II 

Calendar No. 711 

108TH CONGRESS 

2D SESSION S. 2823 

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 21, 2004 

Mr. CRAIG (for himself and Mr. KENNEDY) introduced the following bill; 

which was read the first time 

SEPTEMBER 22, 2004 

Read the second time and placed on the calendar 

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 2004’’. 

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-
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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 consistent with the defini4 tion of ‘‘man-day’’ under section 3(u) of the Fair 

5 Labor Standards Act of 1938 (29 U.S.C. 203(u)). 

6 TITLE I—ADJUSTMENT TO 

7 LAWFUL STATUS 

8 SEC. 101. AGRICULTURAL WORKERS. 

9 (a) TEMPORARY RESIDENT STATUS.— 

10 (1) IN GENERAL.—Notwithstanding any other 

11 provision of law, the Secretary shall confer upon an 

12 alien who qualifies under this subsection the status 

13 of an alien lawfully admitted for temporary residence 

14 if the Secretary determines that the following re15 quirements are satisfied with respect to the alien: 

16 (A) PERFORMANCE OF AGRICULTURAL EM17 PLOYMENT IN THE UNITED STATES.—The alien 

18 must establish that the alien— 

19 (i) entered the United States at least 

20 two years before the date of the enactment 

21 of this Act; and 

22 (ii) has performed agricultural em23 ployment in the United States for at least 

24 575 hours or 100 work days, whichever is 

25 less, during any 12 consecutive months 
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1 during the 18-month period ending on Au2 gust 31, 2003. 

3 (B) APPLICATION PERIOD.—The alien 

4 must apply for such status during the 18-month 

5 application period beginning on the 1st day of 

6 the 7th month that begins after the date of en7 actment of this Act. 

8 (C) ADMISSIBLE AS IMMIGRANT.—The 

9 alien must establish that the alien is otherwise 

10 admissible to the United States under section 

11 212 of the Immigration and Nationality Act (8 

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

13 under subsection (e)(2). 

14 (2) AUTHORIZED TRAVEL.—During the period 

15 an alien is in lawful temporary resident status 

16 granted under this subsection, the alien has the 

17 right to travel abroad (including commutation from 

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

19 lawfully admitted for permanent residence. 

20 (3) AUTHORIZED EMPLOYMENT.—During the 

21 period an alien is in lawful temporary resident sta22 tus granted under this subsection, the alien shall be 

23 provided an ‘‘employment authorized’’ endorsement 

24 or other appropriate work permit, in the same man-
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1 ner as an alien lawfully admitted for permanent resi2 dence. 

3 (4) TERMINATION OF TEMPORARY RESIDENT

4 STATUS.—During the period of temporary resident 

5 status granted an alien under this subsection, the 

6 Secretary may terminate such status only upon a de7 termination under this Act that the alien is deport8 able. 

9 (5) RECORD OF EMPLOYMENT.— 

10 (A) IN GENERAL.—Each employer of a 

11 worker granted status under this subsection 

12 shall annually— 

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

15 (ii) provide a copy of such record to 

16 the Secretary. 

17 (B) SUNSET.—The obligation under sub18 paragraph (A) terminates on August 31, 2009. 

19 (b) RIGHTS OF ALIENS GRANTED TEMPORARY RESI20 DENT STATUS.— 

21 (1) IN GENERAL.—Except as otherwise pro22 vided in this subsection, an alien who acquires the 

23 status of an alien lawfully admitted for temporary 

24 residence under subsection (a), such status not hav25 ing changed, shall be considered to be an alien law-
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1 fully admitted for permanent residence for purposes 

2 of any law other than any provision of the Immigra3 tion and Nationality Act (8 U.S.C. 1101 et seq.). 

4 (2) DELAYED ELIGIBILITY FOR CERTAIN FED5 ERAL PUBLIC BENEFITS.—An alien who acquires the 

6 status of an alien lawfully admitted for temporary 

7 residence under subsection (a) as described in para8 graph (1) shall not be eligible, by reason of such ac9 quisition of that status, for any form of assistance 

10 or benefit described in section 403(a) of the Per11 sonal Responsibility and Work Opportunity Rec12 onciliation Act of 1996 (8 U.S.C. 1613(a)) until 5 

13 years after the date on which the Secretary confers 

14 permanent resident status upon that alien under 

15 subsection (a). 

