II 

110TH CONGRESS 

1ST SESSION S. 340 

To improve agricultural job opportunities, benefits, and security for aliens 

in the United States and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 18, 2007 

Mrs. FEINSTEIN (for herself, Mr. CRAIG, Mr. KENNEDY, Mr. MARTINEZ, Mrs. 

BOXER, Mr. VOINOVICH, Mr. LEAHY, Mr. SPECTER, Mrs. CLINTON, Mr. 

MCCAIN, Mr. OBAMA, Mr. HAGEL, Mr. SCHUMER, Mr. DOMENICI, Mr. 

KOHL, Mr. SALAZAR, and Mrs. MURRAY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To improve agricultural job opportunities, benefits, and security for aliens in the United States and for other purposes. 

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

3 SECTION 1. SHORT TITLE, TABLE OF CONTENTS. 

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

5 ‘‘Agricultural Job Opportunities, Benefits, and Security 

6 Act of 2007’’ or the ‘‘AgJOBS Act of 2007’’. 

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

8 this Act is as follows: 


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Sec. 1. Short title, table of contents. 

Sec. 2. Definitions. 

TITLE I—PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT 

OF AGRICULTURAL WORKERS 

Subtitle A—Blue Card Status 

Sec. 101. Requirements for blue card status. 

Sec. 102. Treatment of aliens granted blue card status. 

Sec. 103. Adjustment to permanent residence. 

Sec. 104. Applications. 

Sec. 105. Waiver of numerical limitations and certain grounds for inadmissibility. 

Sec. 106. Administrative and judicial review. 

Sec. 107. Use of information. 

Sec. 108. Regulations, effective date, authorization of appropriations. 

Subtitle B—Correction of Social Security Records 

Sec. 111. Correction of Social Security records. 

TITLE II—REFORM OF H–2A WORKER PROGRAM 

Sec. 201. Amendment to the Immigration and Nationality Act. 

TITLE III—MISCELLANEOUS PROVISIONS 

Sec. 301. Determination and use of user fees. 

Sec. 302. Regulations. 

Sec. 303. Reports to Congress. 

Sec. 304. Effective date. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) AGRICULTURAL EMPLOYMENT.—The term 

4 ‘‘agricultural employment’’ means any service or ac5 tivity that is considered to be agricultural under sec6 tion 3(f) of the Fair Labor Standards Act of 1938 

7 (29 U.S.C. 203(f)) or agricultural labor under sec8 tion 3121(g) of the Internal Revenue Code of 1986 

9 or the performance of agricultural labor or services 

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1 migration and Nationality Act (8 U.S.C. 

2 1101(a)(15)(H)(ii)(a)). 

3 (2) BLUE CARD STATUS.—The term ‘‘blue card 

4 status’’ means the status of an alien who has been 

5 lawfully admitted into the United States for tem6 porary residence under section 101(a). 

7 (3) DEPARTMENT.—The term ‘‘Department’’ 

8 means the Department of Homeland Security. 

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

10 any person or entity, including any farm labor con11 tractor and any agricultural association, that em12 ploys workers in agricultural employment. 

13 (5) SECRETARY.—Except as otherwise provided, 

14 the term ‘‘Secretary’’ means the Secretary of Home15 land Security. 

16 (6) TEMPORARY.—A worker is employed on a 

17 ‘‘temporary’’ basis when the employment is intended 

18 not to exceed 10 months. 

19 (7) WORK DAY.—The term ‘‘work day’’ means 

20 any day in which the individual is employed 5.75 or 

21 more hours in agricultural employment. 


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1 TITLE I—PILOT PROGRAM FOR 

2 EARNED STATUS ADJUST3 MENT OF AGRICULTURAL 

4 WORKERS 

5 Subtitle A—Blue Card Status 

6 SEC. 101. REQUIREMENTS FOR BLUE CARD STATUS. 

7 (a) REQUIREMENT TO GRANT BLUE CARD STA8 TUS.—Notwithstanding any other provision of law, the 

9 Secretary shall, pursuant to the requirements of this sec10 tion, grant blue card status to an alien who qualifies under 

11 this section if the Secretary determines that the alien— 

12 (1) has performed agricultural employment in 

13 the United States for at least 863 hours or 150 

14 work days during the 24-month period ending on 

15 December 31, 2006; 

16 (2) applied for such status during the 18-month 

17 application period beginning on the first day of the 

18 seventh month that begins after the date of enact19 ment of this Act; 

20 (3) is otherwise admissible to the United States 

21 under section 212 of the Immigration and Nation22 ality Act (8 U.S.C. 1182), except as otherwise pro23 vided under section 105(b); and 

24 (4) has not been convicted of any felony or a 

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1 jury, threat of serious bodily injury, or harm to 

2 property in excess of $500. 

3 (b) AUTHORIZED TRAVEL.—An alien who is granted 

4 blue card status is authorized to travel outside the United 

5 States (including commuting to the United States from 

6 a residence in a foreign country) in the same manner as 

7 an alien lawfully admitted for permanent residence. 

8 (c) AUTHORIZED EMPLOYMENT.—The Secretary 

9 shall provide an alien who is granted blue card status an 

10 employment authorized endorsement or other appropriate 

11 work permit, in the same manner as an alien lawfully ad12 mitted for permanent residence. 

13 (d) TERMINATION OF BLUE CARD STATUS.— 

14 (1) IN GENERAL.—The Secretary may termi15 nate blue card status granted to an alien under this 

16 section only if the Secretary determines that the 

17 alien is deportable. 

18 (2) GROUNDS FOR TERMINATION OF BLUE

19 CARD STATUS.—Before any alien becomes eligible 

20 for adjustment of status under section 103, the Sec21 retary may deny adjustment to permanent resident 

22 status and provide for termination of the blue card 

23 status granted such alien under paragraph (1) if— 

24 (A) the Secretary finds, by a preponder25 ance of the evidence, that the adjustment to 


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1 blue card status was the result of fraud or will2 ful misrepresentation (as described in section 

3 212(a)(6)(C)(i) of the Immigration and Nation4 ality Act (8 U.S.C. 1182(a)(6)(C)(i)); or 

5 (B) the alien— 

6 (i) commits an act that makes the 

7 alien inadmissible to the United States as 

8 an immigrant, except as provided under 

9 section 105(b); 

10 (ii) is convicted of a felony or 3 or 

11 more misdemeanors committed in the 

12 United States; 

13 (iii) is convicted of an offense, an ele14 ment of which involves bodily injury, threat 

15 of serious bodily injury, or harm to prop16 erty in excess of $500; or 

17 (iv) fails to perform the agricultural 

18 employment required under section 

19 103(a)(1)(A) unless the alien was unable 

20 to work in agricultural employment due to 

21 the extraordinary circumstances described 

22 in section 103(a)(3). 

23 (e) RECORD OF EMPLOYMENT.— 


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1 (1) IN GENERAL.—Each employer of an alien 

2 granted blue card status under this section shall an3 nually— 

4 (A) provide a written record of employ5 ment to the alien; and 

6 (B) provide a copy of such record to the 

7 Secretary. 

8 (2) SUNSET.—The obligation under paragraph 

9 (1) shall terminate on the date that is 6 years after 

10 the date of the enactment of this Act. 

11 (f) REQUIRED FEATURES OF IDENTITY CARD.—The 

12 Secretary shall provide each alien granted blue card sta13 tus, and the spouse and any child of each such alien resid14 ing in the United States, with a card that contains— 

15 (1) an encrypted, machine-readable, electronic 

16 identification strip that is unique to the alien to 

17 whom the card is issued; 

18 (2) biometric identifiers, including fingerprints 

19 and a digital photograph; and 

20 (3) physical security features designed to pre21 vent tampering, counterfeiting, or duplication of the 

22 card for fraudulent purposes. 

23 (g) FINE.—An alien granted blue card status shall 

24 pay a fine of $100 to the Secretary. 


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1 (h) MAXIMUM NUMBER.—The Secretary may not 

2 issue more than 1,500,000 blue cards during the 5-year 

3 period beginning on the date of the enactment of this Act. 

4 SEC. 102. TREATMENT OF ALIENS GRANTED BLUE CARD 

5 STATUS. 

6 (a) IN GENERAL.—Except as otherwise provided 

7 under this section, an alien granted blue card status shall 

8 be considered to be an alien lawfully admitted for perma9 nent residence for purposes of any law other than any pro10 vision of the Immigration and Nationality Act (8 U.S.C. 

11 1101 et seq.). 

12 (b) DELAYED ELIGIBILITY FOR CERTAIN FEDERAL

13 PUBLIC BENEFITS.—An alien granted blue card status 

14 shall not be eligible, by reason of such status, for any form 

15 of assistance or benefit described in section 403(a) of the 

16 Personal Responsibility and Work Opportunity Reconcili17 ation Act of 1996 (8 U.S.C. 1613(a)) until 5 years after 

18 the date on which the alien is granted an adjustment of 

19 status under section 103. 

20 (c) TERMS OF EMPLOYMENT.— 

21 (1) PROHIBITION.—No alien granted blue card 

22 status may be terminated from employment by any 

23 employer during the period of blue card status ex24 cept for just cause. 

25 (2) TREATMENT OF COMPLAINTS.— 


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1 (A) ESTABLISHMENT OF PROCESS.—The 

2 Secretary shall establish a process for the re3 ceipt, initial review, and disposition of com4 plaints by aliens granted blue card status who 

5 allege that they have been terminated without 

6 just cause. No proceeding shall be conducted 

7 under this paragraph with respect to a termi8 nation unless the Secretary determines that the 

9 complaint was filed not later than 6 months 

10 after the date of the termination. 

11 (B) INITIATION OF ARBITRATION.—If the 

12 Secretary finds that an alien has filed a com13 plaint in accordance with subparagraph (A) and 

14 there is reasonable cause to believe that the 

15 alien was terminated from employment without 

16 just cause, the Secretary shall initiate binding 

17 arbitration proceedings by requesting the Fed18 eral Mediation and Conciliation Service to ap19 point a mutually agreeable arbitrator from the 

20 roster of arbitrators maintained by such Service 

21 for the geographical area in which the employer 

22 is located. The procedures and rules of such 

23 Service shall be applicable to the selection of 

24 such arbitrator and to such arbitration pro25 ceedings. The Secretary shall pay the fee and 


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1 expenses of the arbitrator, subject to the avail2 ability of appropriations for such purpose. 

3 (C) ARBITRATION PROCEEDINGS.—The ar4 bitrator shall conduct the proceeding under this 

5 paragraph in accordance with the policies and 

6 procedures promulgated by the American Arbi7 tration Association applicable to private arbitra8 tion of employment disputes. The arbitrator 

9 shall make findings respecting whether the ter10 mination was for just cause. The arbitrator 

11 may not find that the termination was for just 

12 cause unless the employer so demonstrates by a 

13 preponderance of the evidence. If the arbitrator 

14 finds that the termination was not for just 

15 cause, the arbitrator shall make a specific find16 ing of the number of days or hours of work lost 

17 by the employee as a result of the termination. 

18 The arbitrator shall have no authority to order 

19 any other remedy, including reinstatement, 

20 back pay, or front pay to the affected employee. 

21 Not later than 30 days after the date of the 

22 conclusion of the arbitration proceeding, the ar23 bitrator shall transmit the findings in the form 

24 of a written opinion to the parties to the arbi25 tration and the Secretary. Such findings shall 


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1 be final and conclusive, and no official or court 

2 of the United States shall have the power or ju3 risdiction to review any such findings. 

4 (D) EFFECT OF ARBITRATION FIND5 INGS.—If the Secretary receives a finding of an 

6 arbitrator that an employer has terminated the 

7 employment of an alien who is granted blue 

8 card status without just cause, the Secretary 

9 shall credit the alien for the number of days or 

10 hours of work not performed during such period 

11 of termination for the purpose of determining if 

12 the alien meets the qualifying employment re13 quirement of section 103(a). 

14 (E) TREATMENT OF ATTORNEY’S FEES.— 

15 Each party to an arbitration under this para16 graph shall bear the cost of their own attorney’s 

17 fees for the arbitration. 

18 (F) NONEXCLUSIVE REMEDY.—The com19 plaint process provided for in this paragraph is 

20 in addition to any other rights an employee may 

21 have in accordance with applicable law. 

22 (G) EFFECT ON OTHER ACTIONS OR PRO23 CEEDINGS.—Any finding of fact or law, judg24 ment, conclusion, or final order made by an ar25 bitrator in the proceeding before the Secretary 


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1 shall not be conclusive or binding in any sepa2 rate or subsequent action or proceeding between 

3 the employee and the employee’s current or 

4 prior employer brought before an arbitrator, ad5 ministrative agency, court, or judge of any 

6 State or the United States, regardless of wheth7 er the prior action was between the same or re8 lated parties or involved the same facts, except 

9 that the arbitrator’s specific finding of the 

10 number of days or hours of work lost by the 

11 employee as a result of the employment termi12 nation may be referred to the Secretary pursu13 ant to subparagraph (D). 

14 (3) CIVIL PENALTIES.— 

15 (A) IN GENERAL.—If the Secretary finds, 

16 after notice and opportunity for a hearing, that 

17 an employer of an alien granted blue card sta18 tus has failed to provide the record of employ19 ment required under section 101(e) or has pro20 vided a false statement of material fact in such 

21 a record, the employer shall be subject to a civil 

22 money penalty in an amount not to exceed 

23 $1,000 per violation. 

24 (B) LIMITATION.—The penalty applicable 

25 under subparagraph (A) for failure to provide 


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1 records shall not apply unless the alien has pro2 vided the employer with evidence of employment 

3 authorization granted under this section. 

4 SEC. 103. ADJUSTMENT TO PERMANENT RESIDENCE. 

5 (a) IN GENERAL.—Except as provided in subsection 

6 (b), the Secretary shall adjust the status of an alien grant7 ed blue card status to that of an alien lawfully admitted 

8 for permanent residence if the Secretary determines that 

9 the following requirements are satisfied: 

10 (1) QUALIFYING EMPLOYMENT.— 

11 (A) IN GENERAL.—Subject to subpara12 graph (B), the alien has performed at least— 

13 (i) 5 years of agricultural employment 

14 in the United States for at least 100 work 

15 days per year, during the 5-year period be16 ginning on the date of the enactment of 

17 this Act; or 

18 (ii) 3 years of agricultural employ19 ment in the United States for at least 150 

20 work days per year, during the 3-year pe21 riod beginning on the date of the enact22 ment of this Act. 

