II 

108TH CONGRESS 

1ST SESSION S. 1645

To provide for the adjustment of status of certain foreign agricultural workers, to amend the Immigration and Nationality Act to reform the H–

2A worker program under that Act, to provide a stable, legal agricultural 

workforce, to extend basic legal protections and better working conditions 

to more workers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 23, 2003

Mr. CRAIG (for himself, Mr. KENNEDY, Mr. SMITH, Mr. GRAHAM of Florida, 

Mr. COCHRAN, Mr. SCHUMER, Mr. GREGG, Mr. LIEBERMAN, Mr. 

MCCAIN, Mr. KERRY, Mr. HAGEL, Ms. CANTWELL, Mr. VOINOVICH, Mr. 

WYDEN, Mr. COLEMAN, Mrs. CLINTON, Mr. DEWINE, Mrs. BOXER, and 

Mrs. MURRAY) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL

To provide for the adjustment of status of certain foreign 

agricultural workers, to amend the Immigration and Nationality Act to reform the H–2A worker program under 

that Act, to provide a stable, legal agricultural workforce, 

to extend basic legal protections and better working conditions to more workers, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

3 ‘‘Agricultural Job Opportunity, Benefits, and Security Act 

4 of 2003’’. 

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

6 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Definitions. 

TITLE I—ADJUSTMENT TO LAWFUL STATUS 

Sec. 101. Agricultural workers. 

Sec. 102. Correction of Social Security records. 

TITLE II—REFORM OF H–2A WORKER PROGRAM 

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

TITLE III—MISCELLANEOUS PROVISIONS 

Sec. 301. Determination and use of user fees. 

Sec. 302. Regulations. 

Sec. 303. Effective date.

7 SEC. 2. DEFINITIONS. 

8 In this Act: 

9 (1) AGRICULTURAL EMPLOYMENT.—The term 

10 ‘‘agricultural employment’’ means any service or ac11 tivity that is considered to be agricultural under sec12 tion 3(f) of the Fair Labor Standards Act of 1938 

13 (29 U.S.C. 203(f)) or agricultural labor under sec14 tion 3121(g) of the Internal Revenue Code of 1986 

15 (26 U.S.C. 3121(g)). For purposes of this para16 graph, agricultural employment includes employment 

17 under section 101(a)(15)(H)(ii)(a) of the Immigra-
3

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

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

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

4 any person or entity, including any farm labor con5 tractor and any agricultural association, that em6 ploys workers in agricultural employment. 

7 (3) JOB OPPORTUNITY.—The term ‘‘job oppor8 tunity’’ means a job opening for temporary full-time 

9 employment at a place in the United States to which 

10 United States workers can be referred. 

11 (4) SECRETARY.—The term ‘‘Secretary’’ means 

12 the Secretary of Homeland Security. 

13 (5) TEMPORARY.—A worker is employed on a 

14 ‘‘temporary’’ basis where the employment is in15 tended not to exceed 10 months. 

16 (6) UNITED STATES WORKER.—The term 

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

18 a United States citizen or national, a lawfully admit19 ted permanent resident alien, or any other alien, 

20 who is authorized to work in the job opportunity 

21 within the United States, except an alien admitted 

22 or otherwise provided status under section 

23 101(a)(15)(H)(ii)(a) of the Immigration and Nation24 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)). 
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1 (7) WORK DAY.—The term ‘‘work day’’ means 

2 any day in which the individual is employed 1 or 

3 more hours in agriculture. 

4 TITLE I—ADJUSTMENT TO 

5 LAWFUL STATUS 

6 SEC. 101. AGRICULTURAL WORKERS. 

7 (a) TEMPORARY RESIDENT STATUS.—

8 (1) IN GENERAL.—Notwithstanding any other 

9 provision of law, the Secretary shall confer upon an 

10 alien who qualifies under this subsection the status 

11 of an alien lawfully admitted for temporary residence 

12 if the Secretary determines that the following re13 quirements are satisfied with respect to the alien: 

14 (A) PERFORMANCE OF AGRICULTURAL EM15 PLOYMENT IN THE UNITED STATES.—The alien 

16 must establish that the alien has performed ag17 ricultural employment in the United States for 

18 at least 575 hours or 100 work days, whichever 

19 is less, during any 12 consecutive months dur20 ing the 18-month period ending on August 31, 

21 2003. 

22 (B) APPLICATION PERIOD.—The alien 

23 must apply for such status during the 18-month 

24 application period beginning on the 1st day of 
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1 the 7th month that begins after the date of en2 actment of this Act. 

3 (C) ADMISSIBLE AS IMMIGRANT.—The 

4 alien must establish that the alien is otherwise 

5 admissible to the United States under section 

6 212 of the Immigration and Nationality Act (8 

7 U.S.C. 1182), except as otherwise provided 

8 under subsection (e)(2). 

9 (2) AUTHORIZED TRAVEL.—During the period 

10 an alien is in lawful temporary resident status 

11 granted under this subsection, the alien has the 

12 right to travel abroad (including commutation from 

13 a residence abroad) in the same manner as an alien 

14 lawfully admitted for permanent residence. 

15 (3) AUTHORIZED EMPLOYMENT.—During the 

16 period an alien is in lawful temporary resident sta17 tus granted under this subsection, the alien shall be 

18 provided an ‘‘employment authorized’’ endorsement 

19 or other appropriate work permit, in the same man20 ner as an alien lawfully admitted for permanent resi21 dence. 

22 (4) TERMINATION OF TEMPORARY RESIDENT

23 STATUS.—During the period of temporary resident 

24 status granted an alien under this subsection, the 

25 Secretary may terminate such status only upon a de-
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1 termination under this Act that the alien is deport2 able. 

3 (5) RECORD OF EMPLOYMENT.—

4 (A) IN GENERAL.—Each employer of a 

5 worker granted status under this subsection 

6 shall annually—

7 (i) provide a written record of employ8 ment to the alien; and

9 (ii) provide a copy of such record to 

10 the Secretary. 

11 (B) SUNSET.—The obligation under sub12 paragraph (A) terminates on August 31, 2009. 

13 (b) RIGHTS OF ALIENS GRANTED TEMPORARY RESI14 DENT STATUS.—

15 (1) IN GENERAL.—Except as otherwise pro16 vided in this subsection, an alien who acquires the 

17 status of an alien lawfully admitted for temporary 

18 residence under subsection (a), such status not hav19 ing changed, shall be considered to be an alien law20 fully admitted for permanent residence for purposes 

21 of any law other than any provision of the Immigra22 tion and Nationality Act (8 U.S.C. 1101 et seq.). 

23 (2) TERMS OF EMPLOYMENT RESPECTING

24 ALIENS ADMITTED UNDER THIS SECTION.—
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1 (A) PROHIBITION.—No alien granted sta2 tus under subsection (a) may be terminated 

3 from employment by any employer during the 

4 period of temporary resident status except for 

5 just cause. 

6 (B) TREATMENT OF COMPLAINTS.—

7 (i) ESTABLISHMENT OF PROCESS.—

8 The Secretary shall establish a process for 

9 the receipt, initial review, and disposition 

10 in accordance with this subparagraph of 

11 complaints by aliens granted temporary 

12 resident status under subsection (a) who 

13 allege that they have been terminated with14 out just cause. No proceeding shall be con15 ducted under this subparagraph with re16 spect to a termination unless the Secretary 

17 determines that the complaint was filed 

18 not later than 6 months after the date of 

19 the termination. 

20 (ii) INITIATION OF ARBITRATION.—If 

21 the Secretary finds that a complaint has 

22 been filed in accordance with clause (i) and 

23 there is reasonable cause to believe that 

24 the complainant was terminated without 

25 just cause, the Secretary shall initiate 
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1 binding arbitration proceedings by request2 ing the Federal Mediation and Conciliation 

3 Service to appoint a mutually agreeable ar4 bitrator from the roster of arbitrators 

5 maintained by such Service for the geo6 graphical area in which the employer is lo7 cated. The procedures and rules of such 

8 Service shall be applicable to the selection 

9 of such arbitrator and to such arbitration 

10 proceedings. The Secretary shall pay the 

11 fee and expenses of the arbitrator. 

12 (iii) ARBITRATION PROCEEDINGS.—

13 The arbitrator shall conduct the pro14 ceeding in accordance with the policies and 

15 procedures promulgated by the American 

16 Arbitration Association applicable to pri17 vate arbitration of employment disputes. 

18 The arbitrator shall make findings respect19 ing whether the termination was for just 

20 cause. The arbitrator may not find that 

21 the termination was for just cause unless 

22 the employer so demonstrates by a prepon23 derance of the evidence. If the arbitrator 

24 finds that the termination was not for just 

25 cause, the arbitrator shall make a specific 
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1 finding of the number of days or hours of 

2 work lost by the employee as a result of 

3 the termination. The arbitrator shall have 

4 no authority to order any other remedy, in5 cluding, but not limited to, reinstatement, 

6 back pay, or front pay to the affected em7 ployee. Within 30 days from the conclusion 

8 of the arbitration proceeding, the arbi9 trator shall transmit the findings in the 

10 form of a written opinion to the parties to 

11 the arbitration and the Secretary. Such 

12 findings shall be final and conclusive, and 

13 no official or court of the United States 

14 shall have the power or jurisdiction to re15 view any such findings. 

16 (iv) EFFECT OF ARBITRATION FIND17 INGS.—If the Secretary receives a finding 

18 of an arbitrator that an employer has ter19 minated an alien granted temporary resi20 dent status under subsection (a) without 

21 just cause, the Secretary shall credit the 

22 alien for the number of days or hours of 

23 work lost for purposes of the requirement 

24 of subsection (c)(1). 
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1 (v) TREATMENT OF ATTORNEY’S

2 FEES.—The parties shall bear the cost of 

3 their own attorney’s fees involved in the 

4 litigation of the complaint. 

5 (vi) NONEXCLUSIVE REMEDY.—The 

6 complaint process provided for in this sub7 paragraph is in addition to any other 

8 rights an employee may have in accordance 

9 with applicable law. 

10 (vii) EFFECT ON OTHER ACTIONS OR

11 PROCEEDINGS.—Any finding of fact or 

12 law, judgment, conclusion, or final order 

13 made by an arbitrator in the proceeding 

14 before the Secretary shall not be conclusive 

15 or binding in any separate or subsequent 

16 action or proceeding between the employee 

17 and the employee’s current or prior em18 ployer brought before an arbitrator, admin19 istrative agency, court, or judge of any 

20 State or the United States, regardless of 

21 whether the prior action was between the 

22 same or related parties or involved the 

23 same facts, except that the arbitrator’s 

24 specific finding of the number of days or 

25 hours of work lost by the employee as a re-
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1 sult of the employment termination may be 

2 referred to the Secretary pursuant to 

3 clause (iv). 

4 (C) CIVIL PENALTIES.—

5 (i) IN GENERAL.—If the Secretary 

6 finds, after notice and opportunity for a 

7 hearing, that an employer of an alien 

8 granted temporary resident status under 

9 subsection (a) has failed to provide the

10 record of employment required under sub11 section (a)(5) or has provided a false state12 ment of material fact in such a record, the 

13 employer shall be subject to a civil money 

14 penalty in an amount not to exceed $1,000 

15 per violation. 

16 (ii) LIMITATION.—The penalty appli17 cable under clause (i) for failure to provide 

18 records shall not apply unless the alien has 

19 provided the employer with evidence of em20 ployment authorization granted under this 

21 section. 

22 (c) ADJUSTMENT TO PERMANENT RESIDENCE.—

23 (1) AGRICULTURAL WORKERS.—

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

25 subparagraph (B), the Secretary shall adjust 
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1 the status of an alien granted lawful temporary 

2 resident status under subsection (a) to that of 

3 an alien lawfully admitted for permanent resi4 dence if the Secretary determines that the fol5 lowing requirements are satisfied: 

6 (i) QUALIFYING EMPLOYMENT.—The 

7 alien has performed at least 2,060 hours 

8 or 360 work days, whichever is less, of ag9 ricultural employment in the United 

10 States, during the period beginning on 

11 September 1, 2003, and ending on August 

12 31, 2009. 