16 (3) TERMS OF EMPLOYMENT RESPECTING

17 ALIENS ADMITTED UNDER THIS SECTION.— 

18 (A) PROHIBITION.—No alien granted sta19 tus under subsection (a) may be terminated 

20 from employment by any employer during the 

21 period of temporary resident status except for 

22 just cause. 

23 (B) TREATMENT OF COMPLAINTS.— 

24 (i) ESTABLISHMENT OF PROCESS.— 

25 The Secretary shall establish a process for 
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1 the receipt, initial review, and disposition 

2 in accordance with this subparagraph of 

3 complaints by aliens granted temporary 

4 resident status under subsection (a) who 

5 allege that they have been terminated with6 out just cause. No proceeding shall be con7 ducted under this subparagraph with re8 spect to a termination unless the Secretary 

9 determines that the complaint was filed 

10 not later than 6 months after the date of 

11 the termination. 

12 (ii) INITIATION OF ARBITRATION.—If 

13 the Secretary finds that a complaint has 

14 been filed in accordance with clause (i) and 

15 there is reasonable cause to believe that 

16 the complainant was terminated without 

17 just cause, the Secretary shall initiate 

18 binding arbitration proceedings by request19 ing the Federal Mediation and Conciliation 

20 Service to appoint a mutually agreeable ar21 bitrator from the roster of arbitrators 

22 maintained by such Service for the geo23 graphical area in which the employer is lo24 cated. The procedures and rules of such 

25 Service shall be applicable to the selection 
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1 of such arbitrator and to such arbitration 

2 proceedings. The Secretary shall pay the 

3 fee and expenses of the arbitrator, subject 

4 to the availability of appropriations for 

5 such purpose. 

6 (iii) ARBITRATION PROCEEDINGS.— 

7 The arbitrator shall conduct the pro8 ceeding in accordance with the policies and 

9 procedures promulgated by the American 

10 Arbitration Association applicable to pri11 vate arbitration of employment disputes. 

12 The arbitrator shall make findings respect13 ing whether the termination was for just 

14 cause. The arbitrator may not find that 

15 the termination was for just cause unless 

16 the employer so demonstrates by a prepon17 derance of the evidence. If the arbitrator 

18 finds that the termination was not for just 

19 cause, the arbitrator shall make a specific 

20 finding of the number of days or hours of 

21 work lost by the employee as a result of 

22 the termination. The arbitrator shall have 

23 no authority to order any other remedy, in24 cluding, but not limited to, reinstatement, 

25 back pay, or front pay to the affected em-
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1 ployee. Within 30 days from the conclusion 

2 of the arbitration proceeding, the arbi3 trator shall transmit the findings in the 

4 form of a written opinion to the parties to 

5 the arbitration and the Secretary. Such 

6 findings shall be final and conclusive, and 

7 no official or court of the United States 

8 shall have the power or jurisdiction to re9 view any such findings. 

10 (iv) EFFECT OF ARBITRATION FIND11 INGS.—If the Secretary receives a finding 

12 of an arbitrator that an employer has ter13 minated an alien granted temporary resi14 dent status under subsection (a) without 

15 just cause, the Secretary shall credit the 

16 alien for the number of days or hours of 

17 work lost for purposes of the requirement 

18 of subsection (c)(1). 

19 (v) TREATMENT OF ATTORNEY’S

20 FEES.—The parties shall bear the cost of 

21 their own attorney’s fees involved in the 

22 litigation of the complaint. 

23 (vi) NONEXCLUSIVE REMEDY.—The 

24 complaint process provided for in this sub25 paragraph is in addition to any other 
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1 rights an employee may have in accordance 

2 with applicable law. 

3 (vii) EFFECT ON OTHER ACTIONS OR

4 PROCEEDINGS.—Any finding of fact or 

5 law, judgment, conclusion, or final order 

6 made by an arbitrator in the proceeding 

7 before the Secretary shall not be conclusive 

8 or binding in any separate or subsequent 

9 action or proceeding between the employee 

10 and the employee’s current or prior em11 ployer brought before an arbitrator, admin12 istrative agency, court, or judge of any 

13 State or the United States, regardless of 

14 whether the prior action was between the 

15 same or related parties or involved the 

16 same facts, except that the arbitrator’s 

17 specific finding of the number of days or 

18 hours of work lost by the employee as a re19 sult of the employment termination may be 

20 referred to the Secretary pursuant to 

21 clause (iv). 

