II

106TH CONGRESS

1ST SESSION S. 1814

To establish a system of registries of temporary agricultural workers to

provide for a sufficient supply of such workers and to amend the Immigration and Nationality Act to streamline procedures for the admission

and extension of stay of nonimmigrant agricultural workers, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 27, 1999

Mr. SMITH of Oregon (for himself, Mr. GRAHAM, Mr. CRAIG, Mr. CLELAND,

Mr. MCCONNELL, Mr. COVERDELL, Mr. MACK, Mr. COCHRAN, Mr.

HELMS, Mr. GRAMS, Mr. CRAPO, Mr. BUNNING, and Mr. VOINOVICH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To establish a system of registries of temporary agricultural

workers to provide for a sufficient supply of such workers

and to amend the Immigration and Nationality Act to

streamline procedures for the admission and extension

of stay of nonimmigrant agricultural workers, 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,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

3 ‘‘Agricultural Job Opportunity Benefits and Security Act

4 of 1999’’.

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

6 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I—ADJUSTMENT TO LEGAL STATUS

Sec. 101. Agricultural workers.

TITLE II—AGRICULTURAL WORKER REGISTRIES

Sec. 201. Agricultural worker registries.

TITLE III—H–2A REFORM

Sec. 301. Employer applications and assurances.

Sec. 302. Search of registry.

Sec. 303. Issuance of visas and admission of aliens.

Sec. 304. Employment requirements.

Sec. 305. Program for the admission of temporary H–2A workers.

TITLE IV—MISCELLANEOUS PROVISIONS

Sec. 401. Enhanced worker protections and labor standards enforcement.

Sec. 402. Bilateral commissions.

Sec. 403. Regulations.

Sec. 404. Determination and use of user fees.

Sec. 405. Funding for startup costs.

Sec. 406. Report to Congress.

Sec. 407. Effective date.

7 SEC. 2. DEFINITIONS.

8 In this Act:

9 (1) ADVERSE EFFECT WAGE RATE.—

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

11 subparagraph (B), the term ‘‘adverse effect

12 wage rate’’ means the rate of pay for an agri13 cultural occupation that is 5 percent above the
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1 prevailing rate of pay for that agricultural occu2 pation in an area of intended employment, if

3 the prevailing rate of pay for the occupation is

4 less than the prior year’s average hourly earn5 ings of field and livestock workers for the State

6 (or region that includes the State), as deter7 mined by the Secretary of Agriculture, provided

8 no adverse effect wage rate shall be more than

9 the prior year’s average hourly earnings of field

10 and livestock workers for the State (or region

11 that includes the State), as determined by the

12 Secretary of Agriculture.

13 (B) EXCEPTION.—If the prevailing rate of

14 pay for an activity is a piece rate, task rate or

15 group rate, and the average hourly earnings of

16 an employer’s workers employed in that activ17 ity, taken as a group, are less than the prior

18 year’s average hourly earnings of field and live19 stock workers in the State (or region that in20 cludes the State), as determined by the Sec21 retary of Agriculture, the term ‘‘adverse effect

22 wage rate’’ means the prevailing piece rate,

23 task rate or group rate for the activity plus

24 such an amount as is necessary to increase the

25 average hourly earnings of the employer’s work-
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1 ers employed in the activity, taken as a group,

2 by 5 percent, or to the prior’s years average

3 hourly earnings for field and livestock workers

4 for the State (or region that includes the State)

5 determined by the Secretary of Agriculture,

6 whichever is less.

7 (2) AGRICULTURAL EMPLOYMENT.—The term

8 ‘‘agricultural employment’’ means any service or ac9 tivity that is considered to be agriculture under sec10 tion 3(f) of the Fair Labor Standards Act of 1938

11 (29 U.S.C. 203(f)) or as agricultural labor under

12 section 3121(g) of the Internal Revenue Code of

13 1986. For purposes of this paragraph, agricultural

14 employment in the United States includes, but is not

15 limited to, employment under section

16 101(a)(15)(H)(ii)(a) of the Immigration and Nation17 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

18 (3) ELIGIBLE.—The term ‘‘eligible’’ as used

19 with respect to workers or individuals, means indi20 viduals authorized to be employed in the United

21 States as provided for in section 274A(h)(3) of the

22 Immigration and Nationality Act (8 U.S.C. 1188).

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

24 any person or entity, including any farm labor con-
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1 tractor and any agricultural association, that em2 ploys workers.

3 (5) H–2A EMPLOYER.—The term ‘‘H–2A em4 ployer’’ means an employer who seeks to hire one or

5 more nonimmigrant aliens described in section

6 101(a)(15)(H)(ii)(a) of the Immigration and Nation7 ality Act.

8 (6) H–2A WORKER.—The term ‘‘H–2A worker’’

9 means a nonimmigrant described in section

10 101(a)(15)(H)(ii)(a) of the Immigration and Nation11 ality Act.

12 (7) JOB OPPORTUNITY.—The term ‘‘job oppor13 tunity’’ means a specific period of employment pro14 vided by an employer to a worker in one or more ag15 ricultural activities.

16 (8) PREVAILING WAGE.—The term ‘‘prevailing

17 wage’’ means with respect to an agricultural activity

18 in an area of intended employment, the rate of

19 wages that includes the 51st percentile of employees

20 in that agricultural activity in the area of intended

21 employment, expressed in terms of the prevailing

22 method of pay for the agricultural activity in the

23 area of intended employment.
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1 (9) REGISTERED WORKER.—The term ‘‘reg2 istered worker’’ means an individual whose name ap3 pears in a registry.

4 (10) REGISTRY.—The term ‘‘registry’’ means

5 an agricultural worker registry established under

6 section 201(a).

7 (11) SECRETARY.—The term ‘‘Secretary’’

8 means the Secretary of Labor.

9 (12) UNITED STATES WORKER.—The term

10 ‘‘United States worker’’ means any worker, whether

11 a United States citizen or national, a lawfully admit12 ted permanent resident alien, or any other alien who

13 is authorized to work in the job opportunity within

14 the United States other than an alien admitted pur15 suant to section 101(a)(15)(H)(ii)(a) or section 218

16 of the Immigration and Nationality Act, as in effect

17 on the effective date of this Act, or a nonimmigrant

18 agricultural worker whose status was adjusted under

19 section 101(a).

20 (13) WORK DAY.—The term ‘‘work day’’ means

21 any day in which the individual is employed one or

22 more hours in agriculture.
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1 TITLE I—ADJUSTMENT TO

2 LEGAL STATUS

3 SEC. 101. AGRICULTURAL WORKERS.

4 (a) NONIMMIGRANT STATUS.—

5 (1) IN GENERAL.—The Attorney General shall

6 adjust the status of an alien agricultural worker who

7 qualifies under this subsection to that of an alien

8 lawfully admitted for nonimmigrant status under

9 section 101(a)(15) of the Immigration and Nation10 ality Act if the Attorney General determines that the

11 following requirements are satisfied with respect to

12 the alien:

13 (A) PERFORMANCE OF AGRICULTURAL EM14 PLOYMENT IN THE UNITED STATES.—The alien

15 must establish that the alien has performed ag16 ricultural employment in the United States for

17 at least 880 hours or 150 work days, whichever

18 is lesser, during the 12-month period prior to

19 October 27, 1999.

20 (B) APPLICATION PERIOD.—The alien

21 must apply for such adjustment not later than

22 12 months after the effective date of this Act.

23 (C) ADMISSIBILITY.—

24 (i) IN GENERAL.—The alien must es25 tablish that the alien is otherwise admis-
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1 sible to the United States under section

2 212 of the Immigration and Nationality

3 Act, except as otherwise provided under

4 subsection (d).

5 (ii) WAIVER OF INELIGIBILITY FOR

6 UNLAWFUL PRESENCE.—An alien who has

7 not previously been admitted to the United

8 States pursuant to this section, and who is

9 otherwise eligible for admission in accord10 ance with clause (i), shall not be deemed

11 inadmissible by virtue of section

12 212(a)(9)(B) of that Act.

13 (2) PERIOD OF VALIDITY OF NONIMMIGRANT

14 STATUS.—

15 (A) IN GENERAL.—The status granted in

16 paragraph (1) shall be valid for a period of not

17 to exceed 7 consecutive calendar years, except

18 that the alien may not be present in the United

19 States for more than an aggregate of 300 days

20 in any calendar year.

21 (B) EXCEPTION.—The 300-day-per-year

22 limitation in subparagraph (A) shall not apply

23 to any period of validity of the status of any

24 alien who—
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1 (i) has established a permanent resi2 dence in the United States and has a

3 minor child who was born in the United

4 States prior to the date of enactment of

5 this Act who resides in the alien’s house6 hold; and

7 (ii) performs agricultural employment

8 for not less than 240 days in a calendar

9 year.

10 (3) AUTHORIZED TRAVEL.—During the period

11 an alien is in lawful nonimmigrant status granted

12 under this subsection, the alien has the right to trav13 el abroad (including commutation from a residence

14 abroad).

15 (4) AUTHORIZED EMPLOYMENT.—During the

16 period an alien is in lawful nonimmigrant status

17 granted under this subsection, the alien shall be

18 granted authorization to engage in the performance

19 only of agricultural employment in the United States

20 and shall be provided an ‘‘employment authorized’’

21 endorsement or other appropriate work permit, only

22 for the performance of such employment. A non23 immigrant alien under this subsection may perform

24 agricultural employment anywhere in the United

25 States.
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1 (5) TERMINATION OF NONIMMIGRANT STA2 TUS.—Except as otherwise provided in paragraph

3 (2), the Attorney General shall terminate the status,

4 and bring proceedings under section 240 of the Im5 migration and Nationality Act to remove, any non6 immigrant alien under this subsection who failed

7 during 3 prior calendar years to perform 1,040

8 hours or 180 work days, whichever is lesser, of agri9 cultural services in any single calendar year.

10 (6) RECORD OF EMPLOYMENT.—Each employer

11 of a nonimmigrant agricultural worker whose status

12 is adjusted under this subsection shall—

13 (A) provide a written record of employ14 ment to the alien; and

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

16 Immigration and Naturalization Service.

17 (b) ADJUSTMENT TO PERMANENT RESIDENCE.—

18 (1) IN GENERAL.—Except as provided in para19 graph (2), the Attorney General shall adjust the sta20 tus of any alien provided lawful nonimmigrant status

21 under subsection (a) to that of an alien lawfully ad22 mitted for permanent residence if the Attorney Gen23 eral determines that the following requirements are

24 satisfied:
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1 (A) QUALIFYING YEARS.—The alien has

2 performed a minimum period of agricultural

3 employment in the United States in each of 5

4 calendar years during the period of validity of

5 the alien’s adjustment to nonimmigrant status

6 pursuant to subsection (a). Qualifying years

7 under this subparagraph may include non8 consecutive years.

9 (B) MINIMUM PERIODS OF AGRICULTURAL

10 EMPLOYMENT.—

11 (i) IN GENERAL.—Except as provided

12 in clause (ii), the minimum period of agri13 cultural employment in any calendar year

14 is 1,040 hours or 180 work days, which15 ever is lesser.

16 (ii) EXCEPTION.—An alien described

17 in subsection (a)(2)(B) who remains in the

18 United States for more than 300 days in

19 a calendar year may only be credited with

20 satisfaction of the minimum period of agri21 cultural employment requirement for that

22 year if the alien performed agricultural

23 employment in the United States for at

24 least 240 work days that year.
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1 (C) APPLICATION PERIOD.—The alien ap2 plies for adjustment of status not later than 6

3 months after completing the fifth year of quali4 fying employment in the United States.

