II 

108TH CONGRESS 

2D SESSION S. 2185

To simplify the process for admitting temporary alien agricultural workers 

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

Act, to increase access to such workers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 9, 2004

Mr. CHAMBLISS introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL

To simplify the process for admitting temporary alien agricultural workers under section 101(a)(15)(H)(ii)(a) of 

the Immigration and Nationality Act, to increase access 

to such 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,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Temporary Agricul5 tural Work Reform Act of 2004’’. 
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•S 2185 IS 

1 SEC. 2. ADMISSION OF TEMPORARY H–2A WORKERS. 

2 (a) IN GENERAL.—Section 218 of the Immigration 

3 and Nationality Act (8 U.S.C. 1188) is amended to read 

4 as follows: 

5 ‘‘ADMISSION OF TEMPORARY H–2A WORKERS

6 ‘‘SEC. 218. (a) APPLICATION.—No alien may be ad7 mitted as an H–2A worker (as defined in subsection 

8 (u)(4)) unless the employer has filed with the Secretary 

9 of Labor an application stating the following: 

10 ‘‘(1) TEMPORARY OR SEASONAL WORK OR

11 SERVICES.—

12 ‘‘(A) IN GENERAL.—The agricultural em13 ployment for which the H–2A worker or work14 ers is or are sought is temporary or seasonal, 

15 the number of workers sought, and the wage 

16 rate and conditions under which they will be 

17 employed. 

18 ‘‘(B) SEASONAL WORK.—For purposes of 

19 subparagraph (A), the term ‘seasonal’ means an 

20 annually recurring time period in which a par21 ticular crop is planted, cultivated, or harvested, 

22 along with the ancillary activities that are re23 quired to support such planting, cultivation, or 

24 harvest. For purposes of an employer’s eligi25 bility to hire H–2A workers, an application filed 

26 under this subsection shall be classified as a 
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•S 2185 IS 

1 ‘seasonal job opportunity’ if the crop activity is 

2 traditionally performed in that geographical 

3 area during the time specified on the applica4 tion. There shall be no limit to the number of 

5 applications that can be filed by an agricultural 

6 employer during any 12-month period as long 

7 as each application has a clearly specified sea8 son for that particular crop activity. 

9 ‘‘(2) BENEFITS, WAGE, AND WORKING CONDI10 TIONS.—The employer will provide, at a minimum, 

11 the benefits, wages, and working conditions required 

12 by subsection (m) to all workers employed in the 

13 jobs for which the H–2A worker or workers is or are 

14 sought and to all other temporary workers in the 

15 same occupation at the place of employment. 

16 ‘‘(3) NONDISPLACEMENT OF UNITED STATES

17 WORKERS.—The employer did not displace and will 

18 not displace a United States worker employed by the 

19 employer during the period of employment and dur20 ing a period of 30 days preceding the period of em21 ployment in the occupation at the place of employ22 ment for which the employer seeks approval to em23 ploy H–2A workers. 

24 ‘‘(4) RECRUITMENT.—Using the State work25 force agency, the employer has attempted to recruit 
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1 domestic workers within the State or region of tradi2 tional or expected labor supply. The obligation to en3 gage in recruitment under this paragraph shall ter4 minate on the date the H–2A workers depart for the 

5 employer’s place of employment. 

6 ‘‘(5) OFFERS TO UNITED STATES WORKERS.—

7 The employer has offered or will offer the job for 

8 which the nonimmigrant is, or the nonimmigrants 

9 are, sought to any eligible United States worker who 

10 applies and is equally or better qualified for the job 

11 and who will be available at the time and place of 

12 need. 

13 ‘‘(6) 50 PERCENT RULE.—The employer will 

14 provide employment to any qualified United States 

15 worker who applies to the employer until 50 percent 

16 of the period of the work contract under which the 

17 H–2A worker who is in the job was hired has 

18 elapsed. 

19 ‘‘(7) PROVISION OF INSURANCE.—If the job for 

20 which the nonimmigrant is, or the nonimmigrants 

21 are, sought is not covered by State workers’ com22 pensation law, the employer will provide, at no cost 

23 to the worker, insurance covering injury and disease 

24 arising out of, and in the course of, the worker’s em25 ployment which will provide benefits at least equal to 
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1 those provided under the State workers’ compensa2 tion law for comparable employment. 

3 ‘‘(8) REQUIREMENTS FOR PLACEMENT OF H–2A

4 WORKERS WITH OTHER H–2A EMPLOYERS.—A non5 immigrant who is admitted into the United States as 

6 an H–2A worker may be transferred to another em7 ployer that has certified to the Secretary of Home8 land Security that it has filed an application under 

9 this subsection and is in compliance with this sec10 tion. The Secretary of Homeland Security shall es11 tablish a process for the approval and reissuance of 

12 visas for such transferred H–2A workers as nec13 essary. 

14 ‘‘(9) STRIKE OR LOCKOUT.—There is not a 

15 strike or lockout in the course of a labor dispute 

16 which, under regulations promulgated by the Sec17 retary of Labor, precludes the provision of the cer18 tification described in section 101(a)(15)(H)(ii)(a). 