23 (B) 4-YEAR PERIOD OF EMPLOYMENT.— 

24 An alien shall be considered to meet the re25 quirements of subparagraph (A) if the alien has 


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1 performed 4 years of agricultural employment 

2 in the United States for at least 150 work days 

3 during 3 years of those 4 years and at least 

4 100 work days during the remaining year, dur5 ing the 4-year period beginning on the date of 

6 the enactment of this Act. 

7 (2) PROOF.—An alien may demonstrate compli8 ance with the requirement under paragraph (1) by 

9 submitting— 

10 (A) the record of employment described in 

11 section 101(e); or 

12 (B) such documentation as may be sub13 mitted under section 104(c). 

14 (3) EXTRAORDINARY CIRCUMSTANCES.—In de15 termining whether an alien has met the requirement 

16 of paragraph (1)(A), the Secretary may credit the 

17 alien with not more than 12 additional months to 

18 meet the requirement of that subparagraph if the 

19 alien was unable to work in agricultural employment 

20 due to— 

21 (A) pregnancy, injury, or disease, if the 

22 alien can establish such pregnancy, disabling in23 jury, or disease through medical records; 

24 (B) illness, disease, or other special needs 

25 of a minor child, if the alien can establish such 


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1 illness, disease, or special needs through med2 ical records; or 

3 (C) severe weather conditions that pre4 vented the alien from engaging in agricultural 

5 employment for a significant period of time. 

6 (4) APPLICATION PERIOD.—The alien applies 

7 for adjustment of status not later than 7 years after 

8 the date of the enactment of this Act. 

9 (5) FINE.—The alien pays a fine of $400 to the 

10 Secretary. 

11 (b) GROUNDS FOR DENIAL OF ADJUSTMENT OF STA12 TUS.—The Secretary may deny an alien granted blue card 

13 status an adjustment of status under this section and pro14 vide for termination of such blue card status if— 

15 (1) the Secretary finds by a preponderance of 

16 the evidence that the adjustment to blue card status 

17 was the result of fraud or willful misrepresentation, 

18 as described in section 212(a)(6)(C)(i) of the Immi19 gration and Nationality Act (8 U.S.C. 

20 1182(a)(6)(C)(i)); or 

21 (2) the alien— 

22 (A) commits an act that makes the alien 

23 inadmissible to the United States under section 

24 212 of the Immigration and Nationality Act (8 


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1 U.S.C. 1182), except as provided under section 

2 105(b); 

3 (B) is convicted of a felony or 3 or more 

4 misdemeanors committed in the United States; 

5 or 

6 (C) is convicted of an offense, an element 

7 of which involves bodily injury, threat of serious 

8 bodily injury, or harm to property in excess of 

9 $500. 

10 (c) GROUNDS FOR REMOVAL.—Any alien granted 

11 blue card status who does not apply for adjustment of sta12 tus under this section before the expiration of the applica13 tion period described in subsection (a)(4) or who fails to 

14 meet the other requirements of subsection (a) by the end 

15 of the application period, is deportable and may be re16 moved under section 240 of the Immigration and Nation17 ality Act (8 U.S.C. 1229a). 

18 (d) PAYMENT OF TAXES.— 

19 (1) IN GENERAL.—Not later than the date on 

20 which an alien’s status is adjusted under this sec21 tion, the alien shall establish that the alien does not 

22 owe any applicable Federal tax liability by estab23 lishing that— 

24 (A) no such tax liability exists; 


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1 (B) all such outstanding tax liabilities have 

2 been paid; or 

3 (C) the alien has entered into an agree4 ment for payment of all outstanding liabilities 

5 with the Internal Revenue Service. 

6 (2) APPLICABLE FEDERAL TAX LIABILITY.—In 

7 paragraph (1) the term ‘‘applicable Federal tax li8 ability’’ means liability for Federal taxes, including 

9 penalties and interest, owed for any year during the 

10 period of employment required under subsection 

11 (a)(1) for which the statutory period for assessment 

12 of any deficiency for such taxes has not expired. 

13 (3) IRS COOPERATION.—The Secretary of the 

14 Treasury shall establish rules and procedures under 

15 which the Commissioner of Internal Revenue shall 

16 provide documentation to an alien upon request to 

17 establish the payment of all taxes required by this 

18 subsection. 

19 (e) SPOUSES AND MINOR CHILDREN.— 

20 (1) IN GENERAL.—Notwithstanding any other 

21 provision of law, the Secretary shall confer the sta22 tus of lawful permanent resident on the spouse and 

23 minor child of an alien granted any adjustment of 

24 status under subsection (a), including any individual 

25 who was a minor child on the date such alien was 


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1 granted blue card status, if the spouse or minor 

2 child applies for such status, or if the principal alien 

3 includes the spouse or minor child in an application 

4 for adjustment of status to that of a lawful perma5 nent resident. 

6 (2) TREATMENT OF SPOUSES AND MINOR CHIL7 DREN.— 

8 (A) GRANTING OF STATUS AND RE9 MOVAL.—The Secretary may grant derivative 

10 status to the alien spouse and any minor child 

11 residing in the United States of an alien grant12 ed blue card status and shall not remove such 

13 derivative spouse or child during the period that 

14 the alien granted blue card status maintains 

15 such status, except as provided in paragraph 

16 (3). A grant of derivative status to such a 

17 spouse or child under this subparagraph shall 

18 not decrease the number of aliens who may re19 ceive blue card status under subsection (h) of 

20 section 101. 

21 (B) TRAVEL.—The derivative spouse and 

22 any minor child of an alien granted blue card 

23 status may travel outside the United States in 

24 the same manner as an alien lawfully admitted 

25 for permanent residence. 


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1 (C) EMPLOYMENT.—The derivative spouse 

2 of an alien granted blue card status may apply 

3 to the Secretary for a work permit to authorize 

4 such spouse to engage in any lawful employ5 ment in the United States while such alien 

6 maintains blue card status. 

7 (3) GROUNDS FOR DENIAL OF ADJUSTMENT OF

8 STATUS AND REMOVAL.—The Secretary may deny 

9 an alien spouse or child adjustment of status under 

10 paragraph (1) and may remove such spouse or child 

11 under section 240 of the Immigration and Nation12 ality Act (8 U.S.C. 1229a) if the spouse or child— 

13 (A) commits an act that makes the alien 

14 spouse or child inadmissible to the United 

15 States under section 212 of such Act (8 U.S.C. 

16 1182), except as provided under section 105(b); 

17 (B) is convicted of a felony or 3 or more 

18 misdemeanors committed in the United States; 

19 or 

20 (C) is convicted of an offense, an element 

21 of which involves bodily injury, threat of serious 

22 bodily injury, or harm to property in excess of 

23 $500. 

24 SEC. 104. APPLICATIONS. 

25 (a) SUBMISSION.—The Secretary shall provide that— 


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1 (1) applications for blue card status under sec2 tion 101 may be submitted— 

3 (A) to the Secretary if the applicant is rep4 resented by an attorney or a nonprofit religious, 

5 charitable, social service, or similar organization 

6 recognized by the Board of Immigration Ap7 peals under section 292.2 of title 8, Code of 

8 Federal Regulations; or 

9 (B) to a qualified designated entity if the 

10 applicant consents to the forwarding of the ap11 plication to the Secretary; and 

12 (2) applications for adjustment of status under 

13 section 103 shall be filed directly with the Secretary. 

14 (b) QUALIFIED DESIGNATED ENTITY DEFINED.—In 

15 this section, the term ‘‘qualified designated entity’’ 

16 means— 

17 (1) a qualified farm labor organization or an 

18 association of employers designated by the Sec19 retary; or 

20 (2) any such other person designated by the 

21 Secretary if that Secretary determines such person 

22 is qualified and has substantial experience, dem23 onstrated competence, and has a history of long24 term involvement in the preparation and submission 

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1 tion 209, 210, or 245 of the Immigration and Na2 tionality Act (8 U.S.C. 1159, 1160, and 1255), the 

3 Act entitled ‘‘An Act to adjust the status of Cuban 

4 refugees to that of lawful permanent residents of the 

5 United States, and for other purposes’’, approved 

6 November 2, 1966 (Public Law 89–732; 8 U.S.C. 

7 1255 note), Public Law 95–145 (8 U.S.C. 1255 

8 note), or the Immigration Reform and Control Act 

9 of 1986 (Public Law 99–603; 100 Stat. 3359) or 

10 any amendment made by that Act. 

11 (c) PROOF OF ELIGIBILITY.— 

12 (1) IN GENERAL.—An alien may establish that 

13 the alien meets the requirement of section 101(a)(1) 

14 or 103(a)(1) through government employment 

15 records or records supplied by employers or collec16 tive bargaining organizations, and other reliable doc17 umentation as the alien may provide. The Secretary 

18 shall establish special procedures to properly credit 

19 work in cases in which an alien was employed under 

20 an assumed name. 

21 (2) DOCUMENTATION OF WORK HISTORY.— 

22 (A) BURDEN OF PROOF.—An alien apply23 ing for status under section 101(a) or 103(a) 

24 has the burden of proving by a preponderance 

25 of the evidence that the alien has worked the 


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1 requisite number of hours or days required 

2 under section 101(a)(1) or 103(a)(1), as appli3 cable. 

4 (B) TIMELY PRODUCTION OF RECORDS.— 

5 If an employer or farm labor contractor employ6 ing such an alien has kept proper and adequate 

7 records respecting such employment, the alien’s 

8 burden of proof under subparagraph (A) may 

9 be met by securing timely production of those 

10 records under regulations to be promulgated by 

11 the Secretary. 

12 (C) SUFFICIENT EVIDENCE.—An alien 

13 may meet the burden of proof under subpara14 graph (A) to establish that the alien has per15 formed the days or hours of work required by 

16 section 101(a)(1) or 103(a)(1) by producing 

17 sufficient evidence to show the extent of that 

18 employment as a matter of just and reasonable 

19 inference. 

20 (d) APPLICATIONS SUBMITTED TO QUALIFIED DES21 IGNATED ENTITIES.— 

22 (1) REQUIREMENTS.—Each qualified des23 ignated entity shall agree— 

24 (A) to forward to the Secretary an applica25 tion submitted to that entity pursuant to subVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 section (a)(1)(B) if the applicant has consented 

2 to such forwarding; 

3 (B) not to forward to the Secretary any 

4 such application if the applicant has not con5 sented to such forwarding; and 

6 (C) to assist an alien in obtaining docu7 mentation of the alien’s work history, if the 

8 alien requests such assistance. 

9 (2) NO AUTHORITY TO MAKE DETERMINA10 TIONS.—No qualified designated entity may make a 

11 determination required by this subtitle to be made 

12 by the Secretary. 

13 (e) LIMITATION ON ACCESS TO INFORMATION.—Files 

14 and records collected or compiled by a qualified designated 

15 entity for the purposes of this section are confidential and 

16 the Secretary shall not have access to such a file or record 

17 relating to an alien without the consent of the alien, except 

18 as allowed by a court order issued pursuant to subsection 

19 (f). 

20 (f) CONFIDENTIALITY OF INFORMATION.— 

21 (1) IN GENERAL.—Except as otherwise pro22 vided in this section, the Secretary or any other offi23 cial or employee of the Department or a bureau or 

24 agency of the Department is prohibited from— 


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1 (A) using information furnished by the ap2 plicant pursuant to an application filed under 

3 this title, the information provided by an appli4 cant to a qualified designated entity, or any in5 formation provided by an employer or former 

6 employer for any purpose other than to make a 

7 determination on the application or for impos8 ing the penalties described in subsection (g); 

9 (B) making any publication in which the 

10 information furnished by any particular indi11 vidual can be identified; or 

12 (C) permitting a person other than a 

13 sworn officer or employee of the Department or 

14 a bureau or agency of the Department or, with 

15 respect to applications filed with a qualified 

16 designated entity, that qualified designated en17 tity, to examine individual applications. 

18 (2) REQUIRED DISCLOSURES.—The Secretary 

19 shall provide the information furnished under this 

20 title or any other information derived from such fur21 nished information to— 

22 (A) a duly recognized law enforcement en23 tity in connection with a criminal investigation 

24 or prosecution, if such information is requested 

25 in writing by such entity; or 


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1 (B) an official coroner, for purposes of af2 firmatively identifying a deceased individual, 

3 whether or not the death of such individual re4 sulted from a crime. 

5 (3) CONSTRUCTION.— 

6 (A) IN GENERAL.—Nothing in this sub7 section shall be construed to limit the use, or 

8 release, for immigration enforcement purposes 

9 or law enforcement purposes, of information 

10 contained in files or records of the Department 

11 pertaining to an application filed under this sec12 tion, other than information furnished by an 

13 applicant pursuant to the application, or any 

14 other information derived from the application, 

15 that is not available from any other source. 

16 (B) CRIMINAL CONVICTIONS.—Notwith17 standing any other provision of this subsection, 

18 information concerning whether the alien apply19 ing for blue card status under section 101 or an 

20 adjustment of status under section 103 has 

21 been convicted of a crime at any time may be 

22 used or released for immigration enforcement 

23 or law enforcement purposes. 

24 (4) CRIME.—Any person who knowingly uses, 

25 publishes, or permits information to be examined in 


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1 violation of this subsection shall be subject to a fine 

2 in an amount not to exceed $10,000. 

3 (g) PENALTIES FOR FALSE STATEMENTS IN APPLI4 CATIONS.— 

5 (1) CRIMINAL PENALTY.—Any person who— 

6 (A) files an application for blue card status 

7 under section 101 or an adjustment of status 

8 under section 103 and knowingly and willfully 

9 falsifies, conceals, or covers up a material fact 

10 or makes any false, fictitious, or fraudulent 

11 statements or representations, or makes or uses 

12 any false writing or document knowing the 

13 same to contain any false, fictitious, or fraudu14 lent statement or entry; or 

15 (B) creates or supplies a false writing or 

16 document for use in making such an applica17 tion, 

18 shall be fined in accordance with title 18, United 

19 States Code, imprisoned not more than 5 years, or 

20 both. 

21 (2) INADMISSIBILITY.—An alien who is con22 victed of a crime under paragraph (1) shall be con23 sidered to be inadmissible to the United States on 

24 the ground described in section 212(a)(6)(C)(i) of 


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•S 340 IS

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

2 1182(a)(6)(C)(i)). 