5 (2) GROUNDS FOR DENIAL OF ADJUSTMENT OF

6 STATUS.—The Attorney General may deny adjust7 ment to nonimmigrant status and provide for termi8 nation of the nonimmigrant status granted such

9 alien under subsection (a) if—

10 (A) the Attorney General finds by a pre11 ponderance of the evidence that the adjustment

12 to nonimmigrant status was the result of fraud

13 or willful misrepresentation as set out in section

14 212(a)(6)(C)(i), or

15 (B) the alien commits an act that (i)

16 makes the alien inadmissible to the United

17 States under section 212 of the Immigration

18 and Nationality Act, except as provided under

19 subsection (c)(2), or (ii) is convicted of a felony

20 or 3 or more misdemeanors committed in the

21 United States.

22 (3) TREATMENT OF ALIENS DEMONSTRATING

23 PRIMA FACIE CASE FOR ADJUSTMENT.—Any alien

24 who demonstrates a prima facie case of eligibility for

25 adjustment under this subsection in accordance with
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1 regulations promulgated by the Attorney General,

2 shall be considered a temporary resident alien and,

3 pending adjudication of an application for perma4 nent resident status under this subsection—

5 (A) may remain in the United States and

6 shall be granted authorization to engage in any

7 employment in the United States; and

8 (B) shall become eligible for any assistance

9 or benefit to which a person granted lawful per10 manent resident status would be eligible on the

11 date of enactment of this Act.

12 (4) GROUNDS FOR REMOVAL.—Any non13 immigrant alien under subsection (a) who does not

14 apply for adjustment of status under this subsection

15 before the expiration of the application period de16 scribed in paragraph (1)(C) is deportable and may

17 be removed.

18 (5) NUMERICAL LIMITATION.—In any fiscal

19 year not more than 20 percent of the number of

20 aliens obtaining nonimmigrant status under sub21 section (a) may be granted adjustment of status

22 under this subsection. In granting such adjustment,

23 aliens having the greater number of work hours shall

24 be accorded priority. Any temporary resident alien

25 under paragraph (3) who does not receive adjust-
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1 ment of status under this subsection in a fiscal year

2 by reason of the limitation in this paragraph may

3 continue to work in any employment, and shall be

4 credited with any additional hours of agricultural

5 employment performed for purposes of being ac6 corded priority for adjustment of status.

7 (c) APPLICATIONS FOR ADJUSTMENT OF STATUS.—

8 (1) TO WHOM MAY BE MADE.—

9 (A) WITHIN THE UNITED STATES.—The

10 Attorney General shall provide that—

11 (i) applications for adjustment of sta12 tus under subsection (a) may be filed—

13 (I) with the Attorney General; or

14 (II) with a qualified designated

15 entity (designated under paragraph

16 (2)), but only if the applicant consents

17 to the forwarding of the application to

18 the Attorney General; and

19 (ii) applications for adjustment of sta20 tus under subsection (b) shall be filed di21 rectly with the Attorney General.

22 (B) OUTSIDE THE UNITED STATES.—The

23 Attorney General, in cooperation with the Sec24 retary of State, shall provide a procedure

25 whereby an alien may apply for adjustment of
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1 status under subsection (a) at an appropriate

2 consular office outside the United States. The

3 Attorney General shall prescribe regulations

4 setting forth procedures for notification of im5 migration officials by the alien before departing

6 the United States.

7 (C) TRAVEL DOCUMENTATION.—The At8 torney General shall provide each alien whose

9 status is adjusted under this section with a

10 counterfeit-resistant document of authorization

11 to enter or reenter the United States.

12 (2) DESIGNATION OF ENTITIES TO RECEIVE AP13 PLICATIONS.—For purposes of receiving applications

14 under subsection (a), the Attorney General—

15 (A) shall designate qualified voluntary or16 ganizations and other qualified State, local,

17 community, farm labor organizations, and asso18 ciations of agricultural employers; and

19 (B) may designate such other persons as

20 the Attorney General determines are qualified

21 and have substantial experience, demonstrated

22 competence, and traditional long-term involve23 ment in the preparation and submittal of appli24 cations for adjustment of status under section

25 209 or 245 of the Immigration and Nationality
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1 Act, Public Law 89–732, or Public Law 95–

2 145.

3 (3) PROOF OF ELIGIBILITY.—

4 (A) IN GENERAL.—An alien may establish

5 that the alien meets the requirement of sub6 section (a)(1)(A) through government employ7 ment records or records supplied by employers

8 or collective bargaining organizations. The At9 torney General shall establish special proce10 dures to properly credit work in cases in which

11 an alien was employed under an assumed name.

12 (B) DOCUMENTATION OF WORK HIS13 TORY.—(i) An alien applying for adjustment of

14 status under subsection (a)(1) has the burden

15 of proving by a preponderance of the evidence

16 that the alien has worked the requisite number

17 of hours (as required under subsection

18 (a)(1)(A)).

19 (ii) If an employer or farm labor con20 tractor employing such an alien has kept proper

21 and adequate records respecting such employ22 ment, the alien’s burden of proof under clause

23 (i) may be met by securing timely production of

24 those records under regulations to be promul25 gated by the Attorney General.
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1 (4) TREATMENT OF APPLICATIONS BY QUALI2 FIED DESIGNATED ENTITIES.—Each qualified des3 ignated entity must agree to forward to the Attorney

4 General applications filed with it in accordance with

5 paragraph (1)(A)(ii) but not to forward to the Attor6 ney General applications filed with it unless the ap7 plicant has consented to such forwarding. No such

8 entity may make a determination required by this

9 section to be made by the Attorney General. Upon

10 the request of the alien, a qualified designated entity

11 shall assist the alien in obtaining documentation of

12 the work history of the alien.

13 (5) LIMITATION ON ACCESS TO INFORMA14 TION.—Files and records prepared for purposes of

15 this section by qualified designated entities operating

16 under this section are confidential and the Attorney

17 General and the Service shall not have access to

18 such files or records relating to an alien without the

19 consent of the alien, except as allowed by a court

20 order issued pursuant to paragraph (6).

21 (6) CONFIDENTIALITY OF INFORMATION.—

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

23 this paragraph, neither the Attorney General,

24 nor any other official or employee of the De-
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1 partment of Justice, or bureau or agency there2 of, may—

3 (i) use the information furnished by

4 the applicant pursuant to an application

5 filed under this section, or the information

6 provided to the applicant by a person des7 ignated under paragraph (2)(B), for any

8 purpose other than to make a determina9 tion on the application, including a deter10 mination under subsection (b)(3), or for

11 enforcement of paragraph (7);

12 (ii) make any publication whereby the

13 information furnished by any particular in14 dividual can be identified; or

15 (iii) permit anyone other than the

16 sworn officers and employees of the De17 partment or bureau or agency or, with re18 spect to applications filed with a des19 ignated entity, that designated entity, to

20 examine individual applications.

21 (B) CRIME.—Whoever knowingly uses,

22 publishes, or permits information to be exam23 ined in violation of this paragraph shall be fined

24 not more than $10,000.
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1 (7) PENALTIES FOR FALSE STATEMENTS IN AP2 PLICATIONS.—

3 (A) CRIMINAL PENALTY.—Whoever—

4 (i) files an application for adjustment

5 of status under this section and knowingly

6 and willfully falsifies, conceals, or covers

7 up a material fact or makes any false, fic8 titious, or fraudulent statements or rep9 resentations, or makes or uses any false

10 writing or document knowing the same to

11 contain any false, fictitious, or fraudulent

12 statement or entry, or

13 (ii) creates or supplies a false writing

14 or document for use in making such an ap15 plication,

16 shall be fined in accordance with title 18,

17 United States Code, or imprisoned not more

18 than five years, or both.

19 (B) EXCLUSION.—An alien who is con20 victed of a crime under subparagraph (A) shall

21 be considered to be inadmissible to the United

22 States on the ground described in section

23 212(a)(6)(C)(i) of the Immigration and Nation24 ality Act.
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1 (d) WAIVER OF NUMERICAL LIMITATIONS AND CER2 TAIN GROUNDS FOR INADMISSIBILITY.—

3 (1) NUMERICAL LIMITATIONS DO NOT APPLY.—

4 The numerical limitations of sections 201 and 202

5 of the Immigration and Nationality Act shall not

6 apply to the adjustment of aliens to lawful perma7 nent resident status under this section.

8 (2) WAIVER OF CERTAIN GROUNDS OF INAD9 MISSIBILITY.—In the determination of an alien’s ad10 missibility under subsection (a)(1)(D), the following

11 provisions of section 212(a) of the Immigration and

12 Nationality Act shall not apply:

13 (A) GROUNDS OF EXCLUSION NOT APPLI14 CABLE.—The provisions of paragraphs (5) and

15 (7)(A) of section 212(a) shall not apply.

16 (B) WAIVER OF OTHER GROUNDS.—

17 (i) IN GENERAL.—Except as provided

18 in clause (ii), the Attorney General may

19 waive any other provision of section 212(a)

20 in the case of individual aliens for humani21 tarian purposes, to assure family unity, or

22 when it is otherwise in the public interest.

23 (ii) GROUNDS THAT MAY NOT BE

24 WAIVED.—The following provisions of sec-
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1 tion 212(a) may not be waived by the At2 torney General under clause (i):

3 (I) Paragraph (2) (A) and (B)

4 (relating to criminals).

5 (II) Paragraph (4) (relating to

6 aliens likely to become public

7 charges).

8 (III) Paragraph (2)(C) (relating

9 to drug offenses), except for so much

10 of such paragraph as relates to a sin11 gle offense of simple possession of 30

12 grams or less of marijuana.

13 (IV) Paragraph (3) (relating to

14 security and related grounds), other

15 than subparagraph (E) thereof.

16 (C) SPECIAL RULE FOR DETERMINA17 TION OF PUBLIC CHARGE.—An alien is not

18 ineligible for adjustment of status under

19 this section due to being inadmissible

20 under section 212(a)(4) if the alien dem21 onstrates a history of employment in the

22 United States evidencing self-support with23 out reliance on public cash assistance.

24 (e) TEMPORARY STAY OF REMOVAL AND WORK AU25 THORIZATION FOR CERTAIN APPLICANTS.—
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1 (1) BEFORE APPLICATION PERIOD.—The Attor2 ney General shall provide that in the case of an alien

3 who is apprehended before the beginning of the ap4 plication period described in subsection (a)(1) and

5 who can establish a nonfrivolous case of eligibility to

6 have his status adjusted under subsection (a) (but

7 for the fact that he may not apply for such adjust8 ment until the beginning of such period), until the

9 alien has had the opportunity during the first 30

10 days of the application period to complete the filing

11 of an application for adjustment, the alien—

12 (A) may not be removed, and

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

15 States and be provided an ‘‘employment author16 ized’’ endorsement or other appropriate work

17 permit for such purpose.

18 (2) DURING APPLICATION PERIOD.—The Attor19 ney General shall provide that in the case of an alien

20 who presents a nonfrivolous application for adjust21 ment of status under subsection (a) during the ap22 plication period, including an alien who files such an

23 application within 30 days of the alien’s apprehen24 sion, and until a final determination on the applica-
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1 tion has been made in accordance with this section,

2 the alien—

3 (A) may not be removed, and

4 (B) shall be granted authorization to en5 gage in agricultural employment in the United

6 States and be provided an ‘‘employment author7 ized’’ endorsement or other appropriate work

8 permit for such purpose.

9 (3) PROHIBITION.—No application fees col10 lected by the Service pursuant to this subsection

11 may be used by the Service to offset the costs of the

12 agricultural worker adjustment program under this

13 title until the Service implements the program con14 sistent with the statutory mandate as follows:

15 (A) During the application period de16 scribed in subsection (a)(1)(A) the Service may

17 grant nonimmigrant admission to the United

18 States, work authorization, and provide an

19 ‘‘employment authorized’’ endorsement or other

20 appropriate work permit to any alien who pre21 sents a preliminary application for adjustment

22 of status under subsection (a) at a designated

23 port of entry on the southern land border. An

24 alien who does not enter through a port of
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1 entry is subject to deportation and removal as

2 otherwise provided in this Act.