22 (C) CIVIL PENALTIES.— 

23 (i) IN GENERAL.—If the Secretary 

24 finds, after notice and opportunity for a 

25 hearing, that an employer of an alien 
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1 granted temporary resident status under 

2 subsection (a) has failed to provide the 

3 record of employment required under sub4 section (a)(5) or has provided a false state5 ment of material fact in such a record, the 

6 employer shall be subject to a civil money 

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

8 per violation. 

9 (ii) LIMITATION.—The penalty appli10 cable under clause (i) for failure to provide 

11 records shall not apply unless the alien has 

12 provided the employer with evidence of em13 ployment authorization granted under this 

14 section. 

15 (c) ADJUSTMENT TO PERMANENT RESIDENCE.— 

16 (1) AGRICULTURAL WORKERS.— 

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

18 subparagraph (B), the Secretary shall adjust 

19 the status of an alien granted lawful temporary 

20 resident status under subsection (a) to that of 

21 an alien lawfully admitted for permanent resi22 dence if the Secretary determines that the fol23 lowing requirements are satisfied: 

24 (i) QUALIFYING EMPLOYMENT.—The 

25 alien has performed at least 360 work days 
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1 or 2,060 hours, but in no case less than 

2 2,060 hours, of agricultural employment in 

3 the United States, during the period begin4 ning on September 1, 2003, and ending on 

5 August 31, 2009. 

6 (ii) QUALIFYING YEARS.—The alien 

7 has performed at least 75 work days or 

8 430 hours, but in no case less than 430 

9 hours, of agricultural employment in the 

10 United States in at least 3 nonoverlapping 

11 periods of 12 consecutive months during 

12 the period beginning on September 1, 

13 2003, and ending on August 31, 2009. 

14 Qualifying periods under this clause may 

15 include nonconsecutive 12-month periods. 

16 (iii) QUALIFYING WORK IN FIRST 3

17 YEARS.—The alien has performed at least 

18 240 work days or 1,380 hours, but in no 

19 case less than 1,380 hours, of agricultural 

20 employment during the period beginning 

21 on September 1, 2003, and ending on Au22 gust 31, 2006. 

23 (iv) APPLICATION PERIOD.—The alien 

24 applies for adjustment of status not later 

25 than August 31, 2010. 
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1 (v) PROOF.—In meeting the require2 ments of clauses (i), (ii), and (iii), an alien 

3 may submit the record of employment de4 scribed in subsection (a)(5) or such docu5 mentation as may be submitted under sub6 section (d)(3). 

7 (vi) DISABILITY.—In determining 

8 whether an alien has met the requirements 

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

10 shall credit the alien with any work days 

11 lost because the alien was unable to work 

12 in agricultural employment due to injury 

13 or disease arising out of and in the course 

14 of the alien’s agricultural employment, if 

15 the alien can establish such disabling in16 jury or disease through medical records. 

17 (B) GROUNDS FOR DENIAL OF ADJUST18 MENT OF STATUS.—The Secretary may deny an 

19 alien adjustment to permanent resident status, 

20 and provide for termination of the temporary 

21 resident status granted such alien under sub22 section (a), if— 

23 (i) the Secretary finds by a prepon24 derance of the evidence that the adjust25 ment to temporary resident status was the 
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1 result of fraud or willful misrepresentation, 

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

3 the Immigration and Nationality Act (8 

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

5 (ii) the alien— 

6 (I) commits an act that makes 

7 the alien inadmissible to the United 

8 States under section 212 of the Immi9 gration and Nationality Act (8 U.S.C. 

10 1182), except as provided under sub11 section (e)(2); or 

12 (II) is convicted of a felony or 3 

13 or more misdemeanors committed in 

14 the United States. 

15 (C) GROUNDS FOR REMOVAL.—Any alien 

16 granted temporary resident status under sub17 section (a) who does not apply for adjustment 

18 of status under this subsection before the expi19 ration of the application period described in 

20 subparagraph (A)(iv), or who fails to meet the 

21 other requirements of subparagraph (A) by the 

22 end of the applicable period, is deportable and 

23 may be removed under section 240 of the Immi24 gration and Nationality Act (8 U.S.C. 1229a). 

25 The Secretary shall issue regulations estab-
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1 lishing grounds to waive subparagraph (A)(iii) 

2 with respect to an alien who has completed at 

3 least 200 days of the work requirement speci4 fied in such subparagraph in the event of a nat5 ural disaster which substantially limits the 

6 availability of agricultural employment or a per7 sonal emergency that prevents compliance with 

8 such subparagraph. 