19 ‘‘(10) PREVIOUS VIOLATIONS.—The employer 

20 has not, during the previous 2-year period, employed 

21 H–2A workers and substantially violated a material 

22 term or condition of approval with respect to the 

23 employment of domestic or nonimmigrant workers, 

24 as determined by the Secretary of Labor after notice 

25 and opportunity for a hearing. 
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•S 2185 IS 

1 ‘‘(b) PUBLICATION.—The employer shall make avail2 able for public examination, within 1 working day after

3 the date on which an application under this section is filed, 

4 at the employer’s principal place of business or worksite, 

5 a copy of each such application (and such accompanying 

6 documents as are necessary). 

7 ‘‘(c) LIST.—The Secretary of Labor shall compile, on 

8 a current basis, a list (by employer) of the applications 

9 filed under subsection (a). Such list shall include the wage 

10 rate, number of aliens sought, period of intended employ11 ment, and date of need. The Secretary of Labor shall 

12 make such list available for public examination in Wash13 ington, DC. 

14 ‘‘(d) SPECIAL RULES FOR CONSIDERATION OF AP15 PLICATIONS.—The following rules shall apply in the case 

16 of the filing and consideration of an application under sub17 section (a): 

18 ‘‘(1) DEADLINE FOR FILING APPLICATIONS.—

19 The Secretary of Labor may not require that the ap20 plication be filed more than 45 days before the first 

21 date the employer requires the labor or services of 

22 the H–2A worker or workers. 

23 ‘‘(2) REVIEW.—The Secretary of Labor shall 

24 review such an application only for completeness and 

25 obvious inaccuracies. 
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1 ‘‘(3) ISSUANCE OF APPROVAL.—Unless the Sec2 retary of Labor finds that the application is incom3 plete or obviously inaccurate, the Secretary of Labor 

4 shall provide the certification described in section 

5 101(a)(15)(H)(ii)(a) within 15 days of the date of 

6 the filing of the application. 

7 ‘‘(e) ROLES OF AGRICULTURAL ASSOCIATIONS.—

8 ‘‘(1) PERMITTING FILING BY AGRICULTURAL

9 ASSOCIATIONS.—An application to import an alien 

10 as a temporary agricultural worker may be filed by 

11 an association of agricultural producers which use 

12 agricultural services. 

13 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

14 EMPLOYERS.—If an association is a joint or sole em15 ployer of temporary agricultural workers, such work16 ers may be transferred among its producer members 

17 to perform agricultural services of a temporary or 

18 seasonal nature for which the application was ap19 proved. 

20 ‘‘(3) STATEMENT OF LIABILITY.—The applica21 tion form shall include a clear statement explaining 

22 the liability under this section of an employer who 

23 places an H–2A worker with another H–2A em24 ployer if the other employer displaces a United 
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1 States worker in violation of the condition described 

2 in subsection (a)(8). 

3 ‘‘(4) TREATMENT OF VIOLATIONS.—

4 ‘‘(A) MEMBER’S VIOLATION DOES NOT

5 NECESSARILY DISQUALIFY ASSOCIATION OR

6 OTHER MEMBERS.—If an individual producer 

7 member of a joint employer association is deter8 mined to have committed an act that is in viola9 tion of the conditions for approval with respect 

10 to the member’s application, the denial shall 

11 apply only to that member of the association 

12 unless the Secretary of Labor determines that 

13 the association or other member participated in, 

14 had knowledge of, or had reason to know of, the 

15 violation. 

16 ‘‘(B) ASSOCIATION’S VIOLATION DOES NOT

17 NECESSARILY DISQUALIFY MEMBERS.—

18 ‘‘(i) JOINT EMPLOYER.—If an associa19 tion representing agricultural producers as 

20 a joint employer is determined to have 

21 committed an act that is in violation of the 

22 conditions for approval with respect to the 

23 association’s application, the denial shall 

24 apply only to the association and does not 

25 apply to any individual producer member 
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1 of the association, unless the Secretary of 

2 Labor determines that the member partici3 pated in, had knowledge of, or had reason 

4 to know of, the violation. 

5 ‘‘(ii) SOLE EMPLOYER.—If an associa6 tion of agricultural producers approved as 

7 a sole employer is determined to have com8 mitted an act that is in violation of the 

9 conditions for approval with respect to the 

10 association’s application, no individual pro11 ducer member of such association may be 

12 the beneficiary of the services of temporary 

13 alien agricultural workers admitted under 

14 this section in the commodity and occupa15 tion in which such aliens were employed by 

16 the association which was denied approval 

17 during the period such denial is in force, 

18 unless such producer member employs such 

19 aliens in the commodity and occupation in 

20 question directly or through an association 

21 which is a joint employer of such workers 

22 with the producer member. 

23 ‘‘(f) EXPEDITED ADMINISTRATIVE APPEALS OF CER24 TAIN DETERMINATIONS.—Regulations shall provide for an 

25 expedited procedure for the review of a denial of approval 
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1 under this section, or at the applicant’s request, for a de 

2 novo administrative hearing respecting the denial. 

3 ‘‘(g) MISCELLANEOUS PROVISIONS.— 

4 ‘‘(1) WITHHOLDING OF DOMESTIC WORKERS.—

5 No person or entity shall willfully and knowingly 

6 withhold domestic workers prior to the arrival of H–

7 2A workers in order to force the hiring of domestic 

8 workers under subsection (a)(6). 

