II 

111TH CONGRESS 

1ST SESSION S. 1038 

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

in the United States, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 14, 2009 

Mrs. FEINSTEIN (for herself, Mr. LEAHY, Mr. SCHUMER, Mr. KENNEDY, Mr. 

KOHL, Mrs. BOXER, Mr. DODD, Mr. LIEBERMAN, Mr. BINGAMAN, Mr. 

FEINGOLD, Mrs. MURRAY, Mr. KERRY, Mr. NELSON of Florida, Mr. 

KAUFMAN, Mr. CASEY, Ms. CANTWELL, and Mr. LEVIN) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

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

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

3 SECTION 1. SHORT TITLE, TABLE OF CONTENTS. 

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

5 ‘‘Agricultural Job Opportunities, Benefits, and Security 

6 Act of 2009’’ or the ‘‘AgJOBS Act of 2009’’. 

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

8 this Act is as follows: 


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Sec. 1. Short title, table of contents. 

Sec. 2. Definitions. 

TITLE I—PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT 

OF AGRICULTURAL WORKERS 

Subtitle A—Blue Card Status 

Sec. 101. Requirements for blue card status. 

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

Sec. 103. Adjustment to permanent residence. 

Sec. 104. Applications. 

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

Sec. 106. Administrative and judicial review. 

Sec. 107. Use of information. 

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

Subtitle B—Correction of Social Security Records 

Sec. 111. Correction of Social Security records. 

TITLE II—REFORM OF H–2A WORKER PROGRAM 

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

TITLE III—MISCELLANEOUS PROVISIONS 

Sec. 301. Determination and use of user fees. 

Sec. 302. Regulations. 

Sec. 303. Reports to Congress. 

Sec. 304. Effective date. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) AGRICULTURAL EMPLOYMENT.—The term 

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

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

9 or the performance of agricultural labor or services 

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

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

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

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

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

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

8 means the Department of Homeland Security. 

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

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

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

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

16 (6) WORK DAY.—The term ‘‘work day’’ means 

17 any day in which the individual is employed 5.75 or 

18 more hours in agricultural employment. 


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1 TITLE I—PILOT PROGRAM FOR 

2 EARNED STATUS ADJUST3 MENT OF AGRICULTURAL 

4 WORKERS 

5 Subtitle A—Blue Card Status 

6 SEC. 101. REQUIREMENTS FOR BLUE CARD STATUS. 

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

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

11 this section if the Secretary determines that the alien— 

12 (1) has performed agricultural employment in 

13 the United States for at least 863 hours or 150 

14 work days during the 24-month period ending on 

15 December 31, 2008; 

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

17 application period beginning on the first day of the 

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

20 (3) is otherwise admissible to the United States 

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

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

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

2 property in excess of $500. 

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

4 blue card status is authorized to travel outside the United 

5 States (including commuting to the United States from 

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

7 an alien lawfully admitted for permanent residence. 

8 (c) AUTHORIZED EMPLOYMENT.—The Secretary 

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

10 employment authorized endorsement or other appropriate 

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

13 (d) TERMINATION OF BLUE CARD STATUS.— 

14 (1) DEPORTABLE ALIENS.—The Secretary shall 

15 terminate blue card status granted to an alien if the 

16 Secretary determines that the alien is deportable. 

17 (2) OTHER GROUNDS FOR TERMINATION.—The 

18 Secretary shall terminate blue card status granted to 

19 an alien if— 

20 (A) the Secretary finds, by a preponder21 ance of the evidence, that the adjustment to 

22 blue card status was the result of fraud or will23 ful misrepresentation, as described in section 

24 212(a)(6)(C)(i) of the Immigration and Nation25 ality Act (8 U.S.C. 1182(a)(6)(C)(i)); or 


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1 (B) the alien— 

2 (i) commits an act that makes the 

3 alien inadmissible to the United States 

4 under section 212 of the Immigration and 

5 Nationality Act (8 U.S.C. 1182), except as 

6 provided under section 105(b); 

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

8 more misdemeanors committed in the 

9 United States; 

10 (iii) is convicted of an offense, an ele11 ment of which involves bodily injury, threat 

12 of serious bodily injury, or harm to prop13 erty in excess of $500; or 

14 (iv) fails to perform the agricultural 

15 employment required under paragraph 

16 (1)(A) of section 103(a) unless the alien 

17 was unable to work in agricultural employ18 ment due to the extraordinary cir19 cumstances described in paragraph (3) of 

20 such section. 

21 (e) RECORD OF EMPLOYMENT.— 

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

23 granted blue card status shall annually— 

24 (A) provide a written record of employ25 ment to the alien; and 


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

2 Secretary. 

3 (2) CIVIL PENALTIES.— 

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

5 after notice and opportunity for a hearing, that 

6 an employer of an alien granted blue card sta7 tus has failed to provide the record of employ8 ment required under paragraph (1) or has pro9 vided a false statement of material fact in such 

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

11 penalty in an amount not to exceed $1,000 per 

12 violation. 

13 (B) LIMITATION.—The penalty applicable 

14 under subparagraph (A) for failure to provide 

15 records shall not apply unless the alien has pro16 vided the employer with evidence of employment 

17 authorization granted under this section. 

18 (3) SUNSET.—The obligation under paragraph 

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

20 the date of the enactment of this Act. 

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

22 Secretary shall provide each alien granted blue card sta23 tus, and the spouse and any child of each such alien resid24 ing in the United States, with a card that contains— 


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

2 identification strip that is unique to the alien to 

3 whom the card is issued; 

4 (2) biometric identifiers, including fingerprints 

5 and a digital photograph; and 

6 (3) physical security features designed to pre7 vent tampering, counterfeiting, or duplication of the 

8 card for fraudulent purposes. 

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

10 pay a fine of $100 to the Secretary. 

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

12 issue more than 1,350,000 blue cards during the 5-year 

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

14 SEC. 102. TREATMENT OF ALIENS GRANTED BLUE CARD 

15 STATUS. 

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

17 under this section, an alien granted blue card status (in18 cluding a spouse or child of the alien granted derivative 

19 status) shall be considered to be an alien lawfully admitted 

20 for permanent residence for purposes of any law other 

21 than any provision of the Immigration and Nationality Act 

22 (8 U.S.C. 1101 et seq.). 

23 (b) DELAYED ELIGIBILITY FOR CERTAIN FEDERAL

24 PUBLIC BENEFITS.—Except as otherwise provided in law, 

25 an alien granted blue card status (including a spouse or 


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1 child of the alien granted derivative status) shall not be 

2 eligible, by reason of such status, for any form of assist3 ance or benefit described in section 403(a) of the Personal 

4 Responsibility and Work Opportunity Reconciliation Act 

5 of 1996 (8 U.S.C. 1613(a)) until 5 years after the date 

6 on which the alien is granted an adjustment of status 

7 under section 103. 

8 SEC. 103. ADJUSTMENT TO PERMANENT RESIDENCE. 

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

10 (b), the Secretary shall adjust the status of an alien grant11 ed blue card status to that of an alien lawfully admitted 

12 for permanent residence if the Secretary determines that 

13 the following requirements are satisfied: 

14 (1) QUALIFYING EMPLOYMENT.— 

15 (A) IN GENERAL.—Subject to subpara16 graph (B), the alien has performed at least— 

17 (i) 5 years of agricultural employment 

18 in the United States for at least 100 work 

19 days per year, during the 5-year period be20 ginning on the date of the enactment of 

21 this Act; or 

22 (ii) 3 years of agricultural employ23 ment in the United States for at least 150 

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1 riod beginning on the date of the enact2 ment of this Act. 

3 (B) 4-YEAR PERIOD OF EMPLOYMENT.— 

4 An alien shall be considered to meet the re5 quirements of subparagraph (A) if the alien has 

6 performed 4 years of agricultural employment 

7 in the United States for at least 150 work days 

8 during 3 years of those 4 years and at least 

9 100 work days during the remaining year, dur10 ing the 4-year period beginning on the date of 

11 the enactment of this Act. 

12 (2) PROOF.—An alien may demonstrate compli13 ance with the requirement under paragraph (1) by 

14 submitting— 

15 (A) the record of employment described in 

16 section 101(e); or 

17 (B) documentation that may be submitted 

18 under section 104(c). 

19 (3) EXTRAORDINARY CIRCUMSTANCES.— 

20 (A) IN GENERAL.—In determining whether 

21 an alien has met the requirement of paragraph 

22 (1)(A), the Secretary may credit the alien with 

23 not more than 12 additional months of agricul24 tural employment in the United States to meet 


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1 such requirement if the alien was unable to 

2 work in agricultural employment due to— 

3 (i) pregnancy, injury, or disease, if the 

4 alien can establish such pregnancy, dis5 abling injury, or disease through medical 

6 records; 

7 (ii) illness, disease, or other special 

8 needs of a minor child, if the alien can es9 tablish such illness, disease, or special 

10 needs through medical records; 

11 (iii) severe weather conditions that 

12 prevented the alien from engaging in agri13 cultural employment for a significant pe14 riod of time; or 

15 (iv) termination from agricultural em16 ployment, if the Secretary finds that the 

17 termination was without just cause and 

18 that the alien was unable to find alter19 native agricultural employment after a rea20 sonable job search. 

21 (B) EFFECT OF FINDING.—A finding 

22 made under subparagraph (A)(iv), with respect 

23 to an alien, shall not— 

24 (i) be conclusive, binding, or admis25 sible in a separate or subsequent judicial 


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1 or administrative action or proceeding be2 tween the alien and a current or prior em3 ployer of the alien or any other party; or 

4 (ii) subject the alien’s employer to the 

5 payment of attorney fees incurred by the 

6 alien in seeking to obtain a finding under 

7 subparagraph (A)(iv). 

8 (4) APPLICATION PERIOD.—The alien applies 

9 for adjustment of status not later than 7 years after 

10 the date of the enactment of this Act. 

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

12 Secretary. 

13 (b) GROUNDS FOR DENIAL OF ADJUSTMENT OF STA14 TUS.—The Secretary shall deny an alien granted blue card 

15 status an adjustment of status under this section if— 

16 (1) the Secretary finds, by a preponderance of 

17 the evidence, that the adjustment to blue card status 

18 was the result of fraud or willful misrepresentation, 

19 as described in section 212(a)(6)(C)(i) of the Immi20 gration and Nationality Act (8 U.S.C. 

21 1182(a)(6)(C)(i)); or 

22 (2) the alien— 

23 (A) commits an act that makes the alien 

24 inadmissible to the United States under section 

25 212 of the Immigration and Nationality Act (8 


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

2 105(b); 

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

4 misdemeanors committed in the United States; 

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

6 of which involves bodily injury, threat of serious 

7 bodily injury, or harm to property in excess of 

8 $500; or 

9 (D) failed to perform the agricultural em10 ployment required under paragraph (1)(A) of 

11 subsection (a) unless the alien was unable to 

12 work in agricultural employment due to the ex13 traordinary circumstances described in para14 graph (3) of such subsection. 

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

16 blue card status who does not apply for adjustment of sta17 tus under this section before the expiration of the applica18 tion period described in subsection (a)(4) or who fails to 

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

20 of the application period, is deportable and may be re21 moved under section 240 of the Immigration and Nation22 ality Act (8 U.S.C. 1229a). 

23 (d) PAYMENT OF TAXES.— 

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

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1 tion, the alien shall establish that the alien does not 

2 owe any applicable Federal tax liability by estab3 lishing that— 

4 (A) no such tax liability exists; 

5 (B) all such outstanding tax liabilities have 

6 been paid; or 

7 (C) the alien has entered into an agree8 ment for payment of all outstanding liabilities 

9 with the Internal Revenue Service. 

10 (2) APPLICABLE FEDERAL TAX LIABILITY.—In 

11 paragraph (1) the term ‘‘applicable Federal tax li12 ability’’ means liability for Federal taxes, including 

13 penalties and interest, owed for any year during the 

14 period of employment required under subsection 

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

16 of any deficiency for such taxes has not expired. 

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

18 Treasury shall establish rules and procedures under 

19 which the Commissioner of Internal Revenue shall 

20 provide documentation to an alien upon request to 

21 establish the payment of all taxes required by this 

22 subsection. 

23 (e) SPOUSES AND MINOR CHILDREN.— 

24 (1) IN GENERAL.—Notwithstanding any other 

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1 tus of lawful permanent resident on the spouse and 

2 minor child of an alien granted any adjustment of 

3 status under subsection (a), including any individual 

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

5 granted blue card status, if the spouse or minor 

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

7 includes the spouse or minor child in an application 

8 for adjustment of status to that of a lawful perma9 nent resident. 

