II

105TH CONGRESS

1ST SESSION S. 1563

To amend the Immigration and Nationality Act to establish a 24-month

pilot program permitting certain aliens to be admitted into the United

States to provide temporary or seasonal agricultural services pursuant

to a labor condition attestation.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 13, 1997

Mr. SMITH of Oregon (for himself, Mr. CRAIG, Mr. GORTON, Mr. ROBERTS,

and Mr. GRAMS) 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 establish

a 24-month pilot program permitting certain aliens to

be admitted into the United States to provide temporary

or seasonal agricultural services 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 ‘‘Temporary Agricul5 tural Worker Act of 1997’’.
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1 SEC. 2. NEW NONIMMIGRANT CATEGORY FOR PILOT PRO2 GRAM TEMPORARY AND SEASONAL AGRICUL3 TURAL WORKERS.

4 (a) ESTABLISHMENT OF NEW CLASSIFICATION.—

5 Section 101(a)(15)(H)(ii) of the Immigration and Nation6 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended—

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

8 and

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

10 ‘‘ or (c) having a residence in a foreign country

11 which he has no intention of abandoning who is

12 coming temporarily to the United States pursuant to

13 section 218A to perform such agricultural labor or

14 services of a temporary or seasonal nature;’’.

15 (b) NO FAMILY MEMBERS PERMITTED.—Section

16 101(a)(15)(H) of the Immigration and Nationality Act (8

17 U.S.C. 1101(a)(15)(H)) is amended by striking ‘‘specified

18 in this paragraph’’ and inserting ‘‘specified in this sub19 paragraph (other than in clause (ii)(c))’’.

20 SEC. 3. PILOT PROGRAM FOR ALTERNATIVE AGRICUL21 TURAL TEMPORARY WORKER PROCESS

22 USING ATTESTATION.

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

24 Act is amended by inserting after section 218 the follow25 ing:
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1 ‘‘ALTERNATIVE AGRICULTURAL TEMPORARY WORKER

2 PROGRAM

3 ‘‘SEC. 218A. (a) CONDITION FOR EMPLOYMENT OF

4 PILOT PROGRAM ALIENS.—

5 ‘‘(1) ESTABLISHMENT OF PILOT PROGRAM; RE6 STRICTION OF ADMISSIONS TO PILOT PROGRAM PE7 RIOD.—

8 ‘‘(A) IN GENERAL.—The Attorney General

9 shall establish a pilot program for the admis10 sion of aliens classified as a nonimmigrant

11 under section 101(a)(15)(H)(ii)(c) to perform

12 temporary or seasonal agricultural services pur13 suant to a labor condition attestation filed by

14 an employer or an association for the occupa15 tion in which the alien will be employed. No

16 alien may be admitted or provided status as a

17 pilot program alien under this section after the

18 last day of the pilot program period specified in

19 subparagraph (B).

20 ‘‘(B) PILOT PROGRAM PERIOD.—The pilot

21 program period under this subparagraph is the

22 24-month period beginning 6 months after the

23 date of the enactment of the Temporary Agri24 cultural Worker Act of 1997.
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1 ‘‘(2) ADMISSION OF ALIENS.—No alien may be

2 admitted to the United States or provided status as

3 a pilot program alien (as defined in subsection

4 (n)(4)) unless—

5 ‘‘(A) the employment of the alien is cov6 ered by a currently valid labor condition attes7 tation which—

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

9 association on behalf of the employer, for

10 the occupation in which the alien will be

11 employed;

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

13 employment security agency having juris14 diction over the area of intended employ15 ment; and

16 ‘‘(iii) states each of the items de17 scribed in paragraph (2) and includes in18 formation identifying the employer or asso19 ciation and agricultural job opportunities

20 involved;

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

22 employing pilot program aliens pursuant to sub23 section (h); and

24 ‘‘(C) the employer has not, during the pilot

25 program period, been found by the Attorney
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1 General to have employed any aliens in violation

2 of section 274A(a) or this section.

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

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

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

8 pilot program aliens and all other workers in

9 the occupation not less than the prevailing wage

10 for similarly employed workers in the area of

11 employment, and not less than the applicable

12 Federal, State or local statutory minimum

13 wage.

14 ‘‘(B) WORKING CONDITIONS.—The em15 ployment of pilot program aliens will not ad16 versely affect the working conditions of simi17 larly employed workers in the area of employ18 ment.

19 ‘‘(C) LIMITATION ON EMPLOYMENT.—A

20 pilot program alien will not be employed in any

21 job opportunity which is not temporary or sea22 sonal, and will not be employed by the employer

23 in any job opportunity for more than 10

24 months in any 12-consecutive-month period.
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1 ‘‘(D) NO LABOR DISPUTE.—No pilot pro2 gram alien will be employed in any job oppor3 tunity which is vacant because its former occu4 pant is involved in a strike, lockout or work

5 stoppage in the course of a labor dispute in the

6 occupation at the place of employment.

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

8 of filing the attestation, has provided notice of

9 the attestation to its workers employed in the

10 occupation in which, and at the place of em11 ployment where, pilot program aliens will be

12 employed.

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

14 one or more job orders for the occupation (or

15 occupations) covered by the attestation with the

16 State employment security agency no later than

17 the day on which the employer first employs

18 any pilot program aliens in the occupation.

19 ‘‘(G) PREFERENCE TO DOMESTIC WORK20 ERS.—The employer will give preference to

21 able, willing and qualified United States work22 ers who apply to the employer and are available

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

24 days after the filing of the job order in an occu25 pation or until 5 days before the date employ-
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1 ment of workers in the occupation begins,

2 whichever occurs later.

3 ‘‘(4) LIMITATION ON NUMBER OF VISAS.—In no

4 case may the number of aliens who are admitted or

5 provided status as a pilot program alien in a fiscal

6 year exceed 25,000.

7 ‘‘(5) OPERATION OF PROGRAM IN NOT LESS

8 THAN 5 AREAS.—Alien admissions under this section

9 shall be allocated equally to employers in not less

10 than 5 geographically and agriculturally diverse

11 areas designated by the Secretary of Agriculture.