9 ‘‘(2) ENDORSEMENT OF DOCUMENTS.—The 

10 Secretary of Homeland Security shall provide for the 

11 endorsement of entry and exit documents of non12 immigrants described in section 101(a)(15)(H)(ii)(a) 

13 as may be necessary to carry out this section and to 

14 provide notice for purposes of section 274A. 

15 ‘‘(3) PREEMPTION OF STATE LAWS.—The pro16 visions of subsections (a) and (c) of section 214 and 

17 the provisions of this section preempt any State or 

18 local law regulating admissibility of nonimmigrant 

19 workers. 

20 ‘‘(4) FEES.—

21 ‘‘(A) IN GENERAL.—The Secretary of 

22 Labor may require, as a condition of approving 

23 the application, the payment of a fee in accord24 ance with subparagraph (B) to recover the rea25 sonable costs of processing applications. 
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1 ‘‘(B) AMOUNTS.—

2 ‘‘(i) EMPLOYER.—The fee for each 

3 employer that receives a temporary alien 

4 agricultural labor certification shall be 

5 equal to $100 plus $10 for each job oppor6 tunity for H–2A workers certified, pro7 vided that the fee to an employer for each 

8 temporary alien agricultural labor certifi9 cation received shall not exceed $1,000. 

10 ‘‘(ii) JOINT EMPLOYER ASSOCIA11 TION.—In the case of a joint employer as12 sociation that receives a temporary alien 

13 agricultural labor certification, each em14 ployer-member receiving such certification 

15 shall pay a fee equal to $100 plus $10 for 

16 each job opportunity for H–2A workers 

17 certified, provided that the fee to an em18 ployer for each temporary alien agricul19 tural labor certification received shall not 

20 exceed $1,000. The joint employer associa21 tion shall not be charged a separate fee. 

22 ‘‘(C) PAYMENTS.—The fees collected under 

23 this paragraph shall be paid by check or money 

24 order made payable to the ‘Department of 

25 Labor’. In the case of employers of H–2A work-
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•S 2185 IS 

1 ers that are members of a joint employer asso2 ciation applying on their behalf, the aggregate 

3 fees for all employers of H–2A workers under 

4 the application may be paid by one check or 

5 money order. 

6 ‘‘(D) INFLATION ADJUSTMENT.—In the 

7 case of any calendar year beginning after 2005, 

8 each dollar amount in subparagraph (B) may 

9 be increased by an amount equal to—

10 ‘‘(i) such dollar amount; multiplied by 

11 ‘‘(ii) the percentage (if any) by which 

12 the average of the Consumer Price Index 

13 for all urban consumers (United States 

14 city average) for the 12-month period end15 ing with August of the preceding calendar 

16 year exceeds such average for the 12-

17 month period ending with August 2004. 

18 ‘‘(h) FAILURE TO MEET CONDITIONS.—If the Sec19 retary of Labor finds, after notice and opportunity for a 

20 hearing, a failure to meet a condition of subsection (a), 

21 or a material misrepresentation of fact in an application 

22 under subsection (a)—

23 ‘‘(1) the Secretary of Labor shall notify the 

24 Secretary of Homeland Security of such finding and 

25 may, in addition, impose such other administrative 
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1 remedies (including civil money penalties in an 

2 amount not to exceed $1,000 per violation) as the 

3 Secretary of Labor determines to be appropriate; 

4 and 

5 ‘‘(2) the Secretary of Homeland Security may 

6 disqualify the employer from the employment of H–

7 2A workers for a period of 1 year. 

8 ‘‘(i) WILLFUL FAILURES AND WILLFUL MISREPRE9 SENTATIONS.—If the Secretary of Labor finds, after no10 tice and opportunity for a hearing, a willful failure to meet 

11 a condition of subsection (a) or a willful misrepresentation 

12 of a material fact in an application under subsection (a), 

13 or a violation of subsection (g)(1)—

14 ‘‘(1) the Secretary of Labor shall notify the 

15 Secretary of Homeland Security of such finding and 

16 may, in addition, impose such other administrative 

17 remedies (including civil money penalties in an 

18 amount not to exceed $5,000 per violation) as the 

19 Secretary of Labor determines to be appropriate; 

20 ‘‘(2) the Secretary of Labor may seek appro21 priate legal or equitable relief to effectuate the pur22 poses of subsection (g)(1); and 

23 ‘‘(3) the Secretary of Homeland Security may 

24 disqualify the employer from the employment of H–

25 2A workers for a period of 2 years. 
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1 ‘‘(j) DISPLACEMENT OF UNITED STATES WORK2 ERS.—If the Secretary of Labor finds, after notice and 

3 opportunity for a hearing, a willful failure to meet a condi4 tion of subsection (a) or a willful misrepresentation of a 

5 material fact in an application under subsection (a), in 

6 the course of which failure or misrepresentation the em7 ployer displaced a United States worker employed by the 

8 employer during the period of employment on the employ9 er’s application under subsection (a) or during the period 

10 of 30 days preceding such period of employment—

11 ‘‘(1) the Secretary of Labor shall notify the 

12 Secretary of Homeland Security of such finding and 

13 may, in addition, impose such other administrative 

14 remedies (including civil money penalties in an 

15 amount not to exceed $15,000 per violation) as the 

16 Secretary of Labor determines to be appropriate; 

17 and 

18 ‘‘(2) the Secretary of Homeland Security may 

19 disqualify the employer from the employment of H–

20 2A workers for a period of 3 years. 