9 (2) SPOUSES AND MINOR CHILDREN.— 

10 (A) IN GENERAL.—Notwithstanding any 

11 other provision of law, the Secretary shall con12 fer the status of lawful permanent resident on 

13 the spouse and minor child of an alien granted 

14 status under paragraph (1), including any indi15 vidual who was a minor child on the date such 

16 alien was granted temporary resident status, if 

17 the spouse or minor child applies for such sta18 tus, or if the principal alien includes the spouse 

19 or minor child in an application for adjustment 

20 of status to that of a lawful permanent resi21 dent. 

22 (B) TREATMENT OF SPOUSES AND MINOR

23 CHILDREN PRIOR TO ADJUSTMENT OF STA24 TUS.—A spouse and minor child of an alien 
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1 granted temporary resident status under sub2 section (a) may not be— 

3 (i) removed while such alien maintains 

4 such status; and 

5 (ii) granted authorization to engage in 

6 employment in the United States or be 

7 provided an ‘‘employment authorized’’ en8 dorsement or other work permit, unless 

9 such employment authorization is granted 

10 under another provision of law. 

11 (d) APPLICATIONS.— 

12 (1) TO WHOM MAY BE MADE.— 

13 (A) WITHIN THE UNITED STATES.—The 

14 Secretary shall provide that— 

15 (i) applications for temporary resident 

16 status under subsection (a) may be filed— 

17 (I) with the Secretary, but only if 

18 the applicant is represented by an at19 torney; or 

20 (II) with a qualified designated 

21 entity (designated under paragraph 

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

23 to the forwarding of the application to 

24 the Secretary; and 
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1 (ii) applications for adjustment of sta2 tus under subsection (c) shall be filed di3 rectly with the Secretary. 

4 (B) OUTSIDE THE UNITED STATES.—The 

5 Secretary, in cooperation with the Secretary of 

6 State, shall establish a procedure whereby an 

7 alien may apply for temporary resident status 

8 under subsection (a) at an appropriate consular 

9 office outside the United States. 

10 (C) PRELIMINARY APPLICATIONS.— 

11 (i) IN GENERAL.—During the applica12 tion period described in subsection 

13 (a)(1)(B), the Secretary may grant admis14 sion to the United States as a temporary 

15 resident and provide an ‘‘employment au16 thorized’’ endorsement or other appro17 priate work permit to any alien who pre18 sents a preliminary application for such 

19 status under subsection (a) at a designated 

20 port of entry on the southern land border 

21 of the United States. An alien who does 

22 not enter through a port of entry is subject 

23 to deportation and removal as otherwise 

24 provided in this Act. 
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1 (ii) DEFINITION.—For purposes of 

2 clause (i), the term ‘‘preliminary applica3 tion’’ means a fully completed and signed 

4 application which contains specific infor5 mation concerning the performance of 

6 qualifying employment in the United 

7 States, together with the payment of the 

8 appropriate fee and the submission of pho9 tographs and the documentary evidence 

10 which the applicant intends to submit as 

11 proof of such employment. 

12 (iii) ELIGIBILITY.—An applicant 

13 under clause (i) must be otherwise admis14 sible to the United States under subsection 

15 (e)(2) and must establish to the satisfac16 tion of the examining officer during an 

17 interview that the applicant’s claim to eli18 gibility for temporary resident status is 

19 credible. 

20 (D) TRAVEL DOCUMENTATION.—The Sec21 retary shall provide each alien granted status 

22 under this section with a counterfeit-resistant 

23 document of authorization to enter or reenter 

24 the United States that meets the requirements 

25 established by the Secretary. 
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1 (2) DESIGNATION OF ENTITIES TO RECEIVE AP2 PLICATIONS.— 

3 (A) IN GENERAL.—For purposes of receiv4 ing applications under subsection (a), the Sec5 retary— 

6 (i) shall designate qualified farm labor 

7 organizations and associations of employ8 ers; and 

9 (ii) may designate such other persons 

10 as the Secretary determines are qualified 

11 and have substantial experience, dem12 onstrate competence, and have traditional 

13 long-term involvement in the preparation 

14 and submittal of applications for adjust15 ment of status under section 209, 210, or 

16 245 of the Immigration and Nationality 

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

18 145, or the Immigration Reform and Con19 trol Act of 1986. 

20 (B) REFERENCES.—Organizations, asso21 ciations, and persons designated under subpara22 graph (A) are referred to in this Act as ‘‘quali23 fied designated entities’’. 