10 (2) TREATMENT OF SPOUSES AND MINOR CHIL11 DREN.— 

12 (A) GRANTING OF STATUS AND RE13 MOVAL.—The Secretary shall grant derivative 

14 status to the alien spouse and any minor child 

15 residing in the United States of an alien grant16 ed blue card status and shall not remove such 

17 derivative spouse or child during the period that 

18 the alien granted blue card status maintains 

19 such status, except as provided in paragraph 

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

21 spouse or child under this subparagraph shall 

22 not decrease the number of aliens who may re23 ceive blue card status under subsection (h) of 

24 section 101. 


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1 (B) TRAVEL.—The derivative spouse and 

2 any minor child of an alien granted blue card 

3 status may travel outside the United States in 

4 the same manner as an alien lawfully admitted 

5 for permanent residence. 

6 (C) EMPLOYMENT.—The derivative spouse 

7 of an alien granted blue card status may apply 

8 to the Secretary for a work permit to authorize 

9 such spouse to engage in any lawful employ10 ment in the United States while such alien 

11 maintains blue card status. 

12 (3) GROUNDS FOR DENIAL OF ADJUSTMENT OF

13 STATUS AND REMOVAL.—The Secretary shall deny 

14 an alien spouse or child adjustment of status under 

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

16 under section 240 of the Immigration and Nation17 ality Act (8 U.S.C. 1229a) if the spouse or child— 

18 (A) commits an act that makes the alien 

19 spouse or child inadmissible to the United 

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

21 1182), except as provided under section 105(b); 

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

23 misdemeanors committed in the United States; 

24 or 


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

2 of which involves bodily injury, threat of serious 

3 bodily injury, or harm to property in excess of 

4 $500. 

5 SEC. 104. APPLICATIONS. 

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

7 (1) applications for blue card status may be 

8 submitted— 

9 (A) to the Secretary if the applicant is rep10 resented by an attorney or a nonprofit religious, 

11 charitable, social service, or similar organization 

12 recognized by the Board of Immigration Ap13 peals under section 292.2 of title 8, Code of 

14 Federal Regulations; or 

15 (B) to a qualified designated entity if the 

16 applicant consents to the forwarding of the ap17 plication to the Secretary; and 

18 (2) applications for adjustment of status under 

19 section 103 shall be filed directly with the Secretary. 

20 (b) QUALIFIED DESIGNATED ENTITY DEFINED.—In 

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

22 means— 

23 (1) a qualified farm labor organization or an 

24 association of employers designated by the Sec25 retary; or 


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1 (2) any such other person designated by the 

2 Secretary if that Secretary determines such person 

3 is qualified and has substantial experience, dem4 onstrated competence, and has a history of long5 term involvement in the preparation and submission 

6 of applications for adjustment of status under sec7 tion 209, 210, or 245 of the Immigration and Na8 tionality Act (8 U.S.C. 1159, 1160, and 1255), the 

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

10 refugees to that of lawful permanent residents of the 

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

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

13 1255 note), Public Law 95–145 (8 U.S.C. 1255 

14 note), or the Immigration Reform and Control Act 

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

16 any amendment made by that Act. 

17 (c) PROOF OF ELIGIBILITY.— 

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

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

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

21 records or records supplied by employers or collec22 tive bargaining organizations, and other reliable doc23 umentation as the alien may provide. The Secretary 

24 shall establish special procedures to properly credit 


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1 work in cases in which an alien was employed under 

2 an assumed name. 

3 (2) DOCUMENTATION OF WORK HISTORY.— 

4 (A) BURDEN OF PROOF.—An alien apply5 ing for status under section 101(a) or 103(a) 

6 has the burden of proving by a preponderance 

7 of the evidence that the alien has worked the 

8 requisite number of hours or days required 

9 under section 101(a)(1) or 103(a)(1), as appli10 cable. 

11 (B) TIMELY PRODUCTION OF RECORDS.— 

12 If an employer or farm labor contractor employ13 ing such an alien has kept proper and adequate 

14 records respecting such employment, the alien’s 

15 burden of proof under subparagraph (A) may 

16 be met by securing timely production of those 

17 records under regulations to be promulgated by 

18 the Secretary. 

19 (C) SUFFICIENT EVIDENCE.—An alien 

20 may meet the burden of proof under subpara21 graph (A) to establish that the alien has per22 formed the days or hours of work required by 

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

24 sufficient evidence to show the extent of that 


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1 employment as a matter of just and reasonable 

2 inference. 

3 (d) APPLICATIONS SUBMITTED TO QUALIFIED DES4 IGNATED ENTITIES.— 

5 (1) REQUIREMENTS.—Each qualified des6 ignated entity shall agree— 

7 (A) to forward to the Secretary an applica8 tion submitted to that entity pursuant to sub9 section (a)(1)(B) if the applicant has consented 

10 to such forwarding; 

11 (B) not to forward to the Secretary any 

12 such application if the applicant has not con13 sented to such forwarding; and 

14 (C) to assist an alien in obtaining docu15 mentation of the alien’s work history, if the 

16 alien requests such assistance. 

17 (2) NO AUTHORITY TO MAKE DETERMINA18 TIONS.—No qualified designated entity may make a 

19 determination required by this subtitle to be made 

20 by the Secretary. 

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

22 and records collected or compiled by a qualified designated 

23 entity for the purposes of this section are confidential and 

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

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


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1 as allowed by a court order issued pursuant to subsection 

2 (f). 

3 (f) CONFIDENTIALITY OF INFORMATION.— 

4 (1) IN GENERAL.—Except as otherwise pro5 vided in this section, the Secretary or any other offi6 cial or employee of the Department or a bureau or 

7 agency of the Department is prohibited from— 

8 (A) using information furnished by the ap9 plicant pursuant to an application filed under 

10 this title, the information provided by an appli11 cant to a qualified designated entity, or any in12 formation provided by an employer or former 

13 employer for any purpose other than to make a 

14 determination on the application or for impos15 ing the penalties described in subsection (g); 

16 (B) making any publication in which the 

17 information furnished by any particular indi18 vidual can be identified; or 

19 (C) permitting a person other than a 

20 sworn officer or employee of the Department or 

21 a bureau or agency of the Department or, with 

22 respect to applications filed with a qualified 

23 designated entity, that qualified designated en24 tity, to examine individual applications. 


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1 (2) REQUIRED DISCLOSURES.—The Secretary 

2 shall provide the information furnished under this 

3 title or any other information derived from such fur4 nished information to— 

5 (A) a duly recognized law enforcement en6 tity in connection with a criminal investigation 

7 or prosecution, if such information is requested 

8 in writing by such entity; or 

9 (B) an official coroner, for purposes of af10 firmatively identifying a deceased individual, 

11 whether or not the death of such individual re12 sulted from a crime. 

13 (3) CONSTRUCTION.— 

14 (A) IN GENERAL.—Nothing in this sub15 section shall be construed to limit the use, or 

16 release, for immigration enforcement purposes 

17 or law enforcement purposes, of information 

18 contained in files or records of the Department 

19 pertaining to an application filed under this sec20 tion, other than information furnished by an 

21 applicant pursuant to the application, or any 

22 other information derived from the application, 

23 that is not available from any other source. 

24 (B) CRIMINAL CONVICTIONS.—Notwith25 standing any other provision of this subsection, 


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1 information concerning whether the alien apply2 ing for blue card status or an adjustment of 

3 status under section 103 has been convicted of 

4 a crime at any time may be used or released for 

5 immigration enforcement or law enforcement 

6 purposes. 

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

8 publishes, or permits information to be examined in 

9 violation of this subsection shall be subject to a fine 

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

11 (g) PENALTIES FOR FALSE STATEMENTS IN APPLI12 CATIONS.— 

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

14 (A) files an application for blue card status 

15 or an adjustment of status under section 103 

16 and knowingly and willfully falsifies, conceals, 

17 or covers up a material fact or makes any false, 

18 fictitious, or fraudulent statements or represen19 tations, or makes or uses any false writing or 

20 document knowing the same to contain any 

21 false, fictitious, or fraudulent statement or 

22 entry; or 

23 (B) creates or supplies a false writing or 

24 document for use in making such an applica25 tion, 


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1 shall be fined in accordance with title 18, United 

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

3 both. 

4 (2) INADMISSIBILITY.—An alien who is con5 victed of a crime under paragraph (1) shall be con6 sidered to be inadmissible to the United States on 

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

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

9 1182(a)(6)(C)(i)). 

10 (h) ELIGIBILITY FOR LEGAL SERVICES.—Section 

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

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

13 funds under the Legal Services Corporation Act (42 

14 U.S.C. 2996 et seq.) from providing legal assistance di15 rectly related to an application for blue card status or an 

16 adjustment of status under section 103. 

17 (i) APPLICATION FEES.— 

18 (1) FEE SCHEDULE.—The Secretary shall pro19 vide for a schedule of fees that— 

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

21 application for blue card status or for an ad22 justment of status under section 103; and 

23 (B) may be charged by qualified des24 ignated entities to help defray the costs of serv25 ices provided to such applicants. 


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1 (2) PROHIBITION ON EXCESS FEES BY QUALI2 FIED DESIGNATED ENTITIES.—A qualified des3 ignated entity may not charge any fee in excess of, 

4 or in addition to, the fees authorized under para5 graph (1)(B) for services provided to applicants. 

6 (3) DISPOSITION OF FEES.— 

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

8 the general fund of the Treasury a separate ac9 count, which shall be known as the ‘‘Agricul10 tural Worker Immigration Status Adjustment 

11 Account’’. Notwithstanding any other provision 

12 of law, there shall be deposited as offsetting re13 ceipts into the account all fees collected under 

14 paragraph (1)(A). 

15 (B) USE OF FEES FOR APPLICATION PROC16 ESSING.—Amounts deposited in the ‘‘Agricul17 tural Worker Immigration Status Adjustment 

18 Account’’ shall remain available to the Sec19 retary until expended for processing applica20 tions for blue card status or an adjustment of 

21 status under section 103. 

22 SEC. 105. WAIVER OF NUMERICAL LIMITATIONS AND CER23 TAIN GROUNDS FOR INADMISSIBILITY. 

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

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1 migration and Nationality Act (8 U.S.C. 1151 and 1152) 

2 shall not apply to the adjustment of aliens to lawful per3 manent resident status under section 103. 

4 (b) WAIVER OF CERTAIN GROUNDS OF INADMIS5 SIBILITY.—In the determination of an alien’s eligibility for 

6 status under section 101(a) or an alien’s eligibility for ad7 justment of status under section 103(b)(2)(A) the fol8 lowing rules shall apply: 

9 (1) GROUNDS OF EXCLUSION NOT APPLICA10 BLE.—The provisions of paragraphs (5), (6)(A), (7), 

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

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

13 (2) WAIVER OF OTHER GROUNDS.— 

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

15 subparagraph (B), the Secretary may waive any 

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

17 case of individual aliens for humanitarian pur18 poses, to ensure family unity, or if otherwise in 

19 the public interest. 

20 (B) GROUNDS THAT MAY NOT BE

21 WAIVED.—Subparagraphs (A), (B), (C), (D), 

22 (G), (H), and (I) of paragraph (2) and para23 graphs (3) and (4) of such section 212(a) may 

24 not be waived by the Secretary under subpara25 graph (A). 


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•S 1038 IS

1 (C) CONSTRUCTION.—Nothing in this 

2 paragraph shall be construed as affecting the 

3 authority of the Secretary other than under this 

4 subparagraph to waive provisions of such sec5 tion 212(a). 

6 (3) SPECIAL RULE FOR DETERMINATION OF

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

8 card status or an adjustment of status under section 

9 103 by reason of a ground of inadmissibility under 

10 section 212(a)(4) of the Immigration and Nation11 ality Act (8 U.S.C. 1182(a)(4)) if the alien dem12 onstrates a history of employment in the United 

13 States evidencing self-support without reliance on 

14 public cash assistance. 