13 (ii) QUALIFYING YEARS.—The alien 

14 has performed at least 430 hours or 75 

15 work days, whichever is less, of agricul16 tural employment in the United States in 

17 at least 3 nonoverlapping periods of 12 

18 consecutive months during the period be19 ginning on September 1, 2003, and ending 

20 on August 31, 2009. Qualifying periods 

21 under this clause may include nonconsecu22 tive 12-month periods. 

23 (iii) QUALIFYING WORK IN FIRST 3

24 YEARS.—The alien has performed at least 

25 1,380 hours or 240 work days, whichever 
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1 is less, of agricultural employment during 

2 the period beginning on September 1, 

3 2003, and ending on August 31, 2006. 

4 (iv) APPLICATION PERIOD.—The alien 

5 applies for adjustment of status not later 

6 than August 31, 2010. 

7 (v) PROOF.—In meeting the require8 ments of clauses (i), (ii), and (iii), an alien 

9 may submit the record of employment de10 scribed in subsection (a)(5) or such docu11 mentation as may be submitted under sub12 section (d)(3). 

13 (vi) DISABILITY.—In determining 

14 whether an alien has met the requirements 

15 of clauses (i), (ii), and (iii), the Secretary 

16 shall credit the alien with any work days 

17 lost because the alien was unable to work 

18 in agricultural employment due to injury 

19 or disease arising out of and in the course 

20 of the alien’s agricultural employment, if 

21 the alien can establish such disabling in22 jury or disease through medical records. 

23 (B) GROUNDS FOR DENIAL OF ADJUST24 MENT OF STATUS.—The Secretary may deny an 

25 alien adjustment to permanent resident status, 
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1 and provide for termination of the temporary 

2 resident status granted such alien under sub3 section (a), if—

4 (i) the Secretary finds by a prepon5 derance of the evidence that the adjust6 ment to temporary resident status was the 

7 result of fraud or willful misrepresentation, 

8 as described in section 212(a)(6)(C)(i) of 

9 the Immigration and Nationality Act (8 

10 U.S.C. 1182(a)(6)(C)(i)); or 

11 (ii) the alien— 

12 (I) commits an act that makes 

13 the alien inadmissible to the United 

14 States under section 212 of the Immi15 gration and Nationality Act (8 U.S.C. 

16 1182), except as provided under sub17 section (e)(2); or 

18 (II) is convicted of a felony or 3 

19 or more misdemeanors committed in 

20 the United States. 

21 (C) GROUNDS FOR REMOVAL.—Any alien 

22 granted temporary resident status under sub23 section (a) who does not apply for adjustment 

24 of status under this subsection before the expi25 ration of the application period described in 
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1 subparagraph (A)(iv), or who fails to meet the 

2 other requirements of subparagraph (A) by the 

3 end of the applicable period, is deportable and 

4 may be removed under section 240 of the Immi5 gration and Nationality Act (8 U.S.C. 1229a). 

6 The Secretary shall issue regulations estab7 lishing grounds to waive subparagraph (A)(iii) 

8 with respect to an alien who has completed at 

9 least 200 days of the work requirement speci10 fied in such subparagraph in the event of a nat11 ural disaster which substantially limits the 

12 availability of agricultural employment or a per13 sonal emergency that prevents compliance with 

14 such subparagraph. 

15 (2) SPOUSES AND MINOR CHILDREN.—

16 (A) IN GENERAL.—Notwithstanding any 

17 other provision of law, the Secretary shall con18 fer the status of lawful permanent resident on 

19 the spouse and minor child of an alien granted 

20 status under paragraph (1), including any indi21 vidual who was a minor child on the date such 

22 alien was granted temporary resident status, if 

23 the spouse or minor child applies for such sta24 tus, or if the principal alien includes the spouse 

25 or minor child in an application for adjustment 
16

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1 of status to that of a lawful permanent resi2 dent. 

3 (B) TREATMENT OF SPOUSES AND MINOR

4 CHILDREN PRIOR TO ADJUSTMENT OF STA5 TUS.—A spouse and minor child of an alien 

6 granted temporary resident status under sub7 section (a) may not be—

8 (i) removed while such alien maintains 

9 such status; and 

10 (ii) granted authorization to engage in 

11 employment in the United States or be 

12 provided an ‘‘employment authorized’’ en13 dorsement or other work permit, unless 

14 such employment authorization is granted 

15 under another provision of law. 

16 (d) APPLICATIONS.—

17 (1) TO WHOM MAY BE MADE.—

18 (A) WITHIN THE UNITED STATES.—The 

19 Secretary shall provide that—

20 (i) applications for temporary resident 

21 status under subsection (a) may be filed—

22 (I) with the Secretary, but only if 

23 the applicant is represented by an at24 torney; or 
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1 (II) with a qualified designated 

2 entity (designated under paragraph 

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

4 to the forwarding of the application to 

5 the Secretary; and 

6 (ii) applications for adjustment of sta7 tus under subsection (c) shall be filed di8 rectly with the Secretary. 

9 (B) OUTSIDE THE UNITED STATES.—The 

10 Secretary, in cooperation with the Secretary of 

11 State, shall establish a procedure whereby an 

12 alien may apply for temporary resident status 

13 under subsection (a) at an appropriate consular 

14 office outside the United States. 

15 (C) PRELIMINARY APPLICATIONS.—

16 (i) IN GENERAL.—During the applica17 tion period described in subsection 

18 (a)(1)(B), the Secretary may grant admis19 sion to the United States as a temporary 

20 resident and provide an ‘‘employment au21 thorized’’ endorsement or other appro22 priate work permit to any alien who pre23 sents a preliminary application for such 

24 status under subsection (a) at a designated 

25 port of entry on the southern land border 
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1 of the United States. An alien who does 

2 not enter through a port of entry is subject 

3 to deportation and removal as otherwise 

4 provided in this Act. 

5 (ii) DEFINITION.—For purposes of 

6 clause (i), the term ‘‘preliminary applica7 tion’’ means a fully completed and signed 

8 application which contains specific infor9 mation concerning the performance of 

10 qualifying employment in the United 

11 States, together with the payment of the 

12 appropriate fee and the submission of pho13 tographs and the documentary evidence 

14 which the applicant intends to submit as 

15 proof of such employment. 

16 (iii) ELIGIBILITY.—An applicant 

17 under clause (i) must be otherwise admis18 sible to the United States under subsection 

19 (e)(2) and must establish to the satisfac20 tion of the examining officer during an 

21 interview that the applicant’s claim to eli22 gibility for temporary resident status is 

23 credible. 

24 (D) TRAVEL DOCUMENTATION.—The Sec25 retary shall provide each alien granted status 
19

•S 1645 IS 

1 under this section with a counterfeit-resistant 

2 document of authorization to enter or reenter 

3 the United States that meets the requirements 

4 established by the Secretary. 

5 (2) DESIGNATION OF ENTITIES TO RECEIVE AP6 PLICATIONS.—

7 (A) IN GENERAL.—For purposes of receiv8 ing applications under subsection (a), the Sec9 retary—

10 (i) shall designate qualified farm labor 

11 organizations and associations of employ12 ers; and 

13 (ii) may designate such other persons 

14 as the Secretary determines are qualified 

15 and have substantial experience, dem16 onstrate competence, and have traditional 

17 long-term involvement in the preparation 

18 and submittal of applications for adjust19 ment of status under section 209, 210, or 

20 245 of the Immigration and Nationality 

21 Act, Public Law 89–732, Public Law 95–

22 145, or the Immigration Reform and Con23 trol Act of 1986. 

24 (B) REFERENCES.—Organizations, asso25 ciations, and persons designated under subpara-
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1 graph (A) are referred to in this Act as ‘‘quali2 fied designated entities’’. 

3 (3) PROOF OF ELIGIBILITY.—

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

5 that the alien meets the requirement of sub6 section (a)(1)(A) or subsection (c)(1)(A) 

7 through government employment records or 

8 records supplied by employers or collective bar9 gaining organizations, and other reliable docu10 mentation as the alien may provide. The Sec11 retary shall establish special procedures to 

12 properly credit work in cases in which an alien 

13 was employed under an assumed name. 

14 (B) DOCUMENTATION OF WORK HIS15 TORY.—(i) An alien applying for status under 

16 subsection (a)(1) or subsection (c)(1) has the 

17 burden of proving by a preponderance of the 

18 evidence that the alien has worked the requisite 

19 number of hours or days (as required under 

20 subsection (a)(1)(A) or subsection (c)(1)(A)). 

21 (ii) If an employer or farm labor con22 tractor employing such an alien has kept proper 

23 and adequate records respecting such employ24 ment, the alien’s burden of proof under clause 

25 (i) may be met by securing timely production of 
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1 those records under regulations to be promul2 gated by the Secretary. 

3 (iii) An alien can meet such burden of 

4 proof if the alien establishes that the alien has 

5 in fact performed the work described in sub6 section (a)(1)(A) or subsection (c)(1)(A) by 

7 producing sufficient evidence to show the extent 

8 of that employment as a matter of just and rea9 sonable inference. 

10 (4) TREATMENT OF APPLICATIONS BY QUALI11 FIED DESIGNATED ENTITIES.—Each qualified des12 ignated entity must agree to forward to the Sec13 retary applications filed with it in accordance with 

14 paragraph (1)(A)(i)(II) but not to forward to the 

15 Secretary applications filed with it unless the appli16 cant has consented to such forwarding. No such en17 tity may make a determination required by this sec18 tion to be made by the Secretary. Upon the request 

19 of the alien, a qualified designated entity shall assist 

20 the alien in obtaining documentation of the work 

21 history of the alien. 

22 (5) LIMITATION ON ACCESS TO INFORMA23 TION.—Files and records prepared for purposes of 

24 this subsection by qualified designated entities oper25 ating under this subsection are confidential and the 
22

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1 Secretary shall not have access to such files or 

2 records relating to an alien without the consent of 

3 the alien, except as allowed by a court order issued 

4 pursuant to paragraph (6). 

5 (6) CONFIDENTIALITY OF INFORMATION.—

6 (A) IN GENERAL.—Except as otherwise 

7 provided in this subsection, neither the Sec8 retary, nor any other official or employee of the 

9 Department of Homeland Security, or bureau 

10 or agency thereof, may—

11 (i) use the information furnished by 

12 the applicant pursuant to an application 

13 filed under this section, the information 

14 provided to the applicant by a person des15 ignated under paragraph (2)(A), or any in16 formation provided by an employer or 

17 former employer, for any purpose other 

18 than to make a determination on the appli19 cation, or for enforcement of paragraph 

20 (7); 

21 (ii) make any publication whereby the 

22 information furnished by any particular in23 dividual can be identified; or 

24 (iii) permit anyone other than the 

25 sworn officers and employees of the De-
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1 partment of Homeland Security, or bureau 

2 or agency thereof, or, with respect to appli3 cations filed with a qualified designated en4 tity, that qualified designated entity, to ex5 amine individual applications. 

6 (B) CRIME.—Whoever knowingly uses, 

7 publishes, or permits information to be exam8 ined in violation of this paragraph shall be fined 

9 not more than $10,000. 

10 (7) PENALTIES FOR FALSE STATEMENTS IN AP11 PLICATIONS.—

12 (A) CRIMINAL PENALTY.—Whoever—

13 (i) files an application for status 

14 under subsection (a) or (c) and knowingly 

15 and willfully falsifies, conceals, or covers 

16 up a material fact or makes any false, fic17 titious, or fraudulent statements or rep18 resentations, or makes or uses any false 

19 writing or document knowing the same to 

20 contain any false, fictitious, or fraudulent 

21 statement or entry; or 

22 (ii) creates or supplies a false writing 

23 or document for use in making such an ap24 plication; 
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1 shall be fined in accordance with title 18, 

2 United States Code, or imprisoned not more 

3 than 5 years, or both. 