21 ‘‘(k) LIMITATIONS ON CIVIL MONEY PENALTIES.—

22 The Secretary of Labor shall not impose total civil money 

23 penalties with respect to an application under subsection 

24 (a) in excess of $90,000. 
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1 ‘‘(l) FAILURES TO PAY WAGES OR REQUIRED BENE2 FITS.—If the Secretary of Labor finds, after notice and 

3 opportunity for a hearing, that the employer has failed to 

4 pay the wages, or provide the housing allowance, transpor5 tation, subsistence reimbursement, or guarantee of em6 ployment, required under subsection (a)(2), the Secretary 

7 of Labor shall assess payment of back wages, or other re8 quired benefits, due any United States worker or H–2A 

9 worker employed by the employer in the specific employ10 ment in question. The back wages or other required bene11 fits under section subsection (a)(2) shall be equal to the 

12 difference between the amount that should have been paid 

13 and the amount that actually was paid to such worker. 

14 ‘‘(m) MINIMUM BENEFITS, WAGES, AND WORKING

15 CONDITIONS.—

16 ‘‘(1) PREFERENTIAL TREATMENT OF ALIENS

17 PROHIBITED.—

18 ‘‘(A) IN GENERAL.—Employers seeking to 

19 hire United States workers shall offer the 

20 United States workers not less than the same 

21 benefits, wages, and working conditions that the 

22 employer is offering, intends to offer, or will 

23 provide to H–2A workers. Conversely, no job 

24 offer may impose on United States workers any
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1 restrictions or obligations which will not be im2 posed on the employer’s H–2A workers. 

3 ‘‘(B) INTERPRETATIONS AND DETERMINA4 TIONS.—While benefits, wages, and other terms 

5 and conditions of employment specified in this 

6 subsection are required to be provided in con7 nection with employment under this section, 

8 every interpretation and determination made 

9 under this Act or under any other law, regula10 tion, or interpretative provision regarding the 

11 nature, scope, and timing of the provision of 

12 these and any other benefits, wages, and other 

13 terms and conditions of employment, must be 

14 made in conformance with the governing prin15 ciples that the services of workers to their em16 ployers and the employment opportunities af17 forded to workers by their employers, including 

18 those employment opportunities that require 

19 United States workers or H–2A workers to 

20 travel or relocate in order to accept or perform 

21 employment, mutually benefit such workers, as 

22 well as their families, and employers, principally 

23 benefiting neither, and that employment oppor24 tunities within the United States further benefit 
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1 the United States economy as a whole and 

2 should be encouraged. 

3 ‘‘(2) REQUIRED WAGES.—

4 ‘‘(A) An employer applying for workers 

5 under subsection (a) shall offer to pay, and 

6 shall pay, all workers in the occupation for 

7 which the employer has applied for workers, not 

8 less than the prevailing wage. 

9 ‘‘(B) In complying with subparagraph (A), 

10 an employer may request and obtain a pre11 vailing wage determination from the State em12 ployment security agency. 

13 ‘‘(C) In lieu of the procedure described in 

14 subparagraph (B), an employer may rely on 

15 other wage information, including a survey of 

16 the prevailing wages of workers in the occupa17 tion in the area of intended employment that 

18 has been conducted or funded by the employer 

19 or a group of employers, that meets criteria 

20 specified by the Secretary of Labor in regula21 tions. 

22 ‘‘(D) An employer who obtains such pre23 vailing wage determination, or who relies on a 

24 qualifying survey of prevailing wages, and who 

25 pays the wage determined to be prevailing, shall 
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•S 2185 IS 

1 be considered to have complied with the re2 quirement of subparagraph (A). 

3 ‘‘(E) No worker shall be paid less than the 

4 greater of the prevailing wage or the applicable 

5 State minimum wage. 

6 ‘‘(3) REQUIREMENT TO PROVIDE HOUSING OR A

7 HOUSING ALLOWANCE.—

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

9 for workers under subsection (a) shall offer to 

10 provide housing at no cost to all workers in job 

11 opportunities for which the employer has ap12 plied under that section and to all other work13 ers in the same occupation at the place of em14 ployment, whose place of residence is beyond 

15 normal commuting distance. 

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

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

18 the employer’s election, provide housing that 

19 meets applicable Federal standards for tem20 porary labor camps or secure housing that 

21 meets applicable local standards for rental or 

22 public accommodation housing or other sub23 stantially similar class of habitation, or in the 

24 absence of applicable local standards, State 

25 standards for rental or public accommodation 
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•S 2185 IS 

1 housing or other substantially similar class of 

2 habitation. In the absence of applicable local or 

3 State standards, Federal temporary labor camp 

4 standards shall apply. 

5 ‘‘(C) CERTIFICATE OF INSPECTION.—Prior 

6 to any occupation by a worker in housing de7 scribed in subparagraph (B), the employer shall 

8 submit a certificate of inspection by an ap9 proved Federal or State agency to the Secretary 

10 of Labor. 