15 (c) TEMPORARY STAY OF REMOVAL AND WORK AU16 THORIZATION FOR CERTAIN APPLICANTS.— 

17 (1) BEFORE APPLICATION PERIOD.—Effective 

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

19 shall provide that, in the case of an alien who is ap20 prehended before the beginning of the application 

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

22 establish a nonfrivolous case of eligibility for blue 

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

24 apply for such status until the beginning of such pe25 riod), until the alien has had the opportunity during 


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•S 1038 IS

1 the first 30 days of the application period to com2 plete the filing of an application for blue card status, 

3 the alien— 

4 (A) may not be removed; and 

5 (B) shall be granted authorization to en6 gage in employment in the United States and 

7 be provided an employment authorized endorse8 ment or other appropriate work permit for such 

9 purpose. 

10 (2) DURING APPLICATION PERIOD.—The Sec11 retary shall provide that, in the case of an alien who 

12 presents a nonfrivolous application for blue card sta13 tus during the application period described in section 

14 101(a)(2), including an alien who files such an ap15 plication within 30 days of the alien’s apprehension, 

16 and until a final determination on the application 

17 has been made in accordance with this section, the 

18 alien— 

19 (A) may not be removed; and 

20 (B) shall be granted authorization to en21 gage in employment in the United States and 

22 be provided an employment authorized endorse23 ment or other appropriate work permit for such 

24 purpose. 


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1 SEC. 106. ADMINISTRATIVE AND JUDICIAL REVIEW. 

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

3 or judicial review of a determination respecting an applica4 tion for blue card status or adjustment of status under 

5 section 103 except in accordance with this section. 

6 (b) ADMINISTRATIVE REVIEW.— 

7 (1) SINGLE LEVEL OF ADMINISTRATIVE APPEL8 LATE REVIEW.—The Secretary shall establish an ap9 pellate authority to provide for a single level of ad10 ministrative appellate review of such a determina11 tion. 

12 (2) STANDARD FOR REVIEW.—Such administra13 tive appellate review shall be based solely upon the 

14 administrative record established at the time of the 

15 determination on the application and upon such ad16 ditional or newly discovered evidence as may not 

17 have been available at the time of the determination. 

18 (c) JUDICIAL REVIEW.— 

19 (1) LIMITATION TO REVIEW OF REMOVAL.— 

20 There shall be judicial review of such a determina21 tion only in the judicial review of an order of re22 moval under section 242 of the Immigration and 

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

24 (2) STANDARD FOR JUDICIAL REVIEW.—Such 

25 judicial review shall be based solely upon the admin26 istrative record established at the time of the review 


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•S 1038 IS

1 by the appellate authority and the findings of fact 

2 and determinations contained in such record shall be 

3 conclusive unless the applicant can establish abuse 

4 of discretion or that the findings are directly con5 trary to clear and convincing facts contained in the 

6 record considered as a whole. 

7 SEC. 107. USE OF INFORMATION. 

8 Beginning not later than the first day of the applica9 tion period described in section 101(a)(2), the Secretary, 

10 in cooperation with qualified designated entities (as that 

11 term is defined in section 104(b)), shall broadly dissemi12 nate information respecting the benefits that aliens may 

13 receive under this subtitle and the requirements that an 

14 alien is required to meet to receive such benefits. 

15 SEC. 108. REGULATIONS, EFFECTIVE DATE, AUTHORIZA16 TION OF APPROPRIATIONS. 

17 (a) REGULATIONS.—The Secretary shall issue regula18 tions to implement this subtitle not later than the first 

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

20 enactment of this Act. 

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

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

23 issued, regardless of whether such regulations are issued 

24 on an interim basis or on any other basis. 


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•S 1038 IS

1 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated to the Secretary such 

3 sums as may be necessary to implement this subtitle, in4 cluding any sums needed for costs associated with the ini5 tiation of such implementation, for fiscal years 2009 and 

6 2010. 

7 Subtitle B—Correction of Social 

8 Security Records 

9 SEC. 111. CORRECTION OF SOCIAL SECURITY RECORDS. 

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

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

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

13 the end; 

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

15 the end; 

16 (3) by inserting after subparagraph (C) the fol17 lowing: 

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

19 Agricultural Job Opportunities, Benefits, and Secu20 rity Act of 2009’’; and 

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

22 in the case of an alien described in subparagraph 

23 (D), if such conduct is alleged to have occurred be24 fore the date on which the alien was granted blue 

25 card status.’’. 


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•S 1038 IS

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

2 subsection (a) shall take effect on the first day of the sev3 enth month that begins after the date of the enactment 

4 of this Act. 

5 TITLE II—REFORM OF H–2A 

6 WORKER PROGRAM 

7 SEC. 201. AMENDMENTS TO THE IMMIGRATION AND NA8 TIONALITY ACT. 

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

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

11 striking section 218 and inserting the following: 

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

13 ‘‘(a) APPLICATIONS TO THE SECRETARY OF

14 LABOR.— 

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

16 to the United States as an H–2A worker, or other17 wise provided status as an H–2A worker, unless the 

18 employer has filed with the Secretary of Labor an 

19 application containing— 

20 ‘‘(A) the assurances described in sub21 section (b); 

22 ‘‘(B) a description of the nature and loca23 tion of the work to be performed; 


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1 ‘‘(C) the anticipated period (expected be2 ginning and ending dates) for which the work3 ers will be needed; and 

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

5 which the employer seeks to employ the work6 ers. 

7 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap8 plication filed under paragraph (1) shall be accom9 panied by a copy of the job offer describing the 

10 wages and other terms and conditions of employ11 ment and the bona fide occupational qualifications 

12 that shall be possessed by a worker to be employed 

13 in the job opportunity in question. 

14 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA15 TIONS.—The assurances referred to in subsection (a)(1) 

16 are the following: 

17 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL18 LECTIVE BARGAINING AGREEMENTS.—With respect 

19 to a job opportunity that is covered under a collec20 tive bargaining agreement: 

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

22 job opportunity is covered by a union contract 

23 which was negotiated at arm’s length between a 

24 bona fide union and the employer. 


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•S 1038 IS

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

2 job opportunity for which the employer is re3 questing an H–2A worker is not vacant because 

4 the former occupant is on strike or being locked 

5 out in the course of a labor dispute. 

6 ‘‘(C) NOTIFICATION OF BARGAINING REP7 RESENTATIVES.—The employer, at the time of 

8 filing the application, has provided notice of the 

9 filing under this paragraph to the bargaining 

10 representative of the employer’s employees in 

11 the occupational classification at the place or 

12 places of employment for which aliens are 

13 sought. 

14 ‘‘(D) TEMPORARY OR SEASONAL JOB OP15 PORTUNITIES.—The job opportunity is tem16 porary or seasonal. 

17 ‘‘(E) OFFERS TO UNITED STATES WORK18 ERS.—The employer has offered or will offer 

19 the job to any eligible United States worker 

20 who applies and is equally or better qualified 

21 for the job for which the nonimmigrant is, or 

22 the nonimmigrants are, sought and who will be 

23 available at the time and place of need. 

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

25 job opportunity is not covered by the State 


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•S 1038 IS

1 workers’ compensation law, the employer will 

2 provide, at no cost to the worker, insurance cov3 ering injury and disease arising out of, and in 

4 the course of, the worker’s employment which 

5 will provide benefits at least equal to those pro6 vided under the State’s workers’ compensation 

7 law for comparable employment. 

8 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

9 COLLECTIVE BARGAINING AGREEMENTS.—With re10 spect to a job opportunity that is not covered under 

11 a collective bargaining agreement: 

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

13 job opportunity for which the employer has ap14 plied for an H–2A worker is not vacant because 

15 the former occupant is on strike or being locked 

16 out in the course of a labor dispute. 

17 ‘‘(B) TEMPORARY OR SEASONAL JOB OP18 PORTUNITIES.—The job opportunity is tem19 porary or seasonal. 

20 ‘‘(C) BENEFIT, WAGE, AND WORKING CON21 DITIONS.—The employer will provide, at a min22 imum, the benefits, wages, and working condi23 tions required by section 218A to all workers 

24 employed in the job opportunities for which the 

25 employer has applied for an H–2A worker 


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•S 1038 IS

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

2 the same occupation at the place of employ3 ment. 

4 ‘‘(D) NONDISPLACEMENT OF UNITED

5 STATES WORKERS.—The employer did not dis6 place and will not displace a United States 

7 worker employed by the employer during the 

8 period of employment and for a period of 30 

9 days preceding the period of employment in the 

10 occupation at the place of employment for 

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

12 worker. 

13 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

14 THE NONIMMIGRANT WITH OTHER EMPLOY15 ERS.—The employer will not place the non16 immigrant with another employer unless— 

17 ‘‘(i) the nonimmigrant performs du18 ties in whole or in part at 1 or more work19 sites owned, operated, or controlled by 

20 such other employer; 

21 ‘‘(ii) there are indicia of an employ22 ment relationship between the non23 immigrant and such other employer; and 

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

25 other employer as to whether, and has no 


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•S 1038 IS

1 actual knowledge or notice that, during the 

2 period of employment and for a period of 

3 30 days preceding the period of employ4 ment, the other employer has displaced or 

5 intends to displace a United States worker 

6 employed by the other employer in the oc7 cupation at the place of employment for 

8 which the employer seeks approval to em9 ploy H–2A workers. 

10 ‘‘(F) STATEMENT OF LIABILITY.—The ap11 plication form shall include a clear statement 

12 explaining the liability under subparagraph (E) 

13 of an employer if the other employer described 

14 in such subparagraph displaces a United States 

15 worker as described in such subparagraph. 

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

17 job opportunity is not covered by the State 

18 workers’ compensation law, the employer will 

19 provide, at no cost to the worker, insurance cov20 ering injury and disease arising out of and in 

21 the course of the worker’s employment which 

22 will provide benefits at least equal to those pro23 vided under the State’s workers’ compensation 

24 law for comparable employment. 


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•S 1038 IS

1 ‘‘(H) EMPLOYMENT OF UNITED STATES

2 WORKERS.— 

3 ‘‘(i) RECRUITMENT.—The employer 

4 has taken or will take the following steps 

5 to recruit United States workers for the 

6 job opportunities for which the H–2A non7 immigrant is, or H–2A nonimmigrants are, 

8 sought: 

9 ‘‘(I) CONTACTING FORMER

10 WORKERS.—The employer shall make 

11 reasonable efforts through the sending 

12 of a letter by United States Postal 

13 Service mail, or otherwise, to contact 

14 any United States worker the em15 ployer employed during the previous 

16 season in the occupation at the place 

17 of intended employment for which the 

18 employer is applying for workers and 

19 has made the availability of the em20 ployer’s job opportunities in the occu21 pation at the place of intended em22 ployment known to such previous 

23 workers, unless the worker was termi24 nated from employment by the em25 ployer for a lawful job-related reason 


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•S 1038 IS

1 or abandoned the job before the work2 er completed the period of employ3 ment of the job opportunity for which 

4 the worker was hired. 

5 ‘‘(II) FILING A JOB OFFER WITH

6 THE LOCAL OFFICE OF THE STATE

7 EMPLOYMENT SECURITY AGENCY.— 

8 Not later than 28 days before the 

9 date on which the employer desires to 

10 employ an H–2A worker in a tem11 porary or seasonal agricultural job op12 portunity, the employer shall submit a 

13 copy of the job offer described in sub14 section (a)(2) to the local office of the 

15 State employment security agency 

16 which serves the area of intended em17 ployment and authorize the posting of 

18 the job opportunity on ‘America’s Job 

19 Bank’ or other electronic job registry, 

20 except that nothing in this subclause 

21 shall require the employer to file an 

22 interstate job order under section 653 

23 of title 20, Code of Federal Regula24 tions. 


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•S 1038 IS

1 ‘‘(III) ADVERTISING OF JOB OP2 PORTUNITIES.—Not later than 14 

3 days before the date on which the em4 ployer desires to employ an H–2A 

5 worker in a temporary or seasonal ag6 ricultural job opportunity, the em7 ployer shall advertise the availability 

8 of the job opportunities for which the 

9 employer is seeking workers in a pub10 lication in the local labor market that 

11 is likely to be patronized by potential 

12 farm workers. 

13 ‘‘(IV) EMERGENCY PROCE14 DURES.—The Secretary of Labor 

15 shall, by regulation, provide a proce16 dure for acceptance and approval of 

17 applications in which the employer 

18 has not complied with the provisions 

19 of this subparagraph because the em20 ployer’s need for H–2A workers could 

21 not reasonably have been foreseen. 

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

23 offered or will offer the job to any eligible 

24 United States worker who applies and is 

25 equally or better qualified for the job for 


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•S 1038 IS

1 which the nonimmigrant is, or non2 immigrants are, sought and who will be 

3 available at the time and place of need. 