12 The entire United States shall be encompassed with13 in such areas.

14 ‘‘(6) GENERAL ACCOUNTING OFFICE REPORT.—

15 ‘‘(A) IN GENERAL.—The Comptroller Gen16 eral of the United States shall, concurrently

17 with the operation of the pilot program estab18 lished by this section, review the implementa19 tion and enforcement of the pilot program for

20 the purpose of determining if—

21 ‘‘(i) the program has ensured an ade22 quate and timely supply of qualified, eligi23 ble workers at the time and place needed

24 for employers;
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1 ‘‘(ii) the program has ensured that

2 pilot program aliens are employed only in

3 authorized employment and that they time4 ly depart the United States when their au5 thorized stay ends;

6 ‘‘(iii) the program has ensured that

7 implementation of the program is not dis8 placing United States agricultural workers

9 or diminishing the terms and conditions of

10 employment of United States agricultural

11 workers; and

12 ‘‘(iv) an unnecessary regulatory bur13 den has been created for employers hiring

14 workers admitted under this section.

15 ‘‘(B) REPORT.—Not later than 90 days

16 after the termination of the pilot program es17 tablished by this section, the Comptroller Gen18 eral of the United States shall submit a report

19 to Congress setting forth the conclusions of the

20 Comptroller General from the review conducted

21 under subparagraph (A).

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

23 ‘‘(1) FILING BY EMPLOYERS—Any employer in

24 the United States is eligible to file a labor condition

25 attestation.
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1 ‘‘(2) FILING BY ASSOCIATIONS ON BEHALF OF

2 EMPLOYER MEMBERS.—An agricultural association

3 may file a labor condition attestation as an agent on

4 behalf of its members. Such an attestation filed by

5 an agricultural association acting as an agent for its

6 members, when accepted, shall apply to those em7 ployer members of the association that the associa8 tion certifies to the State employment security agen9 cy are members of the association and have agreed

10 in writing to comply with the requirements of this

11 section.

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

13 attestation is valid from the date on which it is ac14 cepted by the State employment security agency for

15 the period of time requested by the employer, but

16 not to exceed 12 months.

17 ‘‘(4) WHERE TO FILE.—A labor condition attes18 tation shall be filed with the State employment secu19 rity agency having jurisdiction over the area of in20 tended employment of the workers covered by the at21 testation. If an employer, or the members of an as22 sociation of employers, will be employing workers in

23 an area or areas covered by more than one such

24 agency, the attestation shall be filed with each such
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1 agency having jurisdiction over an area where the

2 workers will be employed.

3 ‘‘(5) DEADLINE FOR FILING.—A labor condi4 tion attestation may be filed at any time up to 12

5 months prior to the date of the employer’s antici6 pated need for workers in the occupation (or occupa7 tions) covered by the attestation.

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

9 labor condition attestation may be filed for one or

10 more occupations and cover one or more periods of

11 employment.

12 ‘‘(7) MAINTAINING REQUIRED DOCUMENTA13 TION.—

14 ‘‘(A) BY EMPLOYERS.—Each employer cov15 ered by an accepted labor condition attestation

16 must maintain a file of the documentation re17 quired in subsection (c) for each occupation in18 cluded in an accepted attestation covering the

19 employer. The documentation shall be retained

20 for a period of one year following the expiration

21 of an accepted attestation. The employer shall

22 make the documentation available to represent23 atives of the Secretary during normal business

24 hours.
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1 ‘‘(B) BY ASSOCIATIONS.—In complying

2 with subparagraph (A), documentation main3 tained by an association filing a labor condition

4 attestation on behalf of an employer shall be

5 deemed to be maintained by the employer.

6 ‘‘(8) WITHDRAWAL.—

7 ‘‘(A) COMPLIANCE WITH ATTESTATION OB8 LIGATIONS.—An employer covered by an ac9 cepted labor condition attestation for an occu10 pation shall comply with the terms and condi11 tions of the attestation from the date the attes12 tation is accepted and continuing throughout

13 the period any persons are employed in an occu14 pation covered by such an accepted attestation,

15 whether or not pilot program aliens are em16 ployed in the occupation, unless the attestation

17 is withdrawn.

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

19 employer may withdraw a labor condition attes20 tation in total, or with respect to a particular

21 occupation covered by the attestation. An asso22 ciation may withdraw such an attestation with

23 respect to one or more of its members. To with24 draw an attestation the employer or association

25 must notify in writing the State employment se-
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1 curity agency office with which the attestation

2 was filed of the withdrawal of the attestation.

3 An employer who withdraws an attestation, or

4 on whose behalf an attestation is withdrawn by

5 an association, is relieved of the obligations un6 dertaken in the attestation with respect to the

7 occupation (or occupations) with respect to

8 which the attestation was withdrawn, upon ac9 knowledgement by the appropriate State em10 ployment security agency of receipt of the with11 drawal notice. An attestation may not be with12 drawn with respect to any occupation while any

13 pilot program alien covered by that attestation

14 is employed in the occupation.

15 ‘‘(C) OBLIGATIONS UNDER OTHER STAT16 UTES.—Any obligation incurred by the em17 ployer under any other law or regulation as a

18 result of recruitment of United States workers

19 under an offer of terms and conditions of em20 ployment required by the pilot program under

21 this section is unaffected by withdrawal of a

22 labor condition attestation.

23 ‘‘(c) EMPLOYER RESPONSIBILITIES AND REQUIRE24 MENTS FOR EMPLOYING PILOT PROGRAM ALIENS.—
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1 ‘‘(1) REQUIREMENT TO PAY THE PREVAILING

2 WAGE.—

3 ‘‘(A) EFFECT OF THE ATTESTATION.—

4 Employers shall pay each worker in an occupa5 tion covered by an accepted labor condition at6 testation at least the prevailing wage in the oc7 cupation in the area of intended employment.

8 The preceding sentence does not require em9 ployers to pay all workers in the occupation the

10 same wage. The employer may, in the sole dis11 cretion of the employer, maintain pay differen12 tials based on experience, tenure with the em13 ployer, skill, or any other work-related factor, if

14 the differential is not based on a criterion for

15 which discrimination is prohibited by the law

16 and all workers in the covered occupation re17 ceive at least the prevailing wage.

