year. Such report shall be

21 printed as both a House and a Senate document of

22 the session of the Congress to which the report is

23 made.

24 ‘‘(l) MISCELLANEOUS PROVISIONS.—
44

•S 1698 IS

1 ‘‘(1) APPLICABILITY OF LABOR LAWS.—Except

2 as provided in paragraphs (2), (3), and (4), all Fed3 eral, State, and local labor laws (including laws af4 fecting migrant farm workers) applicable to United

5 States workers shall also apply to H–2C aliens.

6 ‘‘(2) LIMITATION OF WRITTEN DISCLOSURE IM7 POSED UPON RECRUITERS.—Any disclosure required

8 of recruiters under section 201(a) of the Migrant

9 and Seasonal Agricultural Worker Protection Act

10 (29 U.S.C. 1821(a)) need not be given to H–2C

11 aliens prior to the time their visa is issued permit12 ting entry into the United States.

13 ‘‘(3) EXEMPTION FROM FICA AND FUTA

14 TAXES.—The wages paid to H–2C aliens shall be ex15 cluded from wages subject to taxation under the

16 Federal Unemployment Tax Act and under the Fed17 eral Insurance Contributions Act.

18 ‘‘(4) INELIGIBILITY FOR CERTAIN PUBLIC BEN19 EFITS PROGRAMS.—

20 ‘‘(A) IN GENERAL.—Notwithstanding any

21 other provision of law and except as provided in

22 subparagraph (B), any alien provided status as

23 an H–2C alien shall not be eligible for any Fed24 eral or State or local means-tested public bene25 fit program.
45

•S 1698 IS

1 ‘‘(B) EXCEPTIONS.—Subparagraph (A)

2 shall not apply to the following:

3 ‘‘(i) EMERGENCY MEDICAL SERV4 ICES.—The provision of emergency medical

5 services (as defined by the Attorney Gen6 eral in consultation with the Secretary of

7 Health and Human Services).

8 ‘‘(ii) PUBLIC HEALTH IMMUNIZA9 TIONS.—Public health assistance for im10 munizations with respect to immunizable

11 diseases and for testing and treatment for

12 communicable diseases.

13 ‘‘(iii) SHORT-TERM EMERGENCY DIS14 ASTER RELIEF.—The provision of non15 cash, in-kind, short-term emergency disas16 ter relief.

17 ‘‘(m) REGULATIONS.—

18 ‘‘(1) REGULATIONS OF THE SECRETARY.—The

19 Secretary shall consult with the Secretary of Agri20 culture, and the Attorney General shall approve, all

21 regulations dealing with the approval of labor condi22 tion attestations for H–2C aliens and enforcement of

23 the requirements for employing H–2C aliens under

24 an approved attestation. The Secretary shall promul25 gate, and the Attorney General shall approve, such
46

•S 1698 IS

1 regulations not later than 180 days after the date

2 of the enactment of the Farmers’ Temporary Em3 ployment Assistance Act.

4 ‘‘(2) REGULATIONS OF THE ATTORNEY GEN5 ERAL.—The Attorney General shall consult with the

6 Secretary of Agriculture on all regulations dealing

7 with the approval of petitions for admission or ex8 tension of stay of H–2C aliens and the requirements

9 for employing H–2C aliens and the enforcement of

10 such requirements. The Attorney General shall pro11 mulgate such regulations not later than 180 days

12 after the date of the enactment of the Farmers’

13 Temporary Employment Assistance Act.

14 ‘‘(n) DEFINITIONS.—For the purpose of this section:

15 ‘‘(1) AGRICULTURAL ASSOCIATION.—The term

16 ‘agricultural association’ means any nonprofit or co17 operative association of farmers, growers, or ranch18 ers incorporated or qualified under applicable State

19 law, which recruits, solicits, hires, employs, fur20 nishes, or transports any agricultural workers.

21 ‘‘(2) AGRICULTURAL EMPLOYMENT.—The term

22 ‘agricultural employment’ means any service or ac23 tivity included within the provisions of section 3(f)

24 of the Fair Labor Standards Act of 1938 (29 U.S.C.

25 203(f)) or section 3121(g) of the Internal Revenue
47

•S 1698 IS

1 Code of 1986 and the handling, planting, drying,

2 packing, packaging, processing, freezing, or grading

3 prior to delivery for storage of any agricultural or

4 horticultural commodity in its unmanufactured

5 state.

6 ‘‘(3) EMPLOYER.—The term ‘employer’ means

7 any person or entity, including any independent con8 tractor and any agricultural association, that em9 ploys workers.

10 ‘‘(4) H–2C ALIEN.—The term ‘H–2C alien’

11 means an alien admitted to the United States or

12 provided status as a nonimmigrant under section

13 101(a)(15)(H)(ii)(c).

14 ‘‘(5) SECRETARY.—The term ‘Secretary’ means

15 the Secretary of Labor.

16 ‘‘(6) UNITED STATES WORKER.—The term

17 ‘United States worker’ means any worker, whether

18 a United States citizen, a United States national, or

19 an alien, who is legally permitted to work in the job

20 opportunity within the United States other than an

21 alien admitted pursuant to this section.’’.

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

23 of the Immigration and Nationality Act is amended by in-
48

•S 1698 IS

1 serting after the item relating to section 218 the following

2 new item:

‘‘Sec. 218A. Alternative agricultural worker program.’’.

Æ