3 (B) During the application period de4 scribed in subsection (a)(1)(A) any alien who

5 has filed an application for adjustment of status

6 within the United States as provided in sub7 section (b)(1)(A) is subject to paragraph (2) of

8 this subsection.

9 (C) A preliminary application is defined as

10 a fully completed and signed application with

11 fee and photographs which contains specific in12 formation concerning the performance of quali13 fying employment in the United States and the

14 documentary evidence which the applicant in15 tends to submit as proof of such employment.

16 The applicant must be otherwise admissible to

17 the United States and must establish to the

18 satisfaction of the examining officer during an

19 interview that his or her claim to eligibility for

20 agriculture worker status is credible.

21 (f) ADMINISTRATIVE AND JUDICIAL REVIEW.—

22 (1) ADMINISTRATIVE AND JUDICIAL REVIEW.—

23 There shall be no administrative or judicial review of

24 a determination respecting an application for adjust-
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1 ment of status under this section except in accord2 ance with this subsection.

3 (2) ADMINISTRATIVE REVIEW.—

4 (A) SINGLE LEVEL OF ADMINISTRATIVE

5 APPELLATE REVIEW.—The Attorney General

6 shall establish an appellate authority to provide

7 for a single level of administrative appellate re8 view of such a determination.

9 (B) STANDARD FOR REVIEW.—Such ad10 ministrative appellate review shall be based

11 solely upon the administrative record estab12 lished at the time of the determination on the

13 application and upon such additional or newly

14 discovered evidence as may not have been avail15 able at the time of the determination.

16 (3) JUDICIAL REVIEW.—

17 (A) LIMITATION TO REVIEW OF EXCLU18 SION OR DEPORTATION.—There shall be judicial

19 review of such a denial only in the judicial re20 view of an order of removal under section 106.

21 (B) STANDARD FOR JUDICIAL REVIEW.—

22 Such judicial review shall be based solely upon

23 the administrative record established at the

24 time of the review by the appellate authority

25 and the findings of fact and determinations
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1 contained in such record shall be conclusive un2 less the applicant can establish abuse of discre3 tion or that the findings are directly contrary to

4 clear and convincing facts contained in the

5 record considered as a whole.

6 (g) DISSEMINATION OF INFORMATION ON ADJUST7 MENT PROGRAM.—Beginning not later than the date des8 ignated by the Attorney General under subsection

9 (a)(1)(A), the Attorney General, in cooperation with quali10 fied designated entities, shall broadly disseminate informa11 tion respecting the benefits which aliens may receive under

12 this section and the requirements to obtain such benefits.

13 TITLE II—AGRICULTURAL

14 WORKER REGISTRIES

15 SEC. 201. AGRICULTURAL WORKER REGISTRIES.

16 (a) ESTABLISHMENT OF REGISTRIES.—

17 (1) IN GENERAL.—The Secretary of Labor shall

18 establish and maintain a system of registries con19 taining a current database of workers described in

20 paragraph (2) who seek agricultural employment

21 and the employment status of such workers—

22 (A) to ensure that eligible United States

23 workers are informed about available agricul24 tural job opportunities and have the right of
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1 first refusal for the agricultural jobs available

2 through the registry; and

3 (B) to provide timely referral of such

4 workers to agricultural job opportunities in the

5 United States.

6 (2) COVERED WORKERS.—The workers covered

7 by paragraph (1) are—

8 (A) eligible United States workers; and

9 (B) eligible nonimmigrant agricultural

10 workers whose status was adjusted under sec11 tion 101(a).

12 (3) GEOGRAPHIC COVERAGE.—

13 (A) SINGLE STATE.—Each registry estab14 lished under paragraph (1) shall include the job

15 opportunities in a single State, except that, in

16 the case of New England States, two or more

17 such States may be represented by a single reg18 istry in lieu of multiple registries.

19 (B) REQUESTS FOR INCLUSION.—Each

20 State having any group of agricultural pro21 ducers seeking to utilize the registry shall be

22 represented by a registry, except that, in the

23 case of a New England State, the State shall be

24 represented by the registry covering the group

25 of States of which the State is a part.
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1 (4) COMPUTER DATABASE.—The Secretary of

2 Labor may establish the registries as part of the

3 computer databases known as ‘‘America’s Job

4 Bank’’ and ‘‘America’s Talent Bank’’.

5 (5) RELATION TO PROCESS FOR IMPORTING H–

6 2A WORKERS.—Notwithstanding section 218 of the

7 Immigration and Nationality Act (8 U.S.C. 1188),

8 no petition to import an alien as an H–2A worker

9 (as defined in section 218(i)(2) of that Act) may be

10 approved by the Attorney General unless the H–2A

11 employer—

12 (A) has applied to the Secretary to conduct

13 a search of the registry of the State in which

14 the job opportunities for which H–2A workers

15 are sought are located; and

16 (B) has received a report described in sec17 tion 303(a)(1).

18 (b) REGISTRATION.—

19 (1) IN GENERAL.—An eligible individual who

20 seeks employment in agricultural work may apply to

21 be included in the registry for the State in which the

22 individual resides. Such application shall include—

23 (A) the name and address of the indi24 vidual;
29

•S 1814 IS

1 (B) the period or periods of time (includ2 ing beginning and ending dates) during which

3 the individual will be available for agricultural

4 work;

5 (C) the registry or registries on which the

6 individual desires to be included;

7 (D) the specific qualifications and work ex8 perience possessed by the applicant;

9 (E) the type or types of agricultural work

10 the applicant is willing to perform;

11 (F) such other information as the appli12 cant wishes to be taken into account in refer13 ring the applicant to agricultural job opportuni14 ties; and

15 (G) such other information as may be re16 quired by the Secretary.

17 (2) VALIDATION OF EMPLOYMENT AUTHORIZA18 TION.—No person may be included on any registry

19 unless the Secretary of Labor has requested and ob20 tained from the Attorney General a certification that

21 the person is authorized to be employed in the

22 United States.

23 (3) UNITED STATES WORKERS.—United States

24 workers shall have preference in referral by the reg25 istry, and may be referred to any job opportunity
30

•S 1814 IS

1 nationwide for which they are qualified and make a

2 commitment to be available at the time and place

3 needed.

4 (4) ADJUSTED NONIMMIGRANTS.—Adjusted

5 nonimmigrant aliens who apply to be included in a

6 registry may only be referred to job opportunities for

7 which they are qualified within the State covered by

8 the registry or within States contiguous to that

9 State.

10 (5) SANCTIONS FOR NONCOMPLIANCE.—Ad11 justed nonimmigrant aliens who elect to be listed on

12 the registry and who fail to report to a registry job

13 opportunity for which they had made an affirmative

14 commitment and been referred will be removed from

15 the registry for a period of 6 months for the first

16 such failure and for a period of 1 year for each suc17 ceeding failure.

18 (6) USE OF REGISTRY.—Any United States ag19 ricultural employer may use the registry.

20 (7) DISCRETIONARY USE FOR NEW HIRES.—An

21 agricultural employer may require prospective em22 ployees to register with a registry as a means of as23 suring that its workers are eligible to be employed

24 in the United States.
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1 (8) WORKERS REFERRED TO JOB OPPORTUNI2 TIES.—The name of each registered worker who is

3 referred and accepts employment with an employer

4 shall be classified as inactive on each registry on

5 which the worker is included during the period of

6 employment involved in the job to which the worker

7 was referred, unless the worker reports to the Sec8 retary that the worker is no longer employed and is

9 available for referral to another job opportunity. A

10 registered worker classified as inactive shall not be

11 referred.

12 (9) REMOVAL OF NAMES FROM A REGISTRY.—

13 The Secretary shall remove from the appropriate

14 registry the name of any registered worker who, on

15 3 separate occasions within a 3-month period, is re16 ferred to a job opportunity pursuant to this section,

17 and who declines such referral or fails to report to

18 work in a timely manner.

19 (10) VOLUNTARY REMOVAL.—A registered

20 worker may request that the worker’s name be re21 moved from a registry.

22 (11) REMOVAL BY EXPIRATION.—The applica23 tion of a registered worker shall expire, and the Sec24 retary shall remove the name of such worker from

25 the appropriate registry if the worker has not ac-
32

•S 1814 IS

1 cepted a job opportunity pursuant to this section

2 within the preceding 12-month period.

3 (12) REINSTATEMENT.—A worker whose name

4 is removed from a registry pursuant to paragraph

5 (9), (10), or (11) may apply to the Secretary for re6 instatement to such registry at any time.

7 (c) CONFIDENTIALITY OF REGISTRIES.—The Sec8 retary shall maintain the confidentiality of the registries

9 established pursuant to this section, and the information

10 in such registries shall not be used for any purposes other

11 than those authorized in this Act.

12 (d) ADVERTISING OF REGISTRIES.—The Secretary

13 shall widely disseminate, through advertising and other

14 means, the existence of the registries for the purpose of

15 encouraging eligible United States workers seeking agri16 cultural job opportunities to register. The Secretary of

17 Labor shall ensure that the information about the registry

18 is made available to eligible workers through all appro19 priate means, including appropriate State agencies, groups

20 representing farm workers, and nongovernmental organi21 zations, and shall ensure that the registry is accessible to

22 growers and farm workers.

23 TITLE III—H–2A REFORM

24 SEC. 301. EMPLOYER APPLICATIONS AND ASSURANCES.

25 (a) APPLICATIONS TO THE SECRETARY.—
33

•S 1814 IS

1 (1) IN GENERAL.—Not later than 28 days prior

2 to the date on which an H–2A employer desires to

3 employ an H–2A worker in a temporary or seasonal

4 agricultural job opportunity, the employer shall, be5 fore petitioning for the admission of such a worker,

6 apply to the Secretary for the referral of a United

7 States worker or nonimmigrant agricultural worker

8 whose status was adjusted under section 101(a)

9 through a search of the appropriate registry, in ac10 cordance with section 302. Such application shall—

11 (A) describe the nature and location of the

12 work to be performed;

13 (B) list the anticipated period (expected

14 beginning and ending dates) for which workers

15 will be needed;

16 (C) indicate the number of job opportuni17 ties in which the employer seeks to employ

18 workers from the registry;

19 (D) describe the bona fide occupational

20 qualifications that must be possessed by a

21 worker to be employed in the job opportunity in

22 question;

23 (E) describe the wages and other terms

24 and conditions of employment the employer will

25 offer, which shall not be less (and are not re-
34

•S 1814 IS

1 quired to be more) than those required by this

2 section;

3 (F) contain the assurances required by

4 subsection (c);

5 (G) specify the foreign country or region

6 thereof from which alien workers should be ad7 mitted in the case of a failure to refer United

8 States workers under this Act; and

9 (H) be accompanied by the payment of a

10 registry user fee determined under section

11 404(b)(1)(A) for each job opportunity indicated

12 under subparagraph (C).

13 (2) APPLICATIONS BY ASSOCIATIONS ON BE14 HALF OF EMPLOYER MEMBERS.—

15 (A) IN GENERAL.—An agricultural associa16 tion may file an application under paragraph

17 (1) for registered workers on behalf of its em18 ployer members.

19 (B) EMPLOYERS.—An application under

20 subparagraph (A) shall cover those employer

21 members of the association that the association

22 certifies in its application have agreed in writ23 ing to comply with the requirements of this Act.

24 (b) AMENDMENT OF APPLICATIONS.—Prior to receiv25 ing a referral of workers from a registry, an employer may
35

•S 1814 IS

1 amend an application under this subsection if the employ2 er’s need for workers changes. If an employer makes a

3 material amendment to an application on a date which is

4 later than 28 days prior to the date on which the workers

5 on the amended application are sought to be employed,

6 the Secretary may delay issuance of the report described

7 in section 302(b) by the number of days by which the fil8 ing of the amended application is later than 28 days before

9 the date on which the employer desires to employ workers.

