II

105TH CONGRESS

1ST SESSION S. 169

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

of temporary H–2A workers.

IN THE SENATE OF THE UNITED STATES

JANUARY 21, 1997

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. SHORT TITLE.

4 This Act may be cited as the ‘‘Agricultural Work

5 Force Stability and Protection Act’’.

6 SEC. 2. CONSIDERATIONS IN THE APPROVAL OF H–2A PETI7 TIONS.

8 Section 218(a) (8 U.S.C. 1188(a)) of the Immigra9 tion and Nationality Act is amended—
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1 (1) by redesignating paragraph (2) as para2 graph (3); and

3 (2) by inserting after paragraph (1) the follow4 ing:

5 ‘‘(2) In considering an employer’s petition for

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

7 shall consider the certification decision of the Sec8 retary of Labor and shall consider any countervail9 ing evidence submitted by the employer with respect

10 to the nonavailability of United States workers and

11 the employer’s compliance with the requirements of

12 this section, and may consult with the Secretary of

13 Agriculture.’’.

14 SEC. 3. CONDITION FOR DENIAL OF LABOR CERTIFI15 CATION.

16 Section 218(b)(4) (8 U.S.C. 1188(b)(4)) of the Immi17 gration and Nationality Act is amended to read as follows:

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

19 The Secretary determines that the employer has not

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

21 alien with the appropriate local office of the State

22 employment security agency having jurisdiction over

23 the area of intended employment, or with the State

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

25 in an area within the jurisdiction of more than one
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1 local office of such an agency, which meets the cri2 teria of paragraph (5).

3 ‘‘(5) REQUIRED TERMS AND CONDITIONS OF

4 EMPLOYMENT.—The Secretary determines that the

5 employer’s job offer does not meet one or more of

6 the following criteria:

7 ‘‘(A) REQUIRED RATE OF PAY.—The em8 ployer has offered to pay H–2A aliens and all

9 other workers in the occupation in the area of

10 intended employment an adverse effect wage

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

12 similarly employed workers in the area of in13 tended employment.

14 ‘‘(B) PROVISION OF HOUSING.—

15 ‘‘(i) IN GENERAL.—The employer has

16 offered to provide housing to H–2A aliens

17 and those workers not reasonably able to

18 return to their residence within the same

19 day, without charge to the worker. The

20 employer may, at the employer’s option,

21 provide housing meeting applicable Federal

22 standards for temporary labor camps, or

23 provide rental or public accommodation

24 type housing which meets applicable local

25 or state standards for such housing.
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1 ‘‘(ii) HOUSING ALLOWANCE AS ALTER2 NATIVE.—In lieu of offering the housing

3 required in clause (i), the employer may

4 provide a reasonable housing allowance to

5 workers not reasonably able to return to

6 their place of residence within the same

7 day, but only if the Secretary determines

8 that housing is reasonably available within

9 the approximate area of employment. An

10 employer who offers a housing allowance

11 pursuant to this subparagraph shall not be

12 deemed to be a housing provider under sec13 tion 203 of the Migrant and Seasonal Ag14 ricultural Worker Protection Act (29

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

16 such housing allowance.

17 ‘‘(iii) SPECIAL HOUSING STANDARDS

18 FOR SHORT DURATION EMPLOYMENT.—

19 The Secretary shall promulgate special

20 regulations permitting the provision of

21 short-term temporary housing for workers

22 employed in occupations in which employ23 ment is expected to last 40 days or less.
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1 ‘‘(iv) TRANSITIONAL PERIOD FOR

2 PROVISION OF SPECIAL HOUSING STAND3 ARDS IN OTHER EMPLOYMENT.—For a pe4 riod of five years after the date of enact5 ment of this section, the Secretary shall

6 approve the provision of housing meeting

7 the standards described in clause (iii) in

8 occupations expected to last longer than 40

9 days in areas where available housing

10 meeting the criteria described in subpara11 graph (i) is found to be insufficient.

12 ‘‘(v) PREEMPTION OF STATE AND

13 LOCAL STANDARDS.—The standards de14 scribed in clauses (ii) and (iii) shall pre15 empt any State and local standards gov16 erning the provision of temporary housing

17 to agricultural workers.

18 ‘‘(C) REIMBURSEMENT OF TRANSPOR19 TATION COSTS.—The employer has offered to

20 reimburse H–2A aliens and workers recruited

21 from beyond normal commuting distance the

22 most economical common carrier transportation

23 charge and reasonable subsistence from the

24 place from which the worker comes to work for
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1 the employer, (but not more than the most eco2 nomical common carrier transportation charge

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

4 the worker completes 50 percent of the antici5 pated period of employment. If the worker re6 cruited from beyond normal commuting dis7 tance completes the period of employment, the

8 employer will provide or pay for the worker’s

9 transportation and reasonable subsistence to

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

11 the worker’s normal place of residence, which12 ever is less.

13 ‘‘(D) GUARANTEE OF EMPLOYMENT.—The

14 employer has offered to guarantee the worker

15 employment for at least three-fourths of the

16 workdays of the employer’s actual period of em17 ployment in the occupation. Workers who aban18 don their employment or are terminated for

19 cause shall forfeit this guarantee.