11 ‘‘(D) WORKERS ENGAGED IN THE RANGE

12 PRODUCTION OF LIVESTOCK.—The Secretary of 

13 Labor shall issue regulations that address the 

14 specific requirements for the provision of hous15 ing to workers engaged in the range production 

16 of livestock. 

17 ‘‘(E) LIMITATION.—Nothing in this para18 graph shall be construed to require an employer 

19 to provide or secure housing for persons who 

20 were not entitled to such housing under the 

21 temporary labor certification regulations in ef22 fect on June 1, 1986. 

23 ‘‘(F) HOUSING ALLOWANCE AS ALTER24 NATIVE.—
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•S 2185 IS 

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

2 housing pursuant to subparagraph (A), the 

3 employer may provide a reasonable housing 

4 allowance, but only if the requirement of 

5 clause (ii) is satisfied. Upon the request of 

6 a worker seeking assistance in locating 

7 housing, the employer shall make a good 

8 faith effort to assist the worker in identi9 fying and locating housing in the area of 

10 intended employment. An employer who of11 fers a housing allowance to a worker, or 

12 assists a worker in locating housing which 

13 the worker occupies, pursuant to this 

14 clause shall not be deemed a housing pro15 vider under section 203 of the Migrant and 

16 Seasonal Agricultural Worker Protection 

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

18 providing such housing allowance. How19 ever, no housing allowance may be used for 

20 housing which is owned or controlled by 

21 the employer. The employer must provide 

22 the Secretary of Labor with a list of the 

23 names of all workers assisted under this 

24 clause and the local address of each such 

25 worker.
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1 ‘‘(ii) CERTIFICATION.—The require2 ment of this clause is satisfied if the Gov3 ernor of the State certifies to the Secretary 

4 of Labor that there is adequate housing 

5 available in the area of intended employ6 ment for migrant farm workers, and H–2A 

7 workers, who are seeking temporary hous8 ing while employed at farm work. Such 

9 certification shall expire after 3 years un10 less renewed by the Governor of the State. 

11 ‘‘(iii) AMOUNT OF ALLOWANCE.—

12 ‘‘(I) NONMETROPOLITAN COUN13 TIES.—If the place of employment of 

14 the workers provided an allowance 

15 under this subparagraph is a non16 metropolitan county, the amount of 

17 the housing allowance under this sub18 paragraph shall be equal to the state19 wide average fair market rental for 

20 existing housing for nonmetropolitan 

21 counties for the State, as established 

22 by the Secretary of Housing and 

23 Urban Development pursuant to sec24 tion 8(c) of the United States Hous25 ing Act of 1937 (42 U.S.C. 1437f(c)), 
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1 based on a 2-bedroom dwelling unit 

2 and an assumption of 2 persons per 

3 bedroom. 

4 ‘‘(II) METROPOLITAN COUN5 TIES.—If the place of employment of 

6 the workers provided an allowance 

7 under this paragraph is in a metro8 politan county, the amount of the 

9 housing allowance under this subpara10 graph shall be equal to the statewide 

11 average fair market rental for existing 

12 housing for metropolitan counties for 

13 the State, as established by the Sec14 retary of Housing and Urban Devel15 opment pursuant to section 8(c) of 

16 the United States Housing Act of 

17 1937 (42 U.S.C. 1437f(c)), based on 

18 a 2-bedroom dwelling unit and an as19 sumption of 2 persons per bedroom. 

20 ‘‘(4) REIMBURSEMENT OF TRANSPORTATION.—

21 ‘‘(A) TO PLACE OF EMPLOYMENT.—

22 ‘‘(i) IN GENERAL.—A worker who 

23 completes 50 percent of the period of em24 ployment of the job opportunity for which 

25 the worker was hired, measured from the 
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•S 2185 IS 

1 worker’s first day of work in such employ2 ment, shall be reimbursed by the employer 

3 for the cost of the worker’s transportation 

4 and subsistence from the place from which 

5 the worker was approved to enter the 

6 United States to work for the employer (or 

7 place of last employment, if the worker 

8 traveled from such place) to the place of 

9 employment by the employer, except that 

10 the employer shall not be required to reim11 burse visa, passport, consular, or inter12 national border-crossing fees or any other 

13 fees associated with the worker’s lawful ad14 mission into the United States to perform 

15 employment that may be incurred by the 

16 worker. 

17 ‘‘(ii) TIMELY REIMBURSEMENT.—Re18 imbursement to the worker of expenses for 

19 the cost of the worker’s transportation and 

20 subsistence to the place of employment 

21 shall be considered timely if such reim22 bursement is made not later than the 

23 worker’s first regular payday after the 

24 worker completes 50 percent of the period 
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•S 2185 IS 

1 of employment of the job opportunity as 

2 provided under this paragraph. 

3 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

4 worker who completes the period of employment 

5 for the job opportunity involved shall be reim6 bursed by the employer for the cost of the 

7 worker’s transportation and subsistence from 

8 the place from which the worker was approved 

9 to enter the United States to work for the em10 ployer, or to the place of next employment, if 

11 the worker has contracted with a subsequent 

12 employer who has not agreed to provide or pay 

13 for the worker’s transportation and subsistence 

14 to such subsequent employer’s place of employ15 ment. 