4 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

5 employer will provide employment to any 

6 qualified United States worker who applies 

7 to the employer during the period begin8 ning on the date on which the H–2A work9 er departs for the employer’s place of em10 ployment and ending on the date on which 

11 50 percent of the period of employment for 

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

13 was hired has elapsed, subject to the fol14 lowing requirements: 

15 ‘‘(I) PROHIBITION.—No person 

16 or entity shall willfully and knowingly 

17 withhold United States workers before 

18 the arrival of H–2A workers in order 

19 to force the hiring of United States 

20 workers under this clause. 

21 ‘‘(II) COMPLAINTS.—Upon re22 ceipt of a complaint by an employer 

23 that a violation of subclause (I) has 

24 occurred, the Secretary of Labor shall 

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•S 1038 IS

1 retary of Labor shall, within 36 hours 

2 of the receipt of the complaint, issue 

3 findings concerning the alleged viola4 tion. If the Secretary of Labor finds 

5 that a violation has occurred, the Sec6 retary of Labor shall immediately sus7 pend the application of this clause 

8 with respect to that certification for 

9 that date of need. 

10 ‘‘(III) PLACEMENT OF UNITED

11 STATES WORKERS.—Before referring 

12 a United States worker to an em13 ployer during the period described in 

14 the matter preceding subclause (I), 

15 the Secretary of Labor shall make all 

16 reasonable efforts to place the United 

17 States worker in an open job accept18 able to the worker, if there are other 

19 job offers pending with the job service 

20 that offer similar job opportunities in 

21 the area of intended employment. 

22 ‘‘(iv) STATUTORY CONSTRUCTION.— 

23 Nothing in this subparagraph shall be con24 strued to prohibit an employer from using 

25 such legitimate selection criteria relevant 


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•S 1038 IS

1 to the type of job that are normal or cus2 tomary to the type of job involved so long 

3 as such criteria are not applied in a dis4 criminatory manner. 

5 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

6 OF EMPLOYER MEMBERS.— 

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

8 may file an application under subsection (a) on be9 half of 1 or more of its employer members that the 

10 association certifies in its application has or have 

11 agreed in writing to comply with the requirements of 

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

13 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

14 EMPLOYERS.—If an association filing an application 

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

16 the temporary or seasonal agricultural workers re17 quested on the application, the certifications granted 

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

19 used for the certified job opportunities of any of its 

20 producer members named on the application, and 

21 such workers may be transferred among such pro22 ducer members to perform the agricultural services 

23 of a temporary or seasonal nature for which the cer24 tifications were granted. 

25 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 


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•S 1038 IS

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

2 an application filed pursuant to subsection (a), ex3 cept that if the employer is an agricultural associa4 tion, the association may withdraw an application 

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

6 more of its members. To withdraw an application, 

7 the employer or association shall notify the Sec8 retary of Labor in writing, and the Secretary of 

9 Labor shall acknowledge in writing the receipt of 

10 such withdrawal notice. An employer who withdraws 

11 an application under subsection (a), or on whose be12 half an application is withdrawn, is relieved of the 

13 obligations undertaken in the application. 

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

15 withdrawn while any alien provided status under sec16 tion 101(a)(15)(H)(ii)(a) pursuant to such applica17 tion is employed by the employer. 

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

19 Any obligation incurred by an employer under any 

20 other law or regulation as a result of the recruit21 ment of United States workers or H–2A workers 

22 under an offer of terms and conditions of employ23 ment required as a result of making an application 

24 under subsection (a) is unaffected by withdrawal of 

25 such application. 


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•S 1038 IS

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

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

3 employer shall make available for public examina4 tion, within 1 working day after the date on which 

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

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

7 copy of each such application (and such accom8 panying documents as are necessary). 

9 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

10 LABOR.— 

11 ‘‘(A) COMPILATION OF LIST.—The Sec12 retary of Labor shall compile, on a current 

13 basis, a list (by employer and by occupational 

14 classification) of the applications filed under 

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

16 rate, number of workers sought, period of in17 tended employment, and date of need. The Sec18 retary of Labor shall make such list available 

19 for examination in the District of Columbia. 

20 ‘‘(B) REVIEW OF APPLICATIONS.—The 

21 Secretary of Labor shall review such an applica22 tion only for completeness and obvious inac23 curacies. Unless the Secretary of Labor finds 

24 that the application is incomplete or obviously 

25 inaccurate, the Secretary of Labor shall certify 


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•S 1038 IS

1 that the intending employer has filed with the 

2 Secretary of Labor an application as described 

3 in subsection (a). Such certification shall be 

4 provided within 7 days of the filing of the appli5 cation.’’ 

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

7 ‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO8 HIBITED.—Employers seeking to hire United States work9 ers shall offer the United States workers no less than the 

10 same benefits, wages, and working conditions that the em11 ployer is offering, intends to offer, or will provide to H– 

12 2A workers. Conversely, no job offer may impose on 

13 United States workers any restrictions or obligations 

14 which will not be imposed on the employer’s H–2A work15 ers. 

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

17 CONDITIONS.—Except in cases where higher benefits, 

18 wages, or working conditions are required by the provi19 sions of subsection (a), in order to protect similarly em20 ployed United States workers from adverse effects with 

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

22 job offer which shall accompany an application under sec23 tion 218(b)(2) shall include each of the following benefit, 

24 wage, and working condition provisions: 


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•S 1038 IS

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

2 HOUSING ALLOWANCE.— 

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

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

5 offer to provide housing at no cost to all work6 ers in job opportunities for which the employer 

7 has applied under that section and to all other 

8 workers in the same occupation at the place of 

9 employment, whose place of residence is beyond 

10 normal commuting distance. 

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

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

13 the employer’s election, provide housing that 

14 meets applicable Federal standards for tem15 porary labor camps or secure housing that 

16 meets applicable local standards for rental or 

17 public accommodation housing or other sub18 stantially similar class of habitation, or in the 

19 absence of applicable local standards, State 

20 standards for rental or public accommodation 

21 housing or other substantially similar class of 

22 habitation. In the absence of applicable local or 

23 State standards, Federal temporary labor camp 

24 standards shall apply. 


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•S 1038 IS

1 ‘‘(C) FAMILY HOUSING.—If it is the pre2 vailing practice in the occupation and area of 

3 intended employment to provide family housing, 

4 family housing shall be provided to workers 

5 with families who request it. 

6 ‘‘(D) WORKERS ENGAGED IN THE RANGE

7 PRODUCTION OF LIVESTOCK.—The Secretary of 

8 Labor shall issue regulations that address the 

9 specific requirements for the provision of hous10 ing to workers engaged in the range production 

11 of livestock. 

12 ‘‘(E) LIMITATION.—Nothing in this para13 graph shall be construed to require an employer 

14 to provide or secure housing for persons who 

15 were not entitled to such housing under the 

16 temporary labor certification regulations in ef17 fect on June 1, 1986. 

18 ‘‘(F) CHARGES FOR HOUSING.— 

19 ‘‘(i) CHARGES FOR PUBLIC HOUS20 ING.—If public housing provided for mi21 grant agricultural workers under the aus22 pices of a local, county, or State govern23 ment is secured by an employer, and use of 

24 the public housing unit normally requires 

25 charges from migrant workers, such 


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•S 1038 IS

1 charges shall be paid by the employer di2 rectly to the appropriate individual or enti3 ty affiliated with the housing’s manage4 ment. 

5 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

6 the form of deposits for bedding or other 

7 similar incidentals related to housing shall 

8 not be levied upon workers by employers 

9 who provide housing for their workers. An 

10 employer may require a worker found to 

11 have been responsible for damage to such 

12 housing which is not the result of normal 

13 wear and tear related to habitation to re14 imburse the employer for the reasonable 

15 cost of repair of such damage. 

16 ‘‘(G) HOUSING ALLOWANCE AS ALTER17 NATIVE.— 

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

19 set out in clause (ii) is satisfied, the em20 ployer may provide a reasonable housing 

21 allowance instead of offering housing 

22 under subparagraph (A). Upon the request 

23 of a worker seeking assistance in locating 

24 housing, the employer shall make a good 

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•S 1038 IS

1 fying and locating housing in the area of 

2 intended employment. An employer who of3 fers a housing allowance to a worker, or 

4 assists a worker in locating housing which 

5 the worker occupies, pursuant to this 

6 clause shall not be deemed a housing pro7 vider under section 203 of the Migrant and 

8 Seasonal Agricultural Worker Protection 

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

10 providing such housing allowance. No 

11 housing allowance may be used for housing 

12 which is owned or controlled by the em13 ployer. 

14 ‘‘(ii) CERTIFICATION.—The require15 ment of this clause is satisfied if the Gov16 ernor of the State certifies to the Secretary 

17 of Labor that there is adequate housing 

18 available in the area of intended employ19 ment for migrant farm workers and H–2A 

20 workers who are seeking temporary hous21 ing while employed in agricultural work. 

22 Such certification shall expire after 3 years 

23 unless renewed by the Governor of the 

24 State. 

25 ‘‘(iii) AMOUNT OF ALLOWANCE.— 


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•S 1038 IS

1 ‘‘(I) NONMETROPOLITAN COUN2 TIES.—If the place of employment of 

3 the workers provided an allowance 

4 under this subparagraph is a non5 metropolitan county, the amount of 

6 the housing allowance under this sub7 paragraph shall be equal to the state8 wide average fair market rental for 

9 existing housing for nonmetropolitan 

10 counties for the State, as established 

11 by the Secretary of Housing and 

12 Urban Development pursuant to sec13 tion 8(c) of the United States Hous14 ing Act of 1937 (42 U.S.C. 1437f(c)), 

15 based on a 2-bedroom dwelling unit 

16 and an assumption of 2 persons per 

17 bedroom. 

18 ‘‘(II) METROPOLITAN COUN19 TIES.—If the place of employment of 

20 the workers provided an allowance 

21 under this paragraph is in a metro22 politan county, the amount of the 

23 housing allowance under this subpara24 graph shall be equal to the statewide 

25 average fair market rental for existing 


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•S 1038 IS

1 housing for metropolitan counties for 

2 the State, as established by the Sec3 retary of Housing and Urban Devel4 opment pursuant to section 8(c) of 

5 the United States Housing Act of 

6 1937 (42 U.S.C. 1437f(c)), based on 

7 a 2-bedroom dwelling unit and an as8 sumption of 2 persons per bedroom. 

9 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 

10 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

11 worker who completes 50 percent of the period 

12 of employment of the job opportunity for which 

13 the worker was hired shall be reimbursed by the 

14 employer for the cost of the worker’s transpor15 tation and subsistence from the place from 

16 which the worker came to work for the em17 ployer (or place of last employment, if the 

18 worker traveled from such place) to the place of 

19 employment. 

20 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

21 worker who completes the period of employment 

22 for the job opportunity involved shall be reim23 bursed by the employer for the cost of the 

24 worker’s transportation and subsistence from 

25 the place of employment to the place from 


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•S 1038 IS

1 which the worker, disregarding intervening em2 ployment, came to work for the employer, or to 

3 the place of next employment, if the worker has 

4 contracted with a subsequent employer who has 

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

6 transportation and subsistence to such subse7 quent employer’s place of employment. 

8 ‘‘(C) LIMITATION.— 

9 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

10 Except as provided in clause (ii), the 

11 amount of reimbursement provided under 

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

13 alien shall not exceed the lesser of— 

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

15 or alien of the transportation and sub16 sistence involved; or 

17 ‘‘(II) the most economical and 

18 reasonable common carrier transpor19 tation charges and subsistence costs 

20 for the distance involved. 

21 ‘‘(ii) DISTANCE TRAVELED.—No reim22 bursement under subparagraph (A) or (B) 

23 shall be required if the distance traveled is 

24 100 miles or less, or the worker is not re25 siding in employer-provided housing or 


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•S 1038 IS

1 housing secured through an allowance as 

2 provided in paragraph (1)(G). 

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

4 is laid off or employment is terminated for con5 tract impossibility (as described in paragraph 

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

7 employment, the employer shall provide the 

8 transportation and subsistence required by sub9 paragraph (B) and, notwithstanding whether 

10 the worker has completed 50 percent of the pe11 riod of employment, shall provide the transpor12 tation reimbursement required by subparagraph 

13 (A). 