18 ‘‘(B) PAYMENT OF STATE EMPLOYMENT

19 SECURITY AGENCY DETERMINED WAGE SUFFI20 CIENT.—The employer may request and obtain

21 a prevailing wage determination from the State

22 employment security agency. If the employer re23 quests such a determination, and pays the wage

24 determined, such payment shall be considered
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1 sufficient to meet the requirement of this para2 graph if the pilot program aliens—

3 ‘‘(i) are employed in the occupation

4 for which the employer possesses an ac5 cepted labor condition attestation, and for

6 which the employer or association pos7 sesses a prevailing wage determination by

8 the State employment security agency, and

9 ‘‘(ii) are being paid at least the pre10 vailing wage so determined.

11 ‘‘(C) RELIANCE ON WAGE SURVEY.—In

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

13 employer may rely on other information, such

14 as an employer generated prevailing wage sur15 vey and determination, which meets criteria

16 specified by the Secretary by regulation. In the

17 event of a complaint that the employer has

18 failed to pay the required wage, the Secretary

19 shall investigate to determine if the information

20 upon which the employer relied complied with

21 the criteria for prevailing wage determinations.

22 ‘‘(D) ALTERNATE METHODS OF PAYMENT

23 PERMITTED.—

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

25 may be expressed as an hourly wage, a
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1 piece rate, a task rate (described in clause

2 (ii)), or other incentive pay system, includ3 ing a group rate (described in clause (iii)).

4 The requirement to pay at least the pre5 vailing wage in the occupation and area of

6 intended employment does not require an

7 employer to pay by the method of pay in

8 which the prevailing rate is expressed.

9 However, if the employer adopts a method

10 of pay other than the prevailing rate, the

11 burden of proof is on the employer to dem12 onstrate that the employer’s method of pay

13 is designed to produce earnings equivalent

14 to the earnings that would result from pay15 ment of the prevailing rate.

16 ‘‘(ii) TASK RATE.—For purposes of

17 this subparagraph, a task rate is an incen18 tive payment based on a unit of work per19 formed such that the incentive rate varies

20 with the level of effort required to perform

21 individual units of work.

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

23 this subparagraph, a group rate is an in24 centive payment system in which the pay-
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1 ment is shared among a group of workers

2 working together to perform the task.

3 ‘‘(E) REQUIRED DOCUMENTATION.—The

4 employer or association shall document compli5 ance with this paragraph by retaining on file

6 the employer or association’s request for a de7 termination by a State employment security

8 agency and the prevailing wage determination

9 received from such agency or other information

10 upon which the employer or association relied to

11 assure compliance with the prevailing wage re12 quirement.

13 ‘‘(2) REQUIREMENT TO PROVIDE HOUSING AND

14 TRANSPORTATION.—

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

16 employment of pilot program aliens shall not

17 adversely affect the working conditions of Unit18 ed States workers similarly employed in the

19 area of intended employment. The employer’s

20 obligation not to adversely affect working condi21 tions shall continue for the duration of the pe22 riod of employment by the employer of any pilot

23 program aliens in the occupation and area of

24 intended employment. An employer will be

25 deemed to be in compliance with this attesta-
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1 tion if the employer offers at least the benefits

2 required by subparagraphs (B) through (D).

3 The previous sentence does not require an em4 ployer to offer more than such benefits.

5 ‘‘(B) HOUSING REQUIRED.—

6 ‘‘(i) HOUSING OFFER.—The employer

7 must offer to pilot program aliens and

8 United States workers recruited from be9 yond normal recruiting distance housing,

10 or a housing allowance, if it is prevailing

11 practice in the occupation and area of in12 tended employment to offer housing or a

13 housing allowance to workers who are re14 cruited from beyond normal commuting

15 distance.

16 ‘‘(ii) HOUSING STANDARDS.—If the

17 employer offers housing to such workers,

18 the housing shall meet (at the option of

19 the employer) applicable Federal farm

20 labor housing standards or applicable local

21 or State standards for rental, public ac22 commodation, or other substantially simi23 lar class of habitation.

24 ‘‘(iii) CHARGES FOR HOUSING.—An

25 employer who offers housing to such work-
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1 ers may charge an amount equal to the

2 fair market value (but not greater than the

3 employer’s actual cost) for utilities and

4 maintenance, or such lesser amount as per5 mitted by law.

6 ‘‘(iv) HOUSING ALLOWANCE AS AL7 TERNATIVE.—In lieu of offering housing to

8 such workers, at the employer’s sole discre9 tion on an individual basis, the employer

10 may provide a reasonable housing allow11 ance. An employer who offers a housing al12 lowance to such a worker under this sub13 paragraph shall not be deemed to be a

14 housing provider under section 203 of the

15 Migrant and Seasonal Agricultural Worker

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

17 virtue of providing such housing allowance.

18 ‘‘(v) SECURITY DEPOSIT.—The re19 quirement, if any, to offer housing to such

20 a worker under this subparagraph shall

21 not preclude an employer from requiring a

22 reasonable deposit to protect against gross

23 negligence or willful destruction of prop24 erty, as a condition for providing such

25 housing.
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1 ‘‘(vi) DAMAGES.—An employer who

2 offers housing to such a worker shall not

3 be precluded from requiring a worker

4 found to have been responsible for damage

5 to such housing which is not the result of

6 normal wear and tear related to habitation

7 to reimburse the employer for the reason8 able cost of repair of such damage.

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

10 provides transportation arrangements or assist11 ance to pilot program aliens, the employer must

12 offer to provide the same transportation ar13 rangements or assistance (generally comparable

14 in expense and scope) for other individuals em15 ployed by the employer in the occupation at the

16 place of employment who were recruited from

17 beyond normal commuting distance.

18 ‘‘(D) WORKERS’ COMPENSATION.—If the

19 employment covered by a labor condition attes20 tation is not covered by the State workers’ com21 pensation law, the employer must provide, at no

22 cost to the worker, insurance covering injury

23 and disease arising out of and in the course of

24 the workers’ employment which will provide

25 benefits at least equal to those provided under
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1 the State workers’ compensation law for com2 parable employment.