16 ‘‘(C) LIMITATION.—

17 ‘‘(i) AMOUNT OF REIMBURSEMENT.—

18 Except as provided in clause (ii), the 

19 amount of reimbursement provided under 

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

21 alien shall not exceed the lesser of—

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

23 or alien of the transportation and sub24 sistence involved; or 
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1 ‘‘(II) the most economical and 

2 reasonable common carrier transpor3 tation charges and subsistence costs 

4 for the distance involved. 

5 ‘‘(ii) DISTANCE TRAVELED.—No reim6 bursement under subparagraph (A) or (B) 

7 shall be required if the distance traveled is 

8 100 miles or less or if the worker is not re9 siding in employer-provided housing or 

10 housing secured through an allowance as 

11 provided in paragraph (3). 

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

13 is laid off or employment is terminated for con14 tract impossibility (as described in paragraph 

15 (5)(D)) before the anticipated ending date of 

16 employment, the employer shall provide the 

17 transportation and subsistence required by sub18 paragraph (B) and, notwithstanding whether 

19 the worker has completed 50 percent of the pe20 riod of employment, shall provide the transpor21 tation reimbursement required by subparagraph 

22 (A).

23 ‘‘(E) TRANSPORTATION BETWEEN LIVING

24 QUARTERS AND WORK SITE.—The employer 

25 shall provide transportation between the work-
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•S 2185 IS 

1 er’s living quarters (such as housing provided 

2 by the employer pursuant to paragraph (3), in3 cluding housing provided through a housing al4 lowance) and the employer’s work site without 

5 cost to the worker, and such transportation will 

6 be in accordance with applicable laws and regu7 lations. 

8 ‘‘(5) GUARANTEE OF EMPLOYMENT.—

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

10 shall guarantee to offer the worker employment 

11 for the hourly equivalent of at least three12 fourths of the work days of the total period of 

13 employment, beginning with the first work day 

14 after the arrival of the worker at the place of 

15 employment and ending on the expiration date 

16 specified in the job offer. For purposes of this 

17 subparagraph, the hourly equivalent means the 

18 number of hours in the work days as stated in 

19 the job offer and shall exclude the worker’s 

20 Sabbath and Federal holidays. If the employer 

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

22 employment than that required under this sub23 paragraph, the employer shall pay such worker 

24 the amount which the worker would have
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1 earned had the worker, in fact, worked for the 

2 guaranteed number of hours. 

3 ‘‘(B) FAILURE TO WORK.—Any hours 

4 which the worker fails to work, up to a max5 imum of the number of hours specified in the 

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

7 been offered an opportunity to do so, and all 

8 hours of work actually performed (including vol9 untary work in excess of the number of hours 

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

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

12 be counted by the employer in calculating 

13 whether the period of guaranteed employment 

14 has been met. 

15 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

16 TERMINATION FOR CAUSE.—If the worker vol17 untarily abandons employment before the end 

18 of the contract period, or is terminated for 

19 cause, the worker is not entitled to the three20 fourths guarantee described in subparagraph 

21 (A). 

22 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be23 fore the expiration of the period of employment 

24 specified in the job offer, the services of the 

25 worker are no longer required for reasons be-
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•S 2185 IS 

1 yond the control of the employer due to any 

2 form of natural disaster (including a flood, hur3 ricane, freeze, earthquake, fire, or drought), 

4 plant or animal disease, pest infestation, or reg5 ulatory action, before the employment guar6 antee in subparagraph (A) is fulfilled, the em7 ployer may terminate the worker’s employment. 

8 In the event of such termination, the employer 

9 shall fulfill the employment guarantee in sub10 paragraph (A) for the work days that have 

11 elapsed from the first work day after the arrival 

12 of the worker to the termination of employ13 ment. In such cases, the employer will make ef14 forts to transfer the United States worker to 

15 other comparable employment acceptable to the 

16 worker. 

17 ‘‘(n) PETITIONING FOR ADMISSION.—An employer, 

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

19 its members, that seeks the admission into the United 

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

21 Secretary of Homeland Security. The petition shall be ac22 companied by the certification described in section 

23 101(a)(15)(H)(ii)(a). 

24 ‘‘(o) EXPEDITED ADJUDICATION BY THE SEC25 RETARY.—The Secretary of Homeland Security shall es-
29

•S 2185 IS 

1 tablish a procedure for expedited adjudication of petitions 

2 filed under subsection (n) and within 7 working days of 

3 such filing shall, by fax, cable, or other means assuring 

4 expedited delivery, transmit a copy of notice of action on 

5 the petition to the petitioner and, in the case of approved 

6 petitions, to the appropriate immigration officer at the 

7 port of entry or United States consulate (as the case may 

8 be) where the petitioner has indicated that the alien bene9 ficiary (or beneficiaries) will apply for a visa or admission 

10 to the United States. 

11 ‘‘(p) DISQUALIFICATION.—

12 ‘‘(1) Subject to paragraph (2), an alien shall be 

13 considered inadmissible to the United States and in14 eligible for nonimmigrant status under section 

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

16 during the past 5 years, violated a term or condition 

17 of admission into the United States as a non18 immigrant, including overstaying the period of au19 thorized admission. 