3 (h) ELIGIBILITY FOR LEGAL SERVICES.—Section 

4 504(a)(11) of Public Law 104–134 (110 Stat. 1321–53 

5 et seq.) shall not be construed to prevent a recipient of 

6 funds under the Legal Services Corporation Act (42 

7 U.S.C. 2996 et seq.) from providing legal assistance di8 rectly related to an application for blue card status under 

9 section 101 or an adjustment of status under section 103. 

10 (i) APPLICATION FEES.— 

11 (1) FEE SCHEDULE.—The Secretary shall pro12 vide for a schedule of fees that— 

13 (A) shall be charged for the filing of an 

14 application for blue card status under section 

15 101 or for an adjustment of status under sec16 tion 103; and 

17 (B) may be charged by qualified des18 ignated entities to help defray the costs of serv19 ices provided to such applicants. 

20 (2) PROHIBITION ON EXCESS FEES BY QUALI21 FIED DESIGNATED ENTITIES.—A qualified des22 ignated entity may not charge any fee in excess of, 

23 or in addition to, the fees authorized under para24 graph (1)(B) for services provided to applicants. 

25 (3) DISPOSITION OF FEES.— 


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1 (A) IN GENERAL.—There is established in 

2 the general fund of the Treasury a separate ac3 count, which shall be known as the ‘‘Agricul4 tural Worker Immigration Status Adjustment 

5 Account’’. Notwithstanding any other provision 

6 of law, there shall be deposited as offsetting re7 ceipts into the account all fees collected under 

8 paragraph (1)(A). 

9 (B) USE OF FEES FOR APPLICATION PROC10 ESSING.—Amounts deposited in the ‘‘Agricul11 tural Worker Immigration Status Adjustment 

12 Account’’ shall remain available to the Sec13 retary until expended for processing applica14 tions for blue card status under section 101 or 

15 an adjustment of status under section 103. 

16 SEC. 105. WAIVER OF NUMERICAL LIMITATIONS AND CER17 TAIN GROUNDS FOR INADMISSIBILITY. 

18 (a) NUMERICAL LIMITATIONS DO NOT APPLY.—The 

19 numerical limitations of sections 201 and 202 of the Im20 migration and Nationality Act (8 U.S.C. 1151 and 1152) 

21 shall not apply to the adjustment of aliens to lawful per22 manent resident status under section 103. 

23 (b) WAIVER OF CERTAIN GROUNDS OF INADMIS24 SIBILITY.—In the determination of an alien’s eligibility for 

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1 justment of status under section 103(b)(2)(A) the fol2 lowing rules shall apply: 

3 (1) GROUNDS OF EXCLUSION NOT APPLICA4 BLE.—The provisions of paragraphs (5), (6)(A), (7), 

5 and (9) of section 212(a) of the Immigration and 

6 Nationality Act (8 U.S.C. 1182(a)) shall not apply. 

7 (2) WAIVER OF OTHER GROUNDS.— 

8 (A) IN GENERAL.—Except as provided in 

9 subparagraph (B), the Secretary may waive any 

10 other provision of such section 212(a) in the 

11 case of individual aliens for humanitarian pur12 poses, to ensure family unity, or if otherwise in 

13 the public interest. 

14 (B) GROUNDS THAT MAY NOT BE

15 WAIVED.—Paragraphs (2)(A), (2)(B), (2)(C), 

16 (3), and (4) of such section 212(a) may not be 

17 waived by the Secretary under subparagraph 

18 (A). 

19 (C) CONSTRUCTION.—Nothing in this 

20 paragraph shall be construed as affecting the 

21 authority of the Secretary other than under this 

22 subparagraph to waive provisions of such sec23 tion 212(a). 

24 (3) SPECIAL RULE FOR DETERMINATION OF

25 PUBLIC CHARGE.—An alien is not ineligible for blue 


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•S 340 IS

1 card status under section 101 or an adjustment of 

2 status under section 103 by reason of a ground of 

3 inadmissibility under section 212(a)(4) of the Immi4 gration and Nationality Act (8 U.S.C. 1182(a)(4)) if 

5 the alien demonstrates a history of employment in 

6 the United States evidencing self-support without re7 liance on public cash assistance. 

8 (c) TEMPORARY STAY OF REMOVAL AND WORK AU9 THORIZATION FOR CERTAIN APPLICANTS.— 

10 (1) BEFORE APPLICATION PERIOD.—Effective 

11 on the date of enactment of this Act, the Secretary 

12 shall provide that, in the case of an alien who is ap13 prehended before the beginning of the application 

14 period described in section 101(a)(2) and who can 

15 establish a nonfrivolous case of eligibility for blue 

16 card status (but for the fact that the alien may not 

17 apply for such status until the beginning of such pe18 riod), until the alien has had the opportunity during 

19 the first 30 days of the application period to com20 plete the filing of an application for blue card status, 

21 the alien— 

22 (A) may not be removed; and 

23 (B) shall be granted authorization to en24 gage in employment in the United States and 

25 be provided an employment authorized endorseVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 ment or other appropriate work permit for such 

2 purpose. 

3 (2) DURING APPLICATION PERIOD.—The Sec4 retary shall provide that, in the case of an alien who 

5 presents a nonfrivolous application for blue card sta6 tus during the application period described in section 

7 101(a)(2), including an alien who files such an ap8 plication within 30 days of the alien’s apprehension, 

9 and until a final determination on the application 

10 has been made in accordance with this section, the 

11 alien— 

12 (A) may not be removed; and 

13 (B) shall be granted authorization to en14 gage in employment in the United States and 

15 be provided an employment authorized endorse16 ment or other appropriate work permit for such 

17 purpose. 

18 SEC. 106. ADMINISTRATIVE AND JUDICIAL REVIEW. 

19 (a) IN GENERAL.—There shall be no administrative 

20 or judicial review of a determination respecting an applica21 tion for blue card status under section 101 or adjustment 

22 of status under section 103 except in accordance with this 

23 section. 

24 (b) ADMINISTRATIVE REVIEW.— 


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1 (1) SINGLE LEVEL OF ADMINISTRATIVE APPEL2 LATE REVIEW.—The Secretary shall establish an ap3 pellate authority to provide for a single level of ad4 ministrative appellate review of such a determina5 tion. 

6 (2) STANDARD FOR REVIEW.—Such administra7 tive appellate review shall be based solely upon the 

8 administrative record established at the time of the 

9 determination on the application and upon such ad10 ditional or newly discovered evidence as may not 

11 have been available at the time of the determination. 

12 (c) JUDICIAL REVIEW.— 

13 (1) LIMITATION TO REVIEW OF REMOVAL.— 

14 There shall be judicial review of such a determina15 tion only in the judicial review of an order of re16 moval under section 242 of the Immigration and 

17 Nationality Act (8 U.S.C. 1252). 

18 (2) STANDARD FOR JUDICIAL REVIEW.—Such 

19 judicial review shall be based solely upon the admin20 istrative record established at the time of the review 

21 by the appellate authority and the findings of fact 

22 and determinations contained in such record shall be 

23 conclusive unless the applicant can establish abuse 

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1 trary to clear and convincing facts contained in the 

2 record considered as a whole. 

3 SEC. 107. USE OF INFORMATION. 

4 Beginning not later than the first day of the applica5 tion period described in section 101(a)(2), the Secretary, 

6 in cooperation with qualified designated entities (as that 

7 term is defined in section 104(b)), shall broadly dissemi8 nate information respecting the benefits that aliens may 

9 receive under this subtitle and the requirements that an 

10 alien is required to meet to receive such benefits. 

11 SEC. 108. REGULATIONS, EFFECTIVE DATE, AUTHORIZA12 TION OF APPROPRIATIONS. 

13 (a) REGULATIONS.—The Secretary shall issue regula14 tions to implement this subtitle not later than the first 

15 day of the seventh month that begins after the date of 

16 enactment of this Act. 

17 (b) EFFECTIVE DATE.—This subtitle shall take effect 

18 on the date that regulations required by subsection (a) are 

19 issued, regardless of whether such regulations are issued 

20 on an interim basis or on any other basis. 

21 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

22 are authorized to be appropriated to the Secretary such 

23 sums as may be necessary to implement this subtitle, in24 cluding any sums needed for costs associated with the iniVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 tiation of such implementation, for fiscal years 2007 and 

2 2008. 

3 Subtitle B—Correction of Social 

4 Security Records 

5 SEC. 111. CORRECTION OF SOCIAL SECURITY RECORDS. 

6 (a) IN GENERAL.—Section 208(e)(1) of the Social 

7 Security Act (42 U.S.C. 408(e)(1)) is amended— 

8 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at 

9 the end; 

10 (2) in subparagraph (C), by inserting ‘‘or’’ at 

11 the end; 

12 (3) by inserting after subparagraph (C) the fol13 lowing: 

14 ‘‘(D) who is granted blue card status under the 

15 Agricultural Job Opportunity, Benefits, and Security 

16 Act of 2007,’’; and 

17 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or 

18 in the case of an alien described in subparagraph 

19 (D), if such conduct is alleged to have occurred be20 fore the date on which the alien was granted blue 

21 card status.’’. 

22 (b) EFFECTIVE DATE.—The amendments made by 

23 subsection (a) shall take effect on the first day of the sev24 enth month that begins after the date of the enactment 

25 of this Act. 


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1 TITLE II—REFORM OF H–2A 

2 WORKER PROGRAM 

3 SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION4 ALITY ACT. 

5 (a) IN GENERAL.—Title II of the Immigration and 

6 Nationality Act (8 U.S.C. 1151 et seq.) is amended by 

7 striking section 218 and inserting the following: 

8 ‘‘SEC. 218. H–2A EMPLOYER APPLICATIONS. 

9 ‘‘(a) APPLICATIONS TO THE SECRETARY OF

10 LABOR.— 

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

12 to the United States as an H–2A worker, or other13 wise provided status as an H–2A worker, unless the 

14 employer has filed with the Secretary of Labor an 

15 application containing— 

16 ‘‘(A) the assurances described in sub17 section (b); 

18 ‘‘(B) a description of the nature and loca19 tion of the work to be performed; 

20 ‘‘(C) the anticipated period (expected be21 ginning and ending dates) for which the work22 ers will be needed; and 

23 ‘‘(D) the number of job opportunities in 

24 which the employer seeks to employ the work25 ers. 


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•S 340 IS

1 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap2 plication filed under paragraph (1) shall be accom3 panied by a copy of the job offer describing the 

4 wages and other terms and conditions of employ5 ment and the bona fide occupational qualifications 

6 that shall be possessed by a worker to be employed 

7 in the job opportunity in question. 

8 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA9 TIONS.—The assurances referred to in subsection (a)(1) 

10 are the following: 

11 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL12 LECTIVE BARGAINING AGREEMENTS.—With respect 

13 to a job opportunity that is covered under a collec14 tive bargaining agreement: 

15 ‘‘(A) UNION CONTRACT DESCRIBED.—The 

16 job opportunity is covered by a union contract 

17 which was negotiated at arm’s length between a 

18 bona fide union and the employer. 

19 ‘‘(B) STRIKE OR LOCKOUT.—The specific 

20 job opportunity for which the employer is re21 questing an H–2A worker is not vacant because 

22 the former occupant is on strike or being locked 

23 out in the course of a labor dispute. 

24 ‘‘(C) NOTIFICATION OF BARGAINING REP25 RESENTATIVES.—The employer, at the time of 


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•S 340 IS

1 filing the application, has provided notice of the 

2 filing under this paragraph to the bargaining 

3 representative of the employer’s employees in 

4 the occupational classification at the place or 

5 places of employment for which aliens are 

6 sought. 

7 ‘‘(D) TEMPORARY OR SEASONAL JOB OP8 PORTUNITIES.—The job opportunity is tem9 porary or seasonal. 

10 ‘‘(E) OFFERS TO UNITED STATES WORK11 ERS.—The employer has offered or will offer 

12 the job to any eligible United States worker 

13 who applies and is equally or better qualified 

14 for the job for which the nonimmigrant is, or 

15 the nonimmigrants are, sought and who will be 

16 available at the time and place of need. 

17 ‘‘(F) PROVISION OF INSURANCE.—If the 

18 job opportunity is not covered by the State 

19 workers’ compensation law, the employer will 

20 provide, at no cost to the worker, insurance cov21 ering injury and disease arising out of, and in 

22 the course of, the worker’s employment which 

23 will provide benefits at least equal to those pro24 vided under the State’s workers’ compensation 

25 law for comparable employment. 


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•S 340 IS

1 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

2 COLLECTIVE BARGAINING AGREEMENTS.—With re3 spect to a job opportunity that is not covered under 

4 a collective bargaining agreement: 

5 ‘‘(A) STRIKE OR LOCKOUT.—The specific 

6 job opportunity for which the employer has ap7 plied for an H–2A worker is not vacant because 

8 the former occupant is on strike or being locked 

9 out in the course of a labor dispute. 

10 ‘‘(B) TEMPORARY OR SEASONAL JOB OP11 PORTUNITIES.—The job opportunity is tem12 porary or seasonal. 

13 ‘‘(C) BENEFIT, WAGE, AND WORKING CON14 DITIONS.—The employer will provide, at a min15 imum, the benefits, wages, and working condi16 tions required by section 218A to all workers 

17 employed in the job opportunities for which the 

18 employer has applied for an H–2A worker 

19 under subsection (a) and to all other workers in 

20 the same occupation at the place of employ21 ment. 

22 ‘‘(D) NONDISPLACEMENT OF UNITED

23 STATES WORKERS.—The employer did not dis24 place and will not displace a United States 

25 worker employed by the employer during the 


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•S 340 IS

1 period of employment and for a period of 30 

2 days preceding the period of employment in the 

3 occupation at the place of employment for 

4 which the employer has applied for an H–2A 

5 worker. 

6 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

7 THE NONIMMIGRANT WITH OTHER EMPLOY8 ERS.—The employer will not place the non9 immigrant with another employer unless— 

10 ‘‘(i) the nonimmigrant performs du11 ties in whole or in part at 1 or more work12 sites owned, operated, or controlled by 

13 such other employer; 

14 ‘‘(ii) there are indicia of an employ15 ment relationship between the non16 immigrant and such other employer; and 

17 ‘‘(iii) the employer has inquired of the 

18 other employer as to whether, and has no 

19 actual knowledge or notice that, during the 

20 period of employment and for a period of 

21 30 days preceding the period of employ22 ment, the other employer has displaced or 

23 intends to displace a United States worker 

24 employed by the other employer in the oc25 cupation at the place of employment for 


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•S 340 IS

1 which the employer seeks approval to em2 ploy H–2A workers. 