4 (B) INADMISSIBILITY.—An alien who is 

5 convicted of a crime under subparagraph (A) 

6 shall be considered to be inadmissible to the 

7 United States on the ground described in sec8 tion 212(a)(6)(C)(i) of the Immigration and 

9 Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)). 

10 (8) ELIGIBILITY FOR LEGAL SERVICES.—Sec11 tion 504(a)(11) of Public Law 104–134 (110 Stat. 

12 1321–53 et seq.) shall not be construed to prevent 

13 a recipient of funds under the Legal Services Cor14 poration Act (42 U.S.C. 2996 et seq.) from pro15 viding legal assistance directly related to an applica16 tion for adjustment of status under this section. 

17 (9) APPLICATION FEES.—

18 (A) FEE SCHEDULE.—The Secretary shall 

19 provide for a schedule of fees that—

20 (i) shall be charged for the filing of 

21 applications for status under subsections 

22 (a) and (c); and 

23 (ii) may be charged by qualified des24 ignated entities to help defray the costs of 

25 services provided to such applicants. 
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1 (B) PROHIBITION ON EXCESS FEES BY

2 QUALIFIED DESIGNATED ENTITIES.—A quali3 fied designated entity may not charge any fee 

4 in excess of, or in addition to, the fees author5 ized under subparagraph (A)(ii) for services 

6 provided to applicants. 

7 (C) DISPOSITION OF FEES.—

8 (i) IN GENERAL.—There is established 

9 in the general fund of the Treasury a sepa10 rate account, which shall be known as the 

11 ‘‘Agricultural Worker Immigration Status 

12 Adjustment Account’’. Notwithstanding 

13 any other provision of law, there shall be 

14 deposited as offsetting receipts into the ac15 count all fees collected under subparagraph 

16 (A)(i). 

17 (ii) USE OF FEES FOR APPLICATION

18 PROCESSING.—Amounts deposited in the 

19 ‘‘Agricultural Worker Immigration Status 

20 Adjustment Account’’ shall remain avail21 able to the Secretary until expended for 

22 processing applications for status under 

23 subsections (a) and (c). 

24 (e) WAIVER OF NUMERICAL LIMITATIONS AND CER25 TAIN GROUNDS FOR INADMISSIBILITY.—
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1 (1) NUMERICAL LIMITATIONS DO NOT APPLY.—

2 The numerical limitations of sections 201 and 202 

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

4 1151 and 1152) shall not apply to the adjustment 

5 of aliens to lawful permanent resident status under 

6 this section.

7 (2) WAIVER OF CERTAIN GROUNDS OF INAD8 MISSIBILITY.—In the determination of an alien’s eli9 gibility for status under subsection (a)(1)(C) or an 

10 alien’s eligibility for adjustment of status under sub11 section (c)(1)(B)(ii)(I), the following rules shall 

12 apply: 

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

15 (6)(A), (7)(A), and (9)(B) of section 212(a) of 

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

17 1182(a)) shall not apply. 

18 (B) WAIVER OF OTHER GROUNDS.—

19 (i) IN GENERAL.—Except as provided 

20 in clause (ii), the Secretary may waive any 

21 other provision of such section 212(a) in 

22 the case of individual aliens for humani23 tarian purposes, to ensure family unity, or 

24 when it is otherwise in the public interest. 
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1 (ii) GROUNDS THAT MAY NOT BE

2 WAIVED.—The following provisions of such 

3 section 212(a) may not be waived by the 

4 Secretary under clause (i): 

5 (I) Subparagraphs (A) and (B) 

6 of paragraph (2) (relating to crimi7 nals). 

8 (II) Paragraph (4) (relating to 

9 aliens likely to become public 

10 charges). 

11 (III) Paragraph (2)(C) (relating 

12 to drug offenses). 

13 (IV) Paragraph (3) (relating to 

14 security and related grounds). 

15 (iii) CONSTRUCTION.—Nothing in this 

16 subparagraph shall be construed as affect17 ing the authority of the Secretary other 

18 than under this subparagraph to waive 

19 provisions of such section 212(a). 

20 (C) SPECIAL RULE FOR DETERMINATION

21 OF PUBLIC CHARGE.—An alien is not ineligible 

22 for status under this section by reason of a 

23 ground of inadmissibility under section 

24 212(a)(4) of the Immigration and Nationality 

25 Act (8 U.S.C. 1182(a)(4)) if the alien dem-
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1 onstrates a history of employment in the United 

2 States evidencing self-support without reliance 

3 on public cash assistance. 

4 (f) TEMPORARY STAY OF REMOVAL AND WORK AU5 THORIZATION FOR CERTAIN APPLICANTS.—

6 (1) BEFORE APPLICATION PERIOD.—Effective 

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

8 shall provide that, in the case of an alien who is ap9 prehended before the beginning of the application 

10 period described in subsection (a)(1)(B) and who 

11 can establish a nonfrivolous case of eligibility for 

12 temporary resident status under subsection (a) (but 

13 for the fact that the alien may not apply for such 

14 status until the beginning of such period), until the 

15 alien has had the opportunity during the first 30 

16 days of the application period to complete the filing 

17 of an application for temporary resident status, 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’’ en23 dorsement or other appropriate work permit for 

24 such purpose. 
29

•S 1645 IS 

1 (2) DURING APPLICATION PERIOD.—The Sec2 retary shall provide that, in the case of an alien who 

3 presents a nonfrivolous application for temporary 

4 resident status under subsection (a) during the ap5 plication period described in subsection (a)(1)(B), 

6 including an alien who files such an application 

7 within 30 days of the alien’s apprehension, and until 

8 a final determination on the application has been 

9 made in accordance with this section, the alien—

10 (A) may not be removed; and 

11 (B) shall be granted authorization to en12 gage in employment in the United States and 

13 be provided an ‘‘employment authorized’’ en14 dorsement or other appropriate work permit for 

15 such purpose. 

16 (g) ADMINISTRATIVE AND JUDICIAL REVIEW.—

17 (1) IN GENERAL.—There shall be no adminis18 trative or judicial review of a determination respect19 ing an application for status under subsection (a) or 

20 (c) except in accordance with this subsection. 

21 (2) ADMINISTRATIVE REVIEW.—

22 (A) SINGLE LEVEL OF ADMINISTRATIVE

23 APPELLATE REVIEW.—The Secretary shall es24 tablish an appellate authority to provide for a 
30

•S 1645 IS 

1 single level of administrative appellate review of 

2 such a determination. 

3 (B) STANDARD FOR REVIEW.—Such ad4 ministrative appellate review shall be based 

5 solely upon the administrative record estab6 lished at the time of the determination on the 

7 application and upon such additional or newly 

8 discovered evidence as may not have been avail9 able at the time of the determination. 

10 (3) JUDICIAL REVIEW.—

11 (A) LIMITATION TO REVIEW OF RE12 MOVAL.—There shall be judicial review of such 

13 a determination only in the judicial review of an 

14 order of removal under section 242 of the Im15 migration and Nationality Act (8 U.S.C. 1252). 

16 (B) STANDARD FOR JUDICIAL REVIEW.—

17 Such judicial review shall be based solely upon 

18 the administrative record established at the 

19 time of the review by the appellate authority 

20 and the findings of fact and determinations 

21 contained in such record shall be conclusive un22 less the applicant can establish abuse of discre23 tion or that the findings are directly contrary to 

24 clear and convincing facts contained in the 

25 record considered as a whole. 
31

•S 1645 IS 

1 (h) DISSEMINATION OF INFORMATION ON ADJUST2 MENT PROGRAM.—Beginning not later than the 1st day 

3 of the application period described in subsection (a)(1)(B), 

4 the Secretary, in cooperation with qualified designated en5 tities, shall broadly disseminate information respecting the 

6 benefits that aliens may receive under this section and the 

7 requirements to be satisfied to obtain such benefits.

8 (i) REGULATIONS.—The Secretary shall issue regula9 tions to implement this section not later than the 1st day 

10 of the 7th month that begins after the date of enactment 

11 of this Act. 

12 (j) EFFECTIVE DATE.—This section shall take effect 

13 on the date that regulations are issued implementing this 

14 section on an interim or other basis. 

15 (k) FUNDING.—There are hereby appropriated, out 

16 of any money in the Treasury not otherwise appropriated, 

17 $40,000,000 for each of fiscal years 2004 through 2007 

18 to the Secretary to carry out this section. 

19 SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS. 

20 (a) IN GENERAL.—Section 208(d)(1) of the Social 

21 Security Act (42 U.S.C. 408(d)(1)) is amended—

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

23 the end; 

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

25 the end; 
32

•S 1645 IS 

1 (3) by inserting after subparagraph (C) the fol2 lowing: 

3 ‘‘(D) who is granted status as a lawful tem4 porary resident under the Agricultural Job Oppor5 tunity, Benefits, and Security Act of 2003,’’; and 

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

7 in the case of an alien described in subparagraph 

8 (D), if such conduct is alleged to have occurred prior 

9 to the date on which the alien was granted lawful 

10 temporary resident status.’’. 

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

12 subsection (a) shall take effect on the 1st day of the 7th 

13 month that begins after the date of enactment of this Act. 

14 TITLE II—REFORM OF H–2A 

15 WORKER PROGRAM 

16 SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION17 ALITY ACT. 

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

19 Act is amended by striking section 218 (8 U.S.C. 1188) 

20 and inserting the following: 

21 ‘‘H–2A EMPLOYER APPLICATIONS

22 ‘‘SEC. 218. (a) APPLICATIONS TO THE SECRETARY

23 OF LABOR.—

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

25 to the United States as an H–2A worker, or other26 wise provided status as an H–2A worker, unless the 
33

•S 1645 IS 

1 employer has filed with the Secretary of Labor an 

2 application containing—

3 ‘‘(A) the assurances described in sub4 section (b); 

5 ‘‘(B) a description of the nature and loca6 tion of the work to be performed; 

7 ‘‘(C) the anticipated period (expected be8 ginning and ending dates) for which the work9 ers will be needed; and 

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

11 which the employer seeks to employ the work12 ers. 

13 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap14 plication filed under paragraph (1) shall be accom15 panied by a copy of the job offer describing the 

16 wages and other terms and conditions of employ17 ment and the bona fide occupational qualifications 

18 that must be possessed by a worker to be employed 

19 in the job opportunity in question. 

20 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA21 TIONS.—The assurances referred to in subsection (a)(1) 

22 are the following: 

23 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL24 LECTIVE BARGAINING AGREEMENTS.—With respect 
34

•S 1645 IS 

1 to a job opportunity that is covered under a collec2 tive bargaining agreement: 

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

4 job opportunity is covered by a union contract 

5 which was negotiated at arm’s length between a 

6 bona fide union and the employer. 

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

8 job opportunity for which the employer is re9 questing an H–2A worker is not vacant because 

10 the former occupant is on strike or being locked 

11 out in the course of a labor dispute. 

12 ‘‘(C) NOTIFICATION OF BARGAINING REP13 RESENTATIVES.—The employer, at the time of 

14 filing the application, has provided notice of the 

15 filing under this paragraph to the bargaining 

16 representative of the employer’s employees in 

17 the occupational classification at the place or 

18 places of employment for which aliens are 

19 sought. 

20 ‘‘(D) TEMPORARY OR SEASONAL JOB OP21 PORTUNITIES.—The job opportunity is tem22 porary or seasonal. 

23 ‘‘(E) OFFERS TO UNITED STATES WORK24 ERS.—The employer has offered or will offer 

25 the job to any eligible United States worker 
35

•S 1645 IS 

1 who applies and is equally or better qualified 

2 for the job for which the nonimmigrant is, or 

3 the nonimmigrants are, sought and who will be 

4 available at the time and place of need. 

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

6 job opportunity is not covered by the State 

7 workers’ compensation law, the employer will 

8 provide, at no cost to the worker, insurance cov9 ering injury and disease arising out of, and in 

10 the course of, the worker’s employment which 

11 will provide benefits at least equal to those pro12 vided under the State’s workers’ compensation 

13 law for comparable employment. 