10 (c) ASSURANCES.—The assurances referred to in

11 subsection (a)(1)(F) are the following:

12 (1) ASSURANCE THAT THE JOB OPPORTUNITY

13 IS NOT A RESULT OF A LABOR DISPUTE.—The em14 ployer shall assure that the job opportunity for

15 which the employer requests a registered worker is

16 not vacant because a worker is involved in a strike,

17 lockout, or work stoppage in the course of a labor

18 dispute involving the job opportunity at the place of

19 employment.

20 (2) ASSURANCE THAT THE JOB OPPORTUNITY

21 IS TEMPORARY OR SEASONAL.—

22 (A) REQUIRED ASSURANCE.—The em23 ployer shall assure that the job opportunity for

24 which the employer requests a registered worker

25 is temporary or seasonal.
36

•S 1814 IS

1 (B) SEASONAL BASIS.—For purposes of

2 this Act, labor is performed on a seasonal basis

3 where, ordinarily, the employment pertains to

4 or is of the kind exclusively performed at cer5 tain seasons or periods of the year and which,

6 from its nature, may not be continuous or car7 ried on throughout the year.

8 (C) TEMPORARY BASIS.—For purposes of

9 this Act, a worker is employed on a temporary

10 basis where the employment is intended not to

11 exceed 10 months.

12 (3) ASSURANCE OF PROVISION OF REQUIRED

13 WAGES AND BENEFITS.—The employer shall assure

14 that the employer will provide the wages and bene15 fits required by subsections (a), (b), and (c) of sec16 tion 304 to all workers employed in job opportunities

17 for which the employer has applied under subsection

18 (a) and to all other workers in the same occupation

19 at the place of employment, and in no case less than

20 the greater of the hourly wage prescribed under sec21 tion 6(a)(1) of the Fair Labor Standards Act of

22 1938 (29 U.S.C. 206(a)(1)), or the applicable State

23 minimum wage.

24 (4) ASSURANCE OF EMPLOYMENT.—The em25 ployer shall assure that the employer will not refuse
37

•S 1814 IS

1 to employ qualified individuals referred under sec2 tion 302, and will terminate qualified individuals

3 employed pursuant to this Act only for lawful job4 related reasons, including lack of work.

5 (5) ASSURANCE OF COMPLIANCE WITH LABOR

6 LAWS.—

7 (A) IN GENERAL.—An employer who re8 quests registered workers shall assure that, ex9 cept as otherwise provided in this Act, the em10 ployer will comply with all applicable Federal,

11 State, and local labor laws, including laws af12 fecting migrant and seasonal agricultural work13 ers, with respect to all United States workers

14 and alien workers employed by the employer.

15 (B) LIMITATIONS.—The disclosure re16 quired under section 201(a) of the Migrant and

17 Seasonal Agricultural Worker Protection Act

18 (29 U.S.C. 1821(a)) may be made at any time

19 prior to the time the alien is issued a visa per20 mitting entry into the United States.

21 (6) ASSURANCE OF ADVERTISING OF THE REG22 ISTRY.—The employer shall assure that the em23 ployer will, from the day an application for workers

24 is submitted under subsection (a), and continuing

25 throughout the period of employment of any job op-
38

•S 1814 IS

1 portunity for which the employer has applied for a

2 worker from the registry, post in a conspicuous place

3 a poster to be provided by the Secretary advertising

4 the availability of the registry.

5 (7) ASSURANCE OF ADVERTISING OF JOB OP6 PORTUNITIES.—The employer shall assure that not

7 later than 14 days after submitting an application to

8 a registry for workers under subsection (a) the em9 ployer will advertise the availability of the job oppor10 tunities for which the employer is seeking workers

11 from the registry in a publication in the local labor

12 market that is likely to be patronized by potential

13 farmworkers, if any, and refer interested workers to

14 register with the registry.

15 (8) ASSURANCE OF CONTACTING FORMER

16 WORKERS.—The employer shall assure that the em17 ployer has made reasonable efforts through the

18 sending of a letter by United States Postal Service

19 mail, or otherwise, to contact any eligible worker the

20 employer employed during the previous season in the

21 occupation at the place of intended employment for

22 which the employer is applying for registered work23 ers, and has made the availability of the employer’s

24 job opportunities in the occupation at the place of

25 intended employment known to such previous work-
39

•S 1814 IS

1 er, unless the worker was terminated from employ2 ment by the employer for a lawful job-related reason

3 or abandoned the job before the worker completed

4 the period of employment of the job opportunity for

5 which the worker was hired.

6 (9) ASSURANCE OF PROVISION OF WORKERS

7 COMPENSATION.—The employer shall assure that if

8 the job opportunity is not covered by the State work9 ers’ compensation law, that the employer will pro10 vide, at no cost to the worker, insurance covering in11 jury and disease arising out of and in the course of

12 the worker’s employment which will provide benefits

13 at least equal to those provided under the State

14 workers’ compensation law for comparable employ15 ment.

16 (10) ASSURANCE OF PAYMENT OF ALIEN EM17 PLOYMENT USER FEE.—The employer shall assure

18 that if the employer receives a notice of insufficient

19 workers under section 302(c), such employer shall

20 promptly pay the alien employment user fee deter21 mined under section 404(b)(1)(B) for each job op22 portunity to be filled by an eligible alien as required

23 under such section.

24 (d) WITHDRAWAL OF APPLICATIONS.—
40

•S 1814 IS

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

2 an application under subsection (a), except that, if

3 the employer is an agricultural association, the asso4 ciation may withdraw an application under sub5 section (a) with respect to one or more of its mem6 bers. To withdraw an application, the employer shall

7 notify the Secretary in writing, and the Secretary

8 shall acknowledge in writing the receipt of such

9 withdrawal notice. An employer who withdraws an

10 application under subsection (a), or on whose behalf

11 an application is withdrawn, is relieved of the obliga12 tions undertaken in the application.

13 (2) LIMITATION.—An application may not be

14 withdrawn while any alien provided status under this

15 Act pursuant to such application is employed by the

16 employer.

17 (3) OBLIGATIONS UNDER OTHER STATUTES.—

18 Any obligation incurred by an employer under any

19 other law or regulation as a result of recruitment of

20 United States workers under an offer of terms and

21 conditions of employment required as a result of

22 making an application under subsection (a) is unaf23 fected by withdrawal of such application.

24 (e) REVIEW OF APPLICATION.—
41

•S 1814 IS

1 (1) IN GENERAL.—Promptly upon receipt of an

2 application by an employer under subsection (a), the

3 Secretary shall review the application for compliance

4 with the requirements of such subsection.

5 (2) APPROVAL OF APPLICATIONS.—If the Sec6 retary determines that an application meets the re7 quirements of subsection (a), and the employer is

8 not ineligible to apply under paragraph (2), (3), or

9 (4) of section 305(b), the Secretary shall, not later

10 than 7 days after the receipt of such application, ap11 prove the application and so notify the employer.

12 (3) REJECTION OF APPLICATIONS.—If the Sec13 retary determines that an application fails to meet

14 1 or more of the requirements of subsection (a), the

15 Secretary, as expeditiously as possible, but in no

16 case later than 7 days after the receipt of such ap17 plication, shall—

18 (A) notify the employer of the rejection of

19 the application and the reasons for such rejec20 tion, and provide the opportunity for the

21 prompt resubmission of an amended applica22 tion; and

23 (B) offer the applicant an opportunity to

24 request an expedited administrative review or a

25 de novo administrative hearing before an ad-
42

•S 1814 IS

1 ministrative law judge of the rejection of the

2 application.

3 (4) REJECTION FOR PROGRAM VIOLATIONS.—

4 The Secretary shall reject the application of an em5 ployer under this section if—

6 (A) the employer has been determined to

7 be ineligible to employ workers under section

8 401(b); or

9 (B) the employer during the previous two10 year period employed H–2A workers or reg11 istered workers and the Secretary of Labor has

12 determined, after notice and opportunity for a

13 hearing, that the employer at any time during

14 that period substantially violated a material

15 term or condition of the assurances made with

16 respect to the employment of United States

17 workers or nonimmigrant workers.

18 No employer may have applications under this sec19 tion rejected for more than 3 years for any violation

20 described in this paragraph.

21 SEC. 302. SEARCH OF REGISTRY.

22 (a) SEARCH PROCESS AND REFERRAL TO THE EM23 PLOYER.—Upon the approval of an application under sec24 tion 301(e), the Secretary shall promptly begin a search

25 of the registry of the State (or States) in which the work
43

•S 1814 IS

1 is to be performed to identify registered United States

2 workers and adjusted aliens with the qualifications re3 quested by the employer. The Secretary shall contact such

4 qualified registered workers and determine, in each in5 stance, whether the worker is ready, willing, and able to

6 accept the employer’s job opportunity and will make the

7 affirmative commitment to work for the employer at the

8 time and place needed. The Secretary shall provide to each

9 worker who commits to work for the employer the employ10 er’s name, address, telephone number, the location where

11 the employer has requested that employees report for em12 ployment, and a statement disclosing the terms and condi13 tions of employment.

14 (b) DEADLINE FOR COMPLETING SEARCH PROCESS;

15 REFERRAL OF WORKERS.—As expeditiously as possible,

16 but not later than 7 days before the date on which an

17 employer desires work to begin, the Secretary shall com18 plete the search under subsection (a) and shall transmit

19 to the employer a report containing the name, address,

20 and social security account number of each registered

21 worker who has made the affirmative commitment de22 scribed in subsection (a) to work for the employer on the

23 date needed, together with sufficient information to enable

24 the employer to establish contact with the worker. The
44

•S 1814 IS

1 identification of such registered workers in a report shall

2 constitute a referral of workers under this section.

3 (c) ACCEPTANCE OF REFERRALS.—H–2A employers

4 shall accept all qualified United States worker referrals

5 who make a commitment to report to work at the time

6 and place needed and to complete the full period of em7 ployment offered, and those adjusted nonimmigrants on

8 the registry of the State in which the intended employment

9 is located, and the immediately contiguous States. An em10 ployer shall not be required to accept more referrals than

11 the number of job opportunities for which the employer

12 applied to the registry.

13 (d) NOTICE OF INSUFFICIENT WORKERS.—If the re14 port provided to the employer under subsection (b) does

15 not include referral of a sufficient number of registered

16 workers to fill all of the employer’s job opportunities in

17 the occupation for which the employer applied under sec18 tion 301(a), the Secretary shall indicate in the report the

19 number of job opportunities for which registered workers

20 could not be referred, and shall promptly transmit a copy

21 of the report to the Attorney General and the Secretary

22 of State, by electronic or other means ensuring next day

23 delivery.

24 (e) USER FEE FOR CERTIFICATION TO EMPLOY

25 ALIEN WORKERS.—With respect to each job opportunity
45

•S 1814 IS

1 for which a notice of insufficient workers is made, the Sec2 retary shall require the payment of an alien employment

3 user fee determined under section 404(b)(1)(B).

4 SEC. 303. ISSUANCE OF VISAS AND ADMISSION OF ALIENS.

5 (a) IN GENERAL.—

6 (1) NUMBER OF ADMISSIONS.—Subject to para7 graph (3), the Secretary of State shall promptly

8 issue visas to, and the Attorney General shall admit,

9 as nonimmigrant aliens described in section

10 101(a)(15)(H)(ii)(a) of the Immigration and Nation11 ality Act a sufficient number of eligible aliens des12 ignated by the employer to fill the job opportunities

13 of the employer—

14 (A) upon receipt of a copy of the report

15 described in section 302(c);

16 (B) upon approval of an application (or

17 copy of an application under subsection (b));

18 (C) upon receipt of the report required by

19 subsection (c)(1)(B); or

20 (D) upon receipt of a report under sub21 section (d).