3 ‘‘(F) STATEMENT OF LIABILITY.—The ap4 plication form shall include a clear statement 

5 explaining the liability under subparagraph (E) 

6 of an employer if the other employer described 

7 in such subparagraph displaces a United States 

8 worker as described in such subparagraph. 

9 ‘‘(G) PROVISION OF INSURANCE.—If the 

10 job opportunity is not covered by the State 

11 workers’ compensation law, the employer will 

12 provide, at no cost to the worker, insurance cov13 ering injury and disease arising out of and in 

14 the course of the worker’s employment which 

15 will provide benefits at least equal to those pro16 vided under the State’s workers’ compensation 

17 law for comparable employment. 

18 ‘‘(H) EMPLOYMENT OF UNITED STATES

19 WORKERS.— 

20 ‘‘(i) RECRUITMENT.—The employer 

21 has taken or will take the following steps 

22 to recruit United States workers for the 

23 job opportunities for which the H–2A non24 immigrant is, or H–2A nonimmigrants are, 

25 sought: 


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•S 340 IS

1 ‘‘(I) CONTACTING FORMER

2 WORKERS.—The employer shall make 

3 reasonable efforts through the sending 

4 of a letter by United States Postal 

5 Service mail, or otherwise, to contact 

6 any United States worker the em7 ployer employed during the previous 

8 season in the occupation at the place 

9 of intended employment for which the 

10 employer is applying for workers and 

11 has made the availability of the em12 ployer’s job opportunities in the occu13 pation at the place of intended em14 ployment known to such previous 

15 workers, unless the worker was termi16 nated from employment by the em17 ployer for a lawful job-related reason 

18 or abandoned the job before the work19 er completed the period of employ20 ment of the job opportunity for which 

21 the worker was hired. 

22 ‘‘(II) FILING A JOB OFFER WITH

23 THE LOCAL OFFICE OF THE STATE

24 EMPLOYMENT SECURITY AGENCY.— 

25 Not later than 28 days before the 


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•S 340 IS

1 date on which the employer desires to 

2 employ an H–2A worker in a tem3 porary or seasonal agricultural job op4 portunity, the employer shall submit a 

5 copy of the job offer described in sub6 section (a)(2) to the local office of the 

7 State employment security agency 

8 which serves the area of intended em9 ployment and authorize the posting of 

10 the job opportunity on ‘America’s Job 

11 Bank’ or other electronic job registry, 

12 except that nothing in this subclause 

13 shall require the employer to file an 

14 interstate job order under section 653 

15 of title 20, Code of Federal Regula16 tions. 

17 ‘‘(III) ADVERTISING OF JOB OP18 PORTUNITIES.—Not later than 14 

19 days before the date on which the em20 ployer desires to employ an H–2A 

21 worker in a temporary or seasonal ag22 ricultural job opportunity, the em23 ployer shall advertise the availability 

24 of the job opportunities for which the 

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1 lication in the local labor market that 

2 is likely to be patronized by potential 

3 farm workers. 

4 ‘‘(IV) EMERGENCY PROCE5 DURES.—The Secretary of Labor 

6 shall, by regulation, provide a proce7 dure for acceptance and approval of 

8 applications in which the employer 

9 has not complied with the provisions 

10 of this subparagraph because the em11 ployer’s need for H–2A workers could 

12 not reasonably have been foreseen. 

13 ‘‘(ii) JOB OFFERS.—The employer has 

14 offered or will offer the job to any eligible 

15 United States worker who applies and is 

16 equally or better qualified for the job for 

17 which the nonimmigrant is, or non18 immigrants are, sought and who will be 

19 available at the time and place of need. 

20 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

21 employer will provide employment to any 

22 qualified United States worker who applies 

23 to the employer during the period begin24 ning on the date on which the H–2A work25 er departs for the employer’s place of emVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 ployment and ending on the date on which 

2 50 percent of the period of employment for 

3 which the H–2A worker who is in the job 

4 was hired has elapsed, subject to the fol5 lowing requirements: 

6 ‘‘(I) PROHIBITION.—No person 

7 or entity shall willfully and knowingly 

8 withhold United States workers before 

9 the arrival of H–2A workers in order 

10 to force the hiring of United States 

11 workers under this clause. 

12 ‘‘(II) COMPLAINTS.—Upon re13 ceipt of a complaint by an employer 

14 that a violation of subclause (I) has 

15 occurred, the Secretary of Labor shall 

16 immediately investigate. The Sec17 retary of Labor shall, within 36 hours 

18 of the receipt of the complaint, issue 

19 findings concerning the alleged viola20 tion. If the Secretary of Labor finds 

21 that a violation has occurred, the Sec22 retary of Labor shall immediately sus23 pend the application of this clause 

24 with respect to that certification for 

25 that date of need. 


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1 ‘‘(III) PLACEMENT OF UNITED

2 STATES WORKERS.—Before referring 

3 a United States worker to an em4 ployer during the period described in 

5 the matter preceding subclause (I), 

6 the Secretary of Labor shall make all 

7 reasonable efforts to place the United 

8 States worker in an open job accept9 able to the worker, if there are other 

10 job offers pending with the job service 

11 that offer similar job opportunities in 

12 the area of intended employment. 

13 ‘‘(iv) STATUTORY CONSTRUCTION.— 

14 Nothing in this subparagraph shall be con15 strued to prohibit an employer from using 

16 such legitimate selection criteria relevant 

17 to the type of job that are normal or cus18 tomary to the type of job involved so long 

19 as such criteria are not applied in a dis20 criminatory manner. 

21 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

22 OF EMPLOYER MEMBERS.— 

23 ‘‘(1) IN GENERAL.—An agricultural association 

24 may file an application under subsection (a) on be25 half of 1 or more of its employer members that the 


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•S 340 IS

1 association certifies in its application has or have 

2 agreed in writing to comply with the requirements of 

3 this section and sections 218A, 218B, and 218C. 

4 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

5 EMPLOYERS.—If an association filing an application 

6 under paragraph (1) is a joint or sole employer of 

7 the temporary or seasonal agricultural workers re8 quested on the application, the certifications granted 

9 under subsection (e)(2)(B) to the association may be 

10 used for the certified job opportunities of any of its 

11 producer members named on the application, and 

12 such workers may be transferred among such pro13 ducer members to perform the agricultural services 

14 of a temporary or seasonal nature for which the cer15 tifications were granted. 

16 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 

17 ‘‘(1) IN GENERAL.—An employer may withdraw 

18 an application filed pursuant to subsection (a), ex19 cept that if the employer is an agricultural associa20 tion, the association may withdraw an application 

21 filed pursuant to subsection (a) with respect to 1 or 

22 more of its members. To withdraw an application, 

23 the employer or association shall notify the Sec24 retary of Labor in writing, and the Secretary of 

25 Labor shall acknowledge in writing the receipt of 


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•S 340 IS

1 such withdrawal notice. An employer who withdraws 

2 an application under subsection (a), or on whose be3 half an application is withdrawn, is relieved of the 

4 obligations undertaken in the application. 

5 ‘‘(2) LIMITATION.—An application may not be 

6 withdrawn while any alien provided status under sec7 tion 101(a)(15)(H)(ii)(a) pursuant to such applica8 tion is employed by the employer. 

9 ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.— 

10 Any obligation incurred by an employer under any 

11 other law or regulation as a result of the recruit12 ment of United States workers or H–2A workers 

13 under an offer of terms and conditions of employ14 ment required as a result of making an application 

15 under subsection (a) is unaffected by withdrawal of 

16 such application. 

17 ‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.— 

18 ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The 

19 employer shall make available for public examina20 tion, within 1 working day after the date on which 

21 an application under subsection (a) is filed, at the 

22 employer’s principal place of business or worksite, a 

23 copy of each such application (and such accom24 panying documents as are necessary). 


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•S 340 IS

1 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

2 LABOR.— 

3 ‘‘(A) COMPILATION OF LIST.—The Sec4 retary of Labor shall compile, on a current 

5 basis, a list (by employer and by occupational 

6 classification) of the applications filed under 

7 subsection (a). Such list shall include the wage 

8 rate, number of workers sought, period of in9 tended employment, and date of need. The Sec10 retary of Labor shall make such list available 

11 for examination in the District of Columbia. 

12 ‘‘(B) REVIEW OF APPLICATIONS.—The 

13 Secretary of Labor shall review such an applica14 tion only for completeness and obvious inac15 curacies. Unless the Secretary of Labor finds 

16 that the application is incomplete or obviously 

17 inaccurate, the Secretary of Labor shall certify 

18 that the intending employer has filed with the 

19 Secretary of Labor an application as described 

20 in subsection (a). Such certification shall be 

21 provided within 7 days of the filing of the appli22 cation.’’ 

23 ‘‘SEC. 218A. H–2A EMPLOYMENT REQUIREMENTS. 

24 ‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO25 HIBITED.—Employers seeking to hire United States workVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 ers shall offer the United States workers no less than the 

2 same benefits, wages, and working conditions that the em3 ployer is offering, intends to offer, or will provide to H– 

4 2A workers. Conversely, no job offer may impose on 

5 United States workers any restrictions or obligations 

6 which will not be imposed on the employer’s H–2A work7 ers. 

8 ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING

9 CONDITIONS.—Except in cases where higher benefits, 

10 wages, or working conditions are required by the provi11 sions of subsection (a), in order to protect similarly em12 ployed United States workers from adverse effects with 

13 respect to benefits, wages, and working conditions, every 

14 job offer which shall accompany an application under sec15 tion 218(b)(2) shall include each of the following benefit, 

16 wage, and working condition provisions: 

17 ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A

18 HOUSING ALLOWANCE.— 

19 ‘‘(A) IN GENERAL.—An employer applying 

20 under section 218(a) for H–2A workers shall 

21 offer to provide housing at no cost to all work22 ers in job opportunities for which the employer 

23 has applied under that section and to all other 

24 workers in the same occupation at the place of 


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1 employment, whose place of residence is beyond 

2 normal commuting distance. 

3 ‘‘(B) TYPE OF HOUSING.—In complying 

4 with subparagraph (A), an employer may, at 

5 the employer’s election, provide housing that 

6 meets applicable Federal standards for tem7 porary labor camps or secure housing that 

8 meets applicable local standards for rental or 

9 public accommodation housing or other sub10 stantially similar class of habitation, or in the 

11 absence of applicable local standards, State 

12 standards for rental or public accommodation 

13 housing or other substantially similar class of 

14 habitation. In the absence of applicable local or 

15 State standards, Federal temporary labor camp 

16 standards shall apply. 

17 ‘‘(C) FAMILY HOUSING.—If it is the pre18 vailing practice in the occupation and area of 

19 intended employment to provide family housing, 

20 family housing shall be provided to workers 

21 with families who request it. 

22 ‘‘(D) WORKERS ENGAGED IN THE RANGE

23 PRODUCTION OF LIVESTOCK.—The Secretary of 

24 Labor shall issue regulations that address the 

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1 ing to workers engaged in the range production 

2 of livestock. 

3 ‘‘(E) LIMITATION.—Nothing in this para4 graph shall be construed to require an employer 

5 to provide or secure housing for persons who 

6 were not entitled to such housing under the 

7 temporary labor certification regulations in ef8 fect on June 1, 1986. 

9 ‘‘(F) CHARGES FOR HOUSING.— 

10 ‘‘(i) CHARGES FOR PUBLIC HOUS11 ING.—If public housing provided for mi12 grant agricultural workers under the aus13 pices of a local, county, or State govern14 ment is secured by an employer, and use of 

15 the public housing unit normally requires 

16 charges from migrant workers, such 

17 charges shall be paid by the employer di18 rectly to the appropriate individual or enti19 ty affiliated with the housing’s manage20 ment. 

21 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

22 the form of deposits for bedding or other 

23 similar incidentals related to housing shall 

24 not be levied upon workers by employers 

25 who provide housing for their workers. An 


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1 employer may require a worker found to 

2 have been responsible for damage to such 

3 housing which is not the result of normal 

4 wear and tear related to habitation to re5 imburse the employer for the reasonable 

6 cost of repair of such damage. 

7 ‘‘(G) HOUSING ALLOWANCE AS ALTER8 NATIVE.— 

9 ‘‘(i) IN GENERAL.—If the requirement 

10 set out in clause (ii) is satisfied, the em11 ployer may provide a reasonable housing 

12 allowance instead of offering housing 

13 under subparagraph (A). Upon the request 

14 of a worker seeking assistance in locating 

15 housing, the employer shall make a good 

16 faith effort to assist the worker in identi17 fying and locating housing in the area of 

18 intended employment. An employer who of19 fers a housing allowance to a worker, or 

20 assists a worker in locating housing which 

21 the worker occupies, pursuant to this 

22 clause shall not be deemed a housing pro23 vider under section 203 of the Migrant and 

24 Seasonal Agricultural Worker Protection 

25 Act (29 U.S.C. 1823) solely by virtue of 


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1 providing such housing allowance. No 

2 housing allowance may be used for housing 

3 which is owned or controlled by the em4 ployer. 

5 ‘‘(ii) CERTIFICATION.—The require6 ment of this clause is satisfied if the Gov7 ernor of the State certifies to the Secretary 

8 of Labor that there is adequate housing 

9 available in the area of intended employ10 ment for migrant farm workers and H–2A 

11 workers who are seeking temporary hous12 ing while employed in agricultural work. 

13 Such certification shall expire after 3 years 

14 unless renewed by the Governor of the 

15 State. 

16 ‘‘(iii) AMOUNT OF ALLOWANCE.— 

17 ‘‘(I) NONMETROPOLITAN COUN18 TIES.—If the place of employment of 

19 the workers provided an allowance 

20 under this subparagraph is a non21 metropolitan county, the amount of 

22 the housing allowance under this sub23 paragraph shall be equal to the state24 wide average fair market rental for 

25 existing housing for nonmetropolitan 


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1 counties for the State, as established 

2 by the Secretary of Housing and 

3 Urban Development pursuant to sec4 tion 8(c) of the United States Hous5 ing Act of 1937 (42 U.S.C. 1437f(c)), 

6 based on a 2-bedroom dwelling unit 

7 and an assumption of 2 persons per 

8 bedroom. 

9 ‘‘(II) METROPOLITAN COUN10 TIES.—If the place of employment of 

11 the workers provided an allowance 

12 under this paragraph is in a metro13 politan county, the amount of the 

14 housing allowance under this subpara15 graph shall be equal to the statewide 

16 average fair market rental for existing 

17 housing for metropolitan counties for 

18 the State, as established by the Sec19 retary of Housing and Urban Devel20 opment pursuant to section 8(c) of 

21 the United States Housing Act of 

22 1937 (42 U.S.C. 1437f(c)), based on 

23 a 2-bedroom dwelling unit and an as24 sumption of 2 persons per bedroom. 