14 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

15 COLLECTIVE BARGAINING AGREEMENTS.—With re16 spect to a job opportunity that is not covered under 

17 a collective bargaining agreement: 

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

19 job opportunity for which the employer is re20 questing an H–2A worker is not vacant because 

21 the former occupant is on strike or being locked 

22 out in the course of a labor dispute. 

23 ‘‘(B) TEMPORARY OR SEASONAL JOB OP24 PORTUNITIES.—The job opportunity is tem25 porary or seasonal. 
36

•S 1645 IS 

1 ‘‘(C) BENEFIT, WAGE, AND WORKING CON2 DITIONS.—The employer will provide, at a min3 imum, the benefits, wages, and working condi4 tions required by section 218A to all workers 

5 employed in the job opportunities for which the 

6 employer has applied under subsection (a) and

7 to all other workers in the same occupation at 

8 the place of employment. 

9 ‘‘(D) NONDISPLACEMENT OF UNITED

10 STATES WORKERS.—The employer did not dis11 place and will not displace a United States 

12 worker employed by the employer during the 

13 period of employment and for a period of 30 

14 days preceding the period of employment in the 

15 occupation at the place of employment for 

16 which the employer seeks approval to employ 

17 H–2A workers. 

18 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

19 NONIMMIGRANT WITH OTHER EMPLOYERS.—

20 The employer will not place the nonimmigrant 

21 with another employer unless—

22 ‘‘(i) the nonimmigrant performs du23 ties in whole or in part at 1 or more work 

24 sites owned, operated, or controlled by 

25 such other employer; 
37

•S 1645 IS 

1 ‘‘(ii) there are indicia of an employ2 ment relationship between the non3 immigrant and such other employer; and 

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

5 other employer as to whether, and has no 

6 actual knowledge or notice that, during the 

7 period of employment and for a period of 

8 30 days preceding the period of employ9 ment, the other employer has displaced or 

10 intends to displace a United States worker 

11 employed by the other employer in the oc12 cupation at the place of employment for 

13 which the employer seeks approval to em14 ploy H–2A workers. 

15 ‘‘(F) STATEMENT OF LIABILITY.—The ap16 plication form shall include a clear statement 

17 explaining the liability under subparagraph (E) 

18 of an employer if the other employer described 

19 in such subparagraph displaces a United States 

20 worker as described in such subparagraph. 

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

22 job opportunity is not covered by the State 

23 workers’ compensation law, the employer will 

24 provide, at no cost to the worker, insurance cov25 ering injury and disease arising out of and in 
38

•S 1645 IS 

1 the course of the worker’s employment which 

2 will provide benefits at least equal to those pro3 vided under the State’s workers’ compensation 

4 law for comparable employment. 

5 ‘‘(H) EMPLOYMENT OF UNITED STATES

6 WORKERS.—

7 ‘‘(i) RECRUITMENT.—The employer 

8 has taken or will take the following steps 

9 to recruit United States workers for the 

10 job opportunities for which the H–2A non11 immigrant is, or H–2A nonimmigrants are, 

12 sought: 

13 ‘‘(I) CONTACTING FORMER

14 WORKERS.—The employer shall make 

15 reasonable efforts through the sending 

16 of a letter by United States Postal 

17 Service mail, or otherwise, to contact 

18 any United States worker the em19 ployer employed during the previous 

20 season in the occupation at the place 

21 of intended employment for which the 

22 employer is applying for workers and 

23 has made the availability of the em24 ployer’s job opportunities in the occu25 pation at the place of intended em-
39

•S 1645 IS 

1 ployment known to such previous 

2 workers, unless the worker was termi3 nated from employment by the em4 ployer for a lawful job-related reason 

5 or abandoned the job before the work6 er completed the period of employ7 ment of the job opportunity for which 

8 the worker was hired. 

9 ‘‘(II) FILING A JOB OFFER WITH

10 THE LOCAL OFFICE OF THE STATE

11 EMPLOYMENT SECURITY AGENCY.—

12 Not later than 28 days prior to the 

13 date on which the employer desires to 

14 employ an H–2A worker in a tem15 porary or seasonal agricultural job op16 portunity, the employer shall submit a 

17 copy of the job offer described in sub18 section (a)(2) to the local office of the 

19 State employment security agency 

20 which serves the area of intended em21 ployment and authorize the posting of 

22 the job opportunity on ‘America’s Job 

23 Bank’ or other electronic job registry, 

24 except that nothing in this subclause 

25 shall require the employer to file an 
40

•S 1645 IS 

1 interstate job order under section 653 

2 of title 20, Code of Federal Regula3 tions. 

4 ‘‘(III) ADVERTISING OF JOB OP5 PORTUNITIES.—Not later than 14 

6 days prior to the date on which the 

7 employer desires to employ an H–2A 

8 worker in a temporary or seasonal ag9 ricultural job opportunity, the em10 ployer shall advertise the availability 

11 of the job opportunities for which the 

12 employer is seeking workers in a pub13 lication in the local labor market that 

14 is likely to be patronized by potential 

15 farm workers. 

16 ‘‘(IV) EMERGENCY PROCE17 DURES.—The Secretary of Labor 

18 shall, by regulation, provide a proce19 dure for acceptance and approval of 

20 applications in which the employer 

21 has not complied with the provisions 

22 of this subparagraph because the em23 ployer’s need for H–2A workers could 

24 not reasonably have been foreseen. 
41

•S 1645 IS 

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

2 offered or will offer the job to any eligible 

3 United States worker who applies and is 

4 equally or better qualified for the job for 

5 which the nonimmigrant is, or non6 immigrants are, sought and who will be 

7 available at the time and place of need.

8 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

9 employer will provide employment to any 

10 qualified United States worker who applies 

11 to the employer during the period begin12 ning on the date on which the foreign 

13 worker departs for the employer’s place of 

14 employment and ending on the date on 

15 which 50 percent of the period of employ16 ment for which the foreign worker who is 

17 in the job was hired has elapsed, subject to 

18 the following requirements: 

19 ‘‘(I) PROHIBITION.—No person 

20 or entity shall willfully and knowingly 

21 withhold United States workers prior 

22 to the arrival of H–2A workers in 

23 order to force the hiring of United 

24 States workers under this clause. 
42

•S 1645 IS 

1 ‘‘(II) COMPLAINTS.—Upon re2 ceipt of a complaint by an employer 

3 that a violation of subclause (I) has 

4 occurred, the Secretary of Labor shall 

5 immediately investigate. The Sec6 retary of Labor shall, within 36 hours 

7 of the receipt of the complaint, issue 

8 findings concerning the alleged viola9 tion. If the Secretary of Labor finds 

10 that a violation has occurred, the Sec11 retary of Labor shall immediately sus12 pend the application of this clause 

13 with respect to that certification for 

14 that date of need. 

15 ‘‘(III) PLACEMENT OF UNITED

16 STATES WORKERS.—Prior to referring 

17 a United States worker to an em18 ployer during the period described in 

19 the matter preceding subclause (I), 

20 the Secretary of Labor shall make all 

21 reasonable efforts to place the United 

22 States worker in an open job accept23 able to the worker, if there are other 

24 job offers pending with the job service 
43

•S 1645 IS 

1 that offer similar job opportunities in 

2 the area of intended employment. 

3 ‘‘(iv) STATUTORY CONSTRUCTION.—

4 Nothing in this subparagraph shall be con5 strued to prohibit an employer from using 

6 such legitimate selection criteria relevant 

7 to the type of job that are normal or cus8 tomary to the type of job involved so long 

9 as such criteria are not applied in a dis10 criminatory manner. 

11 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

12 OF EMPLOYER MEMBERS.—

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

14 may file an application under subsection (a) on be15 half of 1 or more of its employer members that the 

16 association certifies in its application has or have 

17 agreed in writing to comply with the requirements of 

18 this section and sections 218A through 218C. 

19 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

20 EMPLOYERS.—If an association filing an application 

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

22 the temporary or seasonal agricultural workers re23 quested on the application, the certifications granted 

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

25 used for the certified job opportunities of any of its 
44

•S 1645 IS 

1 producer members named on the application, and 

2 such workers may be transferred among such pro3 ducer members to perform the agricultural services 

4 of a temporary or seasonal nature for which the cer5 tifications were granted. 

6 ‘‘(d) WITHDRAWAL OF APPLICATIONS.—

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

8 an application filed pursuant to subsection (a), ex9 cept that if the employer is an agricultural associa10 tion, the association may withdraw an application 

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

12 more of its members. To withdraw an application, 

13 the employer or association shall notify the Sec14 retary of Labor in writing, and the Secretary of 

15 Labor shall acknowledge in writing the receipt of 

16 such withdrawal notice. An employer who withdraws 

17 an application under subsection (a), or on whose be18 half an application is withdrawn, is relieved of the 

19 obligations undertaken in the application. 

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

21 withdrawn while any alien provided status under sec22 tion 101(a)(15)(H)(ii)(a) pursuant to such applica23 tion is employed by the employer. 

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

25 Any obligation incurred by an employer under any 
45

•S 1645 IS 

1 other law or regulation as a result of the recruit2 ment of United States workers or H–2A workers 

3 under an offer of terms and conditions of employ4 ment required as a result of making an application 

5 under subsection (a) is unaffected by withdrawal of 

6 such application. 

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

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

9 employer shall make available for public examina10 tion, within 1 working day after the date on which 

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

12 employer’s principal place of business or work site, 

13 a copy of each such application (and such accom14 panying documents as are necessary). 

15 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

16 LABOR.—

17 ‘‘(A) COMPILATION OF LIST.—The Sec18 retary of Labor shall compile, on a current 

19 basis, a list (by employer and by occupational 

20 classification) of the applications filed under 

21 this subsection. Such list shall include the wage 

22 rate, number of workers sought, period of in23 tended employment, and date of need. The Sec24 retary of Labor shall make such list available 

25 for examination in the District of Columbia. 
46

•S 1645 IS 

1 ‘‘(B) REVIEW OF APPLICATIONS.—The 

2 Secretary of Labor shall review such an applica3 tion only for completeness and obvious inac4 curacies. Unless the Secretary of Labor finds 

5 that the application is incomplete or obviously 

6 inaccurate, the Secretary of Labor shall certify 

7 that the intending employer has filed with the

8 Secretary of Labor an application as described 

9 in subsection (a). Such certification shall be 

10 provided within 7 days of the filing of the appli11 cation. 

12 ‘‘H–2A EMPLOYMENT REQUIREMENTS

13 ‘‘SEC. 218A. (a) PREFERENTIAL TREATMENT OF

14 ALIENS PROHIBITED.—Employers seeking to hire United 

15 States workers shall offer the United States workers no 

16 less than the same benefits, wages, and working conditions 

17 that the employer is offering, intends to offer, or will pro18 vide to H–2A workers. Conversely, no job offer may im19 pose on United States workers any restrictions or obliga20 tions which will not be imposed on the employer’s H–2A 

21 workers. 

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

23 CONDITIONS.—Except in cases where higher benefits, 

24 wages, or working conditions are required by the provi25 sions of subsection (a), in order to protect similarly em26 ployed United States workers from adverse effects with 
47

•S 1645 IS 

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

2 job offer which must accompany an application under sec3 tion 218 shall include each of the following benefit, wage, 

4 and working condition provisions: 

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

6 HOUSING ALLOWANCE.—

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

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

9 offer to provide housing at no cost to all work10 ers in job opportunities for which the employer 

11 has applied under that section and to all other 

12 workers in the same occupation at the place of 

13 employment, whose place of residence is beyond 

14 normal commuting distance. 

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

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

17 the employer’s election, provide housing that 

18 meets applicable Federal standards for tem19 porary labor camps or secure housing that 

20 meets applicable local standards for rental or 

21 public accommodation housing or other sub22 stantially similar class of habitation, or in the 

23 absence of applicable local standards, State 

24 standards for rental or public accommodation 

25 housing or other substantially similar class of 
48

•S 1645 IS 

1 habitation. In the absence of applicable local or 

2 State standards, Federal temporary labor camp 

3 standards shall apply. 