3 ‘‘(E) REQUIRED DOCUMENTATION.—

4 ‘‘(i) HOUSING AND TRANSPOR5 TATION.—No specific documentation is re6 quired to be maintained to evidence com7 pliance with the requirements of subpara8 graphs (B) and (C). In the event of a com9 plaint alleging a failure to comply with

10 such a requirement, the burden of proof

11 shall be on the employer to show that the

12 employer offered the required benefit to

13 the complainant, or that the employer was

14 not required by the terms of this para15 graph to offer such benefit to the com16 plainant.

17 ‘‘(ii) WORKERS’ COMPENSATION.—

18 The employer shall maintain copies of cer19 tificates of insurance evidencing compli20 ance with subparagraph (D) throughout

21 the period of validity of the labor condition

22 attestation.

23 ‘‘(3) REQUIREMENT TO EMPLOY ALIENS IN

24 TEMPORARY OR SEASONAL AGRICULTURAL JOB OP25 PORTUNITIES.—
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1 ‘‘(A) LIMITATIONS.—

2 ‘‘(i) IN GENERAL.—The employer may

3 employ pilot program aliens only in agri4 cultural employment which is temporary or

5 seasonal.

6 ‘‘(ii) SEASONAL BASIS.—For purposes

7 of this section, labor is performed on a sea8 sonal basis where, ordinarily, the employ9 ment pertains to or is of the kind exclu10 sively performed at certain seasons or peri11 ods of the year and which, from its nature,

12 may not be continuous or carried on

13 throughout the year.

14 ‘‘(iii) TEMPORARY BASIS.—For pur15 poses of this section, a worker is employed

16 on a temporary basis where the employ17 ment is intended not to exceed 10 months.

18 ‘‘(B) REQUIRED DOCUMENTATION.—No

19 specific documentation is required to dem20 onstrate compliance with the requirement of

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

22 the burden of proof shall fall on the employer

23 to show that the employment meets such re24 quirement.
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1 ‘‘(4) REQUIREMENT NOT TO EMPLOY ALIENS IN

2 JOB OPPORTUNITIES VACANT BECAUSE OF A LABOR

3 DISPUTE.—

4 ‘‘(A) IN GENERAL.—No pilot program

5 alien may be employed in any job opportunity

6 which is vacant because its former occupant is

7 involved in a strike, lockout, or work stoppage

8 in the course of a labor dispute in the occupa9 tion at the place of employment.

10 ‘‘(B) REQUIRED DOCUMENTATION.—No

11 specific documentation is required to dem12 onstrate compliance with the requirement of

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

14 the burden of proof shall fall on the employer

15 to show that the job opportunity in which the

16 pilot program alien was employed was not va17 cant because the former occupant was on strike,

18 locked out, or participating in a work stoppage

19 in the course of a labor dispute in the occupa20 tion at the place of employment.

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

22 ATTESTATION AND SUPPORTING DOCUMENTATION.—

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

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

25 labor condition attestation to the appro-
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1 priate certified bargaining agent (if any)

2 which represents workers of the employer

3 in the occupation (or occupations) at the

4 place of employment covered by the attes5 tation; or

6 ‘‘(ii) in the case where no such bar7 gaining agent exists, post notice of the fil8 ing of such an attestation in at least two

9 conspicuous locations where applications

10 for employment are accepted.

11 ‘‘(B) PERIOD FOR POSTING.—The require12 ment for a posting under subparagraph (A)(ii)

13 begins on the day the attestation is filed, and

14 continues through the period during which the

15 employer’s job order is required to remain ac16 tive pursuant to paragraph (6)(A).

17 ‘‘(C) REQUIRED DOCUMENTATION.—The

18 employer shall maintain a copy of the notice

19 provided to the bargaining agent (if any), to20 gether with evidence that the notice was pro21 vided (such as a signed receipt of evidence of

22 attempt to send the notice by certified or reg23 istered mail). In the case where no certified

24 bargaining agent described in subparagraph

25 (A)(i) exists, the employer shall retain a copy of
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1 the posted notice, together with information as

2 to the dates and locations where the notice was

3 displayed.

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

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

6 employer, or an association acting as agent for

7 its members, shall file the information nec8 essary to complete a local job order for each oc9 cupation covered by an accepted labor condition

10 attestation with the appropriate local office of

11 the State employment security agency having

12 jurisdiction over the area of intended employ13 ment, or with the State office of such an agency

14 if workers will be employed in an area within

15 the jurisdiction of more than one local office of

16 such an agency. The job orders shall remain on

17 file for 25 calendar days or until 5 calendar

18 days before the anticipated date of need for

19 workers in the occupation covered by the job

20 order, whichever occurs later. The job order

21 shall provide at least the minimum terms and

22 conditions of employment required for partici23 pation in the pilot program.

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

25 shall be filed under subparagraph (A) no later
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1 than the date on which the employer files a pe2 tition with the Attorney General for admission

3 or extension of stay for aliens to be employed

4 in the occupation for which the order is filed.

5 ‘‘(C) REQUIRED DOCUMENTATION.—The

6 office of the State employment security agency

7 which the employer or association provides with

8 information necessary to file a local job order

9 shall provide the employer with evidence that

10 the information was provided in a timely man11 ner as required by this paragraph, and the em12 ployer or association shall retain such evidence

13 for each occupation in which pilot program

14 aliens are employed.

15 ‘‘(7) REQUIREMENT TO GIVE PREFERENCE TO

16 QUALIFIED UNITED STATES WORKERS.—

17 ‘‘(A) FILING 30 DAYS OR MORE BEFORE

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

19 or more before the anticipated date of need for

20 workers in an occupation covered by a labor

21 condition attestation and for which the job

22 order has been filed, the employer shall offer to

23 employ able, willing, and qualified United

24 States workers who apply to the employer and

25 who will be available at the time and place
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1 needed for the job opportunities covered by the

2 attestation until 5 calendar days before the an3 ticipated date of need for workers in the occu4 pation, or until the employer’s job opportunities

5 in the occupation are filled with qualified Unit6 ed States workers, if that occurs more than 5

7 days before the anticipated date of need for

8 workers in the occupation.

9 ‘‘(B) FILING FEWER THAN 30 DAYS BE10 FORE DATE OF NEED.—If a job order is filed

11 fewer than 30 days before the anticipated date

12 of need for workers in an occupation covered by

13 such an attestation and for which a job order

14 has been filed, the employer shall offer to em15 ploy able, willing, and qualified United States

16 workers who are or will be available at the time

17 and place needed during the first 25 days after

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

19 opportunities in the occupation are filled with

20 United States workers, regardless of whether

21 any of the job opportunities may already be oc22 cupied by pilot program aliens.