25 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 


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1 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

2 worker who completes 50 percent of the period 

3 of employment of the job opportunity for which 

4 the worker was hired shall be reimbursed by the 

5 employer for the cost of the worker’s transpor6 tation and subsistence from the place from 

7 which the worker came to work for the em8 ployer (or place of last employment, if the 

9 worker traveled from such place) to the place of 

10 employment. 

11 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

12 worker who completes the period of employment 

13 for the job opportunity involved shall be reim14 bursed by the employer for the cost of the 

15 worker’s transportation and subsistence from 

16 the place of employment to the place from 

17 which the worker, disregarding intervening em18 ployment, came to work for the employer, or to 

19 the place of next employment, if the worker has 

20 contracted with a subsequent employer who has 

21 not agreed to provide or pay for the worker’s 

22 transportation and subsistence to such subse23 quent employer’s place of employment. 

24 ‘‘(C) LIMITATION.— 


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1 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

2 Except as provided in clause (ii), the 

3 amount of reimbursement provided under 

4 subparagraph (A) or (B) to a worker or 

5 alien shall not exceed the lesser of— 

6 ‘‘(I) the actual cost to the worker 

7 or alien of the transportation and sub8 sistence involved; or 

9 ‘‘(II) the most economical and 

10 reasonable common carrier transpor11 tation charges and subsistence costs 

12 for the distance involved. 

13 ‘‘(ii) DISTANCE TRAVELED.—No reim14 bursement under subparagraph (A) or (B) 

15 shall be required if the distance traveled is 

16 100 miles or less, or the worker is not re17 siding in employer-provided housing or 

18 housing secured through an allowance as 

19 provided in paragraph (1)(G). 

20 ‘‘(D) EARLY TERMINATION.—If the worker 

21 is laid off or employment is terminated for con22 tract impossibility (as described in paragraph 

23 (4)(D)) before the anticipated ending date of 

24 employment, the employer shall provide the 

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1 paragraph (B) and, notwithstanding whether 

2 the worker has completed 50 percent of the pe3 riod of employment, shall provide the transpor4 tation reimbursement required by subparagraph 

5 (A). 

6 ‘‘(E) TRANSPORTATION BETWEEN LIVING

7 QUARTERS AND WORKSITE.—The employer 

8 shall provide transportation between the work9 er’s living quarters and the employer’s worksite 

10 without cost to the worker, and such transpor11 tation will be in accordance with applicable laws 

12 and regulations. 

13 ‘‘(3) REQUIRED WAGES.— 

14 ‘‘(A) IN GENERAL.—An employer applying 

15 for workers under section 218(a) shall offer to 

16 pay, and shall pay, all workers in the occupa17 tion for which the employer has applied for 

18 workers, not less (and is not required to pay 

19 more) than the greater of the prevailing wage 

20 in the occupation in the area of intended em21 ployment or the adverse effect wage rate. No 

22 worker shall be paid less than the greater of the 

23 hourly wage prescribed under section 6(a)(1) of 

24 the Fair Labor Standards Act of 1938 (29 


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•S 340 IS

1 U.S.C. 206(a)(1)) or the applicable State min2 imum wage. 

3 ‘‘(B) LIMITATION.—Effective on the date 

4 of the enactment of the Agricultural Job Op5 portunities, Benefits, and Security Act of 2007 

6 and continuing for 3 years thereafter, no ad7 verse effect wage rate for a State may be more 

8 than the adverse effect wage rate for that State 

9 in effect on January 1, 2003, as established by 

10 section 655.107 of title 20, Code of Federal 

11 Regulations. 

12 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

13 FREEZE.— 

14 ‘‘(i) FIRST ADJUSTMENT.—If Con15 gress does not set a new wage standard 

16 applicable to this section before the first 

17 March 1 that is not less than 3 years after 

18 the date of enactment of this section, the 

19 adverse effect wage rate for each State be20 ginning on such March 1 shall be the wage 

21 rate that would have resulted if the ad22 verse effect wage rate in effect on January 

23 1, 2003, had been annually adjusted, be24 ginning on March 1, 2006, by the lesser 

25 of— 


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1 ‘‘(I) the 12-month percentage 

2 change in the Consumer Price Index 

3 for All Urban Consumers between De4 cember of the second preceding year 

5 and December of the preceding year; 

6 and 

7 ‘‘(II) 4 percent. 

8 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST9 MENTS.—Beginning on the first March 1 

10 that is not less than 4 years after the date 

11 of enactment of this section, and each 

12 March 1 thereafter, the adverse effect 

13 wage rate then in effect for each State 

14 shall be adjusted by the lesser of— 

15 ‘‘(I) the 12-month percentage 

16 change in the Consumer Price Index 

17 for All Urban Consumers between De18 cember of the second preceding year 

19 and December of the preceding year; 

20 and 

21 ‘‘(II) 4 percent. 

22 ‘‘(D) DEDUCTIONS.—The employer shall 

23 make only those deductions from the worker’s 

24 wages that are authorized by law or are reason25 able and customary in the occupation and area 


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•S 340 IS

1 of employment. The job offer shall specify all 

2 deductions not required by law which the em3 ployer will make from the worker’s wages. 

4 ‘‘(E) FREQUENCY OF PAY.—The employer 

5 shall pay the worker not less frequently than 

6 twice monthly, or in accordance with the pre7 vailing practice in the area of employment, 

8 whichever is more frequent. 

9 ‘‘(F) HOURS AND EARNINGS STATE10 MENTS.—The employer shall furnish to the 

11 worker, on or before each payday, in 1 or more 

12 written statements— 

13 ‘‘(i) the worker’s total earnings for 

14 the pay period; 

15 ‘‘(ii) the worker’s hourly rate of pay, 

16 piece rate of pay, or both; 

17 ‘‘(iii) the hours of employment which 

18 have been offered to the worker (broken 

19 out by hours offered in accordance with 

and over and above the 3 20 ⁄4 guarantee de21 scribed in paragraph (4); 

22 ‘‘(iv) the hours actually worked by the 

23 worker; 

24 ‘‘(v) an itemization of the deductions 

25 made from the worker’s wages; and 


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•S 340 IS

1 ‘‘(vi) if piece rates of pay are used, 

2 the units produced daily. 

3 ‘‘(G) REPORT ON WAGE PROTECTIONS.— 

4 Not later than December 31, 2009, the Comp5 troller General of the United States shall pre6 pare and transmit to the Secretary of Labor, 

7 the Committee on the Judiciary of the Senate, 

8 and Committee on the Judiciary of the House 

9 of Representatives, a report that addresses— 

10 ‘‘(i) whether the employment of H–2A 

11 or unauthorized aliens in the United States 

12 agricultural workforce has depressed 

13 United States farm worker wages below 

14 the levels that would otherwise have pre15 vailed if alien farm workers had not been 

16 employed in the United States; 

17 ‘‘(ii) whether an adverse effect wage 

18 rate is necessary to prevent wages of 

19 United States farm workers in occupations 

20 in which H–2A workers are employed from 

21 falling below the wage levels that would 

22 have prevailed in the absence of the em23 ployment of H–2A workers in those occu24 pations; 


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•S 340 IS

1 ‘‘(iii) whether alternative wage stand2 ards, such as a prevailing wage standard, 

3 would be sufficient to prevent wages in oc4 cupations in which H–2A workers are em5 ployed from falling below the wage level 

6 that would have prevailed in the absence of 

7 H–2A employment; 

8 ‘‘(iv) whether any changes are war9 ranted in the current methodologies for 

10 calculating the adverse effect wage rate 

11 and the prevailing wage; and 

12 ‘‘(v) recommendations for future wage 

13 protection under this section. 

14 ‘‘(H) COMMISSION ON WAGE STAND15 ARDS.— 

16 ‘‘(i) ESTABLISHMENT.—There is es17 tablished the Commission on Agricultural 

18 Wage Standards under the H–2A program 

19 (in this subparagraph referred to as the 

20 ‘Commission’). 

21 ‘‘(ii) COMPOSITION.—The Commission 

22 shall consist of 10 members as follows: 

23 ‘‘(I) Four representatives of agri24 cultural employers and 1 representa25 tive of the Department of Agriculture, 


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•S 340 IS

1 each appointed by the Secretary of 

2 Agriculture. 

3 ‘‘(II) Four representatives of ag4 ricultural workers and 1 representa5 tive of the Department of Labor, each 

6 appointed by the Secretary of Labor. 

7 ‘‘(iii) FUNCTIONS.—The Commission 

8 shall conduct a study that shall address— 

9 ‘‘(I) whether the employment of 

10 H–2A or unauthorized aliens in the 

11 United States agricultural workforce 

12 has depressed United States farm 

13 worker wages below the levels that 

14 would otherwise have prevailed if alien 

15 farm workers had not been employed 

16 in the United States; 

17 ‘‘(II) whether an adverse effect 

18 wage rate is necessary to prevent 

19 wages of United States farm workers 

20 in occupations in which H–2A work21 ers are employed from falling below 

22 the wage levels that would have pre23 vailed in the absence of the employ24 ment of H–2A workers in those occu25 pations; 


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1 ‘‘(III) whether alternative wage 

2 standards, such as a prevailing wage 

3 standard, would be sufficient to pre4 vent wages in occupations in which 

5 H–2A workers are employed from fall6 ing below the wage level that would 

7 have prevailed in the absence of H–2A 

8 employment; 

9 ‘‘(IV) whether any changes are 

10 warranted in the current methodolo11 gies for calculating the adverse effect 

12 wage rate and the prevailing wage 

13 rate; and 

14 ‘‘(V) recommendations for future 

15 wage protection under this section. 

16 ‘‘(iv) FINAL REPORT.—Not later than 

17 December 31, 2009, the Commission shall 

18 submit a report to the Congress setting 

19 forth the findings of the study conducted 

20 under clause (iii). 

21 ‘‘(v) TERMINATION DATE.—The Com22 mission shall terminate upon submitting 

23 its final report. 

24 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 


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1 ‘‘(A) OFFER TO WORKER.—The employer 

2 shall guarantee to offer the worker employment 

for the hourly equivalent of at least 3 3 ⁄4 of the 

4 work days of the total period of employment, 

5 beginning with the first work day after the ar6 rival of the worker at the place of employment 

7 and ending on the expiration date specified in 

8 the job offer. For purposes of this subpara9 graph, the hourly equivalent means the number 

10 of hours in the work days as stated in the job 

11 offer and shall exclude the worker’s Sabbath 

12 and Federal holidays. If the employer affords 

13 the United States or H–2A worker less employ14 ment than that required under this paragraph, 

15 the employer shall pay such worker the amount 

16 which the worker would have earned had the 

17 worker, in fact, worked for the guaranteed 

18 number of hours. 

19 ‘‘(B) FAILURE TO WORK.—Any hours 

20 which the worker fails to work, up to a max21 imum of the number of hours specified in the 

22 job offer for a work day, when the worker has 

23 been offered an opportunity to do so, and all 

24 hours of work actually performed (including vol25 untary work in excess of the number of hours 


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•S 340 IS

1 specified in the job offer in a work day, on the 

2 worker’s Sabbath, or on Federal holidays) may 

3 be counted by the employer in calculating 

4 whether the period of guaranteed employment 

5 has been met. 

6 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

7 TERMINATION FOR CAUSE.—If the worker vol8 untarily abandons employment before the end 

9 of the contract period, or is terminated for 

cause, the worker is not entitled to the ‘3 10 ⁄4

11 guarantee’ described in subparagraph (A). 

12 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be13 fore the expiration of the period of employment 

14 specified in the job offer, the services of the 

15 worker are no longer required for reasons be16 yond the control of the employer due to any 

17 form of natural disaster, including a flood, hur18 ricane, freeze, earthquake, fire, drought, plant 

19 or animal disease or pest infestation, or regu20 latory drought, before the guarantee in sub21 paragraph (A) is fulfilled, the employer may 

22 terminate the worker’s employment. In the 

23 event of such termination, the employer shall 

24 fulfill the employment guarantee in subpara25 graph (A) for the work days that have elapsed 


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•S 340 IS

1 from the first work day after the arrival of the 

2 worker to the termination of employment. In 

3 such cases, the employer will make efforts to 

4 transfer the United States worker to other com5 parable employment acceptable to the worker. If 

6 such transfer is not effected, the employer shall 

7 provide the return transportation required in 

8 paragraph (2)(D). 

9 ‘‘(5) MOTOR VEHICLE SAFETY.— 

10 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

11 TO COVERAGE.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in clauses (iii) and (iv), this sub14 section applies to any H–2A employer that 

15 uses or causes to be used any vehicle to 

16 transport an H–2A worker within the 

17 United States. 

18 ‘‘(ii) DEFINED TERM.—In this para19 graph, the term ‘uses or causes to be 

20 used’— 

21 ‘‘(I) applies only to transpor22 tation provided by an H–2A employer 

23 to an H–2A worker, or by a farm 

24 labor contractor to an H–2A worker 


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•S 340 IS

1 at the request or direction of an H– 

2 2A employer; and 

3 ‘‘(II) does not apply to— 

4 ‘‘(aa) transportation pro5 vided, or transportation arrange6 ments made, by an H–2A work7 er, unless the employer specifi8 cally requested or arranged such 

9 transportation; or 

10 ‘‘(bb) car pooling arrange11 ments made by H–2A workers 

12 themselves, using 1 of the work13 ers’ own vehicles, unless specifi14 cally requested by the employer 

15 directly or through a farm labor 

16 contractor. 

17 ‘‘(iii) CLARIFICATION.—Providing a 

18 job offer to an H–2A worker that causes 

19 the worker to travel to or from the place 

20 of employment, or the payment or reim21 bursement of the transportation costs of 

22 an H–2A worker by an H–2A employer, 

23 shall not constitute an arrangement of, or 

24 participation in, such transportation. 


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•S 340 IS

1 ‘‘(iv) AGRICULTURAL MACHINERY AND

2 EQUIPMENT EXCLUDED.—This subsection 

3 does not apply to the transportation of an 

4 H–2A worker on a tractor, combine, har5 vester, picker, or other similar machinery 

6 or equipment while such worker is actually 

7 engaged in the planting, cultivating, or 

8 harvesting of agricultural commodities or 

9 the care of livestock or poultry or engaged 

10 in transportation incidental thereto. 