22 (2) PROCEDURES.—The admission of aliens

23 under paragraph (1) shall be subject to the proce24 dures of section 218 of the Immigration and Nation25 ality Act, as amended by this Act.
46

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1 (b) DIRECT APPLICATION UPON FAILURE TO ACT.—

2 (1) APPLICATION TO THE SECRETARY OF

3 STATE.—If the employer has not received a referral

4 of sufficient workers pursuant to section 302(b) or

5 a report of insufficient workers pursuant to section

6 302(c), by the date that is 7 days before the date

7 on which the work is anticipated to begin, the em8 ployer may submit an application for alien workers

9 directly to the Secretary of State, with a copy of the

10 application provided to the Attorney General, seek11 ing the issuance of visas to and the admission of

12 aliens for employment in the job opportunities for

13 which the employer has not received referral of reg14 istered workers. Such an application shall include a

15 copy of the employer’s application under section

16 301(a), together with evidence of its timely submis17 sion. The Secretary of State may consult with the

18 Secretary of Labor in carrying out this paragraph.

19 (2) EXPEDITED CONSIDERATION BY SECRETARY

20 OF STATE.—The Secretary of State shall, as expedi21 tiously as possible, but not later than 5 days after

22 the employer files an application under paragraph

23 (1), issue visas to, and the Attorney General shall

24 admit, a sufficient number of eligible aliens des25 ignated by the employer to fill the job opportunities
47

•S 1814 IS

1 for which the employer has applied under that para2 graph, if the employer has met the requirements of

3 sections 301 and 302. The employer shall be subject

4 to the alien employment user fee determined under

5 section 404(b)(1)(B) with respect to each job oppor6 tunity for which the Secretary of State authorizes

7 the issuance of a visa pursuant to paragraph (2).

8 (c) REDETERMINATION OF NEED.—

9 (1) REQUESTS FOR REDETERMINATION.—

10 (A) IN GENERAL.—An employer may file a

11 request for a redetermination by the Secretary

12 of the employer’s need for workers if—

13 (i) a worker referred from the registry

14 is not at the place of employment on the

15 date of need shown on the application, or

16 the date the work for which the worker is

17 needed has begun, whichever is later;

18 (ii) the worker is not ready, willing,

19 able, or qualified to perform the work re20 quired; or

21 (iii) the worker abandons the employ22 ment or is terminated for a lawful job-re23 lated reason.

24 (B) ADDITIONAL AUTHORIZATION OF AD25 MISSIONS.—The Secretary shall expeditiously,
48

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1 but in no case later than 72 hours after a rede2 termination is requested under subparagraph

3 (A), submit a report to the Secretary of State

4 and the Attorney General providing notice of a

5 need for workers under this subsection, if the

6 employer has met the requirements of sections

7 301 and 302 and the conditions described in

8 subparagraph (A).

9 (2) JOB-RELATED REQUIREMENTS.—An em10 ployer shall not be required to initially employ a

11 worker who fails to meet lawful job-related employ12 ment criteria, nor to continue the employment of a

13 worker who fails to meet lawful, job-related stand14 ards of conduct and performance, including failure

15 to meet minimum production standards after a 3-

16 day break-in period.

17 (d) EMERGENCY APPLICATIONS.—Notwithstanding

18 subsections (b) and (c), the Secretary may promptly trans19 mit a report to the Attorney General and Secretary of

20 State providing notice of a need for workers under this

21 subsection for an employer—

22 (1) who has not employed aliens under this Act

23 in the occupation in question in the prior year’s ag24 ricultural season;
49

•S 1814 IS

1 (2) who faces an unforeseen need for workers

2 (as determined by the Secretary); and

3 (3) with respect to whom the Secretary cannot

4 refer able, willing, and qualified workers from the

5 registry who will commit to be at the employer’s

6 place of employment and ready for work within 72

7 hours or on the date the work for which the worker

8 is needed has begun, whichever is later.

9 The employer shall be subject to the alien employment

10 user fee determined under section 404(b)(1)(B) with re11 spect to each job opportunity for which a notice of insuffi12 cient workers is made pursuant to this subsection.

13 (e) REGULATIONS.—The Secretary of State shall pre14 scribe regulations to provide for the designation of aliens

15 under this section.

16 SEC. 304. EMPLOYMENT REQUIREMENTS.

17 (a) REQUIRED WAGES.—

18 (1) IN GENERAL.—An employer applying under

19 section 301(a) for workers shall offer to pay, and

20 shall pay, all workers in the occupation or occupa21 tions for which the employer has applied for workers

22 from the registry, not less (and is not required to

23 pay more) than the greater of the prevailing wage in

24 the occupation in the area of intended employment

25 or the adverse effect wage rate. No worker shall be
50

•S 1814 IS

1 paid less than the greater of the hourly wage pre2 scribed under section 6(a)(1) of the Fair Labor

3 Standards Act of 1938 (29 U.S.C. 206(a)(1)), or the

4 applicable State minimum wage.

5 (2) PAYMENT OF PREVAILING WAGE DETER6 MINED BY A STATE EMPLOYMENT SECURITY AGENCY

7 SUFFICIENT.—In complying with paragraph (1), an

8 employer may request and obtain a prevailing wage

9 determination from the State employment security

10 agency. If the employer requests such a determina11 tion, and pays the wage required by paragraph (1)

12 based upon such a determination, such payment

13 shall be considered sufficient to meet the require14 ment of paragraph (1).

15 (3) RELIANCE ON WAGE SURVEY.—In lieu of

16 the procedure of paragraph (2), an employer may

17 rely on other information, such as an employer-gen18 erated prevailing wage survey that the Secretary de19 termines meets criteria specified by the Secretary in

20 regulations.

21 (4) ALTERNATIVE METHODS OF PAYMENT PER22 MITTED.—

23 (A) IN GENERAL.—A prevailing wage may

24 be expressed as an hourly wage, a piece rate, a

25 task rate, or other incentive payment method,
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•S 1814 IS

1 including a group rate. The requirement to pay

2 at least the prevailing wage in the occupation

3 and area of intended employment does not re4 quire an employer to pay by the method of pay

5 in which the prevailing rate is expressed, except

6 that, if the employer adopts a method of pay

7 other than the prevailing rate, the burden of

8 proof is on the employer to demonstrate that

9 the employer’s method of pay is designed to

10 produce earnings equivalent to the earnings

11 that would result from payment of the pre12 vailing rate.

13 (B) COMPLIANCE WHEN PAYING AN IN14 CENTIVE RATE.—In the case of an employer

15 that pays a piece rate or task rate or uses any

16 other incentive payment method, including a

17 group rate, the employer shall be considered to

18 be in compliance with any applicable hourly

19 wage requirement if the average of the hourly

20 earnings of the workers, taken as a group, in

21 the activity for which a piece rate, task rate, or

22 other incentive payment, including a group rate,

23 is paid, for the pay period, is at least equal to

24 the required hourly wage, except that no worker

25 shall be paid less than the hourly wage pre-
52

•S 1814 IS

1 scribed under section 6(a)(1) of the Fair Labor

2 Standards Act of 1938 (29 U.S.C. 206(a)(1))

3 or the applicable State minimum wage.

4 (C) TASK RATE.—For purposes of this

5 paragraph, the term ‘‘task rate’’ means an in6 centive payment method based on a unit of

7 work performed such that the incentive rate

8 varies with the level of effort required to per9 form individual units of work.

10 (D) GROUP RATE.—For purposes of this

11 paragraph, the term ‘‘group rate’’ means an in12 centive payment method in which the payment

13 is shared among a group of workers working to14 gether to perform the task.

15 (b) REQUIREMENT TO PROVIDE HOUSING.—

16 (1) IN GENERAL.—

17 (A) REQUIREMENT.—An employer apply18 ing under section 301(a) for registered workers

19 shall offer to provide housing at no cost (except

20 for charges permitted by paragraph (5)) to all

21 workers employed in job opportunities to which

22 the employer has applied under that section,

23 and to all other workers in the same occupation

24 at the place of employment, whose place of resi25 dence is beyond normal commuting distance.
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1 (B) LIABILITY.—An employer not com2 plying with subparagraph (A) shall be liable to

3 a registered worker for the costs of housing

4 equivalent to the type of housing required to be

5 provided under that subparagraph and shall not

6 be liable for any employment-related obligation

7 solely by reason of such noncompliance.

8 (2) TYPE OF HOUSING.—In complying with

9 paragraph (1), an employer may, at the employer’s

10 election, provide housing that meets applicable Fed11 eral standards for temporary labor camps or secure

12 housing that meets applicable local standards for

13 rental or public accommodation housing or other

14 substantially similar class of habitation, or, in the

15 absence of applicable local standards, State stand16 ards for rental or public accommodation housing or

17 other substantially similar class of habitation.

18 (3) WORKERS ENGAGED IN THE RANGE PRO19 DUCTION OF LIVESTOCK.—The Secretary shall issue

20 regulations that address the specific requirements

21 for the provision of housing to workers engaged in

22 the range production of livestock.

23 (4) LIMITATION.—Nothing in this subsection

24 shall be construed to require an employer to provide

25 or secure housing for persons who were not entitled
54

•S 1814 IS

1 to such housing under the temporary labor certifi2 cation regulations in effect on June 1, 1986.

3 (5) CHARGES FOR HOUSING.—

4 (A) UTILITIES AND MAINTENANCE.—An

5 employer who provides housing to a worker pur6 suant to paragraph (1) may charge an amount

7 equal to the fair market value (but not greater

8 than the employer’s actual cost) for mainte9 nance and utilities, or such lesser amount as

10 permitted by law.

11 (B) SECURITY DEPOSIT.—An employer

12 who provides housing to workers pursuant to

13 paragraph (1) may require, as a condition for

14 providing such housing, a deposit not to exceed

15 $50 from workers occupying such housing to

16 protect against gross negligence or willful de17 struction of property.

18 (C) DAMAGES.—An employer who provides

19 housing to workers pursuant to paragraph (1)

20 may require a worker found to have been re21 sponsible for damage to such housing which is

22 not the result of normal wear and tear related

23 to habitation to reimburse the employer for the

24 reasonable cost of repair of such damage.

25 (6) HOUSING ALLOWANCE AS ALTERNATIVE.—
55

•S 1814 IS

1 (A) IN GENERAL.—In lieu of offering

2 housing pursuant to paragraph (1), the em3 ployer may provide a reasonable housing allow4 ance during the 3-year period beginning on the

5 date of enactment of this Act. After the expira6 tion of that period such allowance may be pro7 vided only if the requirement of subparagraph

8 (B) is satisfied or, in the case of a certification

9 under subparagraph (B) that is expired, the re10 quirement of subparagraph (C) is satisfied.

11 Upon the request of a worker seeking assist12 ance in locating housing, the employer shall

13 make a good faith effort to assist the worker in

14 identifying and locating housing in the area of

15 intended employment. An employer who offers a

16 housing allowance to a worker, or assists a

17 worker in locating housing which the worker oc18 cupies, pursuant to this subparagraph shall not

19 be deemed to be a housing provider under sec20 tion 203 of the Migrant and Seasonal Agricul21 tural Worker Protection Act (29 U.S.C. 1823)

22 solely by virtue of providing such housing allow23 ance.

24 (B) CERTIFICATION.—The requirement of

25 this subparagraph is satisfied if the Governor of
56

•S 1814 IS

1 the State certifies to the Secretary that there is

2 adequate housing available in an area of in3 tended employment for migrant farm workers,

4 aliens provided status pursuant to this Act, or

5 nonimmigrant aliens described in section

6 101(a)(15)(H)(ii)(a) of the Immigration and

7 Nationality Act, who are seeking temporary

8 housing while employed at farm work. Such cer9 tification shall expire after 3 years unless re10 newed by the Governor of the State.