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

24 may fill a job opportunity in an occupation cov25 ered by an accepted labor condition attestation
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1 which remains or becomes vacant after expira2 tion of the required preference period specified

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

4 without regard to such preference.

5 ‘‘(D) JOB-RELATED REQUIREMENTS.—No

6 employer shall be required to initially employ a

7 worker who fails to meet lawful job-related em8 ployment criteria, nor to continue the employ9 ment of a worker who fails to meet lawful job10 related standards of conduct and performance,

11 including failure to meet minimum productivity

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

13 ‘‘(E) REQUIRED DOCUMENTATION.—No

14 specific documentation is required to dem15 onstrate compliance with the requirements of

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

17 burden of proof shall be on the complainant to

18 show that the complainant applied for the job

19 and was available at the time and place needed.

20 If the complainant makes such a showing, the

21 burden of proof shall be on the employer to

22 show that the complainant was not qualified or

23 that the preference period had expired.

24 ‘‘(d) REQUIREMENTS OF NOTICE OF CERTAIN

25 BREAKS IN EMPLOYMENT.—
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1 ‘‘(1) IN GENERAL.—The employer (or the asso2 ciation acting as agent for the employer) shall notify

3 the Attorney General within 7 days if a pilot pro4 gram alien prematurely abandons the alien’s employ5 ment.

6 ‘‘(2) OUT-OF-STATUS.—A pilot program alien

7 who abandons the alien’s employment shall be con8 sidered to have failed to maintain nonimmigrant sta9 tus as an alien described in section

10 101(a)(15)(H)(ii)(c) and shall leave the United

11 States or be subject to removal under section

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

13 ‘‘(e) ACCEPTANCE BY STATE EMPLOYMENT SECU14 RITY AGENCY.—The State employment security agency

15 shall review labor condition attestations submitted by em16 ployers or associations pursuant to this section only for

17 completeness and obvious inaccuracies. Unless such an

18 agency finds that the application is incomplete or obvi19 ously inaccurate, the agency shall accept the attestation

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

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

22 ‘‘(f) PUBLIC REGISTRY.—The Secretary shall main23 tain a registry of all accepted labor condition attestations

24 and make such registry available for public inspection.
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•S 1563 IS

1 ‘‘(g) RESPONSIBILITIES OF THE STATE EMPLOY2 MENT SECURITY AGENCIES.—

3 ‘‘(1) DISSEMINATION OF LABOR MARKET IN4 FORMATION.—The Secretary shall direct State em5 ployment security agencies to disseminate non-em6 ployer-specific information about potential labor

7 needs based on accepted attestations filed by em8 ployers. Such dissemination shall be separate from

9 the clearance of job orders through the Interstate

10 and Intrastate Clearance Systems, and shall create

11 no obligations for employers except as provided in

12 this section.

13 ‘‘(2) REFERRAL OF WORKERS ON STATE EM14 PLOYMENT SECURITY AGENCY JOB ORDERS.—

15 ‘‘(A) IN GENERAL.—Such agencies holding

16 job orders filed by employers covered by ap17 proved labor condition attestations shall be au18 thorized to refer any able, willing, and qualified

19 eligible job applicant who will be available at

20 the time and place needed and who is author21 ized to work in the United States, including

22 pilot program aliens who are seeking additional

23 work in the United States and whose eligibility

24 to remain in the United States pursuant to sub-
30

•S 1563 IS

1 section (i) has not expired, on job orders filed

2 by holders of accepted attestations.

3 ‘‘(B) PROCEDURES.—A State employment

4 agency that refers any individuals for employ5 ment pursuant to subsection (g)(2)(A) shall

6 comply with the procedures specified in sub7 section (b) of section 274A. For purposes of the

8 attestation requirement in subsection (b)(1),

9 the agency employee who is primarily involved

10 in the referral of the individual shall make the

11 attestation on behalf of the agency. The agency

12 shall retain the completed forms and make

13 them available for inspection as required in sub14 section (b)(3) of section 274A.

15 ‘‘(C) EMPLOYMENT VERIFICATION.—For

16 purposes of complying with subsection (b) of

17 section 274A with respect to an individual re18 ferred by a State employment agency, a pilot

19 program employer may, at the employer’s op20 tion, fulfill the requirements of subsection (b) of

21 this section in lieu of retaining the documenta22 tion described in section 274A(a)(5).

23 ‘‘(h) ENFORCEMENT AND PENALTIES.—

24 ‘‘(1) ENFORCEMENT AUTHORITY.—
31

•S 1563 IS

1 ‘‘(A) INVESTIGATION OF COMPLAINTS.—

2 The Secretary shall establish a process for the

3 receipt, investigation, and disposition of com4 plaints respecting an employer’s failure to meet

5 a condition specified in subsection (a) or an em6 ployer’s misrepresentation of material facts in

7 such an application. Complaints may be filed by

8 any aggrieved person or organizations (includ9 ing bargaining representatives). No investiga10 tion or hearing shall be conducted on a com11 plaint concerning such a failure or misrepresen12 tation unless the complaint was filed not later

13 than 2 years after the date of the failure or

14 misrepresentation, respectively. The Secretary

15 shall conduct an investigation under this sub16 paragraph if there is reasonable cause to believe

17 that such a failure or misrepresentation has oc18 curred.

19 ‘‘(B) WRITTEN NOTICE OF FINDINGS AND

20 OPPORTUNITY FOR APPEAL.—After an inves21 tigation has been conducted, the Secretary shall

22 issue a written determination as to whether or

23 not any violation described in subparagraph (A)

24 has been committed. The Secretary’s deter25 mination shall be served on the complainant
32

•S 1563 IS

1 and the employer, and shall provide an oppor2 tunity for an appeal of the Secretary’s decision

3 to an administrative law judge, who may con4 duct a de novo hearing.