11 ‘‘(v) COMMON CARRIERS EX12 CLUDED.—This subsection does not apply 

13 to common carrier motor vehicle transpor14 tation in which the provider holds itself out 

15 to the general public as engaging in the 

16 transportation of passengers for hire and 

17 holds a valid certification of authorization 

18 for such purposes from an appropriate 

19 Federal, State, or local agency. 

20 ‘‘(B) APPLICABILITY OF STANDARDS, LI21 CENSING, AND INSURANCE REQUIREMENTS.— 

22 ‘‘(i) IN GENERAL.—When using, or 

23 causing to be used, any vehicle for the pur24 pose of providing transportation to which 


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•S 340 IS

1 this subparagraph applies, each employer 

2 shall— 

3 ‘‘(I) ensure that each such vehi4 cle conforms to the standards pre5 scribed by the Secretary of Labor 

6 under section 401(b) of the Migrant 

7 and Seasonal Agricultural Worker 

8 Protection Act (29 U.S.C. 1841(b)) 

9 and other applicable Federal and 

10 State safety standards; 

11 ‘‘(II) ensure that each driver has 

12 a valid and appropriate license, as 

13 provided by State law, to operate the 

14 vehicle; and 

15 ‘‘(III) have an insurance policy 

16 or a liability bond that is in effect 

17 which insures the employer against li18 ability for damage to persons or prop19 erty arising from the ownership, oper20 ation, or causing to be operated, of 

21 any vehicle used to transport any H– 

22 2A worker. 

23 ‘‘(ii) AMOUNT OF INSURANCE RE24 QUIRED.—The level of insurance required 

25 shall be determined by the Secretary of 


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•S 340 IS

1 Labor pursuant to regulations to be issued 

2 under this subsection. 

3 ‘‘(iii) EFFECT OF WORKERS’ COM4 PENSATION COVERAGE.—If the employer 

5 of any H–2A worker provides workers’ 

6 compensation coverage for such worker in 

7 the case of bodily injury or death as pro8 vided by State law, the following adjust9 ments in the requirements of subparagraph 

10 (B)(i)(III) relating to having an insurance 

11 policy or liability bond apply: 

12 ‘‘(I) No insurance policy or liabil13 ity bond shall be required of the em14 ployer, if such workers are trans15 ported only under circumstances for 

16 which there is coverage under such 

17 State law. 

18 ‘‘(II) An insurance policy or li19 ability bond shall be required of the 

20 employer for circumstances under 

21 which coverage for the transportation 

22 of such workers is not provided under 

23 such State law. 

24 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em25 ployer shall assure that, except as otherwise provided in 


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•S 340 IS

1 this section, the employer will comply with all applicable 

2 Federal, State, and local labor laws, including laws affect3 ing migrant and seasonal agricultural workers, with re4 spect to all United States workers and alien workers em5 ployed by the employer, except that a violation of this as6 surance shall not constitute a violation of the Migrant and 

7 Seasonal Agricultural Worker Protection Act (29 U.S.C. 

8 1801 et seq.). 

9 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro10 vide to the worker, not later than the day the work com11 mences, a copy of the employer’s application and job offer 

12 described in section 218(a), or, if the employer will require 

13 the worker to enter into a separate employment contract 

14 covering the employment in question, such separate em15 ployment contract. 

16 ‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing 

17 in this section, section 218, or section 218B shall preclude 

18 the Secretary of Labor and the Secretary from continuing 

19 to apply special procedures and requirements to the ad20 mission and employment of aliens in occupations involving 

21 the range production of livestock. 

22 ‘‘SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION 

23 OF STAY OF H–2A WORKERS. 

24 ‘‘(a) PETITIONING FOR ADMISSION.—An employer, 

25 or an association acting as an agent or joint employer for 


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•S 340 IS

1 its members, that seeks the admission into the United 

2 States of an H–2A worker may file a petition with the 

3 Secretary. The petition shall be accompanied by an accept4 ed and currently valid certification provided by the Sec5 retary of Labor under section 218(e)(2)(B) covering the 

6 petitioner. 

7 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC8 RETARY.—The Secretary shall establish a procedure for 

9 expedited adjudication of petitions filed under subsection 

10 (a) and within 7 working days shall, by fax, cable, or other 

11 means assuring expedited delivery, transmit a copy of no12 tice of action on the petition to the petitioner and, in the 

13 case of approved petitions, to the appropriate immigration 

14 officer at the port of entry or United States consulate (as 

15 the case may be) where the petitioner has indicated that 

16 the alien beneficiary (or beneficiaries) will apply for a visa 

17 or admission to the United States. 

18 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 

19 ‘‘(1) IN GENERAL.—An H–2A worker shall be 

20 considered admissible to the United States if the 

21 alien is otherwise admissible under this section, sec22 tion 218, and section 218A, and the alien is not in23 eligible under paragraph (2). 

24 ‘‘(2) DISQUALIFICATION.—An alien shall be 

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1 eligible for nonimmigrant status under section 

2 101(a)(15)(H)(ii)(a) if the alien has, at any time 

3 during the past 5 years— 

4 ‘‘(A) violated a material provision of this 

5 section, including the requirement to promptly 

6 depart the United States when the alien’s au7 thorized period of admission under this section 

8 has expired; or 

9 ‘‘(B) otherwise violated a term or condition 

10 of admission into the United States as a non11 immigrant, including overstaying the period of 

12 authorized admission as such a nonimmigrant. 

13 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW14 FUL PRESENCE.— 

15 ‘‘(A) IN GENERAL.—An alien who has not 

16 previously been admitted into the United States 

17 pursuant to this section, and who is otherwise 

18 eligible for admission in accordance with para19 graphs (1) and (2), shall not be deemed inad20 missible by virtue of section 212(a)(9)(B). If an 

21 alien described in the preceding sentence is 

22 present in the United States, the alien may 

23 apply from abroad for H–2A status, but may 

24 not be granted that status in the United States. 


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1 ‘‘(B) MAINTENANCE OF WAIVER.—An 

2 alien provided an initial waiver of ineligibility 

3 pursuant to subparagraph (A) shall remain eli4 gible for such waiver unless the alien violates 

5 the terms of this section or again becomes ineli6 gible under section 212(a)(9)(B) by virtue of 

7 unlawful presence in the United States after 

8 the date of the initial waiver of ineligibility pur9 suant to subparagraph (A). 

10 ‘‘(d) PERIOD OF ADMISSION.— 

11 ‘‘(1) IN GENERAL.—The alien shall be admitted 

12 for the period of employment in the application cer13 tified by the Secretary of Labor pursuant to section 

14 218(e)(2)(B), not to exceed 10 months, supple15 mented by a period of not more than 1 week before 

16 the beginning of the period of employment for the 

17 purpose of travel to the worksite and a period of 14 

18 days following the period of employment for the pur19 pose of departure or extension based on a subse20 quent offer of employment, except that— 

21 ‘‘(A) the alien is not authorized to be em22 ployed during such 14-day period except in the 

23 employment for which the alien was previously 

24 authorized; and 


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1 ‘‘(B) the total period of employment, in2 cluding such 14-day period, may not exceed 10 

3 months. 

4 ‘‘(2) CONSTRUCTION.—Nothing in this sub5 section shall limit the authority of the Secretary to 

6 extend the stay of the alien under any other provi7 sion of this Act. 

8 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 

9 ‘‘(1) IN GENERAL.—An alien admitted or pro10 vided status under section 101(a)(15)(H)(ii)(a) who 

11 abandons the employment which was the basis for 

12 such admission or status shall be considered to have 

13 failed to maintain nonimmigrant status as an H–2A 

14 worker and shall depart the United States or be sub15 ject to removal under section 237(a)(1)(C)(i). 

16 ‘‘(2) REPORT BY EMPLOYER.—The employer, or 

17 association acting as agent for the employer, shall 

18 notify the Secretary not later than 7 days after an 

19 H–2A worker prematurely abandons employment. 

20 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec21 retary shall promptly remove from the United States 

22 any H–2A worker who violates any term or condi23 tion of the worker’s nonimmigrant status. 

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


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1 terminate his or her employment if the alien prompt2 ly departs the United States upon termination of 

3 such employment. 

4 ‘‘(f) REPLACEMENT OF ALIEN.— 

5 ‘‘(1) IN GENERAL.—Upon presentation of the 

6 notice to the Secretary required by subsection (e)(2), 

7 the Secretary of State shall promptly issue a visa to, 

8 and the Secretary shall admit into the United 

9 States, an eligible alien designated by the employer 

10 to replace an H–2A worker— 

11 ‘‘(A) who abandons or prematurely termi12 nates employment; or 

13 ‘‘(B) whose employment is terminated 

14 after a United States worker is employed pur15 suant to section 218(b)(2)(H)(iii), if the United 

16 States worker voluntarily departs before the 

17 end of the period of intended employment or if 

18 the employment termination is for a lawful job19 related reason. 

20 ‘‘(2) CONSTRUCTION.—Nothing in this sub21 section is intended to limit any preference required 

22 to be accorded United States workers under any 

23 other provision of this Act. 

24 ‘‘(g) IDENTIFICATION DOCUMENT.— 


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1 ‘‘(1) IN GENERAL.—Each alien authorized to be 

2 admitted under section 101(a)(15)(H)(ii)(a) shall be 

3 provided an identification and employment eligibility 

4 document to verify eligibility for employment in the 

5 United States and verify the alien’s identity. 

6 ‘‘(2) REQUIREMENTS.—No identification and 

7 employment eligibility document may be issued 

8 which does not meet the following requirements: 

9 ‘‘(A) The document shall be capable of re10 liably determining whether— 

11 ‘‘(i) the individual with the identifica12 tion and employment eligibility document 

13 whose eligibility is being verified is in fact 

14 eligible for employment; 

15 ‘‘(ii) the individual whose eligibility is 

16 being verified is claiming the identity of 

17 another person; and 

18 ‘‘(iii) the individual whose eligibility is 

19 being verified is authorized to be admitted 

20 into, and employed in, the United States 

21 as an H–2A worker. 

22 ‘‘(B) The document shall be in a form that 

23 is resistant to counterfeiting and to tampering. 

24 ‘‘(C) The document shall— 


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1 ‘‘(i) be compatible with other data2 bases of the Secretary for the purpose of 

3 excluding aliens from benefits for which 

4 they are not eligible and determining 

5 whether the alien is unlawfully present in 

6 the United States; and 

7 ‘‘(ii) be compatible with law enforce8 ment databases to determine if the alien 

9 has been convicted of criminal offenses. 

10 ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE

11 UNITED STATES.— 

12 ‘‘(1) EXTENSION OF STAY.—If an employer 

13 seeks approval to employ an H–2A alien who is law14 fully present in the United States, the petition filed 

15 by the employer or an association pursuant to sub16 section (a), shall request an extension of the alien’s 

17 stay and a change in the alien’s employment. 

18 ‘‘(2) LIMITATION ON FILING A PETITION FOR

19 EXTENSION OF STAY.—A petition may not be filed 

20 for an extension of an alien’s stay— 

21 ‘‘(A) for a period of more than 10 months; 

22 or 

23 ‘‘(B) to a date that is more than 3 years 

24 after the date of the alien’s last admission to 

25 the United States under this section. 


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1 ‘‘(3) WORK AUTHORIZATION UPON FILING A

2 PETITION FOR EXTENSION OF STAY.— 

3 ‘‘(A) IN GENERAL.—An alien who is law4 fully present in the United States may com5 mence the employment described in a petition 

6 under paragraph (1) on the date on which the 

7 petition is filed. 

8 ‘‘(B) DEFINITION.—For purposes of sub9 paragraph (A), the term ‘file’ means sending 

10 the petition by certified mail via the United 

11 States Postal Service, return receipt requested, 

12 or delivered by guaranteed commercial delivery 

13 which will provide the employer with a docu14 mented acknowledgment of the date of receipt 

15 of the petition. 

16 ‘‘(C) HANDLING OF PETITION.—The em17 ployer shall provide a copy of the employer’s pe18 tition to the alien, who shall keep the petition 

19 with the alien’s identification and employment 

20 eligibility document as evidence that the peti21 tion has been filed and that the alien is author22 ized to work in the United States. 

23 ‘‘(D) APPROVAL OF PETITION.—Upon ap24 proval of a petition for an extension of stay or 

25 change in the alien’s authorized employment, 


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1 the Secretary shall provide a new or updated 

2 employment eligibility document to the alien in3 dicating the new validity date, after which the 

4 alien is not required to retain a copy of the pe5 tition. 

6 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA7 TION OF ALIENS WITHOUT VALID IDENTIFICATION

8 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex9 pired identification and employment eligibility docu10 ment, together with a copy of a petition for exten11 sion of stay or change in the alien’s authorized em12 ployment that complies with the requirements of 

13 paragraph (1), shall constitute a valid work author14 ization document for a period of not more than 60 

15 days beginning on the date on which such petition 

16 is filed, after which time only a currently valid iden17 tification and employment eligibility document shall 

18 be acceptable. 

19 ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN

20 STATUS.— 

21 ‘‘(A) MAXIMUM PERIOD.—The maximum 

22 continuous period of authorized status as an 

23 H–2A worker (including any extensions) is 3 

24 years. 


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1 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

2 THE UNITED STATES.— 

3 ‘‘(i) IN GENERAL.—Subject to clause 

4 (ii), in the case of an alien outside the 

5 United States whose period of authorized 

6 status as an H–2A worker (including any 

7 extensions) has expired, the alien may not 

8 again apply for admission to the United 

9 States as an H–2A worker unless the alien 

10 has remained outside the United States for 

a continuous period equal to at least 1 11 ⁄5

12 the duration of the alien’s previous period 

13 of authorized status as an H–2A worker 

14 (including any extensions). 

15 ‘‘(ii) EXCEPTION.—Clause (i) shall 

16 not apply in the case of an alien if the 

17 alien’s period of authorized status as an 

18 H–2A worker (including any extensions) 

19 was for a period of not more than 10 

20 months and such alien has been outside 

21 the United States for at least 2 months 

22 during the 12 months preceding the date 

23 the alien again is applying for admission to 

24 the United States as an H–2A worker. 