4 ‘‘(C) FAMILY HOUSING.—When it is the 

5 prevailing practice in the occupation and area 

6 of intended employment to provide family hous7 ing, family housing shall be provided to workers 

8 with families who request it. 

9 ‘‘(D) WORKERS ENGAGED IN THE RANGE

10 PRODUCTION OF LIVESTOCK.—The Secretary of 

11 Labor shall issue regulations that address the 

12 specific requirements for the provision of hous13 ing to workers engaged in the range production 

14 of livestock. 

15 ‘‘(E) LIMITATION.—Nothing in this para16 graph shall be construed to require an employer 

17 to provide or secure housing for persons who 

18 were not entitled to such housing under the 

19 temporary labor certification regulations in ef20 fect on June 1, 1986. 

21 ‘‘(F) CHARGES FOR HOUSING.—

22 ‘‘(i) CHARGES FOR PUBLIC HOUS23 ING.—If public housing provided for mi24 grant agricultural workers under the aus25 pices of a local, county, or State govern-
49

•S 1645 IS 

1 ment is secured by an employer, and use of 

2 the public housing unit normally requires 

3 charges from migrant workers, such 

4 charges shall be paid by the employer di5 rectly to the appropriate individual or enti6 ty affiliated with the housing’s manage7 ment. 

8 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

9 the form of deposits for bedding or other 

10 similar incidentals related to housing shall 

11 not be levied upon workers by employers 

12 who provide housing for their workers. 

13 However, an employer may require a work14 er found to have been responsible for dam15 age to such housing which is not the result 

16 of normal wear and tear related to habi17 tation to reimburse the employer for the 

18 reasonable cost of repair of such damage. 

19 ‘‘(G) HOUSING ALLOWANCE AS ALTER20 NATIVE.—

21 ‘‘(i) IN GENERAL.—In lieu of offering 

22 housing pursuant to subparagraph (A), the 

23 employer may provide a reasonable housing 

24 allowance, but only if the requirement of 

25 clause (ii) is satisfied. Upon the request of 
50

•S 1645 IS 

1 a worker seeking assistance in locating 

2 housing, the employer shall make a good 

3 faith effort to assist the worker in identi4 fying and locating housing in the area of 

5 intended employment. An employer who of6 fers a housing allowance to a worker, or 

7 assists a worker in locating housing which 

8 the worker occupies, pursuant to this 

9 clause shall not be deemed a housing pro10 vider under section 203 of the Migrant and 

11 Seasonal Agricultural Worker Protection 

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

13 providing such housing allowance. How14 ever, no housing allowance may be used for 

15 housing which is owned or controlled by 

16 the employer. 

17 ‘‘(ii) CERTIFICATION.—The require18 ment of this clause is satisfied if the Gov19 ernor of the State certifies to the Secretary 

20 of Labor that there is adequate housing 

21 available in the area of intended employ22 ment for migrant farm workers, and H–2A 

23 workers, who are seeking temporary hous24 ing while employed at farm work. Such 
51

•S 1645 IS 

1 certification shall expire after 3 years un2 less renewed by the Governor of the State. 

3 ‘‘(iii) AMOUNT OF ALLOWANCE.—

4 ‘‘(I) NONMETROPOLITAN COUN5 TIES.—If the place of employment of 

6 the workers provided an allowance

7 under this subparagraph is a non8 metropolitan county, the amount of 

9 the housing allowance under this sub10 paragraph shall be equal to the state11 wide average fair market rental for 

12 existing housing for nonmetropolitan 

13 counties for the State, as established 

14 by the Secretary of Housing and 

15 Urban Development pursuant to sec16 tion 8(c) of the United States Hous17 ing Act of 1937 (42 U.S.C. 1437f(c)), 

18 based on a 2-bedroom dwelling unit 

19 and an assumption of 2 persons per 

20 bedroom. 

21 ‘‘(II) METROPOLITAN COUN22 TIES.—If the place of employment of 

23 the workers provided an allowance 

24 under this paragraph is in a metro25 politan county, the amount of the 
52

•S 1645 IS 

1 housing allowance under this subpara2 graph shall be equal to the statewide 

3 average fair market rental for existing 

4 housing for metropolitan counties for 

5 the State, as established by the Sec6 retary of Housing and Urban Devel7 opment pursuant to section 8(c) of 

8 the United States Housing Act of 

9 1937 (42 U.S.C. 1437f(c)), based on 

10 a 2-bedroom dwelling unit and an as11 sumption of 2 persons per bedroom. 

12 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.—

13 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

14 worker who completes 50 percent of the period 

15 of employment of the job opportunity for which 

16 the worker was hired shall be reimbursed by the 

17 employer for the cost of the worker’s transpor18 tation and subsistence from the place from 

19 which the worker came to work for the em20 ployer (or place of last employment, if the 

21 worker traveled from such place) to the place of 

22 employment. 

23 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

24 worker who completes the period of employment 

25 for the job opportunity involved shall be reim-
53

•S 1645 IS 

1 bursed by the employer for the cost of the 

2 worker’s transportation and subsistence from 

3 the place of employment to the place from 

4 which the worker, disregarding intervening em5 ployment, came to work for the employer, or to 

6 the place of next employment, if the worker has 

7 contracted with a subsequent employer who has 

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

9 transportation and subsistence to such subse10 quent employer’s place of employment. 

11 ‘‘(C) LIMITATION.—

12 ‘‘(i) AMOUNT OF REIMBURSEMENT.—

13 Except as provided in clause (ii), the 

14 amount of reimbursement provided under 

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

16 alien shall not exceed the lesser of—

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

18 or alien of the transportation and sub19 sistence involved; or 

20 ‘‘(II) the most economical and 

21 reasonable common carrier transpor22 tation charges and subsistence costs 

23 for the distance involved. 

24 ‘‘(ii) DISTANCE TRAVELED.—No reim25 bursement under subparagraph (A) or (B) 
54

•S 1645 IS 

1 shall be required if the distance traveled is 

2 100 miles or less, or the worker is not re3 siding in employer-provided housing or 

4 housing secured through an allowance as 

5 provided in paragraph (1)(G). 

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

7 is laid off or employment is terminated for con8 tract impossibility (as described in paragraph 

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

10 employment, the employer shall provide the 

11 transportation and subsistence required by sub12 paragraph (B) and, notwithstanding whether 

13 the worker has completed 50 percent of the pe14 riod of employment, shall provide the transpor15 tation reimbursement required by subparagraph 

16 (A). 

17 ‘‘(E) TRANSPORTATION BETWEEN LIVING

18 QUARTERS AND WORK SITE.—The employer 

19 shall provide transportation between the work20 er’s living quarters (i.e., housing provided by 

21 the employer pursuant to paragraph (1), includ22 ing housing provided through a housing allow23 ance) and the employer’s work site without cost 

24 to the worker, and such transportation will be 
55

•S 1645 IS 

1 in accordance with applicable laws and regula2 tions.

3 ‘‘(3) REQUIRED WAGES.—

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

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

6 pay, and shall pay, all workers in the occupa7 tion for which the employer has applied for 

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

9 more) than the greater of the prevailing wage 

10 in the occupation in the area of intended em11 ployment or the adverse effect wage rate. No 

12 worker shall be paid less than the greater of the 

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

14 the Fair Labor Standards Act of 1938 (29 

15 U.S.C. 206(a)(1)) or the applicable State min16 imum wage. 

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

18 of enactment of the Agricultural Job Oppor19 tunity, Benefits, and Security Act of 2003 and 

20 continuing for 3 years thereafter, no adverse ef21 fect wage rate for a State may be more than 

22 the adverse effect wage rate for that State in 

23 effect on January 1, 2003, as established by 

24 section 655.107 of title 20, Code of Federal 

25 Regulations. 
56

•S 1645 IS 

1 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

2 FREEZE.—

3 ‘‘(i) FIRST ADJUSTMENT.—Unless 

4 Congress acts to set a new wage standard 

5 applicable to this section, effective on De6 cember 1, 2006, the adverse effect wage

7 rate then in effect shall be adjusted by the 

8 12 month percentage change in the Con9 sumer Price Index for All Urban Con10 sumers between December of the preceding 

11 year and December of the second pre12 ceding year, except that such adjustment 

13 shall not exceed 4 percent. 

14 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST15 MENTS.—Effective on March 1, 2007, and 

16 each March 1 thereafter, the adverse effect 

17 wage rate then in effect shall be adjusted 

18 in accordance with the requirements of 

19 clause (i). 

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

21 make only those deductions from the worker’s 

22 wages that are authorized by law or are reason23 able and customary in the occupation and area 

24 of employment. The job offer shall specify all 
57

•S 1645 IS 

1 deductions not required by law which the em2 ployer will make from the worker’s wages. 

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

4 shall pay the worker not less frequently than 

5 twice monthly, or in accordance with the pre6 vailing practice in the area of employment, 

7 whichever is more frequent. 

8 ‘‘(F) HOURS AND EARNINGS STATE9 MENTS.—The employer shall furnish to the 

10 worker, on or before each payday, in one or 

11 more written statements the following informa12 tion: 

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

14 the pay period. 

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

16 piece rate of pay, or both. 

17 ‘‘(iii) The hours of employment which 

18 have been offered to the worker (broken 

19 out by hours offered in accordance with 

20 and over and above the three-quarters 

21 guarantee described in paragraph (4)). 

22 ‘‘(iv) The hours actually worked by 

23 the worker. 

24 ‘‘(v) An itemization of the deductions 

25 made from the worker’s wages. 
58

•S 1645 IS 

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

2 the units produced daily. 

3 ‘‘(G) REPORT ON WAGE PROTECTIONS.—

4 Not later than June 1, 2007, the Resources, 

5 Community and Economic Development Divi6 sion, and the Health, Education and Human 

7 Services Division, of the General Accounting 

8 Office shall jointly prepare and transmit to the 

9 Secretary of Labor and to the Committees on 

10 the Judiciary of the House of Representatives 

11 and the Senate a report which shall address—

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

13 or unauthorized aliens in the United States 

14 agricultural work force has depressed 

15 United States farm worker wages below 

16 the levels that would otherwise have pre17 vailed if alien farm workers had not been 

18 employed in the United States; 

19 ‘‘(ii) whether an adverse effect wage 

20 rate is necessary to prevent wages of 

21 United States farm workers in occupations 

22 in which H–2A workers are employed from 

23 falling below the wage levels that would 

24 have prevailed in the absence of the em-
59

•S 1645 IS 

1 ployment of H–2A workers in those occu2 pations; 

3 ‘‘(iii) whether alternative wage stand4 ards, such as a prevailing wage standard, 

5 would be sufficient to prevent wages in oc6 cupations in which H–2A workers are em7 ployed from falling below the wage level 

8 that would have prevailed in the absence of 

9 H–2A employment; 

10 ‘‘(iv) whether any changes are war11 ranted in the current methodologies for 

12 calculating the adverse effect wage rate 

13 and the prevailing wage; and 

14 ‘‘(v) recommendations for future wage 

15 protection under this section. 

16 ‘‘(H) COMMISSION ON WAGE STAND17 ARDS.—

18 ‘‘(i) ESTABLISHMENT.—There is es19 tablished the Commission on Agricultural 

20 Wage Standards under the H–2A program 

21 (in this subparagraph referred to as the 

22 ‘Commission’). 

23 ‘‘(ii) COMPOSITION.—The Commission 

24 shall consist of 10 members as follows: 
60

•S 1645 IS 

1 ‘‘(I) 4 representatives of agricul2 tural employers and 1 representative 

3 of the Department of Agriculture, 

4 each appointed by the Secretary of 

5 Agriculture. 

6 ‘‘(II) 4 representatives of agricul7 tural workers and 1 representative of 

8 the Department of Labor, each ap9 pointed by the Secretary of Labor. 