5 ‘‘(2) REMEDIES.—

6 ‘‘(A) BACK WAGES.—Upon a final deter7 mination that the employer has failed to pay

8 wages as required under this section, the Sec9 retary may assess payment of back wages due

10 to any United States worker or pilot program

11 alien employed by the employer in the specific

12 employment in question. The back wages shall

13 be equal to the difference between the amount

14 that should have been paid and the amount

15 that actually was paid to such worker.

16 ‘‘(B) FAILURE TO PAY WAGES.—Upon a

17 final determination that the employer has failed

18 to pay the wages required under this section,

19 the Secretary may assess a civil money penalty

20 up to $1,000 for each failure, and may rec21 ommend to the Attorney General the disquali22 fication of the employer from the employment

23 of pilot program aliens for a period of time de24 termined by the Secretary not to exceed 1 year.
33

•S 1563 IS

1 ‘‘(C) OTHER VIOLATIONS.—If the Sec2 retary, as a result of an investigation pursuant

3 to a complaint, determines that an employer

4 covered by an accepted labor condition attesta5 tion has—

6 ‘‘(i) filed an attestation which mis7 represents a material fact; or

8 ‘‘(ii) failed to meet a condition speci9 fied in subsection (a),

10 the Secretary may assess a civil money penalty

11 not to exceed $1,000 for each violation. In de12 termining the amount of civil money penalty to

13 be assessed, the Secretary shall consider the se14 riousness of the violation, the good faith of the

15 employer, the size of the business of the em16 ployer being charged, the history of previous

17 violations by the employer, whether the em18 ployer obtained a financial gain from the viola19 tion, whether the violation was willful, and

20 other relevant factors.

21 ‘‘(D) PROGRAM DISQUALIFICATION.—Upon

22 a second final determination that an employer

23 has failed to pay the wages required under this

24 section, the Secretary shall report such deter25 mination to the Attorney General and the At-
34

•S 1563 IS

1 torney General shall disqualify the employer

2 from any subsequent employment of pilot pro3 gram aliens.

4 ‘‘(3) ROLE OF ASSOCIATIONS.—

5 ‘‘(A) VIOLATION BY AN ASSOCIATION.—An

6 employer on whose behalf a labor condition at7 testation is filed by an association acting as its

8 agent is fully responsible for such attestation,

9 and for complying with the terms and condi10 tions of this section, as though the employer

11 had filed the attestation itself. If such an em12 ployer is determined to have violated a require13 ment of this section, the penalty for such viola14 tion shall be assessed against the employer who

15 committed the violation and not against the as16 sociation or other members of the 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 a pilot program alien in an occupa-
35

•S 1563 IS

1 tion in which such alien was employed by the

2 association during the period such disqualifica3 tion is in effect, unless such member files a

4 labor condition attestation as an individual em5 ployer or such an attestation is filed on the em6 ployer’s behalf by an association with which the

7 employer has an agreement that the employer

8 will comply with the requirements of this sec9 tion.

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

11 PILOT PROGRAM ALIENS.—

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

13 STATES.—

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

15 employer or an association acting as agent for

16 its members who seeks the admission into the

17 United States of pilot program aliens may file

18 a petition with the District Director of the Im19 migration and Naturalization Service having ju20 risdiction over the location where the aliens will

21 be employed. The petition shall be accompanied

22 by an accepted and currently valid labor condi23 tion attestation covering the petitioner. The pe24 tition may be for named or unnamed individual

25 or multiple beneficiaries.
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•S 1563 IS

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

3 admission of pilot program aliens is correctly

4 filled out, and the employer is not ineligible to

5 employ pilot program aliens, the District Direc6 tor (or the Director’s designee) shall approve

7 the petition within 3 working days of receipt of

8 the petition and accepted labor condition attes9 tation and immediately (by fax, cable, or other

10 means assuring expedited delivery) transmit a

11 copy of the approved petition to the petitioner

12 and to the appropriate immigration officer at

13 the port of entry or United States consulate (as

14 the case may be) where the petitioner has indi15 cated that the alien beneficiary (or bene16 ficiaries) will apply for a visa or admission to

17 the United States.

18 ‘‘(C) UNNAMED BENEFICIARIES SELECTED

19 BY PETITIONER.—The petitioning employer or

20 association or its representative shall approve

21 the issuance of visas to beneficiaries who are

22 unnamed on a petition for admission granted to

23 the employer or association.

24 ‘‘(D) CRITERIA FOR ADMISSIBILITY.—
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•S 1563 IS

1 ‘‘(i) IN GENERAL.—An alien shall be

2 admissible under this section if the alien is

3 otherwise admissible under this Act and

4 the alien is not debarred pursuant to the

5 provisions of clause (ii).

6 ‘‘(ii) DISQUALIFICATION.—An alien

7 shall be debarred from admission or being

8 provided status as a pilot program alien

9 under this section if the alien has, at any

10 time during the past 5 years—

11 ‘‘(I) violated a material provision

12 of this section, including the require13 ment to promptly depart the United

14 States when the alien’s authorized pe15 riod of admission under this section

16 has expired; or

17 ‘‘(II) otherwise violated a term or

18 condition of admission to the United

19 States as a nonimmigrant, including

20 overstaying the period of authorized

21 admission as such a nonimmigrant.

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

23 shall be admitted for the period requested by

24 the petitioner not to exceed 10 months, or the

25 remaining validity period of the petitioner’s ap-
38

•S 1563 IS

1 proved labor condition attestation, whichever is

2 less, plus an additional period of 14 days, dur3 ing which the alien shall seek authorized em4 ployment in the United States. During the 14-

5 day period following the expiration of the alien’s

6 work authorization, the alien is not authorized

7 to be employed unless the original petitioner or

8 a subsequent petitioner has filed an extension

9 of stay on behalf of the alien pursuant to para10 graph (2).

11 ‘‘(F) ISSUANCE OF IDENTIFICATION AND

12 EMPLOYMENT ELIGIBILITY DOCUMENT.—

13 ‘‘(i) IN GENERAL.—The Attorney

14 General shall cause to be issued to each

15 pilot program alien a card in a form which

16 is resistant to counterfeiting and tamper17 ing for the purpose of providing proof of

18 identity and employment eligibility under

19 section 274A.