14 ‘‘(E) TRANSPORTATION BETWEEN LIVING

15 QUARTERS AND WORKSITE.—The employer 

16 shall provide transportation between the work17 er’s living quarters and the employer’s worksite 

18 without cost to the worker, and such transpor19 tation will be in accordance with applicable laws 

20 and regulations. 

21 ‘‘(3) REQUIRED WAGES.— 

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

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

24 pay, and shall pay, all workers in the occupa25 tion for which the employer has applied for 


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•S 1038 IS

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

2 more) than the greater of the prevailing wage 

3 in the occupation in the area of intended em4 ployment or the adverse effect wage rate. No 

5 worker shall be paid less than the greater of the 

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

7 the Fair Labor Standards Act of 1938 (29 

8 U.S.C. 206(a)(1)) or the applicable State min9 imum wage. 

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

11 of the enactment of the Agricultural Job Op12 portunities, Benefits, and Security Act of 2009 

13 and continuing for 3 years thereafter, no ad14 verse effect wage rate for a State may be more 

15 than the adverse effect wage rate for that State 

16 in effect on January 1, 2009, as established by 

17 section 655.107 of title 20, Code of Federal 

18 Regulations. 

19 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

20 FREEZE.— 

21 ‘‘(i) FIRST ADJUSTMENT.—If Con22 gress does not set a new wage standard 

23 applicable to this section before the first 

24 March 1 that is not less than 3 years after 

25 the date of enactment of this section, the 


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•S 1038 IS

1 adverse effect wage rate for each State be2 ginning on such March 1 shall be the wage 

3 rate that would have resulted if the ad4 verse effect wage rate in effect on January 

5 1, 2009, had been annually adjusted, be6 ginning on March 1, 2012, by the lesser 

7 of— 

8 ‘‘(I) the 12-month percentage 

9 change in the Consumer Price Index 

10 for All Urban Consumers between De11 cember of the second preceding year 

12 and December of the preceding year; 

13 and 

14 ‘‘(II) 4 percent. 

15 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST16 MENTS.—Beginning on the first March 1 

17 that is not less than 4 years after the date 

18 of enactment of this section, and each 

19 March 1 thereafter, the adverse effect 

20 wage rate then in effect for each State 

21 shall be adjusted by the lesser of— 

22 ‘‘(I) the 12-month percentage 

23 change in the Consumer Price Index 

24 for All Urban Consumers between De25 cember of the second preceding year 


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•S 1038 IS

1 and December of the preceding year; 

2 and 

3 ‘‘(II) 4 percent. 

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

5 make only those deductions from the worker’s 

6 wages that are authorized by law or are reason7 able and customary in the occupation and area 

8 of employment. The job offer shall specify all 

9 deductions not required by law which the em10 ployer will make from the worker’s wages. 

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

12 shall pay the worker not less frequently than 

13 twice monthly, or in accordance with the pre14 vailing practice in the area of employment, 

15 whichever is more frequent. 

16 ‘‘(F) HOURS AND EARNINGS STATE17 MENTS.—The employer shall furnish to the 

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

19 written statements— 

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

21 the pay period; 

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

23 piece rate of pay, or both; 

24 ‘‘(iii) the hours of employment which 

25 have been offered to the worker (broken 


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•S 1038 IS

1 out by hours offered in accordance with 

and over and above the 3 2 ⁄4 guarantee de3 scribed in paragraph (4); 

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

5 worker; 

6 ‘‘(v) an itemization of the deductions 

7 made from the worker’s wages; and 

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

9 the units produced daily. 

10 ‘‘(G) REPORT ON WAGE PROTECTIONS.— 

11 Not later than December 31, 2011, the Comp12 troller General of the United States shall pre13 pare and transmit to the Secretary of Labor, 

14 the Committee on the Judiciary of the Senate, 

15 and Committee on the Judiciary of the House 

16 of Representatives, a report that addresses— 

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

18 or unauthorized aliens in the United States 

19 agricultural workforce has depressed 

20 United States farm worker wages below 

21 the levels that would otherwise have pre22 vailed if alien farm workers had not been 

23 employed in the United States; 

24 ‘‘(ii) whether an adverse effect wage 

25 rate is necessary to prevent wages of 


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•S 1038 IS

1 United States farm workers in occupations 

2 in which H–2A workers are employed from 

3 falling below the wage levels that would 

4 have prevailed in the absence of the em5 ployment of H–2A workers in those occu6 pations; 

7 ‘‘(iii) whether alternative wage stand8 ards, such as a prevailing wage standard, 

9 would be sufficient to prevent wages in oc10 cupations in which H–2A workers are em11 ployed from falling below the wage level 

12 that would have prevailed in the absence of 

13 H–2A employment; 

14 ‘‘(iv) whether any changes are war15 ranted in the current methodologies for 

16 calculating the adverse effect wage rate 

17 and the prevailing wage; and 

18 ‘‘(v) recommendations for future wage 

19 protection under this section. 

20 ‘‘(H) COMMISSION ON WAGE STAND21 ARDS.— 

22 ‘‘(i) ESTABLISHMENT.—There is es23 tablished the Commission on Agricultural 

24 Wage Standards under the H–2A program 


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•S 1038 IS

1 (in this subparagraph referred to as the 

2 ‘Commission’). 

3 ‘‘(ii) COMPOSITION.—The Commission 

4 shall consist of 10 members as follows: 

5 ‘‘(I) Four representatives of agri6 cultural employers and 1 representa7 tive of the Department of Agriculture, 

8 each appointed by the Secretary of 

9 Agriculture. 

10 ‘‘(II) Four representatives of ag11 ricultural workers and 1 representa12 tive of the Department of Labor, each 

13 appointed by the Secretary of Labor. 

14 ‘‘(iii) FUNCTIONS.—The Commission 

15 shall conduct a study that shall address— 

16 ‘‘(I) whether the employment of 

17 H–2A or unauthorized aliens in the 

18 United States agricultural workforce 

19 has depressed United States farm 

20 worker wages below the levels that 

21 would otherwise have prevailed if alien 

22 farm workers had not been employed 

23 in the United States; 

24 ‘‘(II) whether an adverse effect 

25 wage rate is necessary to prevent 


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•S 1038 IS

1 wages of United States farm workers 

2 in occupations in which H–2A work3 ers are employed from falling below 

4 the wage levels that would have pre5 vailed in the absence of the employ6 ment of H–2A workers in those occu7 pations; 

8 ‘‘(III) whether alternative wage 

9 standards, such as a prevailing wage 

10 standard, would be sufficient to pre11 vent wages in occupations in which 

12 H–2A workers are employed from fall13 ing below the wage level that would 

14 have prevailed in the absence of H–2A 

15 employment; 

16 ‘‘(IV) whether any changes are 

17 warranted in the current methodolo18 gies for calculating the adverse effect 

19 wage rate and the prevailing wage 

20 rate; and 

21 ‘‘(V) recommendations for future 

22 wage protection under this section. 

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

24 December 31, 2011, the Commission shall 

25 submit a report to the Congress setting 


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•S 1038 IS

1 forth the findings of the study conducted 

2 under clause (iii). 

3 ‘‘(v) TERMINATION DATE.—The Com4 mission shall terminate upon submitting 

5 its final report. 

6 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 

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

8 shall guarantee to offer the worker employment 

for the hourly equivalent of at least 3 9 ⁄4 of the 

10 work days of the total period of employment, 

11 beginning with the first work day after the ar12 rival of the worker at the place of employment 

13 and ending on the expiration date specified in 

14 the job offer. For purposes of this subpara15 graph, the hourly equivalent means the number 

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

17 offer and shall exclude the worker’s Sabbath 

18 and Federal holidays. If the employer affords 

19 the United States or H–2A worker less employ20 ment than that required under this paragraph, 

21 the employer shall pay such worker the amount 

22 which the worker would have earned had the 

23 worker, in fact, worked for the guaranteed 

24 number of hours. 


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•S 1038 IS

1 ‘‘(B) FAILURE TO WORK.—Any hours 

2 which the worker fails to work, up to a max3 imum of the number of hours specified in the 

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

5 been offered an opportunity to do so, and all 

6 hours of work actually performed (including vol7 untary work in excess of the number of hours 

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

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

10 be counted by the employer in calculating 

11 whether the period of guaranteed employment 

12 has been met. 

13 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

14 TERMINATION FOR CAUSE.—If the worker vol15 untarily abandons employment before the end 

16 of the contract period, or is terminated for 

cause, the worker is not entitled to the ‘3 17 ⁄4

18 guarantee’ described in subparagraph (A). 

19 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be20 fore the expiration of the period of employment 

21 specified in the job offer, the services of the 

22 worker are no longer required for reasons be23 yond the control of the employer due to any 

24 form of natural disaster, including a flood, hur25 ricane, freeze, earthquake, fire, drought, plant 


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•S 1038 IS

1 or animal disease or pest infestation, or regu2 latory drought, before the guarantee in sub3 paragraph (A) is fulfilled, the employer may 

4 terminate the worker’s employment. In the 

5 event of such termination, the employer shall 

6 fulfill the employment guarantee in subpara7 graph (A) for the work days that have elapsed 

8 from the first work day after the arrival of the 

9 worker to the termination of employment. In 

10 such cases, the employer will make efforts to 

11 transfer the United States worker to other com12 parable employment acceptable to the worker. If 

13 such transfer is not effected, the employer shall 

14 provide the return transportation required in 

15 paragraph (2)(D). 

16 ‘‘(5) MOTOR VEHICLE SAFETY.— 

17 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

18 TO COVERAGE.— 

19 ‘‘(i) IN GENERAL.—Except as pro20 vided in clauses (iii) and (iv), this sub21 section applies to any H–2A employer that 

22 uses or causes to be used any vehicle to 

23 transport an H–2A worker within the 

24 United States. 


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•S 1038 IS

1 ‘‘(ii) DEFINED TERM.—In this para2 graph, the term ‘uses or causes to be 

3 used’— 

4 ‘‘(I) applies only to transpor5 tation provided by an H–2A employer 

6 to an H–2A worker, or by a farm 

7 labor contractor to an H–2A worker 

8 at the request or direction of an H– 

9 2A employer; and 

10 ‘‘(II) does not apply to— 

11 ‘‘(aa) transportation pro12 vided, or transportation arrange13 ments made, by an H–2A work14 er, unless the employer specifi15 cally requested or arranged such 

16 transportation; or 

17 ‘‘(bb) car pooling arrange18 ments made by H–2A workers 

19 themselves, using 1 of the work20 ers’ own vehicles, unless specifi21 cally requested by the employer 

22 directly or through a farm labor 

23 contractor. 

24 ‘‘(iii) CLARIFICATION.—Providing a 

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


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•S 1038 IS

1 the worker to travel to or from the place 

2 of employment, or the payment or reim3 bursement of the transportation costs of 

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

5 shall not constitute an arrangement of, or 

6 participation in, such transportation. 

7 ‘‘(iv) AGRICULTURAL MACHINERY AND

8 EQUIPMENT EXCLUDED.—This subsection 

9 does not apply to the transportation of an 

10 H–2A worker on a tractor, combine, har11 vester, picker, or other similar machinery 

12 or equipment while such worker is actually 

13 engaged in the planting, cultivating, or 

14 harvesting of agricultural commodities or 

15 the care of livestock or poultry or engaged 

16 in transportation incidental thereto. 

17 ‘‘(v) COMMON CARRIERS EX18 CLUDED.—This subsection does not apply 

19 to common carrier motor vehicle transpor20 tation in which the provider holds itself out 

21 to the general public as engaging in the 

22 transportation of passengers for hire and 

23 holds a valid certification of authorization 

24 for such purposes from an appropriate 

25 Federal, State, or local agency. 


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•S 1038 IS

1 ‘‘(B) APPLICABILITY OF STANDARDS, LI2 CENSING, AND INSURANCE REQUIREMENTS.— 

3 ‘‘(i) IN GENERAL.—When using, or 

4 causing to be used, any vehicle for the pur5 pose of providing transportation to which 

6 this subparagraph applies, each employer 

7 shall— 

8 ‘‘(I) ensure that each such vehi9 cle conforms to the standards pre10 scribed by the Secretary of Labor 

11 under section 401(b) of the Migrant 

12 and Seasonal Agricultural Worker 

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

14 and other applicable Federal and 

15 State safety standards; 

16 ‘‘(II) ensure that each driver has 

17 a valid and appropriate license, as 

18 provided by State law, to operate the 

19 vehicle; and 

20 ‘‘(III) have an insurance policy 

21 or a liability bond that is in effect 

22 which insures the employer against li23 ability for damage to persons or prop24 erty arising from the ownership, oper25 ation, or causing to be operated, of 


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•S 1038 IS

1 any vehicle used to transport any H– 

2 2A worker. 