11 (C) EFFECT OF CERTIFICATION.—Not12 withstanding the expiration of a certification

13 under subparagraph (B) with respect to an area

14 of intended employment, a housing allowance

15 described in subparagraph (A) may be offered

16 for up to one year after the date of expiration.

17 (D) AMOUNT OF ALLOWANCE.—The

18 amount of a housing allowance under this para19 graph shall be equal to the statewide average

20 fair market rental for existing housing for non21 metropolitan counties for the State in which the

22 employment occurs, as established by the Sec23 retary of Housing and Urban Development pur24 suant to section 8(c) of the United States

25 Housing Act of 1937 (42 U.S.C. 1437f(c)),
57

•S 1814 IS

1 based on a 2-bedroom dwelling unit and an as2 sumption of 2 persons per bedroom.

3 (c) REIMBURSEMENT OF TRANSPORTATION.—

4 (1) TO PLACE OF EMPLOYMENT.—A worker

5 who is referred to a job opportunity under section

6 302(a), or an alien employed pursuant to this Act,

7 who completes 50 percent of the period of employ8 ment of the job opportunity for which the worker

9 was hired, shall be reimbursed by the employer for

10 the cost of the worker’s transportation and subsist11 ence from the worker’s permanent place of residence

12 (or place of last employment, if the worker traveled

13 from such place) to the place of employment to

14 which the worker was referred under section 302(a).

15 (2) FROM PLACE OF EMPLOYMENT.—A worker

16 who is referred to a job opportunity under section

17 302(a), or an alien employed pursuant to this Act,

18 who completes the period of employment for the job

19 opportunity involved, shall be reimbursed by the em20 ployer for the cost of the worker’s transportation

21 and subsistence from the place of employment to the

22 worker’s place of residence, or to the place of next

23 employment, if the worker has contracted with a

24 subsequent employer who has not agreed to provide

25 or pay for the worker’s transportation and subsist-
58

•S 1814 IS

1 ence to such subsequent employer’s place of employ2 ment.

3 (3) LIMITATION.—

4 (A) AMOUNT OF REIMBURSEMENT.—Ex5 cept as provided in subparagraph (B), the

6 amount of reimbursement provided under para7 graph (1) or (2) to a worker or alien shall not

8 exceed the lesser of—

9 (i) the actual cost to the worker or

10 alien of the transportation and subsistence

11 involved; or

12 (ii) the most economical and reason13 able common carrier transportation

14 charges and subsistence costs for the dis15 tance involved.

16 (B) DISTANCE TRAVELED.—No reimburse17 ment under paragraph (1) or (2) shall be re18 quired if the distance traveled is 100 miles or

19 less, or the worker is not residing in employer20 provided housing or housing secured through a

21 voucher as provided in subsection (b)(6).

22 (C) PLACE OF RECRUITMENT.—For the

23 purpose of the reimbursement required under

24 paragraph (1) or (2) to aliens admitted pursu25 ant to this Act, the alien’s place of residence
59

•S 1814 IS

1 shall be deemed to be the place where the alien

2 was issued the visa authorizing admission to the

3 United States or, if no visa was required, the

4 place from which the alien departed the foreign

5 country to travel to the United States.

6 (d) CONTINUING OBLIGATION TO EMPLOY UNITED

7 STATES WORKERS.—

8 (1) IN GENERAL.—An employer that applies for

9 registered workers under section 301(a) shall, as a

10 condition for the approval of such application, con11 tinue to offer employment to qualified, eligible

12 United States workers who are referred under sec13 tion 302(b) after the employer receives the report

14 described in section 302(b).

15 (2) LIMITATION.—An employer shall not be ob16 ligated to comply with paragraph (1)—

17 (A) after 50 percent of the anticipated pe18 riod of employment shown on the employer’s

19 application under section 301(a) has elapsed; or

20 (B) during any period in which the em21 ployer is employing no H–2A workers in the oc22 cupation for which the United States worker

23 was referred; or

24 (C) during any period when the Secretary

25 is conducting a search of a registry for workers
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•S 1814 IS

1 in the occupation and area of intended employ2 ment to which the worker has been referred, or

3 in other occupations in the area of intended em4 ployment for which the worker that has been

5 referred is qualified and that offer substantially

6 similar terms and conditions of employment.

7 (3) LIMITATION ON REQUIREMENT TO PROVIDE

8 HOUSING.—Notwithstanding any other provision of

9 this Act, an employer to whom a registered worker

10 is referred pursuant to paragraph (1) may provide

11 a reasonable housing allowance to such referred

12 worker in lieu of providing housing if the employer

13 does not have sufficient housing to accommodate the

14 referred worker and all other workers for whom the

15 employer is providing housing or has committed to

16 provide housing.

17 (4) REFERRAL OF WORKERS DURING 50-PER18 CENT PERIOD.—The Secretary shall make all rea19 sonable efforts to place a registered worker in an

20 open job acceptable to the worker, including avail21 able jobs not listed on the registry, before referring

22 such worker to an employer for a job opportunity al23 ready filled by, or committed to, an alien admitted

24 pursuant to this Act.
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•S 1814 IS

1 SEC. 305. PROGRAM FOR THE ADMISSION OF TEMPORARY

2 H–2A WORKERS.

3 Section 218 of the Immigration and Nationality Act

4 (8 U.S.C. 1188) is amended to read as follows:

5 ‘‘ADMISSION OF TEMPORARY H–2A WORKERS

6 ‘‘SEC. 218. (a) PROCEDURE FOR ADMISSION OR EX7 TENSION OF ALIENS.—

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

9 STATES.—

10 ‘‘(A) CRITERIA FOR ADMISSIBILITY.—

11 ‘‘(i) IN GENERAL.—An alien described

12 in section 101(a)(15)(H)(ii)(a) of the Im13 migration and Nationality Act shall be ad14 missible under this section if the alien is

15 designated pursuant to section 302 of the

16 Agricultural Job Opportunity Benefits and

17 Security Act of 1999, otherwise admissible

18 under this Act, and the alien is not ineli19 gible under clause (ii).

20 ‘‘(ii) DISQUALIFICATION.—An alien

21 shall be ineligible for admission to the

22 United States or being provided status

23 under this section if the alien has, at any

24 time during the past 5 years—

25 ‘‘(I) violated a material provision

26 of this section, including the require-
62

•S 1814 IS

1 ment to promptly depart the United

2 States when the alien’s authorized pe3 riod of admission under this section

4 has expired; or

5 ‘‘(II) otherwise violated a term or

6 condition of admission to the United

7 States as a nonimmigrant, including

8 overstaying the period of authorized

9 admission as such a nonimmigrant.

10 ‘‘(iii) INITIAL WAIVER OF INELIGI11 BILITY FOR UNLAWFUL PRESENCE.—

12 ‘‘(I) IN GENERAL.—An alien who

13 has not previously been admitted to

14 the United States pursuant to this

15 section, and who is otherwise eligible

16 for admission in accordance with

17 clauses (i) and (ii), shall not be

18 deemed inadmissible by virtue of sec19 tion 212(a)(9)(B). Such an alien shall

20 depart the United States to be eligible

21 for admission under this section.

22 ‘‘(II) TERMINATION.—Subclause

23 (I) shall terminate on the date that is

24 4 years after the date of the enact25 ment of the Agricultural Job Oppor-
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•S 1814 IS

1 tunity Benefits and Security Act of

2 1999.

3 ‘‘(B) PERIOD OF ADMISSION.—The alien

4 shall be admitted for the period requested by

5 the employer not to exceed 10 months, or the

6 ending date of the anticipated period of employ7 ment on the employer’s application for reg8 istered workers, whichever is less, plus an addi9 tional period of 14 days, during which the alien

10 shall seek authorized employment in the United

11 States. During the 14-day period following the

12 expiration of the alien’s work authorization, the

13 alien is not authorized to be employed unless an

14 employer who is authorized to employ such

15 worker has filed an extension of stay on behalf

16 of the alien pursuant to paragraph (2).

17 ‘‘(C) ABANDONMENT OF EMPLOYMENT.—

18 ‘‘(i) IN GENERAL.—An alien admitted

19 or provided status under this section who

20 abandons the employment which was the

21 basis for such admission or status shall be

22 considered to have failed to maintain non23 immigrant status as an alien described in

24 section 101(a)(15)(H)(ii)(a) and shall de-
64

•S 1814 IS

1 part the United States or be subject to re2 moval under section 237(a)(1)(C)(i).

3 ‘‘(ii) REPORT BY EMPLOYER.—The

4 employer (or association acting as agent

5 for the employer) shall notify the Attorney

6 General within 7 days of an alien admitted

7 or provided status under this Act pursuant

8 to an application to the Secretary of Labor

9 under section 302 of the Agricultural Job

10 Opportunity Benefits and Security Act of

11 1999 by the employer who prematurely

12 abandons the alien’s employment.

13 ‘‘(iii) REMOVAL BY THE ATTORNEY

14 GENERAL.—The Attorney General shall

15 promptly remove from the United States

16 aliens admitted pursuant to section

17 101(a)(15)(H)(ii)(a) who have failed to

18 maintain nonimmigrant status or who have

19 otherwise violated the terms of a visa

20 issued under this title.

21 ‘‘(iv) VOLUNTARY TERMINATION.—

22 Notwithstanding the provisions of clause

23 (i), an alien may voluntarily terminate his

24 or her employment if the alien promptly
65

•S 1814 IS

1 departs the United States upon termi2 nation of such employment.

3 ‘‘(D) IDENTIFICATION DOCUMENT AND

4 IDENTIFICATION SYSTEM.—

5 ‘‘(i) IN GENERAL.—Each alien admit6 ted under this section shall, upon receipt of

7 a visa, be given an identification and em8 ployment eligibility document to verify eli9 gibility for employment in the United

10 States and verify such person’s proper

11 identity.

12 ‘‘(ii) REQUIREMENTS.—No identifica13 tion and employment eligibility document

14 may be issued and no identification system

15 may be implemented which does not meet

16 the following requirements:

17 ‘‘(I) The document and system

18 shall be capable of reliably deter19 mining whether—

20 ‘‘(aa) the individual with the

21 identification and employment

22 eligibility document whose eligi23 bility is being verified is in fact

24 eligible for employment,
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•S 1814 IS

1 ‘‘(bb) the individual whose

2 eligibility is being verified is

3 claiming the identity of another

4 person, and

5 ‘‘(cc) the individual whose

6 eligibility is being verified has

7 been properly admitted under

8 this section.

9 ‘‘(II) The document shall be in

10 the form that is resistant to counter11 feiting and to tampering.

12 ‘‘(III) The document and system

13 shall—

14 ‘‘(aa) be compatible with

15 other Immigration and Natu16 ralization Service databases and

17 other Federal government data18 bases for the purpose of exclud19 ing aliens from benefits for which

20 they are not eligible and to deter21 mine whether the alien is illegally

22 present in the United States, and

23 ‘‘(bb) be compatible with law

24 enforcement databases to deter-
67

•S 1814 IS

1 mine if the alien has been con2 victed of criminal offenses.

3 ‘‘(2) EXTENSION OF STAY OF ALIENS IN THE

4 UNITED STATES.—

5 ‘‘(A) EXTENSION OF STAY.—If an em6 ployer with respect to whom a report or applica7 tion described in section 302(a)(1) of the Agri8 cultural Job Opportunity Benefits and Security

9 Act of 1999 has been submitted seeks to em10 ploy an alien who has acquired status under

11 this section and who is lawfully present in the

12 United States, the employer shall file with the

13 Attorney General an application for an exten14 sion of the alien’s stay or a change in the

15 alien’s authorized employment. The application

16 shall be accompanied by a copy of the appro17 priate report or application described in section

18 302 of the Agricultural Job Opportunity Bene19 fits and Security Act of 1999.