20 ‘‘(ii) DESIGN OF CARD.—Each card

21 issued pursuant to clause (i) shall be de22 signed in such a manner and contain a

23 photograph and other identifying informa24 tion (such as date of birth, sex, and distin25 guishing marks) that would allow an em-
39

•S 1563 IS

1 ployer to determine with reasonable cer2 tainty that the bearer is not claiming the

3 identity of another individual, and shall—

4 ‘‘(I) contain a fingerprint or

5 other biometric identifying data (or

6 both);

7 ‘‘(II) specify the date of the

8 alien’s authorization as a pilot pro9 gram alien;

10 ‘‘(III) specify the expiration date

11 of the alien’s work authorization; and

12 ‘‘(IV) specify the alien’s admis13 sion number or alien file number.

14 ‘‘(2) EXTENSION OF STAY.—

15 ‘‘(A) APPLICATION FOR EXTENSION OF

16 STAY.—If a petitioner seeks to employ a pilot

17 program alien already in the United States, the

18 petitioner shall file with the Attorney General

19 an application for an extension of the alien’s

20 stay. The application for extension of stay shall

21 be accompanied by a currently valid labor con22 dition attestation.

23 ‘‘(B) LIMITATION ON FILING AN APPLICA24 TION FOR EXTENSION OF STAY.—An applica25 tion may not be filed for an extension of an
40

•S 1563 IS

1 alien’s stay for a period of more than 10

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

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

4 the United States as a pilot program alien,

5 whichever occurs first. An application for exten6 sion of stay may not be filed during the pend7 ency of an alien’s previous authorized period of

8 employment, nor after the alien’s authorized

9 stay in the United States has expired.

10 ‘‘(C) WORK AUTHORIZATION UPON FILING

11 AN APPLICATION FOR EXTENSION OF STAY.—

12 An employer may begin employing an alien al13 ready in the United States in pilot program

14 alien status on the day the employer files its

15 application for extension of stay. For the pur16 pose of this requirement, the term ‘filing’

17 means sending the application by certified mail

18 via the United States Postal Service, return re19 ceipt requested, or delivered by guaranteed

20 commercial delivery which will provide the em21 ployer with a documented acknowledgment of

22 the date of sending and receipt of the applica23 tion. The employer shall provide a copy of the

24 employer’s application for extension of stay to

25 the alien, who shall keep the application with
41

•S 1563 IS

1 the alien’s identification and employment eligi2 bility document as evidence that the extension

3 has been filed and that the alien is authorized

4 to work in the United States. Upon approval of

5 an application for extension of stay, the Attor6 ney General shall provide a new or updated em7 ployment eligibility document to the alien indi8 cating the new validity date, after which the

9 alien is not required to retain a copy of the ap10 plication for extension of stay.

11 ‘‘(D) LIMITATION ON EMPLOYMENT AU12 THORIZATION OF PILOT PROGRAM ALIENS

13 WITHOUT VALID IDENTIFICATION AND EMPLOY14 MENT ELIGIBILITY CARD.—An expired identi15 fication and employment eligibility document,

16 together with a copy of an application for ex17 tension of stay, shall constitute a valid work au18 thorization document for a period of not more

19 than 60 days from the date of application for

20 the extension of stay, after which time only a

21 currently valid identification and employment

22 eligibility document shall be acceptable.

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

24 PILOT PROGRAM STATUS.—An alien having status as

25 a pilot program alien may not have the status ex-
42

•S 1563 IS

1 tended for a continuous period longer than 2 years

2 unless the alien remains outside the United States

3 for an uninterrupted period of 6 months. An absence

4 from the United States may break the continuity of

5 the period for which a nonimmigrant visa issued

6 under section 101(a)(15)(H)(ii)(c) is valid. If the

7 alien has resided in the United States 10 months or

8 less, an absence breaks the continuity of the period

9 if its lasts for at least 2 months. If the alien has re10 sided in the United States 10 months or more, an

11 absence breaks the continuity of the period if it lasts

12 for at least one-fifth the duration of the stay.

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

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

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

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

17 purpose of providing a monetary incentive for pilot

18 program aliens to return to their country of origin

19 upon expiration of their visas under this section.

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

21 THE TRUST FUND.—

22 ‘‘(A) IN GENERAL.—Employers of pilot

23 program aliens shall—

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

25 pilot program alien workers an amount
43

•S 1563 IS

1 equivalent to 25 percent of the wages of

2 each pilot program alien worker and pay

3 such withheld amount into the Trust Fund

4 in accordance with paragraph (3); and

5 ‘‘(ii) pay to the Trust Fund an

6 amount equivalent to the Federal tax on

7 the wages paid to pilot program aliens that

8 the employer would be obligated to pay

9 under the Federal Unemployment Tax Act

10 and the Federal Insurance Contributions

11 Act.

12 Amounts withheld under clause (i) shall be

13 maintained in such interest bearing account

14 with such a financial institution as the Attorney

15 General shall specify.

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

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

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

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

20 worker if—

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

22 General (or the designee of the Attorney Gen23 eral) for payment within 30 days of the expira24 tion of the alien’s last authorized stay in the

25 United States as a pilot program alien;
44

•S 1563 IS

1 ‘‘(B) in such application the worker estab2 lishes that the worker has complied with the

3 terms and conditions of this section; and

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

5 the worker tenders the identification and em6 ployment authorization card issued to the work7 er pursuant to subsection (i)(1)(F) and estab8 lishes that the worker is identified as the per9 son to whom the card was issued based on the

10 biometric identification information contained

11 on the card.

12 ‘‘(4) ADMINISTRATIVE EXPENSES.—The

13 amounts paid into the Trust Fund and held pursu14 ant to paragraph (2)(A)(ii), and interest earned

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

16 Secretary of Labor, and the Secretary of State in

17 amounts equivalent to the expenses incurred by such

18 officials in the administration of section

19 101(a)(15)(H)(ii)(c) and this section.

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

21 shall prescribe regulations to carry out this sub22 section.

23 ‘‘(k) INVESTMENT OF TRUST FUND.—

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

25 Secretary of the Treasury to invest such portion of
45

•S 1563 IS

1 the Trust Fund as is not, in the Secretary’s judg2 ment, required to meet current withdrawals. Such

3 investments may be made only in interest-bearing

4 obligations of the United States or in obligations

5 guaranteed as to both principal and interest by the

6 United States. For such purpose, such obligations

7 may be acquired—

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

9 ‘‘(B) by purchase of outstanding obliga10 tions at the market price.