3 ‘‘(ii) AMOUNT OF INSURANCE RE4 QUIRED.—The level of insurance required 

5 shall be determined by the Secretary of 

6 Labor pursuant to regulations to be issued 

7 under this subsection. 

8 ‘‘(iii) EFFECT OF WORKERS’ COM9 PENSATION COVERAGE.—If the employer 

10 of any H–2A worker provides workers’ 

11 compensation coverage for such worker in 

12 the case of bodily injury or death as pro13 vided by State law, the following adjust14 ments in the requirements of subparagraph 

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

16 policy or liability bond apply: 

17 ‘‘(I) No insurance policy or liabil18 ity bond shall be required of the em19 ployer, if such workers are trans20 ported only under circumstances for 

21 which there is coverage under such 

22 State law. 

23 ‘‘(II) An insurance policy or li24 ability bond shall be required of the 

25 employer for circumstances under 


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•S 1038 IS

1 which coverage for the transportation 

2 of such workers is not provided under 

3 such State law. 

4 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em5 ployer shall assure that, except as otherwise provided in 

6 this section, the employer will comply with all applicable 

7 Federal, State, and local labor laws, including laws affect8 ing migrant and seasonal agricultural workers, with re9 spect to all United States workers and alien workers em10 ployed by the employer, except that a violation of this as11 surance shall not constitute a violation of the Migrant and 

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

13 1801 et seq.). 

14 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro15 vide to the worker, not later than the day the work com16 mences, a copy of the employer’s application and job offer 

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

18 the worker to enter into a separate employment contract 

19 covering the employment in question, such separate em20 ployment contract. 

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

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

23 the Secretary of Labor and the Secretary from continuing 

24 to apply special procedures and requirements to the adVerDate Nov 24 2008 03:06 May 16, 2009 Jkt 079200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\S1038.IS S1038

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•S 1038 IS

1 mission and employment of aliens in occupations involving 

2 the range production of livestock. 

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

4 OF STAY OF H–2A WORKERS. 

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

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

7 its members, that seeks the admission into the United 

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

9 Secretary. The petition shall be accompanied by an accept10 ed and currently valid certification provided by the Sec11 retary of Labor under section 218(e)(2)(B) covering the 

12 petitioner. 

13 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC14 RETARY.—The Secretary shall establish a procedure for 

15 expedited adjudication of petitions filed under subsection 

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

17 means assuring expedited delivery, transmit a copy of no18 tice of action on the petition to the petitioner and, in the 

19 case of approved petitions, to the appropriate immigration 

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

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

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

23 or admission to the United States. 

24 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 


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•S 1038 IS

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

2 considered admissible to the United States if the 

3 alien is otherwise admissible under this section, sec4 tion 218, and section 218A, and the alien is not in5 eligible under paragraph (2). 

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

7 considered inadmissible to the United States and in8 eligible for nonimmigrant status under section 

9 101(a)(15)(H)(ii)(a) if the alien has, at any time 

10 during the past 5 years— 

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

12 section, including the requirement to promptly 

13 depart the United States when the alien’s au14 thorized period of admission under this section 

15 has expired; or 

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

17 of admission into the United States as a non18 immigrant, including overstaying the period of 

19 authorized admission as such a nonimmigrant. 

20 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW21 FUL PRESENCE.— 

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

23 previously been admitted into the United States 

24 pursuant to this section, and who is otherwise 

25 eligible for admission in accordance with paraVerDate Nov 24 2008 03:06 May 16, 2009 Jkt 079200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\S1038.IS S1038

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•S 1038 IS

1 graphs (1) and (2), shall not be deemed inad2 missible by virtue of section 212(a)(9)(B). If an 

3 alien described in the preceding sentence is 

4 present in the United States, the alien may 

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

6 not be granted that status in the United States. 

7 ‘‘(B) MAINTENANCE OF WAIVER.—An 

8 alien provided an initial waiver of ineligibility 

9 pursuant to subparagraph (A) shall remain eli10 gible for such waiver unless the alien violates 

11 the terms of this section or again becomes ineli12 gible under section 212(a)(9)(B) by virtue of 

13 unlawful presence in the United States after 

14 the date of the initial waiver of ineligibility pur15 suant to subparagraph (A). 

16 ‘‘(d) PERIOD OF ADMISSION.— 

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

18 for the period of employment in the application cer19 tified by the Secretary of Labor pursuant to section 

20 218(e)(2)(B), not to exceed 10 months, supple21 mented by a period of not more than 1 week before 

22 the beginning of the period of employment for the 

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

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•S 1038 IS

1 pose of departure or extension based on a subse2 quent offer of employment, except that— 

3 ‘‘(A) the alien is not authorized to be em4 ployed during such 14-day period except in the 

5 employment for which the alien was previously 

6 authorized; and 

7 ‘‘(B) the total period of employment, in8 cluding such 14-day period, may not exceed 10 

9 months. 

10 ‘‘(2) CONSTRUCTION.—Nothing in this sub11 section shall limit the authority of the Secretary to 

12 extend the stay of the alien under any other provi13 sion of this Act. 

14 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 

15 ‘‘(1) IN GENERAL.—An alien admitted or pro16 vided status under section 101(a)(15)(H)(ii)(a) who 

17 abandons the employment which was the basis for 

18 such admission or status shall be considered to have 

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

20 worker and shall depart the United States or be sub21 ject to removal under section 237(a)(1)(C)(i). 

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

23 association acting as agent for the employer, shall 

24 notify the Secretary not later than 7 days after an 

25 H–2A worker prematurely abandons employment. 


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•S 1038 IS

1 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec2 retary shall promptly remove from the United States 

3 any H–2A worker who violates any term or condi4 tion of the worker’s nonimmigrant status. 

5 ‘‘(4) VOLUNTARY TERMINATION.—Notwith6 standing paragraph (1), an alien may voluntarily 

7 terminate his or her employment if the alien prompt8 ly departs the United States upon termination of 

9 such employment. 

10 ‘‘(f) REPLACEMENT OF ALIEN.— 

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

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

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

14 and the Secretary shall admit into the United 

15 States, an eligible alien designated by the employer 

16 to replace an H–2A worker— 

17 ‘‘(A) who abandons or prematurely termi18 nates employment; or 

19 ‘‘(B) whose employment is terminated 

20 after a United States worker is employed pur21 suant to section 218(b)(2)(H)(iii), if the United 

22 States worker voluntarily departs before the 

23 end of the period of intended employment or if 

24 the employment termination is for a lawful job25 related reason. 


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•S 1038 IS

1 ‘‘(2) CONSTRUCTION.—Nothing in this sub2 section is intended to limit any preference required 

3 to be accorded United States workers under any 

4 other provision of this Act. 

5 ‘‘(g) IDENTIFICATION DOCUMENT.— 

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

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

8 provided an identification and employment eligibility 

9 document to verify eligibility for employment in the 

10 United States and verify the alien’s identity. 

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

12 employment eligibility document may be issued 

13 which does not meet the following requirements: 

14 ‘‘(A) The document shall be capable of re15 liably determining whether— 

16 ‘‘(i) the individual with the identifica17 tion and employment eligibility document 

18 whose eligibility is being verified is in fact 

19 eligible for employment; 

20 ‘‘(ii) the individual whose eligibility is 

21 being verified is claiming the identity of 

22 another person; and 

23 ‘‘(iii) the individual whose eligibility is 

24 being verified is authorized to be admitted 


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1 into, and employed in, the United States 

2 as an H–2A worker. 

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

4 is resistant to counterfeiting and to tampering. 

5 ‘‘(C) The document shall— 

6 ‘‘(i) be compatible with other data7 bases of the Secretary for the purpose of 

8 excluding aliens from benefits for which 

9 they are not eligible and determining 

10 whether the alien is unlawfully present in 

11 the United States; and 

12 ‘‘(ii) be compatible with law enforce13 ment databases to determine if the alien 

14 has been convicted of criminal offenses. 

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

16 UNITED STATES.— 

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

18 seeks approval to employ an H–2A alien who is law19 fully present in the United States, the petition filed 

20 by the employer or an association pursuant to sub21 section (a), shall request an extension of the alien’s 

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

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

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

25 for an extension of an alien’s stay— 


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•S 1038 IS

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

2 or 

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

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

5 the United States under this section. 

6 ‘‘(3) WORK AUTHORIZATION UPON FILING A

7 PETITION FOR EXTENSION OF STAY.— 

8 ‘‘(A) IN GENERAL.—An alien who is law9 fully present in the United States may com10 mence the employment described in a petition 

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

12 petition is filed. 

13 ‘‘(B) DEFINITION.—For purposes of sub14 paragraph (A), the term ‘file’ means sending 

15 the petition by certified mail via the United 

16 States Postal Service, return receipt requested, 

17 or delivered by guaranteed commercial delivery 

18 which will provide the employer with a docu19 mented acknowledgment of the date of receipt 

20 of the petition. 

21 ‘‘(C) HANDLING OF PETITION.—The em22 ployer shall provide a copy of the employer’s pe23 tition to the alien, who shall keep the petition 

24 with the alien’s identification and employment 

25 eligibility document as evidence that the petiVerDate Nov 24 2008 03:06 May 16, 2009 Jkt 079200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\S1038.IS S1038

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1 tion has been filed and that the alien is author2 ized to work in the United States. 

3 ‘‘(D) APPROVAL OF PETITION.—Upon ap4 proval of a petition for an extension of stay or 

5 change in the alien’s authorized employment, 

6 the Secretary shall provide a new or updated 

7 employment eligibility document to the alien in8 dicating the new validity date, after which the 

9 alien is not required to retain a copy of the pe10 tition. 

11 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA12 TION OF ALIENS WITHOUT VALID IDENTIFICATION

13 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex14 pired identification and employment eligibility docu15 ment, together with a copy of a petition for exten16 sion of stay or change in the alien’s authorized em17 ployment that complies with the requirements of 

18 paragraph (1), shall constitute a valid work author19 ization document for a period of not more than 60 

20 days beginning on the date on which such petition 

21 is filed, after which time only a currently valid iden22 tification and employment eligibility document shall 

23 be acceptable. 

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

25 STATUS.— 


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1 ‘‘(A) MAXIMUM PERIOD.—The maximum 

2 continuous period of authorized status as an 

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

4 years. 

5 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

6 THE UNITED STATES.— 

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

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

9 United States whose period of authorized 

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

11 extensions) has expired, the alien may not 

12 again apply for admission to the United 

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

14 has remained outside the United States for 

a continuous period equal to at least 1 15 ⁄5

16 the duration of the alien’s previous period 

17 of authorized status as an H–2A worker 

18 (including any extensions). 

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

20 not apply in the case of an alien if the 

21 alien’s period of authorized status as an 

22 H–2A worker (including any extensions) 

23 was for a period of not more than 10 

24 months and such alien has been outside 

25 the United States for at least 2 months 


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•S 1038 IS

1 during the 12 months preceding the date 

2 the alien again is applying for admission to 

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

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

5 SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK6 ERS.—Notwithstanding any provision of the Agricultural 

7 Job Opportunities, Benefits, and Security Act of 2009, an 

8 alien admitted under section 101(a)(15)(H)(ii)(a) for em9 ployment as a sheepherder, goat herder, or dairy worker— 

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

11 months; 

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

13 initial period of admission extended for a period of 

14 up to 3 years; and 

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

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

17 from the United States). 

18 ‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI19 DENT STATUS FOR ALIENS EMPLOYED AS SHEEP20 HERDERS, GOAT HERDERS, OR DAIRY WORKERS.— 

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

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

23 ‘‘(A) having nonimmigrant status under 

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1 ment as a sheepherder, goat herder, or dairy 

2 worker; 

3 ‘‘(B) who has maintained such non4 immigrant status in the United States for a cu5 mulative total of 36 months (excluding any pe6 riod of absence from the United States); and 

7 ‘‘(C) who is seeking to receive an immi8 grant visa under section 203(b)(3)(A)(iii). 

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

10 of an eligible alien, the petition under section 204 

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

12 be filed by— 

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

14 eligible alien; or 

15 ‘‘(B) the eligible alien. 