20 ‘‘(B) LIMITATION ON FILING AN APPLICA21 TION FOR EXTENSION OF STAY.—An applica22 tion may not be filed for an extension of an

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

24 months, or later than a date which is 3 years

25 from the date of the alien’s last admission to
68

•S 1814 IS

1 the United States under this section, whichever

2 occurs first.

3 ‘‘(C) WORK AUTHORIZATION UPON FILING

4 AN APPLICATION FOR EXTENSION OF STAY.—

5 An employer may begin employing an alien who

6 is present in the United States who has ac7 quired status under this Act on the day the em8 ployer files an application for extension of stay.

9 For the purpose of this requirement, the term

10 ‘filing’ means sending the application by cer11 tified mail via the United States Postal Service,

12 return receipt requested, or delivered by guar13 anteed commercial delivery which will provide

14 the employer with a documented acknowledg15 ment of the date of sending and receipt of the

16 application. The employer shall provide a copy

17 of the employer’s application to the alien, who

18 shall keep the application with the alien’s iden19 tification and employment eligibility document

20 as evidence that the application has been filed

21 and that the alien is authorized to work in the

22 United States. Upon approval of an application

23 for an extension of stay or change in the alien’s

24 authorized employment, the Attorney General

25 shall provide a new or updated employment eli-
69

•S 1814 IS

1 gibility document to the alien indicating the

2 new validity date, after which the alien is not

3 required to retain a copy of the application.

4 ‘‘(D) LIMITATION ON EMPLOYMENT AU5 THORIZATION OF ALIENS WITHOUT VALID

6 IDENTIFICATION AND EMPLOYMENT ELIGI7 BILITY CARD.—An expired identification and

8 employment eligibility document, together with

9 a copy of an application for extension of stay or

10 change in the alien’s authorized employment

11 that complies with the requirements of subpara12 graph (A), shall constitute a valid work author13 ization document for a period of not more than

14 60 days from the date of application for the ex15 tension of stay, after which time only a cur16 rently valid identification and employment eligi17 bility document shall be acceptable.

18 ‘‘(E) LIMITATION ON AN INDIVIDUAL’S

19 STAY IN STATUS.—An alien having status under

20 this section may not have the status extended

21 for a continuous period longer than 3 years un22 less the alien remains outside the United States

23 for an uninterrupted period of 6 months. An

24 absence from the United States may break the

25 continuity of the period for which a non-
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•S 1814 IS

1 immigrant visa issued under section

2 101(a)(15)(H)(ii)(a) is valid. If the alien has

3 resided in the United States 10 months or less,

4 an absence breaks the continuity of the period

5 if it lasts for at least 2 months. If the alien has

6 resided in the United States 10 months or

7 more, an absence breaks the continuity of the

8 period if it lasts for at least one-fifth the dura9 tion of the stay.

10 ‘‘(b) STUDY BY THE ATTORNEY GENERAL.—The At11 torney General shall conduct a study to determine whether

12 aliens under this section depart the United States in a

13 timely manner upon the expiration of their period of au14 thorized stay. If the Attorney General finds that a signifi15 cant number of aliens do not so depart and that with16 holding a portion of the aliens’ wages to be refunded upon

17 timely departure is necessary as an inducement to assure

18 such departure, then the Attorney General shall so report

19 to Congress and make recommendations on appropriate

20 courses of action.’’.

21 (b) NO FAMILY MEMBERS PERMITTED.—Section

22 101(a)(15)(H) of the Immigration and Nationality Act (8

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

24 in this paragraph’’ and inserting ‘‘specified in this sub25 paragraph (other than in clause (ii)(a))’’.
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•S 1814 IS

1 (c) RANGE PRODUCTION OF LIVESTOCK.—Nothing

2 in this title shall preclude the Secretary of Labor and the

3 Attorney General from continuing to apply special proce4 dures to the employment, admission, and extension of

5 aliens in the range production of livestock.

6 TITLE IV—MISCELLANEOUS

7 PROVISIONS

8 SEC. 401. ENHANCED WORKER PROTECTIONS AND LABOR

9 STANDARDS ENFORCEMENT.

10 (a) ENFORCEMENT AUTHORITY.—

11 (1) INVESTIGATION OF COMPLAINTS.—

12 (A) AGGRIEVED PERSON OR THIRD PARTY

13 COMPLAINTS.—The Secretary shall establish a

14 process for the receipt, investigation, and dis15 position of complaints respecting an employer’s

16 failure to meet a condition specified in section

17 301 or an employer’s misrepresentation of ma18 terial facts in an application under that section,

19 or violation of the provisions described in sub20 paragraph (B). Complaints may be filed by any

21 aggrieved person or any organization (including

22 bargaining 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
72

•S 1814 IS

1 months after the date of the failure or mis2 representation, as the case may be. The Sec3 retary shall conduct an investigation under this

4 paragraph if there is reasonable cause to believe

5 that such a failure or misrepresentation has oc6 curred.

7 (B) EXPEDITED INVESTIGATION OF SERI8 OUS CHILD LABOR, WAGE, AND HOUSING VIOLA9 TIONS.—The Secretary shall complete an inves10 tigation and issue a written determination as to

11 whether or not a violation has been committed

12 within 10 days of the receipt of a complaint

13 pursuant to subparagraph (A) if there is rea14 sonable cause to believe that any of the fol15 lowing serious violations have occurred:

16 (i) A violation of section 12(c) of the

17 Fair Labor Standards Act of 1938 (29

18 U.S.C. 212(c)).

19 (ii) A failure to make a wage pay20 ment, except that complaints alleging that

21 an amount less than the wages due has

22 been paid shall be handled pursuant to

23 subparagraph (A).
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•S 1814 IS

1 (iii) A failure to provide the housing

2 allowance required under section

3 304(b)(6).

4 (iv) Providing housing pursuant to

5 section 304(b)(1) that fails to comply with

6 standards under section 304(b)(2) and

7 which poses an immediate threat of serious

8 bodily injury or death to workers.

9 (C) STATUTORY CONSTRUCTION.—Nothing

10 in this Act limits the authority of the Secretary

11 of Labor to conduct any compliance investiga12 tion under any other labor law, including any

13 law affecting migrant and seasonal agricultural

14 workers or, in the absence of a complaint under

15 this paragraph, under this Act.

16 (2) WRITTEN NOTICE OF FINDING AND OPPOR17 TUNITY FOR APPEAL.—After an investigation has

18 been conducted, the Secretary shall issue a written

19 determination as to whether or not any violation de20 scribed in subsection (b) has been committed. The

21 Secretary’s determination shall be served on the

22 complainant and the employer, and shall provide an

23 opportunity for an appeal of the Secretary’s decision

24 to an administrative law judge, who may conduct a

25 de novo hearing.
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•S 1814 IS

1 (3) ABILITY OF ALIEN WORKERS TO CHANGE

2 EMPLOYERS.—

3 (A) IN GENERAL.—Pending the completion

4 of an investigation pursuant to paragraph

5 (1)(A), the Secretary may permit the transfer

6 of an aggrieved person who has filed a com7 plaint under such paragraph to an employer

8 that—

9 (i) has been approved to employ work10 ers under this Act; and

11 (ii) agrees to accept the person for

12 employment.

13 (B) REPLACEMENT WORKER.—An ag14 grieved person may not be transferred under

15 subparagraph (A) until such time as the em16 ployer from whom the person is to be trans17 ferred receives a requested replacement worker

18 referred by a registry pursuant to section 302

19 of this Act or provided status under section

20 101(a)(15)(H)(ii)(a) of the Immigration and

21 Nationality Act.

22 (C) LIMITATION.—An employer from

23 whom an aggrieved person has been transferred

24 under this paragraph shall have no obligation to

25 reimburse the person for the cost of transpor-
75

•S 1814 IS

1 tation prior to the completion of the period of

2 employment referred to in section 304(c).

3 (D) VOLUNTARY TRANSFER.—Notwith4 standing this paragraph, an employer may vol5 untarily agree to transfer a worker to another

6 employer that—

7 (i) has been approved to employ work8 ers under this Act; and

9 (ii) agrees to accept the person for

10 employment.

11 (b) REMEDIES.—

12 (1) BACK WAGES.—Upon a final determination

13 that the employer has failed to pay wages as re14 quired under this section, the Secretary may assess

15 payment of back wages due to any United States

16 worker or alien described in section

17 101(a)(15)(H)(ii)(a) of the Immigration and Nation18 ality Act employed by the employer in the specific

19 employment in question. The back wages shall be

20 equal to the difference between the amount that

21 should have been paid and the amount that actually

22 was paid to such worker.

23 (2) FAILURE TO PAY WAGES.—Upon a final de24 termination that the employer has failed to pay the

25 wages required under this Act, the Secretary may
76

•S 1814 IS

1 assess a civil money penalty up to $1,000 for each

2 person for whom the employer failed to pay the re3 quired wage, and may recommend to the Attorney

4 General the disqualification of the employer from the

5 employment of aliens described in section

6 101(a)(15)(H)(ii)(a) of the Immigration and Nation7 ality Act for a period of time determined by the Sec8 retary not to exceed 1 year.

9 (3) OTHER VIOLATIONS.—If the Secretary, as a

10 result of an investigation pursuant to a complaint,

11 determines that an employer covered by an applica12 tion under section 401(a) has—

13 (A) filed an application that misrepresents

14 a material fact;

15 (B) failed to meet a condition specified in

16 section 401; or

17 (C) committed a serious violation of sub18 section (a)(1)(B),

19 the Secretary may seek a cease and desist order and

20 assess a civil money penalty not to exceed $1,000 for

21 each violation and may recommend to the Attorney

22 General the disqualification of the employer if the

23 Secretary finds it to be a substantial misrepresenta24 tion or violation of the requirements for the employ25 ment of any United States workers or aliens de-
77

•S 1814 IS

1 scribed in section 101(a)(15)(ii)(a) of the Immigra2 tion and Nationality Act for a period of time deter3 mined by the Secretary not to exceed 1 year. In de4 termining the amount of civil money penalty to be

5 assessed or whether to recommend disqualification of

6 the employer, the Secretary shall consider the seri7 ousness of the violation, the good faith of the em8 ployer, the size of the business of the employer being

9 charged, the history of previous violations by the em10 ployer, whether the employer obtained a financial

11 gain from the violation, whether the violation was

12 willful, and other relevant factors.

13 (4) EXPANDED PROGRAM DISQUALIFICATION.—

14 (A) 3 YEARS FOR SECOND VIOLATION.—

15 Upon a second final determination that an em16 ployer has failed to pay the wages required

17 under this Act, or a second final determination

18 that the employer has committed another sub19 stantial violation under paragraph (3) in the

20 same category of violations, with respect to the

21 same alien, the Secretary shall report such de22 termination to the Attorney General and the

23 Attorney General shall disqualify the employer

24 from the employment of aliens described in sec-
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•S 1814 IS

1 tion 101(a)(15)(H)(ii)(a) of the Immigration

2 and Nationality Act for a period of 3 years.