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1 ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED AS

2 SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK3 ERS.—Notwithstanding any provision of the Agricultural 

4 Job Opportunities, Benefits, and Security Act of 2007, an 

5 alien admitted under section 101(a)(15)(H)(ii)(a) for em6 ployment as a sheepherder, goat herder, or dairy worker— 

7 ‘‘(1) may be admitted for an initial period of 12 

8 months; 

9 ‘‘(2) subject to subsection (j)(5), may have such 

10 initial period of admission extended for a period of 

11 up to 3 years; and 

12 ‘‘(3) shall not be subject to the requirements of 

13 subsection (h)(5) (relating to periods of absence 

14 from the United States). 

15 ‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI16 DENT STATUS FOR ALIENS EMPLOYED AS SHEEP17 HERDERS, GOAT HERDERS, OR DAIRY WORKERS.— 

18 ‘‘(1) ELIGIBLE ALIEN.—For purposes of this 

19 subsection, the term ‘eligible alien’ means an alien— 

20 ‘‘(A) having nonimmigrant status under 

21 section 101(a)(15)(H)(ii)(a) based on employ22 ment as a sheepherder, goat herder, or dairy 

23 worker; 

24 ‘‘(B) who has maintained such non25 immigrant status in the United States for a cuVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 mulative total of 36 months (excluding any pe2 riod of absence from the United States); and 

3 ‘‘(C) who is seeking to receive an immi4 grant visa under section 203(b)(3)(A)(iii). 

5 ‘‘(2) CLASSIFICATION PETITION.—In the case 

6 of an eligible alien, the petition under section 204 

7 for classification under section 203(b)(3)(A)(iii) may 

8 be filed by— 

9 ‘‘(A) the alien’s employer on behalf of the 

10 eligible alien; or 

11 ‘‘(B) the eligible alien. 

12 ‘‘(3) NO LABOR CERTIFICATION REQUIRED.— 

13 Notwithstanding section 203(b)(3)(C), no deter14 mination under section 212(a)(5)(A) is required with 

15 respect to an immigrant visa described in paragraph 

16 (1)(C) for an eligible alien. 

17 ‘‘(4) EFFECT OF PETITION.—The filing of a pe18 tition described in paragraph (2) or an application 

19 for adjustment of status based on the approval of 

20 such a petition shall not constitute evidence of an 

21 alien’s ineligibility for nonimmigrant status under 

22 section 101(a)(15)(H)(ii)(a). 

23 ‘‘(5) EXTENSION OF STAY.—The Secretary 

24 shall extend the stay of an eligible alien having a 

25 pending or approved classification petition described 


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1 in paragraph (2) in 1-year increments until a final 

2 determination is made on the alien’s eligibility for 

3 adjustment of status to that of an alien lawfully ad4 mitted for permanent residence. 

5 ‘‘(6) CONSTRUCTION.—Nothing in this sub6 section shall be construed to prevent an eligible alien 

7 from seeking adjustment of status in accordance 

8 with any other provision of law. 

9 ‘‘SEC. 218C. WORKER PROTECTIONS AND LABOR STAND10 ARDS ENFORCEMENT. 

11 ‘‘(a) ENFORCEMENT AUTHORITY.— 

12 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 

13 ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY

14 COMPLAINTS.—The Secretary of Labor shall es15 tablish a process for the receipt, investigation, 

16 and disposition of complaints respecting a peti17 tioner’s failure to meet a condition specified in 

18 section 218(b), or an employer’s misrepresenta19 tion of material facts in an application under 

20 section 218(a). Complaints may be filed by any 

21 aggrieved person or organization (including bar22 gaining representatives). No investigation or 

23 hearing shall be conducted on a complaint con24 cerning such a failure or misrepresentation un25 less the complaint was filed not later than 12 


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•S 340 IS

1 months after the date of the failure, or mis2 representation, respectively. The Secretary of 

3 Labor shall conduct an investigation under this 

4 subparagraph if there is reasonable cause to be5 lieve that such a failure or misrepresentation 

6 has occurred. 

7 ‘‘(B) DETERMINATION ON COMPLAINT.— 

8 Under such process, the Secretary of Labor 

9 shall provide, within 30 days after the date 

10 such a complaint is filed, for a determination as 

11 to whether or not a reasonable basis exists to 

12 make a finding described in subparagraph (C), 

13 (D), (E), or (G). If the Secretary of Labor de14 termines that such a reasonable basis exists, 

15 the Secretary of Labor shall provide for notice 

16 of such determination to the interested parties 

17 and an opportunity for a hearing on the com18 plaint, in accordance with section 556 of title 5, 

19 United States Code, within 60 days after the 

20 date of the determination. If such a hearing is 

21 requested, the Secretary of Labor shall make a 

22 finding concerning the matter not later than 60 

23 days after the date of the hearing. In the case 

24 of similar complaints respecting the same appli25 cant, the Secretary of Labor may consolidate 


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•S 340 IS

1 the hearings under this subparagraph on such 

2 complaints. 

3 ‘‘(C) FAILURES TO MEET CONDITIONS.—If 

4 the Secretary of Labor finds, after notice and 

5 opportunity for a hearing, a failure to meet a 

6 condition of paragraph (1)(A), (1)(B), (1)(D), 

7 (1)(F), (2)(A), (2)(B), or (2)(G) of section 

8 218(b), a substantial failure to meet a condition 

9 of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 

10 (2)(E), or (2)(H) of section 218(b), or a mate11 rial misrepresentation of fact in an application 

12 under section 218(a)— 

13 ‘‘(i) the Secretary of Labor shall no14 tify the Secretary of such finding and may, 

15 in addition, impose such other administra16 tive remedies (including civil money pen17 alties in an amount not to exceed $1,000 

18 per violation) as the Secretary of Labor 

19 determines to be appropriate; and 

20 ‘‘(ii) the Secretary may disqualify the 

21 employer from the employment of aliens 

22 described in section 101(a)(15)(H)(ii)(a) 

23 for a period of 1 year. 

24 ‘‘(D) WILLFUL FAILURES AND WILLFUL

25 MISREPRESENTATIONS.—If the Secretary of 


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1 Labor finds, after notice and opportunity for 

2 hearing, a willful failure to meet a condition of 

3 section 218(b), a willful misrepresentation of a 

4 material fact in an application under section 

5 218(a), or a violation of subsection (d)(1)— 

6 ‘‘(i) the Secretary of Labor shall no7 tify the Secretary of such finding and may, 

8 in addition, impose such other administra9 tive remedies (including civil money pen10 alties in an amount not to exceed $5,000 

11 per violation) as the Secretary of Labor 

12 determines to be appropriate; 

13 ‘‘(ii) the Secretary of Labor may seek 

14 appropriate legal or equitable relief to ef15 fectuate the purposes of subsection (d)(1); 

16 and 

17 ‘‘(iii) the Secretary may disqualify the 

18 employer from the employment of H–2A 

19 workers for a period of 2 years. 

20 ‘‘(E) DISPLACEMENT OF UNITED STATES

21 WORKERS.—If the Secretary of Labor finds, 

22 after notice and opportunity for hearing, a will23 ful failure to meet a condition of section 218(b) 

24 or a willful misrepresentation of a material fact 

25 in an application under section 218(a), in the 


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•S 340 IS

1 course of which failure or misrepresentation the 

2 employer displaced a United States worker em3 ployed by the employer during the period of em4 ployment on the employer’s application under 

5 section 218(a) or during the period of 30 days 

6 preceding such period of employment— 

7 ‘‘(i) the Secretary of Labor shall no8 tify the Secretary of such finding and may, 

9 in addition, impose such other administra10 tive remedies (including civil money pen11 alties in an amount not to exceed $15,000 

12 per violation) as the Secretary of Labor 

13 determines to be appropriate; and 

14 ‘‘(ii) the Secretary may disqualify the 

15 employer from the employment of H–2A 

16 workers for a period of 3 years. 

17 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN18 ALTIES.—The Secretary of Labor shall not im19 pose total civil money penalties with respect to 

20 an application under section 218(a) in excess of 

21 $90,000. 

22 ‘‘(G) FAILURES TO PAY WAGES OR RE23 QUIRED BENEFITS.—If the Secretary of Labor 

24 finds, after notice and opportunity for a hear25 ing, that the employer has failed to pay the 


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1 wages, or provide the housing allowance, trans2 portation, subsistence reimbursement, or guar3 antee of employment, required under section 

4 218A(b), the Secretary of Labor shall assess 

5 payment of back wages, or other required bene6 fits, due any United States worker or H–2A 

7 worker employed by the employer in the specific 

8 employment in question. The back wages or 

9 other required benefits under section 218A(b) 

10 shall be equal to the difference between the 

11 amount that should have been paid and the 

12 amount that actually was paid to such worker. 

13 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in 

14 this section shall be construed as limiting the au15 thority of the Secretary of Labor to conduct any 

16 compliance investigation under any other labor law, 

17 including any law affecting migrant and seasonal ag18 ricultural workers, or, in the absence of a complaint 

19 under this section, under section 218 or 218A. 

20 ‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF

21 ACTION.—H–2A workers may enforce the following rights 

22 through the private right of action provided in subsection 

23 (c), and no other right of action shall exist under Federal 

24 or State law to enforce such rights: 


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1 ‘‘(1) The providing of housing or a housing al2 lowance as required under section 218A(b)(1). 

3 ‘‘(2) The reimbursement of transportation as 

4 required under section 218A(b)(2). 

5 ‘‘(3) The payment of wages required under sec6 tion 218A(b)(3) when due. 

7 ‘‘(4) The benefits and material terms and con8 ditions of employment expressly provided in the job 

9 offer described in section 218(a)(2), not including 

10 the assurance to comply with other Federal, State, 

11 and local labor laws described in section 218A(c), 

12 compliance with which shall be governed by the pro13 visions of such laws. 

14 ‘‘(5) The guarantee of employment required 

15 under section 218A(b)(4). 

16 ‘‘(6) The motor vehicle safety requirements 

17 under section 218A(b)(5). 

18 ‘‘(7) The prohibition of discrimination under 

19 subsection (d)(2). 

20 ‘‘(c) PRIVATE RIGHT OF ACTION.— 

21 ‘‘(1) MEDIATION.—Upon the filing of a com22 plaint by an H–2A worker aggrieved by a violation 

23 of rights enforceable under subsection (b), and with24 in 60 days of the filing of proof of service of the 

25 complaint, a party to the action may file a request 


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1 with the Federal Mediation and Conciliation Service 

2 to assist the parties in reaching a satisfactory reso3 lution of all issues involving all parties to the dis4 pute. Upon a filing of such request and giving of no5 tice to the parties, the parties shall attempt medi6 ation within the period specified in subparagraph 

7 (B). 

8 ‘‘(A) MEDIATION SERVICES.—The Federal 

9 Mediation and Conciliation Service shall be 

10 available to assist in resolving disputes arising 

11 under subsection (b) between H–2A workers 

12 and agricultural employers without charge to 

13 the parties. 

14 ‘‘(B) 90-DAY LIMIT.—The Federal Medi15 ation and Conciliation Service may conduct me16 diation or other nonbinding dispute resolution 

17 activities for a period not to exceed 90 days be18 ginning on the date on which the Federal Medi19 ation and Conciliation Service receives the re20 quest for assistance unless the parties agree to 

21 an extension of this period of time. 

22 ‘‘(C) AUTHORIZATION.— 

23 ‘‘(i) IN GENERAL.—Subject to clause 

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1 ciliation Service $500,000 for each fiscal 

2 year to carry out this section. 

3 ‘‘(ii) MEDIATION.—Notwithstanding 

4 any other provision of law, the Director of 

5 the Federal Mediation and Conciliation 

6 Service is authorized to conduct the medi7 ation or other dispute resolution activities 

8 from any other appropriated funds avail9 able to the Director and to reimburse such 

10 appropriated funds when the funds are ap11 propriated pursuant to this authorization, 

12 such reimbursement to be credited to ap13 propriations currently available at the time 

14 of receipt. 

15 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS16 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

17 worker aggrieved by a violation of rights enforceable 

18 under subsection (b) by an agricultural employer or 

19 other person may file suit in any district court of the 

20 United States having jurisdiction over the parties, 

21 without regard to the amount in controversy, with22 out regard to the citizenship of the parties, and 

23 without regard to the exhaustion of any alternative 

24 administrative remedies under this Act, not later 

25 than 3 years after the date the violation occurs. 


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1 ‘‘(3) ELECTION.—An H–2A worker who has 

2 filed an administrative complaint with the Secretary 

3 of Labor may not maintain a civil action under 

4 paragraph (2) unless a complaint based on the same 

5 violation filed with the Secretary of Labor under 

6 subsection (a)(1) is withdrawn before the filing of 

7 such action, in which case the rights and remedies 

8 available under this subsection shall be exclusive. 

9 ‘‘(4) PREEMPTION OF STATE CONTRACT

10 RIGHTS.—Nothing in this Act shall be construed to 

11 diminish the rights and remedies of an H–2A worker 

12 under any other Federal or State law or regulation 

13 or under any collective bargaining agreement, except 

14 that no court or administrative action shall be avail15 able under any State contract law to enforce the 

16 rights created by this Act. 

17 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree18 ments by employees purporting to waive or modify 

19 their rights under this Act shall be void as contrary 

20 to public policy, except that a waiver or modification 

21 of the rights or obligations in favor of the Secretary 

22 of Labor shall be valid for purposes of the enforce23 ment of this Act. The preceding sentence may not 

24 be construed to prohibit agreements to settle private 

25 disputes or litigation. 


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1 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI2 TABLE RELIEF.— 

3 ‘‘(A) If the court finds that the respondent 

4 has intentionally violated any of the rights en5 forceable under subsection (b), it shall award 

6 actual damages, if any, or equitable relief. 

7 ‘‘(B) Any civil action brought under this 

8 section shall be subject to appeal as provided in 

9 chapter 83 of title 28, United States Code. 

10 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX11 CLUSIVE REMEDY.— 

12 ‘‘(A) Notwithstanding any other provision 

13 of this section, where a State’s workers’ com14 pensation law is applicable and coverage is pro15 vided for an H–2A worker, the workers’ com16 pensation benefits shall be the exclusive remedy 

17 for the loss of such worker under this section 

18 in the case of bodily injury or death in accord19 ance with such State’s workers’ compensation 

20 law. 

21 ‘‘(B) The exclusive remedy prescribed in 

22 subparagraph (A) precludes the recovery under 

23 paragraph (6) of actual damages for loss from 

24 an injury or death but does not preclude other 

25 equitable relief, except that such relief shall not 


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•S 340 IS

1 include back or front pay or in any manner, di2 rectly or indirectly, expand or otherwise alter or 

3 affect— 

4 ‘‘(i) a recovery under a State workers’ 

5 compensation law; or 

6 ‘‘(ii) rights conferred under a State 

7 workers’ compensation law. 