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

17 Notwithstanding section 203(b)(3)(C), no deter18 mination under section 212(a)(5)(A) is required with 

19 respect to an immigrant visa described in paragraph 

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

21 ‘‘(4) EFFECT OF PETITION.—The filing of a pe22 tition described in paragraph (2) or an application 

23 for adjustment of status based on the approval of 

24 such a petition shall not constitute evidence of an 


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•S 1038 IS

1 alien’s ineligibility for nonimmigrant status under 

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

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

4 shall extend the stay of an eligible alien having a 

5 pending or approved classification petition described 

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

7 determination is made on the alien’s eligibility for 

8 adjustment of status to that of an alien lawfully ad9 mitted for permanent residence. 

10 ‘‘(6) CONSTRUCTION.—Nothing in this sub11 section shall be construed to prevent an eligible alien 

12 from seeking adjustment of status in accordance 

13 with any other provision of law. 

14 ‘‘SEC. 218C. WORKER PROTECTIONS AND LABOR STAND15 ARDS ENFORCEMENT. 

16 ‘‘(a) ENFORCEMENT AUTHORITY.— 

17 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 

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

19 COMPLAINTS.—The Secretary of Labor shall es20 tablish a process for the receipt, investigation, 

21 and disposition of complaints respecting a peti22 tioner’s failure to meet a condition specified in 

23 section 218(b), or an employer’s misrepresenta24 tion of material facts in an application under 

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


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•S 1038 IS

1 aggrieved person or organization (including bar2 gaining representatives). No investigation or 

3 hearing shall be conducted on a complaint con4 cerning such a failure or misrepresentation un5 less the complaint was filed not later than 12 

6 months after the date of the failure, or mis7 representation, respectively. The Secretary of 

8 Labor shall conduct an investigation under this 

9 subparagraph if there is reasonable cause to be10 lieve that such a failure or misrepresentation 

11 has occurred. 

12 ‘‘(B) DETERMINATION ON COMPLAINT.— 

13 Under such process, the Secretary of Labor 

14 shall provide, within 30 days after the date 

15 such a complaint is filed, for a determination as 

16 to whether or not a reasonable basis exists to 

17 make a finding described in subparagraph (C), 

18 (D), (E), or (G). If the Secretary of Labor de19 termines that such a reasonable basis exists, 

20 the Secretary of Labor shall provide for notice 

21 of such determination to the interested parties 

22 and an opportunity for a hearing on the com23 plaint, in accordance with section 556 of title 5, 

24 United States Code, within 60 days after the 

25 date of the determination. If such a hearing is 


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•S 1038 IS

1 requested, the Secretary of Labor shall make a 

2 finding concerning the matter not later than 60 

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

4 of similar complaints respecting the same appli5 cant, the Secretary of Labor may consolidate 

6 the hearings under this subparagraph on such 

7 complaints. 

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

9 the Secretary of Labor finds, after notice and 

10 opportunity for a hearing, a failure to meet a 

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

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

13 218(b), a substantial failure to meet a condition 

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

15 (2)(E), or (2)(H) of section 218(b), or a mate16 rial misrepresentation of fact in an application 

17 under section 218(a)— 

18 ‘‘(i) the Secretary of Labor shall no19 tify the Secretary of such finding and may, 

20 in addition, impose such other administra21 tive remedies (including civil money pen22 alties in an amount not to exceed $1,000 

23 per violation) as the Secretary of Labor 

24 determines to be appropriate; and 


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•S 1038 IS

1 ‘‘(ii) the Secretary may disqualify the 

2 employer from the employment of aliens 

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

4 for a period of 1 year. 

5 ‘‘(D) WILLFUL FAILURES AND WILLFUL

6 MISREPRESENTATIONS.—If the Secretary of 

7 Labor finds, after notice and opportunity for 

8 hearing, a willful failure to meet a condition of 

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

10 material fact in an application under section 

11 218(a), or a violation of subsection (d)(1)— 

12 ‘‘(i) the Secretary of Labor shall no13 tify the Secretary of such finding and may, 

14 in addition, impose such other administra15 tive remedies (including civil money pen16 alties in an amount not to exceed $5,000 

17 per violation) as the Secretary of Labor 

18 determines to be appropriate; 

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

20 appropriate legal or equitable relief to ef21 fectuate the purposes of subsection (d)(1); 

22 and 

23 ‘‘(iii) the Secretary may disqualify the 

24 employer from the employment of H–2A 

25 workers for a period of 2 years. 


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•S 1038 IS

1 ‘‘(E) DISPLACEMENT OF UNITED STATES

2 WORKERS.—If the Secretary of Labor finds, 

3 after notice and opportunity for hearing, a will4 ful failure to meet a condition of section 218(b) 

5 or a willful misrepresentation of a material fact 

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

7 course of which failure or misrepresentation the 

8 employer displaced a United States worker em9 ployed by the employer during the period of em10 ployment on the employer’s application under 

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

12 preceding such period of employment— 

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

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

18 per violation) as the Secretary of Labor 

19 determines to be appropriate; and 

20 ‘‘(ii) the Secretary may disqualify the 

21 employer from the employment of H–2A 

22 workers for a period of 3 years. 

23 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN24 ALTIES.—The Secretary of Labor shall not im25 pose total civil money penalties with respect to 


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•S 1038 IS

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

2 $90,000. 

3 ‘‘(G) FAILURES TO PAY WAGES OR RE4 QUIRED BENEFITS.—If the Secretary of Labor 

5 finds, after notice and opportunity for a hear6 ing, that the employer has failed to pay the 

7 wages, or provide the housing allowance, trans8 portation, subsistence reimbursement, or guar9 antee of employment, required under section 

10 218A(b), the Secretary of Labor shall assess 

11 payment of back wages, or other required bene12 fits, due any United States worker or H–2A 

13 worker employed by the employer in the specific 

14 employment in question. The back wages or 

15 other required benefits under section 218A(b) 

16 shall be equal to the difference between the 

17 amount that should have been paid and the 

18 amount that actually was paid to such worker. 

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

20 this section shall be construed as limiting the au21 thority of the Secretary of Labor to conduct any 

22 compliance investigation under any other labor law, 

23 including any law affecting migrant and seasonal ag24 ricultural workers, or, in the absence of a complaint 

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


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•S 1038 IS

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

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

3 through the private right of action provided in subsection 

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

5 or State law to enforce such rights: 

6 ‘‘(1) The providing of housing or a housing al7 lowance as required under section 218A(b)(1). 

8 ‘‘(2) The reimbursement of transportation as 

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

10 ‘‘(3) The payment of wages required under sec11 tion 218A(b)(3) when due. 

12 ‘‘(4) The benefits and material terms and con13 ditions of employment expressly provided in the job 

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

15 the assurance to comply with other Federal, State, 

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

17 compliance with which shall be governed by the pro18 visions of such laws. 

19 ‘‘(5) The guarantee of employment required 

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

21 ‘‘(6) The motor vehicle safety requirements 

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

23 ‘‘(7) The prohibition of discrimination under 

24 subsection (d)(2). 

25 ‘‘(c) PRIVATE RIGHT OF ACTION.— 


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•S 1038 IS

1 ‘‘(1) MEDIATION.—Upon the filing of a com2 plaint by an H–2A worker aggrieved by a violation 

3 of rights enforceable under subsection (b), and with4 in 60 days of the filing of proof of service of the 

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

6 with the Federal Mediation and Conciliation Service 

7 to assist the parties in reaching a satisfactory reso8 lution of all issues involving all parties to the dis9 pute. Upon a filing of such request and giving of no10 tice to the parties, the parties shall attempt medi11 ation within the period specified in subparagraph 

12 (B). 

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

14 Mediation and Conciliation Service shall be 

15 available to assist in resolving disputes arising 

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

17 and agricultural employers without charge to 

18 the parties. 

19 ‘‘(B) 90-DAY LIMIT.—The Federal Medi20 ation and Conciliation Service may conduct me21 diation or other nonbinding dispute resolution 

22 activities for a period not to exceed 90 days be23 ginning on the date on which the Federal Medi24 ation and Conciliation Service receives the reVerDate Nov 24 2008 03:06 May 16, 2009 Jkt 079200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 E:\BILLS\S1038.IS S1038

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•S 1038 IS

1 quest for assistance unless the parties agree to 

2 an extension of this period of time. 

3 ‘‘(C) AUTHORIZATION.— 

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

5 (ii), there are authorized to be appro6 priated to the Federal Mediation and Con7 ciliation Service $500,000 for each fiscal 

8 year to carry out this section. 

9 ‘‘(ii) MEDIATION.—Notwithstanding 

10 any other provision of law, the Director of 

11 the Federal Mediation and Conciliation 

12 Service is authorized to conduct the medi13 ation or other dispute resolution activities 

14 from any other appropriated funds avail15 able to the Director and to reimburse such 

16 appropriated funds when the funds are ap17 propriated pursuant to this authorization, 

18 such reimbursement to be credited to ap19 propriations currently available at the time 

20 of receipt. 

21 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS22 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

23 worker aggrieved by a violation of rights enforceable 

24 under subsection (b) by an agricultural employer or 

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


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•S 1038 IS

1 United States having jurisdiction over the parties, 

2 without regard to the amount in controversy, with3 out regard to the citizenship of the parties, and 

4 without regard to the exhaustion of any alternative 

5 administrative remedies under this Act, not later 

6 than 3 years after the date the violation occurs. 

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

8 filed an administrative complaint with the Secretary 

9 of Labor may not maintain a civil action under 

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

11 violation filed with the Secretary of Labor under 

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

13 such action, in which case the rights and remedies 

14 available under this subsection shall be exclusive. 

15 ‘‘(4) PREEMPTION OF STATE CONTRACT

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

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

18 under any other Federal or State law or regulation 

19 or under any collective bargaining agreement, except 

20 that no court or administrative action shall be avail21 able under any State contract law to enforce the 

22 rights created by this Act. 

23 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree24 ments by employees purporting to waive or modify 

25 their rights under this Act shall be void as contrary 


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•S 1038 IS

1 to public policy, except that a waiver or modification 

2 of the rights or obligations in favor of the Secretary 

3 of Labor shall be valid for purposes of the enforce4 ment of this Act. The preceding sentence may not 

5 be construed to prohibit agreements to settle private 

6 disputes or litigation. 

7 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI8 TABLE RELIEF.— 

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

10 has intentionally violated any of the rights en11 forceable under subsection (b), it shall award 

12 actual damages, if any, or equitable relief. 

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

14 section shall be subject to appeal as provided in 

15 chapter 83 of title 28, United States Code. 

16 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX17 CLUSIVE REMEDY.— 

18 ‘‘(A) Notwithstanding any other provision 

19 of this section, where a State’s workers’ com20 pensation law is applicable and coverage is pro21 vided for an H–2A worker, the workers’ com22 pensation benefits shall be the exclusive remedy 

23 for the loss of such worker under this section 

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1 ance with such State’s workers’ compensation 

2 law. 

3 ‘‘(B) The exclusive remedy prescribed in 

4 subparagraph (A) precludes the recovery under 

5 paragraph (6) of actual damages for loss from 

6 an injury or death but does not preclude other 

7 equitable relief, except that such relief shall not 

8 include back or front pay or in any manner, di9 rectly or indirectly, expand or otherwise alter or 

10 affect— 

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

12 compensation law; or 

13 ‘‘(ii) rights conferred under a State 

14 workers’ compensation law. 

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

16 If it is determined under a State workers’ compensa17 tion law that the workers’ compensation law is not 

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

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

20 an action for actual damages for such injury or 

21 death under subsection (c) shall be tolled for the pe22 riod during which the claim for such injury or death 

23 under such State workers’ compensation law was 

24 pending. The statute of limitations for an action for 

25 actual damages or other equitable relief arising out 


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•S 1038 IS

1 of the same transaction or occurrence as the injury 

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

3 period during which the claim for such injury or 

4 death was pending under the State workers’ com5 pensation law. 

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

7 an H–2A worker and an H–2A employer or any per8 son reached through the mediation process required 

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

10 action arising out of the same facts between the par11 ties in any Federal or State court or administrative 

12 proceeding, unless specifically provided otherwise in 

13 the settlement agreement. 

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

15 Secretary of Labor with an H–2A employer on be16 half of an H–2A worker of a complaint filed with the 

17 Secretary of Labor under this section or any finding 

18 by the Secretary of Labor under subsection 

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

20 out of the same facts between the parties under any 

21 Federal or State court or administrative proceeding, 

22 unless specifically provided otherwise in the settle23 ment agreement. 