11 The purposes for which obligations of the United

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

13 United States Code, are hereby extended to author14 ize the issuance at par of special obligations exclu15 sively to the Trust Fund. Such special obligations

16 shall bear interest at a rate equal to the average

17 rate of interest, computed as to the end of the cal18 endar month next preceding the date of such issue,

19 borne by all marketable interest-bearing obligations

20 of the United States then forming a part of the pub21 lic debt, except that where such average rate is not

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

23 such average rate. Such special obligations shall be

24 issued only if the Secretary of the Treasury deter25 mines that the purchase of other interest-bearing ob-
46

•S 1563 IS

1 ligations of the United States, or of obligations

2 guaranteed as to both principal and interest by the

3 United States on original issue or at the market

4 price, is not in the public interest.

5 ‘‘(2) SALE OF OBLIGATION.—Any obligation ac6 quired by the Trust Fund (except special obligations

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

8 the Secretary of the Treasury at the market price,

9 and such special obligations may be redeemed at par

10 plus accrued interest.

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

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

13 any obligations held in the Trust Fund shall be

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

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

16 duty of the Secretary of the Treasury to hold the

17 Trust Fund, and (after consultation with the Attor18 ney General) to report to the Congress each year on

19 the financial condition and the results of the oper20 ations of the Trust Fund during the preceding fiscal

21 year and on its expected condition and operations

22 during the next fiscal year. Such report shall be

23 printed as both a House and a Senate document of

24 the session of the Congress to which the report is

25 made.
47

•S 1563 IS

1 ‘‘(l) MISCELLANEOUS PROVISIONS.—

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

3 as provided in paragraphs (2), (3), and (4), all Fed4 eral, State, and local labor laws (including laws af5 fecting migrant farm workers) applicable to United

6 States workers shall also apply to pilot program

7 aliens.

8 ‘‘(2) LIMITATION OF WRITTEN DISCLOSURE IM9 POSED UPON RECRUITERS.—Any disclosure required

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

11 and Seasonal Agricultural Worker Protection Act

12 (29 U.S.C. 1821(a)) need not be given to pilot pro13 gram aliens prior to the time their visa is issued per14 mitting entry into the United States.

15 ‘‘(3) EXEMPTION FROM FICA AND FUTA

16 TAXES.—The wages paid to pilot program aliens

17 shall be excluded from wages subject to taxation

18 under the Federal Unemployment Tax Act and

19 under the Federal Insurance Contributions Act.

20 ‘‘(4) INELIGIBILITY FOR CERTAIN PUBLIC BEN21 EFITS PROGRAMS.—

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

23 other provision of law and except as provided in

24 subparagraph (B), any alien provided status as

25 a pilot program alien shall not be eligible for
48

•S 1563 IS

1 any Federal or State or local means-tested pub2 lic benefit program.

3 ‘‘(B) EXCEPTIONS.—Subparagraph (A)

4 shall not apply to the following:

5 ‘‘(i) EMERGENCY MEDICAL SERV6 ICES.—The provision of emergency medical

7 services (as defined by the Attorney Gen8 eral in consultation with the Secretary of

9 Health and Human Services).

10 ‘‘(ii) PUBLIC HEALTH IMMUNIZA11 TIONS.—Public health assistance for im12 munizations with respect to immunizable

13 diseases and for testing and treatment for

14 communicable diseases.

15 ‘‘(iii) SHORT-TERM EMERGENCY DIS16 ASTER RELIEF.—The provision of non17 cash, in-kind, short-term emergency disas18 ter relief.

19 ‘‘(m) REGULATIONS.—

20 ‘‘(1) SELECTION OF AREAS.—The Secretary of

21 Agriculture shall select the areas under subsection

22 (a)(4) not later than 60 days after the date of the

23 enactment of the Temporary Agricultural Worker

24 Act of 1997.
49

•S 1563 IS

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

2 Secretary shall consult with the Secretary of Agri3 culture, and the Attorney General shall approve, all

4 regulations dealing with the approval of labor condi5 tion attestations for pilot program aliens and en6 forcement of the requirements for employing pilot

7 program aliens under an approved attestation. The

8 Secretary shall promulgate, and the Attorney Gen9 eral shall approve, such regulations not later than

10 90 days after the date of the enactment of the Tem11 porary Agricultural Worker Act of 1997.

12 ‘‘(3) REGULATIONS OF THE ATTORNEY GEN13 ERAL.—The Attorney General shall consult with the

14 Secretary of Agriculture on all regulations dealing

15 with the approval of petitions for admission or ex16 tension of stay of pilot program aliens and the re17 quirements for employing pilot program aliens and

18 the enforcement of such requirements. The Attorney

19 General shall promulgate such regulations not later

20 than 90 days after the date of the enactment of the

21 Temporary Agricultural Worker Act of 1997.

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

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

24 ‘agricultural association’ means any nonprofit or co25 operative association of farmers, growers, or ranch-
50

•S 1563 IS

1 ers incorporated or qualified under applicable State

2 law, which recruits, solicits, hires, employs, fur3 nishes, or transports any agricultural workers.

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

5 ‘agricultural employment’ means any service or ac6 tivity included within the provisions of section 3(f)

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

8 203(f)) or section 3121(g) of the Internal Revenue

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

10 packing, packaging, processing, freezing, or grading

11 prior to delivery for storage of any agricultural or

12 horticultural commodity in its unmanufactured

13 state.

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

15 any person or entity, including any independent con16 tractor and any agricultural association, that em17 ploys workers.

18 ‘‘(4) PILOT PROGRAM ALIEN.—The term ‘pilot

19 program alien’ means an alien admitted to the Unit20 ed States or provided status as a nonimmigrant

21 under section 101(a)(15)(H)(ii)(c).

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

23 the Secretary of Labor.

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

25 ‘United States worker’ means any worker, whether
51

•S 1563 IS

1 a United States citizen, a United States national, or

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

3 opportunity within the United States other than an

4 alien admitted pursuant to this section.’’.

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

6 of the Immigration and Nationality Act is amended by in7 serting after the item relating to section 218 the following

8 new item:

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

Æ