20 ‘‘(2) WAIVERS.—

21 ‘‘(A) IN GENERAL.—An alien outside the 

22 United States, and seeking admission under 

23 section 101(a)(15)(H)(ii)(a) shall not be 

24 deemed inadmissible under such section by rea25 son of paragraph (1) or section 212(a)(9)(B). A 
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•S 2185 IS 

1 waiver under this subparagraph may be granted 

2 only once to an individual alien. 

3 ‘‘(B) LIMITATION.—In any case in which 

4 an alien is admitted to the United States upon 

5 having a ground of inadmissibility waived under 

6 subparagraph (A), such waiver shall be consid7 ered to remain in effect unless the alien again 

8 violates a material provision of this section or 

9 otherwise violates a term or condition of admis10 sion into the United States as a nonimmigrant, 

11 in which case such waiver shall terminate. 

12 ‘‘(q) 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 of Homeland Security 

23 within 7 days of an H–2A worker’s having pre24 maturely abandoned employment.
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•S 2185 IS 

1 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec2 retary of Homeland Security shall promptly remove 

3 from the United States any H–2A worker who vio4 lates any term or condition of the worker’s non5 immigrant status. 

6 ‘‘(4) VOLUNTARY TERMINATION.—Notwith7 standing paragraph (1), an alien may voluntarily 

8 terminate his or her employment if the alien prompt9 ly departs the United States upon termination of 

10 such employment. 

11 ‘‘(r) REPLACEMENT OF ALIEN.—

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

13 notice to the Secretary of Homeland Security re14 quired by subsection (q)(2), the Secretary of State 

15 shall promptly issue a visa to, and the Secretary of 

16 Homeland Security shall admit into the United 

17 States, an eligible alien designated by the employer 

18 to replace an H–2A worker—

19 ‘‘(A) who abandons or prematurely termi20 nates employment; or 

21 ‘‘(B) whose employment is terminated 

22 after a United States worker is employed pur23 suant to subsection (a)(6), if the United States 

24 worker voluntarily departs before the end of the 

25 period of intended employment or if the employ-
32

•S 2185 IS 

1 ment termination is for a lawful job-related rea2 son. 

3 ‘‘(2) CONSTRUCTION.—Nothing in this sub4 section is intended to limit any preference required 

5 to be accorded United States workers under any 

6 other provision of this Act. 

7 ‘‘(s) IDENTIFICATION DOCUMENT.—

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

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

10 provided an identification and employment eligibility 

11 document to verify eligibility for employment in the 

12 United States and verify such person’s proper iden13 tity. 

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

15 employment eligibility document may be issued 

16 which does not meet the following requirements: 

17 ‘‘(A) The document shall be capable of re18 liably determining whether—

19 ‘‘(i) the individual with the identifica20 tion and employment eligibility document 

21 whose eligibility is being verified is in fact 

22 eligible for employment; 

23 ‘‘(ii) the individual whose eligibility is 

24 being verified is claiming the identity of 

25 another person; and 
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•S 2185 IS 

1 ‘‘(iii) the individual whose eligibility is 

2 being verified is authorized to be admitted 

3 into, and employed in, the United States 

4 as an H–2A worker. 

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

6 is resistant to counterfeiting and to tampering. 

7 ‘‘(C) The document shall—

8 ‘‘(i) be compatible with other data9 bases of the Secretary of Homeland Secu10 rity for the purpose of excluding aliens 

11 from benefits for which they are not eligi12 ble and determining whether the alien is 

13 unlawfully present in the United States; 

14 and 

15 ‘‘(ii) be compatible with law enforce16 ment databases to determine if the alien 

17 has been convicted of criminal offenses. 

18 ‘‘(t) EXTENSION OF STAY OF H–2A WORKERS IN

19 THE UNITED STATES.—

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

21 seeks approval to employ an H–2A worker who is 

22 lawfully present in the United States, the petition 

23 filed by the employer or an association pursuant to 

24 subsection (n) shall request an extension of the 

25 alien’s stay and a change in the alien’s employment. 
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•S 2185 IS 

1 ‘‘(2) WORK AUTHORIZATION UPON FILING PE2 TITION FOR EXTENSION OF STAY.—In the case of an 

3 alien who is lawfully present in the United States, 

4 the alien is authorized to commence the employment 

5 described in a petition under paragraph (1) on the 

6 date on which the petition is filed. For purposes of 

7 the preceding sentence, the term ‘file’ means sending 

8 the petition by certified mail via the United States 

9 Postal Service, return receipt requested, or delivered 

10 by guaranteed commercial delivery which will provide 

11 the employer with a documented acknowledgment of 

12 the date of receipt of the petition. The employer 

13 shall provide a copy of the employer’s petition to the 

14 alien, who shall keep the petition with the alien’s 

15 identification and employment eligibility document 

16 as evidence that the petition has been filed and that 

17 the alien is authorized to work in the United States. 

18 Upon approval of a petition for an extension of stay 

19 or change in the alien’s authorized employment, the 

20 Secretary of Homeland Security shall provide a new 

21 or updated employment eligibility document to the 

22 alien indicating the new validity date, after which 

23 the alien is not required to retain a copy of the peti24 tion. 