8 ‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.— 

9 If it is determined under a State workers’ compensa10 tion law that the workers’ compensation law is not 

11 applicable to a claim for bodily injury or death of an 

12 H–2A worker, the statute of limitations for bringing 

13 an action for actual damages for such injury or 

14 death under subsection (c) shall be tolled for the pe15 riod during which the claim for such injury or death 

16 under such State workers’ compensation law was 

17 pending. The statute of limitations for an action for 

18 actual damages or other equitable relief arising out 

19 of the same transaction or occurrence as the injury 

20 or death of the H–2A worker shall be tolled for the 

21 period during which the claim for such injury or 

22 death was pending under the State workers’ com23 pensation law. 

24 ‘‘(9) PRECLUSIVE EFFECT.—Any settlement by 

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1 son reached through the mediation process required 

2 under subsection (c)(1) shall preclude any right of 

3 action arising out of the same facts between the par4 ties in any Federal or State court or administrative 

5 proceeding, unless specifically provided otherwise in 

6 the settlement agreement. 

7 ‘‘(10) SETTLEMENTS.—Any settlement by the 

8 Secretary of Labor with an H–2A employer on be9 half of an H–2A worker of a complaint filed with the 

10 Secretary of Labor under this section or any finding 

11 by the Secretary of Labor under subsection 

12 (a)(1)(B) shall preclude any right of action arising 

13 out of the same facts between the parties under any 

14 Federal or State court or administrative proceeding, 

15 unless specifically provided otherwise in the settle16 ment agreement. 

17 ‘‘(d) DISCRIMINATION PROHIBITED.— 

18 ‘‘(1) IN GENERAL.—It is a violation of this sub19 section for any person who has filed an application 

20 under section 218(a), to intimidate, threaten, re21 strain, coerce, blacklist, discharge, or in any other 

22 manner discriminate against an employee (which 

23 term, for purposes of this subsection, includes a 

24 former employee and an applicant for employment) 

25 because the employee has disclosed information to 


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1 the employer, or to any other person, that the em2 ployee reasonably believes evidences a violation of 

3 section 218 or 218A or any rule or regulation per4 taining to section 218 or 218A, or because the em5 ployee cooperates or seeks to cooperate in an inves6 tigation or other proceeding concerning the employ7 er’s compliance with the requirements of section 218 

8 or 218A or any rule or regulation pertaining to ei9 ther of such sections. 

10 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK11 ERS.—It is a violation of this subsection for any per12 son who has filed an application under section 

13 218(a), to intimidate, threaten, restrain, coerce, 

14 blacklist, discharge, or in any manner discriminate 

15 against an H–2A employee because such worker has, 

16 with just cause, filed a complaint with the Secretary 

17 of Labor regarding a denial of the rights enumer18 ated and enforceable under subsection (b) or insti19 tuted, or caused to be instituted, a private right of 

20 action under subsection (c) regarding the denial of 

21 the rights enumerated under subsection (b), or has 

22 testified or is about to testify in any court pro23 ceeding brought under subsection (c). 

24 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO25 PRIATE EMPLOYMENT.—The Secretary of Labor and the 


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1 Secretary shall establish a process under which an H–2A 

2 worker who files a complaint regarding a violation of sub3 section (d) and is otherwise eligible to remain and work 

4 in the United States may be allowed to seek other appro5 priate employment in the United States for a period not 

6 to exceed the maximum period of stay authorized for such 

7 nonimmigrant classification. 

8 ‘‘(f) ROLE OF ASSOCIATIONS.— 

9 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA10 TION.—An employer on whose behalf an application 

11 is filed by an association acting as its agent is fully 

12 responsible for such application, and for complying 

13 with the terms and conditions of sections 218 and 

14 218A, as though the employer had filed the applica15 tion itself. If such an employer is determined, under 

16 this section, to have committed a violation, the pen17 alty for such violation shall apply only to that mem18 ber of the association unless the Secretary of Labor 

19 determines that the association or other member 

20 participated in, had knowledge, or reason to know, 

21 of the violation, in which case the penalty shall be 

22 invoked against the association or other association 

23 member as well. 

24 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

25 AS AN EMPLOYER.—If an association filing an appliVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 cation as a sole or joint employer is determined to 

2 have committed a violation under this section, the 

3 penalty for such violation shall apply only to the as4 sociation unless the Secretary of Labor determines 

5 that an association member or members participated 

6 in or had knowledge, or reason to know of the viola7 tion, in which case the penalty shall be invoked 

8 against the association member or members as well. 

9 ‘‘SEC. 218D. DEFINITIONS. 

10 ‘‘For purposes of this section and section 218, 218A, 

11 218B, and 218C: 

12 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term 

13 ‘agricultural employment’ means any service or ac14 tivity that is considered to be agricultural under sec15 tion 3(f) of the Fair Labor Standards Act of 1938 

16 (29 U.S.C. 203(f)) or agricultural labor under sec17 tion 3121(g) of the Internal Revenue Code of 1986 

18 or the performance of agricultural labor or services 

19 described in section 101(a)(15)(H)(ii)(a). 

20 ‘‘(2) BONA FIDE UNION.—The term ‘bona fide 

21 union’ means any organization in which employees 

22 participate and which exists for the purpose of deal23 ing with employers concerning grievances, labor dis24 putes, wages, rates of pay, hours of employment, or 

25 other terms and conditions of work for agricultural 


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1 employees. Such term does not include an organiza2 tion formed, created, administered, supported, domi3 nated, financed, or controlled by an employer or em4 ployer association or its agents or representatives. 

5 ‘‘(3) DISPLACE.—The term ‘displace’, in the 

6 case of an application with respect to 1 or more H– 

7 2A workers by an employer, means laying off a 

8 United States worker from a job for which the H– 

9 2A worker or workers is or are sought. 

10 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 

11 with respect to an individual, means an individual 

12 who is not an unauthorized alien (as defined in sec13 tion 274A). 

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

15 any person or entity, including any farm labor con16 tractor and any agricultural association, that em17 ploys workers in agricultural employment. 

18 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em19 ployer’ means an employer who seeks to hire 1 or 

20 more nonimmigrant aliens described in section 

21 101(a)(15)(H)(ii)(a). 

22 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 

23 means a nonimmigrant described in section 

24 101(a)(15)(H)(ii)(a). 


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1 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor2 tunity’ means a job opening for temporary or sea3 sonal full-time employment at a place in the United 

4 States to which United States workers can be re5 ferred. 

6 ‘‘(9) LAYING OFF.— 

7 ‘‘(A) IN GENERAL.—The term ‘laying off’, 

8 with respect to a worker— 

9 ‘‘(i) means to cause the worker’s loss 

10 of employment, other than through a dis11 charge for inadequate performance, viola12 tion of workplace rules, cause, voluntary 

13 departure, voluntary retirement, contract 

14 impossibility (as described in section 

15 218A(b)(4)(D)), or temporary suspension 

16 of employment due to weather, markets, or 

17 other temporary conditions; but 

18 ‘‘(ii) does not include any situation in 

19 which the worker is offered, as an alter20 native to such loss of employment, a simi21 lar employment opportunity with the same 

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

23 a worker with another employer under sec24 tion 218(b)(2)(E), with either employer de25 scribed in such section) at equivalent or 


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1 higher compensation and benefits than the 

2 position from which the employee was dis3 charged, regardless of whether or not the 

4 employee accepts the offer. 

5 ‘‘(B) STATUTORY CONSTRUCTION.—Noth6 ing in this paragraph is intended to limit an 

7 employee’s rights under a collective bargaining 

8 agreement or other employment contract. 

9 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg10 ulatory drought’ means a decision subsequent to the 

11 filing of the application under section 218 by an en12 tity not under the control of the employer making 

13 such filing which restricts the employer’s access to 

14 water for irrigation purposes and reduces or limits 

15 the employer’s ability to produce an agricultural 

16 commodity, thereby reducing the need for labor. 

17 ‘‘(11) SEASONAL.—Labor is performed on a 

18 ‘seasonal’ basis if— 

19 ‘‘(A) ordinarily, it pertains to or is of the 

20 kind exclusively performed at certain seasons or 

21 periods of the year; and 

22 ‘‘(B) from its nature, it may not be contin23 uous or carried on throughout the year. 


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1 ‘‘(12) SECRETARY.—Except as otherwise pro2 vided, the term ‘Secretary’ means the Secretary of 

3 Homeland Security. 

4 ‘‘(13) TEMPORARY.—A worker is employed on a 

5 ‘temporary’ basis where the employment is intended 

6 not to exceed 10 months. 

7 ‘‘(14) UNITED STATES WORKER.—The term 

8 ‘United States worker’ means any worker, whether 

9 a national of the United States, an alien lawfully ad10 mitted for permanent residence, or any other alien, 

11 who is authorized to work in the job opportunity 

12 within the United States, except an alien admitted 

13 or otherwise provided status under section 

14 101(a)(15)(H)(ii)(a).’’. 

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

16 the Immigration and Nationality Act (8 U.S.C. 1101 et 

17 seq.) is amended by striking the item relating to section 

18 218 and inserting the following: 

‘‘Sec. 218. H–2A employer applications. 

‘‘Sec. 218A. H–2A employment requirements. 

‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. 

‘‘Sec. 218C. Worker protections and labor standards enforcement. 

‘‘Sec. 218D. Definitions.’’. 

19 TITLE III—MISCELLANEOUS 

20 PROVISIONS 

21 SEC. 301. DETERMINATION AND USE OF USER FEES. 

22 (a) SCHEDULE OF FEES.—The Secretary shall estab23 lish and periodically adjust a schedule of fees for the emVerDate Aug 31 2005 23:48 Jan 22, 2007 Jkt 059200 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 E:\BILLS\S340.IS S340

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1 ployment of aliens pursuant to the amendment made by 

2 section 201(a) of this Act and a collection process for such 

3 fees from employers. Such fees shall be the only fees 

4 chargeable to employers for services provided under such 

5 amendment. 

6 (b) DETERMINATION OF SCHEDULE.— 

7 (1) IN GENERAL.—The schedule under sub8 section (a) shall reflect a fee rate based on the num9 ber of job opportunities indicated in the employer’s 

10 application under section 218 of the Immigration 

11 and Nationality Act, as amended by section 201 of 

12 this Act, and sufficient to provide for the direct 

13 costs of providing services related to an employer’s 

14 authorization to employ aliens pursuant to the 

15 amendment made by section 201(a) of this Act, to 

16 include the certification of eligible employers, the 

17 issuance of documentation, and the admission of eli18 gible aliens. 

19 (2) PROCEDURE.— 

20 (A) IN GENERAL.—In establishing and ad21 justing such a schedule, the Secretary shall 

22 comply with Federal cost accounting and fee 

23 setting standards. 

24 (B) PUBLICATION AND COMMENT.—The 

25 Secretary shall publish in the Federal Register 


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1 an initial fee schedule and associated collection 

2 process and the cost data or estimates upon 

3 which such fee schedule is based, and any sub4 sequent amendments thereto, pursuant to which 

5 public comment shall be sought and a final rule 

6 issued. 

7 (c) USE OF PROCEEDS.—Notwithstanding any other 

8 provision of law, all proceeds resulting from the payment 

9 of the fees pursuant to the amendment made by section 

10 201(a) of this Act shall be available without further appro11 priation and shall remain available without fiscal year lim12 itation to reimburse the Secretary, the Secretary of State, 

13 and the Secretary of Labor for the costs of carrying out 

14 sections 218 and 218B of the Immigration and Nation15 ality Act, as amended and added, respectively, by section 

16 201 of this Act, and the provisions of this Act. 

17 SEC. 302. REGULATIONS. 

18 (a) REQUIREMENT FOR THE SECRETARY TO CON19 SULT.—The Secretary shall consult with the Secretary of 

20 Labor and the Secretary of Agriculture during the promul21 gation of all regulations to implement the duties of the 

22 Secretary under this Act and the amendments made by 

23 this Act. 

24 (b) REQUIREMENT FOR THE SECRETARY OF STATE

25 TO CONSULT.—The Secretary of State shall consult with 


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1 the Secretary, the Secretary of Labor, and the Secretary 

2 of Agriculture on all regulations to implement the duties 

3 of the Secretary of State under this Act and the amend4 ments made by this Act. 

5 (c) REQUIREMENT FOR THE SECRETARY OF LABOR

6 TO CONSULT.—The Secretary of Labor shall consult with 

7 the Secretary of Agriculture and the Secretary on all regu8 lations to implement the duties of the Secretary of Labor 

9 under this Act and the amendments made by this Act. 

10 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 

11 All regulations to implement the duties of the Secretary, 

12 the Secretary of State, and the Secretary of Labor created 

13 under sections 218, 218A, 218B, 218C, and 218D of the 

14 Immigration and Nationality Act, as amended or added 

15 by section 201 of this Act, shall take effect on the effective 

16 date of section 201 and shall be issued not later than 1 

17 year after the date of enactment of this Act. 

18 SEC. 303. REPORTS TO CONGRESS. 

19 (a) ANNUAL REPORT.—Not later than September 30 

20 of each year, the Secretary shall submit a report to Con21 gress that identifies, for the previous year— 

22 (1) the number of job opportunities approved 

23 for employment of aliens admitted under section 

24 101(a)(15)(H)(ii)(a) of the Immigration and Nation25 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the 


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1 number of workers actually admitted, disaggregated 

2 by State and by occupation; 

3 (2) the number of such aliens reported to have 

4 abandoned employment pursuant to subsection 

5 218B(e)(2) of such Act; 

6 (3) the number of such aliens who departed the 

7 United States within the period specified in sub8 section 218B(d) of such Act; 

9 (4) the number of aliens who applied for adjust10 ment of status pursuant to section 101(a); 

11 (5) the number of such aliens whose status was 

12 adjusted under section 101(a); 

13 (6) the number of aliens who applied for perma14 nent residence pursuant to section 103(c); and 

15 (7) the number of such aliens who were ap16 proved for permanent residence pursuant section 

17 103(c). 

18 (b) IMPLEMENTATION REPORT.—Not later than 180 

19 days after the date of the enactment of this Act, the Sec20 retary shall prepare and submit to Congress a report that 

21 describes the measures being taken and the progress made 

22 in implementing this Act. 


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1 SEC. 304. EFFECTIVE DATE. 

2 Except as otherwise provided, sections 201 and 301 

3 shall take effect 1 year after the date of the enactment 

4 of this Act. 

Æ 


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