3 (B) PERMANENT FOR THIRD VIOLATION.—

4 Upon a third final determination that an em5 ployer has failed to pay the wages required

6 under this section or committed other substan7 tial violations under paragraph (3), the Sec8 retary shall report such determination to the

9 Attorney General, and the Attorney General

10 shall disqualify the employer from any subse11 quent employment of aliens described in section

12 101(a)(15)(H)(ii)(a) of the Immigration and

13 Nationality Act.

14 (c) ROLE OF ASSOCIATIONS.—

15 (1) VIOLATION BY A MEMBER OF AN ASSOCIA16 TION.—An employer on whose behalf an application

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

18 responsible for such application, and for complying

19 with the terms and conditions of this Act, as though

20 the employer had filed the application itself. If such

21 an employer is determined to have violated a re22 quirement of this section, the penalty for such viola23 tion shall be assessed against the employer who com24 mitted the violation and not against the association

25 or other members of the association.
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•S 1814 IS

1 (2) VIOLATION BY AN ASSOCIATION ACTING AS

2 AN EMPLOYER.—If an association filing an applica3 tion on its own behalf as an employer is determined

4 to have committed a violation under this subsection

5 which results in disqualification from the program

6 under subsection (b), no individual member of such

7 association may be the beneficiary of the services of

8 an alien described in section 101(a)(15)(H)(ii)(a) of

9 the Immigration and Nationality Act in an occupa10 tion in which such alien was employed by the asso11 ciation during the period such disqualification is in

12 effect, unless such member files an application as an

13 individual employer or such application is filed on

14 the employer’s behalf by an association with which

15 the employer has an agreement that the employer

16 will comply with the requirements of this Act.

17 (d) STUDY OF AGRICULTURAL LABOR STANDARDS

18 AND ENFORCEMENT.—

19 (1) COMMISSION ON HOUSING MIGRANT AGRI20 CULTURAL WORKERS.—

21 (A) ESTABLISHMENT.—There is estab22 lished the Commission on Housing Migrant Ag23 ricultural Workers (in this paragraph referred

24 to as the ‘‘Commission’’).
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•S 1814 IS

1 (B) COMPOSITION.—The Commission shall

2 consist of 12 members, as follows:

3 (i) Four representatives of agricul4 tural employers and one representative of

5 the Department of Agriculture, each ap6 pointed by the Secretary of Agriculture.

7 (ii) Four representatives of agricul8 tural workers and one representative of the

9 Department of Labor, each appointed by

10 the Secretary of Labor.

11 (iii) One State or local official knowl12 edgeable about farmworker housing and

13 one representative of Housing and Urban

14 Development, each appointed by the Sec15 retary of Housing and Urban Develop16 ment.

17 (C) FUNCTIONS.—The Commission shall

18 conduct a study of the problem of in-season

19 housing for migrant agricultural workers.

20 (D) INTERIM REPORTS.—The Commission

21 may at any time submit interim reports to Con22 gress describing the findings made up to that

23 time with respect to the study conducted under

24 subparagraph (C).
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1 (E) FINAL REPORT.—Not later than 3

2 years after the date of enactment of this Act,

3 the Commission shall submit a report to Con4 gress setting forth the findings of the study

5 conducted under subparagraph (C).

6 (F) TERMINATION DATE.—The Commis7 sion shall terminate upon filing its final report.

8 (2) STUDY OF RELATIONSHIP BETWEEN CHILD

9 CARE AND CHILD LABOR.—The Secretaries of

10 Labor, Agriculture, and Health and Human Services

11 shall jointly conduct a study of the issues relating to

12 child care of migrant agricultural workers. Such

13 study shall address issues related to the adequacy of

14 educational and day care services for migrant chil15 dren and the relationship, if any, of child care needs

16 and child labor violations in agriculture. An evalua17 tion of migrant and seasonal Head Start programs

18 (as defined in section 637(12) of the Head Start

19 Act) as they relate to these issues shall be included

20 as a part of the study.

21 (3) STUDY OF FIELD SANITATION.—The Sec22 retary of Labor and the Secretary of Agriculture

23 shall jointly conduct a study regarding current field

24 sanitation standards in agriculture and evaluate al-
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1 ternative approaches and innovations that may fur2 ther compliance with such standards.

3 (4) STUDY OF COORDINATED AND TARGETED

4 LABOR STANDARDS ENFORCEMENT.—The Secretary,

5 in consultation with the Secretary of Agriculture,

6 shall conduct a study of the most persistent and se7 rious labor standards violations in agriculture and

8 evaluate the most effective means of coordinating

9 enforcement efforts between Federal and State offi10 cials. The study shall place primary emphasis on the

11 means by which Federal and State authorities, in

12 consultation with representatives of workers and ag13 ricultural employers, may develop more effective

14 methods of targeting resources at repeated and egre15 gious violators of labor standards. The study also

16 shall consider ways of facilitating expanded edu17 cation among agricultural employers and workers re18 garding compliance with labor standards and evalu19 ate means of broadening such education on a cooper20 ative basis among employers and workers.

21 (5) REPORT.—Not later than 3 years after the

22 date of enactment of this Act, with respect to each

23 study required to be conducted under paragraphs (2)

24 through (4), the Secretary or group of Secretaries
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1 required to conduct the study shall submit to Con2 gress a report setting forth the findings of the study.

3 SEC. 402. BILATERAL COMMISSIONS.

4 The Attorney General is authorized and requested to

5 establish a bilateral commission between the United States

6 and each country not less than 10,000 nationals of which

7 are nonimmigrant aliens described in section

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

9 Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)). Such bilateral com10 missions shall provide a forum to the governments in11 volved to discuss matters of mutual concern regarding the

12 program for the admission of aliens under section

13 101(a)(15)(H)(ii)(a) of the Immigration and Nationality

14 Act.

15 SEC. 403. REGULATIONS.

16 (a) REGULATIONS OF THE ATTORNEY GENERAL.—

17 The Attorney General shall consult with the Secretary and

18 the Secretary of Agriculture on all regulations to imple19 ment the duties of the Attorney General under this Act.

20 (b) REGULATIONS OF THE SECRETARY OF STATE.—

21 The Secretary of State shall consult with the Attorney

22 General, the Secretary of Labor, and the Secretary of Ag23 riculture on all regulations to implement the duties of the

24 Secretary of State under this Act.
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1 (c) REGULATIONS OF THE SECRETARY OF LABOR.—

2 The Secretary shall consult with the Secretary of Agri3 culture and shall obtain the approval of the Attorney Gen4 eral on all regulations to implement the duties of the Sec5 retary under this Act.

6 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.—

7 All regulations to implement the duties of the Attorney

8 General, the Secretary of State, and the Secretary of

9 Labor shall take effect on the effective date of this Act.

10 SEC. 404. DETERMINATION AND USE OF USER FEES.

11 (a) SCHEDULE OF FEES.—The Secretary of Labor

12 shall establish and periodically adjust a schedule for the

13 registry user fee and the alien employment user fee im14 posed under this Act, and a collection process for such

15 fees from employers participating in the programs pro16 vided under this Act. Such fees shall be the only fees

17 chargeable to employers for services provided under this

18 Act.

19 (b) DETERMINATION OF SCHEDULE.—

20 (1) IN GENERAL.—The schedule under sub21 section (a) shall reflect a fee rate based on the num22 ber of job opportunities indicated in an employer’s

23 application under section 301(a)(1)(C) and sufficient

24 to provide for the reimbursement of the direct costs

25 of providing the following services:
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1 (A) REGISTRY USER FEE.—Services pro2 vided through the agricultural worker registries

3 established under section 301(a), including reg4 istration, referral, and validation, but not in5 cluding services that would otherwise be pro6 vided by the Secretary of Labor under related

7 or similar programs if such registries had not

8 been established.

9 (B) ALIEN EMPLOYMENT USER FEE.—

10 Services related to an employer’s authorization

11 to employ eligible aliens pursuant to this Act,

12 including the establishment and certification of

13 eligible employers, the issuance of documenta14 tion, and the admission of eligible aliens.

15 (2) PROCEDURE.—

16 (A) IN GENERAL.—In establishing and ad17 justing such schedule, the Secretary of Labor

18 shall comply with Federal cost accounting and

19 fee setting standards.

20 (B) PUBLICATION AND COMMENT.—The

21 Secretary of Labor shall publish in the Federal

22 Register an initial fee schedule and associated

23 collection process and the cost data or estimates

24 upon which such fee schedule is based, and any

25 subsequent amendments thereto, pursuant to
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1 which public comment will be sought and a final

2 rule issued.

3 (c) USE OF PROCEEDS.—

4 (1) IN GENERAL.—All proceeds resulting from

5 the payment of registry user fees and alien employ6 ment user fees shall be available without further ap7 propriation and shall remain available without fiscal

8 year limitation to reimburse the Secretaries of

9 Labor, State, and Agriculture, and the Attorney

10 General for the costs of carrying out section 218 of

11 the Immigration and Nationality Act and the provi12 sions of this Act.

13 (2) LIMITATION ON ENFORCEMENT COSTS.—In

14 making a determination of reimbursable costs under

15 paragraph (1), the Secretary of Labor shall provide

16 that reimbursement of the costs of enforcement

17 under section 401 shall not exceed 10 percent of the

18 direct costs of the Secretary described in subsection

19 (b)(1) (A) and (B).

20 SEC. 405. FUNDING FOR STARTUP COSTS.

21 If additional funds are necessary to pay the startup

22 costs of the agricultural worker registries established

23 under section 301(a), such costs may be paid out of

24 amounts available to Federal or State governmental enti25 ties under the Wagner-Peyser Act (29 U.S.C. 49 et seq.).
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1 Proceeds described in section 404(c) may be used to reim2 burse the use of such available amounts.

3 SEC. 406. REPORT TO CONGRESS.

4 (a) REQUIREMENT.—Not later than 4 years after the

5 effective date under section 408, the Resources, Commu6 nity and Economic Development Division, and the Health,

7 Education and Human Services Division, of the Office of

8 the Comptroller General of the United States shall jointly

9 prepare and transmit to the Committee on the Judiciary

10 of the House of Representatives and the Committee on

11 the Judiciary of the Senate a report describing the results

12 of a review of the implementation of and compliance with

13 this Act. The report shall address—

14 (1) whether the program has ensured an ade15 quate and timely supply of qualified, eligible workers

16 at the time and place needed by employers;

17 (2) whether the program has ensured that

18 aliens admitted under this program are employed

19 only in authorized employment, and that they timely

20 depart the United States when their authorized stay

21 ends;

22 (3) whether the program has ensured that par23 ticipating employers comply with the requirements of

24 the program with respect to the employment of
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1 United States workers and aliens admitted under

2 this program;

3 (4) whether the program has ensured that

4 aliens admitted under this program are not dis5 placing eligible, qualified United States workers or

6 diminishing the wages and other terms and condi7 tions of employment of eligible United States work8 ers;

9 (5) to the extent practicable, compare the wages

10 and other terms of employment of eligible United

11 States workers and aliens employed under this pro12 gram with the wages and other terms of employment

13 of agricultural workers who are not authorized to

14 work in the United States;

15 (6) whether the housing provisions of this pro16 gram ensure that adequate housing is available to

17 workers employed under this program who are re18 quired to be provided housing or a housing allow19 ance;

20 (7) recommendations for improving the oper21 ation of the program for the benefit of participating

22 employers, eligible United States workers, partici23 pating aliens, and governmental agencies involved in

24 administering the program; and
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1 (8) recommendations for the continuation or

2 termination of the program under this Act.

3 (b) ADVISORY BOARD.—There shall be established an

4 advisory board to be composed of—

5 (1) four representatives of agricultural employ6 ers to be appointed by the Secretary of Agriculture,

7 including individuals who have experience with the

8 H–2A program; and

9 (2) four representatives of agricultural workers

10 to be appointed by the Secretary of Labor, including

11 individuals who have experience with the H–2A pro12 gram,

13 to provide advice to the Comptroller General in the prepa14 ration of the reports required under subsection (a).

15 SEC. 407. EFFECTIVE DATE.

16 (a) IN GENERAL.—This Act and the amendments

17 made by this Act shall become effective on the date that

18 is 1 year after the date of enactment of this Act.

19 (b) REPORT.—Not later than 180 days after the date

20 of enactment of this Act, the Secretary shall prepare and

21 submit to the appropriate committees of Congress a report

22 that described the measures being taken and the progress

23 made in implementing this Act.

Æ