10 ‘‘(iii) FUNCTIONS.—The Commission 

11 shall conduct a study that shall address—

12 ‘‘(I) whether the employment of 

13 H–2A or unauthorized aliens in the 

14 United States agricultural workforce 

15 has depressed United States farm 

16 worker wages below the levels that 

17 would otherwise have prevailed if alien 

18 farm workers had not been employed 

19 in the United States; 

20 ‘‘(II) whether an adverse effect 

21 wage rate is necessary to prevent 

22 wages of United States farm workers 

23 in occupations in which H–2A work24 ers are employed from falling below 

25 the wage levels that would have pre-
61

•S 1645 IS 

1 vailed in the absence of the employ2 ment of H–2A workers in those occu3 pations; 

4 ‘‘(III) whether alternative wage 

5 standards, such as a prevailing wage 

6 standard, would be sufficient to pre7 vent wages in occupations in which

8 H–2A workers are employed from fall9 ing below the wage level that would 

10 have prevailed in the absence of H–

11 2A employment; 

12 ‘‘(IV) whether any changes are 

13 warranted in the current methodolo14 gies for calculating the adverse effect 

15 wage rate and the prevailing wage 

16 rate; and 

17 ‘‘(V) recommendations for future 

18 wage protection under this section. 

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

20 June 1, 2007, the Commission shall sub21 mit a report to the Congress setting forth 

22 the findings of the study conducted under 

23 clause (iii). 
62

•S 1645 IS 

1 ‘‘(v) TERMINATION DATE.—The Com2 mission shall terminate upon submitting 

3 its final report. 

4 ‘‘(4) GUARANTEE OF EMPLOYMENT.—

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

6 shall guarantee to offer the worker employment 

7 for the hourly equivalent of at least three8 fourths of the work days of the total period of 

9 employment, beginning with the first work day 

10 after the arrival of the worker at the place of 

11 employment and ending on the expiration date 

12 specified in the job offer. For purposes of this 

13 subparagraph, the hourly equivalent means the 

14 number of hours in the work days as stated in 

15 the job offer and shall exclude the worker’s 

16 Sabbath and Federal holidays. If the employer 

17 affords the United States or H–2A worker less 

18 employment than that required under this para19 graph, the employer shall pay such worker the 

20 amount which the worker would have earned 

21 had the worker, in fact, worked for the guaran22 teed number of hours. 

23 ‘‘(B) FAILURE TO WORK.—Any hours 

24 which the worker fails to work, up to a max25 imum of the number of hours specified in the 
63

•S 1645 IS 

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

2 been offered an opportunity to do so, and all 

3 hours of work actually performed (including vol4 untary work in excess of the number of hours 

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

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

7 be counted by the employer in calculating 

8 whether the period of guaranteed employment 

9 has been met. 

10 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

11 TERMINATION FOR CAUSE.—If the worker vol12 untarily abandons employment before the end 

13 of the contract period, or is terminated for 

14 cause, the worker is not entitled to the ‘three15 fourths guarantee’ described in subparagraph 

16 (A). 

17 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be18 fore the expiration of the period of employment 

19 specified in the job offer, the services of the 

20 worker are no longer required for reasons be21 yond the control of the employer due to any 

22 form of natural disaster, including but not lim23 ited to a flood, hurricane, freeze, earthquake, 

24 fire, drought, plant or animal disease or pest in25 festation, or regulatory drought, before the 
64

•S 1645 IS 

1 guarantee in subparagraph (A) is fulfilled, the 

2 employer may terminate the worker’s employ3 ment. In the event of such termination, the em4 ployer shall fulfill the employment guarantee in 

5 subparagraph (A) for the work days that have 

6 elapsed from the first work day after the arrival 

7 of the worker to the termination of employ8 ment. In such cases, the employer will make ef9 forts to transfer the United States worker to 

10 other comparable employment acceptable to the 

11 worker. If such transfer is not effected, the em12 ployer shall provide the return transportation 

13 required in paragraph (2)(D). 

14 ‘‘(5) MOTOR VEHICLE SAFETY.—

15 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

16 TO COVERAGE.—

17 ‘‘(i) IN GENERAL.—Except as pro18 vided in clauses (iii) and (iv), this sub19 section applies to any H–2A employer that 

20 uses or causes to be used any vehicle to 

21 transport an H–2A worker within the 

22 United States. 

23 ‘‘(ii) USES OR CAUSES TO BE USED.—

24 (I) In this subsection, the term ‘uses or 

25 causes to be used’ applies only to transpor-
65

•S 1645 IS 

1 tation provided by an H–2A employer to 

2 an H–2A worker, or by a farm labor con3 tractor to an H–2A worker at the request 

4 or direction of an H–2A employer. 

5 ‘‘(II) The term ‘uses or causes to be 

6 used’ does not apply to—

7 ‘‘(aa) transportation provided, or 

8 transportation arrangements made, by 

9 an H–2A worker himself or herself, 

10 unless the employer specifically re11 quested or arranged such transpor12 tation; or 

13 ‘‘(bb) carpooling arrangements 

14 made by H–2A workers themselves, 

15 using one of the workers’ own vehi16 cles, unless specifically requested by 

17 the employer directly or through a 

18 farm labor contractor. 

19 ‘‘(III) The mere providing of a job 

20 offer by an employer to an H–2A worker 

21 that causes the worker to travel to or from 

22 the place of employment, or the payment 

23 or reimbursement of the transportation 

24 costs of an H–2A worker by an H–2A em-
66

•S 1645 IS 

1 ployer, shall not constitute an arrangement 

2 of, or participation in, such transportation. 

3 ‘‘(iii) AGRICULTURAL MACHINERY

4 AND EQUIPMENT EXCLUDED.—This sub5 section does not apply to the transpor6 tation of an H–2A worker on a tractor, 

7 combine, harvester, picker, or other similar 

8 machinery or equipment while such worker 

9 is actually engaged in the planting, culti10 vating, or harvesting of agricultural com11 modities or the care of livestock or poultry 

12 or engaged in transportation incidental 

13 thereto. 

14 ‘‘(iv) COMMON CARRIERS EX15 CLUDED.—This subsection does not apply 

16 to common carrier motor vehicle transpor17 tation in which the provider holds itself out 

18 to the general public as engaging in the 

19 transportation of passengers for hire and 

20 holds a valid certification of authorization 

21 for such purposes from an appropriate 

22 Federal, State, or local agency. 

23 ‘‘(B) APPLICABILITY OF STANDARDS, LI24 CENSING, AND INSURANCE REQUIREMENTS.—
67

•S 1645 IS 

1 ‘‘(i) IN GENERAL.—When using, or 

2 causing to be used, any vehicle for the pur3 pose of providing transportation to which 

4 this subparagraph applies, each employer 

5 shall—

6 ‘‘(I) ensure that each such vehi7 cle conforms to the standards pre8 scribed by the Secretary of Labor 

9 under section 401(b) of the Migrant 

10 and Seasonal Agricultural Worker 

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

12 and other applicable Federal and 

13 State safety standards; 

14 ‘‘(II) ensure that each driver has 

15 a valid and appropriate license, as 

16 provided by State law, to operate the 

17 vehicle; and 

18 ‘‘(III) have an insurance policy 

19 or a liability bond that is in effect 

20 which insures the employer against li21 ability for damage to persons or prop22 erty arising from the ownership, oper23 ation, or causing to be operated, of 

24 any vehicle used to transport any H–

25 2A worker. 
68

•S 1645 IS 

1 ‘‘(ii) AMOUNT OF INSURANCE RE2 QUIRED.—The level of insurance required 

3 shall be determined by the Secretary of 

4 Labor pursuant to regulations to be issued 

5 under this subsection. 

6 ‘‘(iii) EFFECT OF WORKERS’ COM7 PENSATION COVERAGE.—If the employer 

8 of any H–2A worker provides workers’ 

9 compensation coverage for such worker in 

10 the case of bodily injury or death as pro11 vided by State law, the following adjust12 ments in the requirements of subparagraph 

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

14 policy or liability bond apply: 

15 ‘‘(I) No insurance policy or liabil16 ity bond shall be required of the em17 ployer, if such workers are trans18 ported only under circumstances for 

19 which there is coverage under such 

20 State law. 

21 ‘‘(II) An insurance policy or li22 ability bond shall be required of the 

23 employer for circumstances under 

24 which coverage for the transportation 
69

•S 1645 IS 

1 of such workers is not provided under 

2 such State law. 

3 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em4 ployer shall assure that, except as otherwise provided in 

5 this section, the employer will comply with all applicable 

6 Federal, State, and local labor laws, including laws affect7 ing migrant and seasonal agricultural workers, with re8 spect to all United States workers and alien workers em9 ployed by the employer, except that a violation of this as10 surance shall not constitute a violation of the Migrant and 

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

12 1801 et seq.). 

13 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro14 vide to the worker, not later than the day the work com15 mences, a copy of the employer’s application and job offer 

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

17 the worker to enter into a separate employment contract 

18 covering the employment in question, such separate em19 ployment contract. 

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

21 in this section or sections 218 or 218B shall preclude the 

22 Secretary of Labor and the Secretary from continuing to 

23 apply special procedures and requirements to the admis24 sion and employment of aliens in occupations involving the 

25 range production of livestock. 
70

•S 1645 IS 

1 ‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY

2 OF H–2A WORKERS

3 ‘‘SEC. 218B. (a) PETITIONING FOR ADMISSION.—An 

4 employer, or an association acting as an agent or joint 

5 employer for its members, that seeks the admission into 

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

7 with the Secretary. The petition shall be accompanied by 

8 an accepted and currently valid certification provided by 

9 the Secretary of Labor under section 218(e)(2)(B) cov10 ering the petitioner. 

11 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC12 RETARY.—The Secretary shall establish a procedure for 

13 expedited adjudication of petitions filed under subsection 

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

15 means assuring expedited delivery, transmit a copy of no16 tice of action on the petition to the petitioner and, in the 

17 case of approved petitions, to the appropriate immigration 

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

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

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

21 or admission to the United States. 

22 ‘‘(c) CRITERIA FOR ADMISSIBILITY.—

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

24 considered admissible to the United States if the 

25 alien is otherwise admissible under this section, sec-
71

•S 1645 IS 

1 tion 218, and section 218A, and the alien is not in2 eligible under paragraph (2). 

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

4 considered inadmissible to the United States and in5 eligible for nonimmigrant status under section 

6 101(a)(15)(H)(ii)(a) if the alien has, at any time 

7 during the past 5 years—

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

9 section, including the requirement to promptly 

10 depart the United States when the alien’s au11 thorized period of admission under this section 

12 has expired; or 

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

14 of admission into the United States as a non15 immigrant, including overstaying the period of 

16 authorized admission as such a nonimmigrant. 

17 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW18 FUL PRESENCE.—

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

20 previously been admitted into the United States 

21 pursuant to this section, and who is otherwise 

22 eligible for admission in accordance with para23 graphs (1) and (2), shall not be deemed inad24 missible by virtue of section 212(a)(9)(B). If an 

25 alien described in the preceding sentence is 
72

•S 1645 IS 

1 present in the United States, the alien may 

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

3 not be granted that status in the United States. 

4 ‘‘(B) MAINTENANCE OF WAIVER.—An 

5 alien provided an initial waiver of ineligibility 

6 pursuant to subparagraph (A) shall remain eli7 gible for such waiver unless the alien violates 

8 the terms of this section or again becomes ineli9 gible under section 212(a)(9)(B) by virtue of 

10 unlawful presence in the United States after 

11 the date of the initial waiver of ineligibility pur12 suant to subparagraph (A).

13 ‘‘(d) PERIOD OF ADMISSION.—

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

15 for the period of employment in the application cer16 tified by the Secretary of Labor pursuant to section 

17 218(e)(2)(B), not to exceed 10 months, supple18 mented by a period of up to 1 week before the begin19 ning of the period of employment (to be granted for 

20 the purpose of travel to the work site) and a period 

21 of 14 days following the period of employment (to be 

22 granted for the purpose of departure or extension 

23 based on a subsequent offer of employment), except 

24 that—
73

•S 1645 IS 

1 ‘‘(A) the alien is not authorized to be em2 ployed during such 14-day period except in the 

3 employment for which the alien was previously 

4 authorized; and 

5 ‘‘(B) the total period of employment, in6 cluding such 14-day period, may not exceed 10 

7 months. 