24 ‘‘(d) DISCRIMINATION PROHIBITED.— 


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1 ‘‘(1) IN GENERAL.—It is a violation of this sub2 section for any person who has filed an application 

3 under section 218(a), to intimidate, threaten, re4 strain, coerce, blacklist, discharge, or in any other 

5 manner discriminate against an employee (which 

6 term, for purposes of this subsection, includes a 

7 former employee and an applicant for employment) 

8 because the employee has disclosed information to 

9 the employer, or to any other person, that the em10 ployee reasonably believes evidences a violation of 

11 section 218 or 218A or any rule or regulation per12 taining to section 218 or 218A, or because the em13 ployee cooperates or seeks to cooperate in an inves14 tigation or other proceeding concerning the employ15 er’s compliance with the requirements of section 218 

16 or 218A or any rule or regulation pertaining to ei17 ther of such sections. 

18 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK19 ERS.—It is a violation of this subsection for any per20 son who has filed an application under section 

21 218(a), to intimidate, threaten, restrain, coerce, 

22 blacklist, discharge, or in any manner discriminate 

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

24 with just cause, filed a complaint with the Secretary 

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•S 1038 IS

1 ated and enforceable under subsection (b) or insti2 tuted, or caused to be instituted, a private right of 

3 action under subsection (c) regarding the denial of 

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

5 testified or is about to testify in any court pro6 ceeding brought under subsection (c). 

7 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO8 PRIATE EMPLOYMENT.—The Secretary of Labor and the 

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

10 worker who files a complaint regarding a violation of sub11 section (d) and is otherwise eligible to remain and work 

12 in the United States may be allowed to seek other appro13 priate employment in the United States for a period not 

14 to exceed the maximum period of stay authorized for such 

15 nonimmigrant classification. 

16 ‘‘(f) ROLE OF ASSOCIATIONS.— 

17 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA18 TION.—An employer on whose behalf an application 

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

20 responsible for such application, and for complying 

21 with the terms and conditions of sections 218 and 

22 218A, as though the employer had filed the applica23 tion itself. If such an employer is determined, under 

24 this section, to have committed a violation, the pen25 alty for such violation shall apply only to that memVerDate Nov 24 2008 03:06 May 16, 2009 Jkt 079200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\S1038.IS S1038

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1 ber of the association unless the Secretary of Labor 

2 determines that the association or other member 

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

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

5 invoked against the association or other association 

6 member as well. 

7 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

8 AS AN EMPLOYER.—If an association filing an appli9 cation as a sole or joint employer is determined to 

10 have committed a violation under this section, the 

11 penalty for such violation shall apply only to the as12 sociation unless the Secretary of Labor determines 

13 that an association member or members participated 

14 in or had knowledge, or reason to know of the viola15 tion, in which case the penalty shall be invoked 

16 against the association member or members as well. 

17 ‘‘SEC. 218D. DEFINITIONS. 

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

19 218B, and 218C: 

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

21 ‘agricultural employment’ means any service or ac22 tivity that is considered to be agricultural under sec23 tion 3(f) of the Fair Labor Standards Act of 1938 

24 (29 U.S.C. 203(f)) or agricultural labor under sec25 tion 3121(g) of the Internal Revenue Code of 1986 


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•S 1038 IS

1 or the performance of agricultural labor or services 

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

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

4 union’ means any organization in which employees 

5 participate and which exists for the purpose of deal6 ing with employers concerning grievances, labor dis7 putes, wages, rates of pay, hours of employment, or 

8 other terms and conditions of work for agricultural 

9 employees. Such term does not include an organiza10 tion formed, created, administered, supported, domi11 nated, financed, or controlled by an employer or em12 ployer association or its agents or representatives. 

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

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

15 2A workers by an employer, means laying off a 

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

17 2A worker or workers is or are sought. 

18 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 

19 with respect to an individual, means an individual 

20 who is not an unauthorized alien (as defined in sec21 tion 274A). 

22 ‘‘(5) EMPLOYER.—The term ‘employer’ means 

23 any person or entity, including any farm labor con24 tractor and any agricultural association, that em25 ploys workers in agricultural employment. 


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1 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em2 ployer’ means an employer who seeks to hire 1 or 

3 more nonimmigrant aliens described in section 

4 101(a)(15)(H)(ii)(a). 

5 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 

6 means a nonimmigrant described in section 

7 101(a)(15)(H)(ii)(a). 

8 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor9 tunity’ means a job opening for temporary or sea10 sonal full-time employment at a place in the United 

11 States to which United States workers can be re12 ferred. 

13 ‘‘(9) LAYING OFF.— 

14 ‘‘(A) IN GENERAL.—The term ‘laying off’, 

15 with respect to a worker— 

16 ‘‘(i) means to cause the worker’s loss 

17 of employment, other than through a dis18 charge for inadequate performance, viola19 tion of workplace rules, cause, voluntary 

20 departure, voluntary retirement, contract 

21 impossibility (as described in section 

22 218A(b)(4)(D)), or temporary suspension 

23 of employment due to weather, markets, or 

24 other temporary conditions; but 


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1 ‘‘(ii) does not include any situation in 

2 which the worker is offered, as an alter3 native to such loss of employment, a simi4 lar employment opportunity with the same 

5 employer (or, in the case of a placement of 

6 a worker with another employer under sec7 tion 218(b)(2)(E), with either employer de8 scribed in such section) at equivalent or 

9 higher compensation and benefits than the 

10 position from which the employee was dis11 charged, regardless of whether or not the 

12 employee accepts the offer. 

13 ‘‘(B) STATUTORY CONSTRUCTION.—Noth14 ing in this paragraph is intended to limit an 

15 employee’s rights under a collective bargaining 

16 agreement or other employment contract. 

17 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg18 ulatory drought’ means a decision subsequent to the 

19 filing of the application under section 218 by an en20 tity not under the control of the employer making 

21 such filing which restricts the employer’s access to 

22 water for irrigation purposes and reduces or limits 

23 the employer’s ability to produce an agricultural 

24 commodity, thereby reducing the need for labor. 


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1 ‘‘(11) SEASONAL.—Labor is performed on a 

2 ‘seasonal’ basis if— 

3 ‘‘(A) ordinarily, it pertains to or is of the 

4 kind exclusively performed at certain seasons or 

5 periods of the year; and 

6 ‘‘(B) from its nature, it may not be contin7 uous or carried on throughout the year. 

8 ‘‘(12) SECRETARY.—Except as otherwise pro9 vided, the term ‘Secretary’ means the Secretary of 

10 Homeland Security. 

11 ‘‘(13) TEMPORARY.—A worker is employed on a 

12 ‘temporary’ basis where the employment is intended 

13 not to exceed 10 months. 

14 ‘‘(14) UNITED STATES WORKER.—The term 

15 ‘United States worker’ means any worker, whether 

16 a national of the United States, an alien lawfully ad17 mitted for permanent residence, or any other alien, 

18 who is authorized to work in the job opportunity 

19 within the United States, except an alien admitted 

20 or otherwise provided status under section 

21 101(a)(15)(H)(ii)(a).’’. 

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

23 the Immigration and Nationality Act (8 U.S.C. 1101 et 

24 seq.) is amended by striking the item relating to section 

25 218 and inserting the following: 

‘‘Sec. 218. H–2A employer applications. 


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‘‘Sec. 218A. H–2A employment requirements. 

‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. 

‘‘Sec. 218C. Worker protections and labor standards enforcement. 

‘‘Sec. 218D. Definitions.’’. 

1 TITLE III—MISCELLANEOUS 

2 PROVISIONS 

3 SEC. 301. DETERMINATION AND USE OF USER FEES. 

4 (a) SCHEDULE OF FEES.—The Secretary shall estab5 lish and periodically adjust a schedule of fees for the em6 ployment of aliens pursuant to the amendment made by 

7 section 201(a) of this Act and a collection process for such 

8 fees from employers. Such fees shall be the only fees 

9 chargeable to employers for services provided under such 

10 amendment. 

11 (b) DETERMINATION OF SCHEDULE.— 

12 (1) IN GENERAL.—The schedule under sub13 section (a) shall reflect a fee rate based on the num14 ber of job opportunities indicated in the employer’s 

15 application under section 218 of the Immigration 

16 and Nationality Act, as amended by section 201 of 

17 this Act, and sufficient to provide for the direct 

18 costs of providing services related to an employer’s 

19 authorization to employ aliens pursuant to the 

20 amendment made by section 201(a) of this Act, to 

21 include the certification of eligible employers, the 

22 issuance of documentation, and the admission of eli23 gible aliens. 


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1 (2) PROCEDURE.— 

2 (A) IN GENERAL.—In establishing and ad3 justing such a schedule, the Secretary shall 

4 comply with Federal cost accounting and fee 

5 setting standards. 

6 (B) PUBLICATION AND COMMENT.—The 

7 Secretary shall publish in the Federal Register 

8 an initial fee schedule and associated collection 

9 process and the cost data or estimates upon 

10 which such fee schedule is based, and any sub11 sequent amendments thereto, pursuant to which 

12 public comment shall be sought and a final rule 

13 issued. 

14 (c) USE OF PROCEEDS.—Notwithstanding any other 

15 provision of law, all proceeds resulting from the payment 

16 of the fees pursuant to the amendment made by section 

17 201(a) of this Act shall be available without further appro18 priation and shall remain available without fiscal year lim19 itation to reimburse the Secretary, the Secretary of State, 

20 and the Secretary of Labor for the costs of carrying out— 

21 (1) sections 218 and 218B of the Immigration 

22 and Nationality Act, as amended and added, respec23 tively, by section 201 of this Act; and 

24 (2) the provisions of this Act. 


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1 SEC. 302. REGULATIONS. 

2 (a) REQUIREMENT FOR THE SECRETARY TO CON3 SULT.—The Secretary shall consult with the Secretary of 

4 Labor and the Secretary of Agriculture during the promul5 gation of all regulations to implement the duties of the 

6 Secretary under this Act and the amendments made by 

7 this Act. 

8 (b) REQUIREMENT FOR THE SECRETARY OF STATE

9 TO CONSULT.—The Secretary of State shall consult with 

10 the Secretary, the Secretary of Labor, and the Secretary 

11 of Agriculture on all regulations to implement the duties 

12 of the Secretary of State under this Act and the amend13 ments made by this Act. 

14 (c) REQUIREMENT FOR THE SECRETARY OF LABOR

15 TO CONSULT.—The Secretary of Labor shall consult with 

16 the Secretary of Agriculture and the Secretary on all regu17 lations to implement the duties of the Secretary of Labor 

18 under this Act and the amendments made by this Act. 

19 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 

20 All regulations to implement the duties of the Secretary, 

21 the Secretary of State, and the Secretary of Labor created 

22 under sections 218, 218A, 218B, 218C, and 218D of the 

23 Immigration and Nationality Act, as amended or added 

24 by section 201 of this Act, shall take effect on the effective 

25 date of section 201 and shall be issued not later than 1 

26 year after the date of enactment of this Act. 


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1 SEC. 303. REPORTS TO CONGRESS. 

2 (a) ANNUAL REPORT.—Not later than September 30 

3 of each year, the Secretary shall submit a report to Con4 gress that identifies, for the previous year— 

5 (1) the number of job opportunities approved 

6 for employment of aliens admitted under section 

7 101(a)(15)(H)(ii)(a) of the Immigration and Nation8 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the 

9 number of workers actually admitted, disaggregated 

10 by State and by occupation; 

11 (2) the number of such aliens reported to have 

12 abandoned employment pursuant to subsection 

13 (e)(2) of section 218B of such Act, as added by sec14 tion 201; 

15 (3) the number of such aliens who departed the 

16 United States within the period specified in sub17 section (d) of such section 218B; 

18 (4) the number of aliens who applied for blue 

19 card status pursuant to section 101(a); 

20 (5) the number of aliens who were granted such 

21 status pursuant section 101(a); 

22 (6) the number of aliens who applied for an ad23 justment of status pursuant to section 103(a); and 

24 (7) the number of aliens who received an ad25 justment of status pursuant section 103(a). 


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1 (b) IMPLEMENTATION REPORT.—Not later than 180 

2 days after the date of the enactment of this Act, the Sec3 retary shall prepare and submit to Congress a report that 

4 describes the measures being taken and the progress made 

5 in implementing this Act. 

6 SEC. 304. EFFECTIVE DATE. 

7 The amendments made by section 201 and section 

8 301 shall take effect 1 year after the date of the enact9 ment of this Act. 

Æ 


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