25 ‘‘(u) DEFINITIONS.—For purposes of this section: 
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•S 2185 IS 

1 ‘‘(1) AREA OF EMPLOYMENT.—The term ‘area 

2 of employment’ means the area within normal com3 muting distance of the worksite or physical location 

4 where the work of the H–2A worker is or will be 

5 performed. If such worksite or location is within a 

6 Metropolitan Statistical Area, any place within such 

7 area is deemed to be within the area of employment. 

8 ‘‘(2) ELIGIBLE INDIVIDUAL.—The term ‘eligible 

9 individual’ means, with respect to employment, an 

10 individual who is not an unauthorized alien (as de11 fined in section 274A(h)(3)) with respect to that em12 ployment. 

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

14 with respect to 1 or more H–2A workers by an em15 ployer, the employer is considered to ‘displace’ a 

16 United States worker from a job if the employer lays 

17 off the worker from a job that is essentially the 

18 equivalent of the job for which the H–2A worker or 

19 workers is or are sought. A job shall not be consid20 ered to be essentially equivalent of another job un21 less it involves essentially the same responsibilities, 

22 was held by a United States worker with substan23 tially equivalent qualifications and experience, and is 

24 located in the same area of employment as the other 

25 job.
36

•S 2185 IS 

1 ‘‘(4) H–2A WORKER.—The term ‘H–2A worker’ 

2 means a nonimmigrant described in section 

3 101(a)(15)(H)(ii)(a). 

4 ‘‘(5) LAYS OFF.—

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

6 with respect to a worker—

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

8 of employment, other than through a dis9 charge for inadequate performance, viola10 tion of workplace rules, cause, voluntary 

11 departure, voluntary retirement, or the ex12 piration of a grant or contract (other than 

13 a temporary employment contract entered 

14 into in order to evade a condition described 

15 in paragraph (3) or (8) of subsection (a); 

16 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 sub23 section (a)(8), with either employer de24 scribed in such subsection) at equivalent or 

25 higher compensation and benefits than the 
37

•S 2185 IS 

1 position from which the employee was dis2 charged, regardless of whether or not the 

3 employee accepts the offer. 

4 ‘‘(B) CONSTRUCTION.—Nothing in this 

5 paragraph is intended to limit an employee’s 

6 rights under a collective bargaining agreement 

7 or other employment contract. 

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

9 wage’ means, with respect to an agricultural occupa10 tion in an area of intended employment, the rate of 

11 wages that includes the 51st percentile of employees 

12 with similar experience and qualifications in the ag13 ricultural occupation in the area of intended employ14 ment, expressed in terms of the prevailing method of 

15 pay for the occupation in the area of intended em16 ployment. 

17 ‘‘(7) UNITED STATES WORKER.—The term 

18 ‘United States worker’ means an employee who—

19 ‘‘(A) is a citizen or national of the United 

20 States; or 

21 ‘‘(B) is an alien who is lawfully admitted 

22 for permanent residence, is admitted as a ref23 ugee under section 207, is granted asylum 

24 under section 208, or is an immigrant otherwise 
38

•S 2185 IS 

1 authorized, by this Act or by the Secretary of 

2 Homeland Security, to be employed.’’. 

3 (b) CONFORMING AMENDMENT.—Section 

4 101(a)(15)(H)(ii)(a) of the Immigration and Nationality 

5 Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended by strik6 ing ‘‘seasonal nature, or (b)’’ and inserting ‘‘seasonal na7 ture, and with respect to whom the Secretary of Labor 

8 determines and certifies to the Secretary of Homeland Se9 curity that the intending employer has filed with the Sec10 retary of Labor an application under section 218(a), or 

11 (b)’’. 

12 SEC. 3. LEGAL ASSISTANCE PROVIDED BY THE LEGAL 

13 SERVICES CORPORATION. 

14 (a) IN GENERAL.—Section 305 of the Immigrant Re15 form and Control Act of 1986 (8 U.S.C. 1101 note) is 

16 amended—

17 (1) by striking ‘‘A nonimmigrant’’ and inserting 

18 ‘‘(a) IN GENERAL.—A nonimmigrant’’; and 

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

20 ‘‘(b) LEGAL ASSISTANCE.—The Legal Services Cor21 poration may not provide legal assistance for or on behalf 

22 of any alien, and may not provide financial assistance to 

23 any person or entity that provides legal assistance for or 

24 on behalf of any alien, unless the alien—
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•S 2185 IS 

1 ‘‘(1) is present in the United States at the time 

2 the legal assistance is provided; and 

3 ‘‘(2) is an alien to whom subsection (a) ap4 plies.’’. 

5 (b) MEDIATION.—Section 305 of the Immigrant Re6 form and Control Act of 1986 (8 U.S.C. 1101 note), as 

7 amended by subsection (a), is further amended by adding 

8 at the end the following: 

9 ‘‘(c) REQUIRED MEDIATION.—The Legal Services 

10 Corporation may not bring a civil action for damages on 

11 behalf of a nonimmigrant described in section 

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

13 Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), unless at least 90 

14 days prior to bringing the action a request has been made 

15 to the Federal Mediation and Conciliation Service to assist 

16 the parties in reaching a satisfactory resolution of all 

17 issues involving all parties to the dispute and mediation 

18 has been attempted.’’.

Æ