8 ‘‘(2) CONSTRUCTION.—Nothing in this sub9 section shall limit the authority of the Secretary to 

10 extend the stay of the alien under any other provi11 sion of this Act. 

12 ‘‘(e) ABANDONMENT OF EMPLOYMENT.—

13 ‘‘(1) IN GENERAL.—An alien admitted or pro14 vided status under section 101(a)(15)(H)(ii)(a) who 

15 abandons the employment which was the basis for 

16 such admission or status shall be considered to have 

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

18 worker and shall depart the United States or be sub19 ject to removal under section 237(a)(1)(C)(i). 

20 ‘‘(2) REPORT BY EMPLOYER.—The employer 

21 (or association acting as agent for the employer) 

22 shall notify the Secretary within 7 days of an H–2A 

23 worker’s having prematurely abandoned employ24 ment. 
74

•S 1645 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. 
75

•S 1645 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 such person’s proper iden11 tity. 

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

13 employment eligibility document may be issued 

14 which does not meet the following requirements: 

15 ‘‘(A) The document shall be capable of re16 liably determining whether—

17 ‘‘(i) the individual with the identifica18 tion and employment eligibility document 

19 whose eligibility is being verified is in fact 

20 eligible for employment; 

21 ‘‘(ii) the individual whose eligibility is 

22 being verified is claiming the identity of 

23 another person; and 

24 ‘‘(iii) the individual whose eligibility is 

25 being verified is authorized to be admitted 
76

•S 1645 IS 

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—
77

•S 1645 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.—In the case of 

8 an alien who is lawfully present in the United 

9 States, the alien is authorized to commence the em10 ployment described in a petition under paragraph 

11 (1) on the date on which the petition is filed. For

12 purposes of the preceding sentence, the term ‘file’ 

13 means sending the petition by certified mail via the 

14 United States Postal Service, return receipt re15 quested, or delivered by guaranteed commercial de16 livery which will provide the employer with a docu17 mented acknowledgment of the date of receipt of the 

18 petition. The employer shall provide a copy of the 

19 employer’s petition to the alien, who shall keep the 

20 petition with the alien’s identification and employ21 ment eligibility document as evidence that the peti22 tion has been filed and that the alien is authorized 

23 to work in the United States. Upon approval of a 

24 petition for an extension of stay or change in the 

25 alien’s authorized employment, the Secretary shall 
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•S 1645 IS 

1 provide a new or updated employment eligibility doc2 ument to the alien indicating the new validity date, 

3 after which the alien is not required to retain a copy 

4 of the petition. 

5 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA6 TION OF ALIENS WITHOUT VALID IDENTIFICATION

7 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex8 pired identification and employment eligibility docu9 ment, together with a copy of a petition for exten10 sion of stay or change in the alien’s authorized em11 ployment that complies with the requirements of 

12 paragraph (1), shall constitute a valid work author13 ization document for a period of not more than 60 

14 days beginning on the date on which such petition 

15 is filed, after which time only a currently valid iden16 tification and employment eligibility document shall 

17 be acceptable. 

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

19 STATUS.—

20 ‘‘(A) MAXIMUM PERIOD.—The maximum 

21 continuous period of authorized status as an 

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

23 years. 

24 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

25 THE UNITED STATES.—
79

•S 1645 IS 

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

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

3 United States whose period of authorized 

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

5 extensions) has expired, the alien may not 

6 again apply for admission to the United 

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

8 has remained outside the United States for 

a continuous period equal to at least 1 9 ⁄5

10 the duration of the alien’s previous period 

11 of authorized status as an H–2A worker 

12 (including any extensions). 

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

14 not apply in the case of an alien if the 

15 alien’s period of authorized status as an 

16 H–2A worker (including any extensions) 

17 was for a period of not more than 10 

18 months and such alien has been outside 

19 the United States for at least 2 months 

20 during the 12 months preceding the date 

21 the alien again is applying for admission to 

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

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

24 SHEEPHERDERS.—Notwithstanding any other provision 

25 of the Agricultural Job Opportunity, Benefits, and Secu-
80

•S 1645 IS 

1 rity Act of 2003, aliens admitted under section 

2 101(a)(15)(H)(ii)(a) for employment as sheepherders—

3 ‘‘(1) may be admitted for a period of 12 

4 months; 

5 ‘‘(2) may be extended for a continuous period 

6 of up to 3 years; and 

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

8 subsection (h)(5) relating to periods of absence from 

9 the United States. 

10 ‘‘WORKER PROTECTIONS AND LABOR STANDARDS

11 ENFORCEMENT

12 ‘‘SEC. 218C. (a) ENFORCEMENT AUTHORITY.—

13 ‘‘(1) INVESTIGATION OF COMPLAINTS.—

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

15 COMPLAINTS.—The Secretary of Labor shall es16 tablish a process for the receipt, investigation, 

17 and disposition of complaints respecting a peti18 tioner’s failure to meet a condition specified in 

19 section 218(b), or an employer’s misrepresenta20 tion of material facts in an application under 

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

22 aggrieved person or organization (including bar23 gaining representatives). No investigation or 

24 hearing shall be conducted on a complaint con25 cerning such a failure or misrepresentation un26 less the complaint was filed not later than 12 
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•S 1645 IS 

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

3 Labor shall conduct an investigation under this 

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

6 has occurred. 

7 ‘‘(B) DETERMINATION ON COMPLAINT.—

8 Under such process, the Secretary of Labor 

9 shall provide, within 30 days after the date 

10 such a complaint is filed, for a determination as 

11 to whether or not a reasonable basis exists to 

12 make a finding described in subparagraph (C), 

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

15 the Secretary of Labor shall provide for notice 

16 of such determination to the interested parties 

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

19 United States Code, within 60 days after the 

20 date of the determination. If such a hearing is 

21 requested, the Secretary of Labor shall make a 

22 finding concerning the matter not later than 60 

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

24 of similar complaints respecting the same appli25 cant, the Secretary of Labor may consolidate 
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•S 1645 IS 

1 the hearings under this subparagraph on such 

2 complaints. 

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

4 the Secretary of Labor finds, after notice and 

5 opportunity for a hearing, a failure to meet a 

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

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

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

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

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

12 under section 218(a)—

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

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

18 per violation) as the Secretary of Labor 

19 determines to be appropriate; and 

20 ‘‘(ii) the Secretary may disqualify the 

21 employer from the employment of aliens 

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

23 for a period of 1 year. 

24 ‘‘(D) WILLFUL FAILURES AND WILLFUL

25 MISREPRESENTATIONS.—If the Secretary of 
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1 Labor finds, after notice and opportunity for 

2 hearing, a willful failure to meet a condition of 

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

4 material fact in an application under section 

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

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

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

11 per violation) as the Secretary of Labor 

12 determines to be appropriate; 

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

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

16 and 

17 ‘‘(iii) the Secretary may disqualify the 

18 employer from the employment of H–2A 

19 workers for a period of 2 years. 

20 ‘‘(E) DISPLACEMENT OF UNITED STATES

21 WORKERS.—If the Secretary of Labor finds, 

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

24 or a willful misrepresentation of a material fact 

25 in an application under section 218(a), in the 
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1 course of which failure or misrepresentation the 

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

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

6 preceding such period of employment—

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

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

12 per violation) as the Secretary of Labor 

13 determines to be appropriate; and 

14 ‘‘(ii) the Secretary may disqualify the 

15 employer from the employment of H–2A 

16 workers for a period of 3 years. 

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

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

21 $90,000. 

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

24 finds, after notice and opportunity for a hear25 ing, that the employer has failed to pay the 
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1 wages, or provide the housing allowance, trans2 portation, subsistence reimbursement, or guar3 antee of employment, required under section 

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

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

7 worker employed by the employer in the specific 

8 employment in question. The back wages or 

9 other required benefits under section 218A(b) 

10 shall be equal to the difference between the 

11 amount that should have been paid and the 

12 amount that actually was paid to such worker. 

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

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

16 compliance investigation under any other labor law, 

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

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

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

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

22 through the private right of action provided in subsection 

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

24 or State law to enforce such rights: 
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1 ‘‘(1) The providing of housing or a housing al2 lowance as required under section 218A(b)(1). 

3 ‘‘(2) The reimbursement of transportation as 

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

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

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

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

10 the assurance to comply with other Federal, State, 

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

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

14 ‘‘(5) The guarantee of employment required 

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

16 ‘‘(6) The motor vehicle safety requirements 

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

18 ‘‘(7) The prohibition of discrimination under 

19 subsection (d)(2). 

20 ‘‘(c) PRIVATE RIGHT OF ACTION.—

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

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

25 complaint, a party to the action may file a request 
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1 with the Federal Mediation and Conciliation Service 

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

7 (B). 

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

9 Mediation and Conciliation Service shall be

10 available to assist in resolving disputes arising 

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

12 and agricultural employers without charge to 

13 the parties. 

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

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

21 an extension of this period of time. 

22 ‘‘(C) AUTHORIZATION.—There is hereby 

23 authorized to be appropriated annually not to 

24 exceed $500,000 to the Federal Mediation and 

25 Conciliation Service to carry out this section, 
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1 provided that, any contrary provision of law 

2 notwithstanding, the Director of the Federal 

3 Mediation and Conciliation Service is author4 ized to conduct the mediation or other dispute 

5 resolution activities from any other appro6 priated funds available to the Director and to 

7 reimburse such appropriated funds when the 

8 funds are appropriated pursuant to this author9 ization, such reimbursement to be credited to 

10 appropriations currently available at the time of 

11 receipt thereof. 

12 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS13 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

14 worker aggrieved by a violation of rights enforceable 

15 under subsection (b) by an agricultural employer or 

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

17 United States having jurisdiction of the parties, 

18 without regard to the amount in controversy, with19 out regard to the citizenship of the parties, and 

20 without regard to the exhaustion of any alternative 

21 administrative remedies under this Act, not later 

22 than 3 years after the date the violation occurs. 

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

24 filed an administrative complaint with the Secretary 

25 of Labor may not maintain a civil action under 
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1 paragraph (2) unless a complaint based on the same 

2 violation filed with the Secretary of Labor under 

3 subsection (a)(1) is withdrawn prior to the filing of 

4 such action, in which case the rights and remedies 

5 available under this subsection shall be exclusive. 

6 ‘‘(4) PREEMPTION OF STATE CONTRACT

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

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

9 under any other Federal or State law or regulation 

10 or under any collective bargaining agreement, except 

11 that no court or administrative action shall be avail12 able under any State contract law to enforce the 

13 rights created by this Act. 

14 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree15 ments by employees purporting to waive or modify 

16 their rights under this Act shall be void as contrary 

17 to public policy, except that a waiver or modification 

18 of the rights or obligations in favor of the Secretary 

19 of Labor shall be valid for purposes of the enforce20 ment of this Act. The preceding sentence may not 

21 be construed to prohibit agreements to settle private 

22 disputes or litigation. 

23 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI24 TABLE RELIEF.—
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1 ‘‘(A) If the court finds that the respondent 

2 has intentionally violated any of the rights en3 forceable under subsection (b), it shall award 

4 actual damages, if any, or equitable relief. 

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

6 section shall be subject to appeal as provided in 

7 chapter 83 of title 28, United States Code. 

8 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX9 CLUSIVE REMEDY.—

10 ‘‘(A) Notwithstanding any other provision 

11 of this section, where a State’s workers’ com12 pensation law is applicable and coverage is pro13 vided for an H–2A worker, the workers’ com14 pensation benefits shall be the exclusive remedy 

15 for the loss of such worker under this section 

16 in the case of bodily injury or death in accord17 ance with such State’s workers’ compensation 

18 law. 