20 ‘‘(6) PREFERENCE FOR UNITED STATES WORK21 ERS.—The employer has not assured on the applica22 tion that the employer will provide employment to all

23 qualified United States workers who apply to the

24 employer and assure that they will be available at
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1 the time and place needed until the time the employ2 er’s foreign workers depart for the employer’s place

3 of employment (but not sooner than 5 days before

4 the date workers are needed), and will give pref5 erence in employment to United States workers who

6 are immediately available to fill job opportunities

7 that become available after the date work in the oc8 cupation begins.’’.

9 SEC. 4. SPECIAL RULES APPLICABLE TO THE ISSUANCE OF

10 LABOR CERTIFICATIONS.

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

12 and Nationality Act is amended to read as follows:

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

14 OF LABOR CERTIFICATIONS.—The following rules shall

15 apply to the issuance of labor certifications by the Sec16 retary under this section:

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

18 The Secretary may not require that the application

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

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

21 worker.

22 ‘‘(2) NOTICE WITHIN SEVEN DAYS OF DEFI23 CIENCIES.—

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

25 writing within seven calendar days of the date
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1 of filing, if the application does not meet the

2 criteria described in subsection (b) for approval.

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

4 criteria, the notice shall specify the specific de5 ficiencies of the application and the Secretary

6 shall provide an opportunity for the prompt re7 submission of a modified application.

8 ‘‘(3) ISSUANCE OF CERTIFICATION.—

9 ‘‘(A) The Secretary shall provide to the

10 employer, not later than 20 days before the

11 date such labor or services are first required to

12 be performed, the certification described in sub13 section (a)(1)—

14 ‘‘(i) with respect to paragraph

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

16 meets the criteria described in subsection

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

18 why such certification cannot be made, and

19 ‘‘(ii) with respect to subsection

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

21 does not actually have, or has not been

22 provided with the names, addresses and

23 Social Security numbers of workers re24 ferred to the employer who are able, will25 ing and qualified and have indicated they
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1 will be available at the time and place

2 needed to perform such labor or services

3 on the terms and conditions of the job

4 offer approved by the Secretary. For each

5 worker referred, the Secretary shall also

6 provide the employer with information suf7 ficient to permit the employer to contact

8 the referred worker for the purpose of re9 confirming the worker’s availability for

10 work at the time and place needed.

11 ‘‘(B) If, at the time the Secretary deter12 mines that the employer’s job offer meets the

13 criteria described in subsection (b) there are al14 ready unfilled job opportunities in the occupa15 tion and area of intended employment for which

16 the employer is seeking workers, the Secretary

17 shall provide the certification at the same time

18 the Secretary approves the employer’s job

19 offer.’’.

20 SEC. 5. EXPEDITED APPEALS OF CERTAIN DETERMINA21 TIONS.

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

23 and Nationality Act is amended to read as follows:

24 ‘‘(e) EXPEDITED APPEALS OF CERTAIN DETERMINA25 TIONS.—The Secretary shall provide by regulation for an
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1 expedited procedure for the review of the nonapproval of

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

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

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

5 novo administrative hearing respecting the nonapproval or

6 denial.’’.

7 SEC. 6. PROCEDURES FOR THE CONSIDERATION OF H–2A

8 PETITIONS.

9 Section 218 of the Immigration and Nationality Act

10 (8 U.S.C. 1188) is amended—

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

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

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

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

15 2A PETITIONS.—The following procedures shall apply to

16 the consideration of petitions by the Attorney General

17 under this section:

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

19 The Attorney General shall provide an expedited

20 procedure for the adjudication of petitions filed

21 under this section, and the notification of visa-issu22 ing consulates where aliens seeking admission under

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

24 where aliens will seek admission under this section
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1 within 15 calendar days from the date such petition

2 is filed by the employer.

3 ‘‘(2) EXPEDITED AMENDMENTS TO PETI4 TIONS.—The Attorney General shall provide an ex5 pedited procedure for the amendment of petitions to

6 increase the number of workers on or after five days

7 before the employers date of need for the labor or

8 services involved in the petition to replace referred

9 workers whose continued availability for work at the

10 time and place needed under the terms of the ap11 proved job offer can not be confirmed and to replace

12 referred workers who fail to report for work on the

13 date of need and replace referred workers who aban14 don their employment or are terminated for cause,

15 and for which replacement workers are not imme16 diately available pursuant to subsection (b)(6).’’.

17 SEC. 7. LIMITATION ON EMPLOYER LIABILITY.

18 Section 218(g) (8 U.S.C. 1188(g)) of the Immigra19 tion and Nationality Act is amended—

20 (1) by redesignating paragraph (2) as para21 graph (2)(A); and

22 (2) by inserting after paragraph (2)(A) the fol23 lowing:
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1 ‘‘(B) No employer shall be subject to any liabil2 ity or punishment on the basis of an employment ac3 tion or practice by such employer that conforms with

4 the terms and conditions of a job offer approved by

5 the Secretary pursuant to this section, unless and

6 until the employer has been notified that such cer7 tification has been amended or invalidated by a final

8 order of the Secretary or of a court of competent ju9 risdiction.’’.

10 SEC. 8. LIMITATION ON JUDICIAL REMEDIES.

11 Section 218(h) of the Immigration and Nationality

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

13 thereof the following:

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

15 jurisdiction to issue any restraining order or tem16 porary or permanent injunction preventing or delay17 ing the issuance by the Secretary of a certification

18 pursuant to this section, or the approval by the At19 torney General of a petition to import an alien as an

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

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

22 the Attorney General.’’.

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