19 ‘‘(B) The exclusive remedy prescribed in 

20 subparagraph (A) precludes the recovery under 

21 paragraph (6) of actual damages for loss from 

22 an injury or death but does not preclude other 

23 equitable relief, except that such relief shall not 

24 include back or front pay or in any manner, di-
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1 rectly or indirectly, expand or otherwise alter or 

2 affect—

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

4 compensation law; or 

5 ‘‘(ii) rights conferred under a State 

6 workers’ compensation law. 

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

8 If it is determined under a State workers’ compensa9 tion law that the workers’ compensation law is not 

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

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

12 an action for actual damages for such injury or 

13 death under subsection (c) shall be tolled for the pe14 riod during which the claim for such injury or death 

15 under such State workers’ compensation law was 

16 pending. The statute of limitations for an action for 

17 actual damages or other equitable relief arising out 

18 of the same transaction or occurrence as the injury 

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

20 period during which the claim for such injury or 

21 death was pending under the State workers’ com22 pensation law. 

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

24 an H–2A worker and H–2A employer reached 

25 through the mediation process required under sub-
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1 section (c)(1) shall preclude any right of action aris2 ing out of the same facts between the parties in any 

3 Federal or State court or administrative proceeding, 

4 unless specifically provided otherwise in the settle5 ment agreement. 

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

7 Secretary of Labor with an H–2A employer on be8 half of an H–2A worker of a complaint filed with the 

9 Secretary of Labor under this section or any finding 

10 by the Secretary of Labor under subsection

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

12 out of the same facts between the parties under any 

13 Federal or State court or administrative proceeding, 

14 unless specifically provided otherwise in the settle15 ment agreement. 

16 ‘‘(d) DISCRIMINATION PROHIBITED.—

17 ‘‘(1) IN GENERAL.—It is a violation of this sub18 section for any person who has filed an application 

19 under section 218(a), to intimidate, threaten, re20 strain, coerce, blacklist, discharge, or in any other 

21 manner discriminate against an employee (which 

22 term, for purposes of this subsection, includes a 

23 former employee and an applicant for employment) 

24 because the employee has disclosed information to 

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

2 section 218 or 218A or any rule or regulation per3 taining to section 218 or 218A, or because the em4 ployee cooperates or seeks to cooperate in an inves5 tigation or other proceeding concerning the employ6 er’s compliance with the requirements of section 218 

7 or 218A or any rule or regulation pertaining to ei8 ther of such sections. 

9 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK10 ERS.—It is a violation of this subsection for any per11 son who has filed an application under section 

12 218(a), to intimidate, threaten, restrain, coerce, 

13 blacklist, discharge, or in any manner discriminate 

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

15 with just cause, filed a complaint with the Secretary 

16 of Labor regarding a denial of the rights enumer17 ated and enforceable under subsection (b) or insti18 tuted, or caused to be instituted, a private right of 

19 action under subsection (c) regarding the denial of 

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

21 testified or is about to testify in any court pro22 ceeding brought under subsection (c). 

23 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO24 PRIATE EMPLOYMENT.—The Secretary of Labor and the 

25 Secretary shall establish a process under which an H–2A 
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1 worker who files a complaint regarding a violation of sub2 section (d) and is otherwise eligible to remain and work 

3 in the United States may be allowed to seek other appro4 priate employment in the United States for a period not 

5 to exceed the maximum period of stay authorized for such 

6 nonimmigrant classification. 

7 ‘‘(f) ROLE OF ASSOCIATIONS.—

8 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA9 TION.—An employer on whose behalf an application 

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

11 responsible for such application, and for complying 

12 with the terms and conditions of sections 218 and 

13 218A, as though the employer had filed the applica14 tion itself. If such an employer is determined, under 

15 this section, to have committed a violation, the pen16 alty for such violation shall apply only to that mem17 ber of the association unless the Secretary of Labor 

18 determines that the association or other member 

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

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

21 invoked against the association or other association 

22 member as well. 

23 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

24 AS AN EMPLOYER.—If an association filing an appli25 cation as a sole or joint employer is determined to 
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•S 1645 IS 

1 have committed a violation under this section, the 

2 penalty for such violation shall apply only to the as3 sociation unless the Secretary of Labor determines 

4 that an association member or members participated 

5 in or had knowledge, or reason to know of the viola6 tion, in which case the penalty shall be invoked 

7 against the association member or members as well. 

8 ‘‘DEFINITIONS

9 ‘‘SEC. 218D. For purposes of sections 218 through 

10 218C: 

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

12 ‘agricultural employment’ means any service or ac13 tivity that is considered to be agricultural under sec14 tion 3(f) of the Fair Labor Standards Act of 1938 

15 (29 U.S.C. 203(f)) or agricultural labor under sec16 tion 3121(g) of the Internal Revenue Code of 1986 

17 (26 U.S.C. 3121(g)). For purposes of this para18 graph, agricultural employment includes employment 

19 under section 101(a)(15)(H)(ii)(a). 

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

21 union’ means any organization in which employees 

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

25 other terms and conditions of work for agricultural 

26 employees. Such term does not include an organiza-
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1 tion formed, created, administered, supported, domi2 nated, financed, or controlled by an employer or em3 ployer association or its agents or representatives. 

4 ‘‘(3) DISPLACE.—In the case of an application 

5 with respect to 1 or more H–2A workers by an em6 ployer, the employer is considered to ‘displace’ a 

7 United States worker from a job if the employer lays 

8 off the worker from a job for which the H–2A work9 er or workers is or are sought. 

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

11 with respect to an individual, means an individual 

12 who is not an unauthorized alien (as defined in sec13 tion 274A(h)(3)). 

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

15 any person or entity, including any farm labor con16 tractor and any agricultural association, that em17 ploys workers in agricultural employment. 

18 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em19 ployer’ means an employer who seeks to hire 1 or 

20 more nonimmigrant aliens described in section 

21 101(a)(15)(H)(ii)(a). 

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

23 means a nonimmigrant described in section 

24 101(a)(15)(H)(ii)(a). 
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1 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor2 tunity’ means a job opening for temporary full-time 

3 employment at a place in the United States to which 

4 United States workers can be referred. 

5 ‘‘(9) LAYS OFF.— 

6 ‘‘(A) IN GENERAL.—The term ‘lays off’, 

7 with respect to a worker—

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

9 of employment, other than through a dis10 charge for inadequate performance, viola11 tion of workplace rules, cause, voluntary 

12 departure, voluntary retirement, contract 

13 impossibility (as described in section 

14 218A(b)(4)(D)), or temporary layoffs due 

15 to weather, markets, or other temporary 

16 conditions; but 

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

18 which the worker is offered, as an alter19 native to such loss of employment, a simi20 lar employment opportunity with the same 

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

22 a worker with another employer under sec23 tion 218(b)(2)(E), with either employer de24 scribed in such section) at equivalent or 

25 higher compensation and benefits than the 
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1 position from which the employee was dis2 charged, regardless of whether or not the 

3 employee accepts the offer. 

4 ‘‘(B) STATUTORY CONSTRUCTION.—Noth5 ing in this paragraph is intended to limit an 

6 employee’s rights under a collective bargaining 

7 agreement or other employment contract. 

8 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg9 ulatory drought’ means a decision subsequent to the 

10 filing of the application under section 218 by an en11 tity not under the control of the employer making 

12 such filing which restricts the employer’s access to 

13 water for irrigation purposes and reduces or limits 

14 the employer’s ability to produce an agricultural 

15 commodity, thereby reducing the need for labor. 

16 ‘‘(11) SEASONAL.—Labor is performed on a 

17 ‘seasonal’ basis if—

18 (A) ordinarily, it pertains to or is of the 

19 kind exclusively performed at certain seasons or 

20 periods of the year; and 

21 (B) from its nature, it may not be contin22 uous or carried on throughout the year. 

23 ‘‘(12) SECRETARY.—The term ‘Secretary’ 

24 means the Secretary of Homeland Security. 
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1 ‘‘(13) TEMPORARY.—A worker is employed on a 

2 ‘temporary’ basis where the employment is intended 

3 not to exceed 10 months. 

4 ‘‘(14) UNITED STATES WORKER.—The term 

5 ‘United States worker’ means any worker, whether 

6 a United States citizen or national, a lawfully admit7 ted permanent resident alien, or any other alien, 

8 who is authorized to work in the job opportunity 

9 within the United States, except an alien admitted 

10 or otherwise provided status under section 

11 101(a)(15)(H)(ii)(a).’’. 

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

13 the Immigration and Nationality Act (8 U.S.C. 1101 et 

14 seq.) is amended by striking the item relating to section 

15 218 and inserting the following:

‘‘Sec. 218. H–2A employer applications. 

‘‘Sec. 218A. H–2A employment requirements. 

‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. 

‘‘Sec. 218C. Worker protections and labor standards enforcement. 

‘‘Sec. 218D. Definitions.’’.

16 TITLE III—MISCELLANEOUS 

17 PROVISIONS 

18 SEC. 301. DETERMINATION AND USE OF USER FEES. 

19 (a) SCHEDULE OF FEES.—The Secretary shall estab20 lish and periodically adjust a schedule of fees for the em21 ployment of aliens under this Act, and a collection process 

22 for such fees from employers participating in the program 

23 provided under this Act. Such fees shall be the only fees 
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1 chargeable to employers for services provided under this 

2 Act. 

3 (b) DETERMINATION OF SCHEDULE.—

4 (1) IN GENERAL.—The schedule under sub5 section (a) shall reflect a fee rate based on the num6 ber of job opportunities indicated in the employer’s 

7 application under section 218 of the Immigration 

8 and Nationality Act, as added by section 201 of this 

9 Act, and sufficient to provide for the direct costs of 

10 providing services related to an employer’s author11 ization to employ eligible aliens pursuant to this Act, 

12 to include the certification of eligible employers, the 

13 issuance of documentation, and the admission of eli14 gible aliens. 

15 (2) PROCEDURE.— 

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

18 comply with Federal cost accounting and fee 

19 setting standards. 

20 (B) PUBLICATION AND COMMENT.—The 

21 Secretary shall publish in the Federal Register 

22 an initial fee schedule and associated collection 

23 process and the cost data or estimates upon 

24 which such fee schedule is based, and any sub25 sequent amendments thereto, pursuant to which 
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1 public comment shall be sought and a final rule 

2 issued. 

3 (c) USE OF PROCEEDS.—Notwithstanding any other 

4 provision of law, all proceeds resulting from the payment 

5 of the alien employment user fees shall be available with6 out further appropriation and shall remain available with7 out fiscal year limitation to reimburse the Secretary, the 

8 Secretary of State, and the Secretary of Labor for the 

9 costs of carrying out sections 218 and 218B of the Immi10 gration and Nationality Act, as added by section 201 of 

11 this Act, and the provisions of this Act. 

12 SEC. 302. REGULATIONS. 

13 (a) REGULATIONS OF THE SECRETARY.—The Sec14 retary shall consult with the Secretary of Labor and the 

15 Secretary of Agriculture on all regulations to implement 

16 the duties of the Secretary under this Act. 

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

18 The Secretary of State shall consult with the Secretary, 

19 the Secretary of Labor, and the Secretary of Agriculture 

20 on all regulations to implement the duties of the Secretary 

21 of State under this Act. 

22 (c) REGULATIONS OF THE SECRETARY OF LABOR.—

23 The Secretary of Labor shall consult with the Secretary 

24 of Agriculture and the Secretary on all regulations to im-
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1 plement the duties of the Secretary of Labor under this 

2 Act. 

3 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.—

4 All regulations to implement the duties of the Secretary, 

5 the Secretary of State, and the Secretary of Labor created 

6 under sections 218, 218A, 218B, and 218C of the Immi7 gration and Nationality Act, as added by section 201, shall 

8 take effect on the effective date of section 201 and shall 

9 be issued not later than 1 year after the date of enactment 

10 of this Act. 

11 SEC. 303. EFFECTIVE DATE. 

12 (a) IN GENERAL.—Except as otherwise provided, sec13 tions 201 and 301 shall take effect on the date that is 

14 1 year after the date of enactment of this Act. 

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

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

17 submit to the appropriate committees of the Congress a 

18 report that describes the measures being taken and the 

19 progress made in implementing this Act.

Æ