24 (3) PROOF OF ELIGIBILITY.— 
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1 (A) IN GENERAL.—An alien may establish 

2 that the alien meets the requirement of sub3 section (a)(1)(A) or subsection (c)(1)(A) 

4 through government employment records or 

5 records supplied by employers or collective bar6 gaining organizations, and other reliable docu7 mentation as the alien may provide. The Sec8 retary shall establish special procedures to 

9 properly credit work in cases in which an alien 

10 was employed under an assumed name. 

11 (B) DOCUMENTATION OF WORK HIS12 TORY.—(i) An alien applying for status under 

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

14 burden of proving by a preponderance of the 

15 evidence that the alien has worked the requisite 

16 number of hours or days (as required under 

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

18 (ii) If an employer or farm labor con19 tractor employing such an alien has kept proper 

20 and adequate records respecting such employ21 ment, the alien’s burden of proof under clause 

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

23 those records under regulations to be promul24 gated by the Secretary. 
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1 (iii) An alien can meet such burden of 

2 proof if the alien establishes that the alien has 

3 in fact performed the work described in sub4 section (a)(1)(A) or subsection (c)(1)(A) by 

5 producing sufficient evidence to show the extent 

6 of that employment as a matter of just and rea7 sonable inference. 

8 (4) TREATMENT OF APPLICATIONS BY QUALI9 FIED DESIGNATED ENTITIES.—Each qualified des10 ignated entity must agree to forward to the Sec11 retary applications filed with it in accordance with 

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

13 Secretary applications filed with it unless the appli14 cant has consented to such forwarding. No such en15 tity may make a determination required by this sec16 tion to be made by the Secretary. Upon the request 

17 of the alien, a qualified designated entity shall assist 

18 the alien in obtaining documentation of the work 

19 history of the alien. 

20 (5) LIMITATION ON ACCESS TO INFORMA21 TION.—Files and records prepared for purposes of 

22 this subsection by qualified designated entities oper23 ating under this subsection are confidential and the 

24 Secretary shall not have access to such files or 

25 records relating to an alien without the consent of 
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1 the alien, except as allowed by a court order issued 

2 pursuant to paragraph (6). 

3 (6) CONFIDENTIALITY OF INFORMATION.— 

4 (A) IN GENERAL.—Except as otherwise 

5 provided in this subsection, neither the Sec6 retary, nor any other official or employee of the 

7 Department of Homeland Security, or bureau 

8 or agency thereof, may— 

9 (i) use the information furnished by 

10 the applicant pursuant to an application 

11 filed under this section, the information 

12 provided to the applicant by a person des13 ignated under paragraph (2)(A), or any in14 formation provided by an employer or 

15 former employer, for any purpose other 

16 than to make a determination on the appli17 cation, or for enforcement of paragraph 

18 (7); 

19 (ii) make any publication whereby the 

20 information furnished by any particular in21 dividual can be identified; or 

22 (iii) permit anyone other than the 

23 sworn officers and employees of the De24 partment of Homeland Security, or bureau 

25 or agency thereof, or, with respect to appli-
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1 cations filed with a qualified designated en2 tity, that qualified designated entity, to ex3 amine individual applications. 

4 (B) CRIME.—Whoever knowingly uses, 

5 publishes, or permits information to be exam6 ined in violation of this paragraph shall be fined 

7 not more than $10,000. 

8 (7) PENALTIES FOR FALSE STATEMENTS IN AP9 PLICATIONS.— 

10 (A) CRIMINAL PENALTY.—Whoever— 

11 (i) files an application for status 

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

13 and willfully falsifies, conceals, or covers 

14 up a material fact or makes any false, fic15 titious, or fraudulent statements or rep16 resentations, or makes or uses any false 

17 writing or document knowing the same to 

18 contain any false, fictitious, or fraudulent 

19 statement or entry; or 

20 (ii) creates or supplies a false writing 

21 or document for use in making such an ap22 plication; 

23 shall be fined in accordance with title 18, 

24 United States Code, or imprisoned not more 

25 than 5 years, or both. 
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1 (B) INADMISSIBILITY.—An alien who is 

2 convicted of a crime under subparagraph (A) 

3 shall be considered to be inadmissible to the 

4 United States on the ground described in sec5 tion 212(a)(6)(C)(i) of the Immigration and 

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

7 (8) ELIGIBILITY FOR LEGAL SERVICES.—Sec8 tion 504(a)(11) of Public Law 104–134 (110 Stat. 

9 1321–53 et seq.) shall not be construed to prevent 

10 a recipient of funds under the Legal Services Cor11 poration Act (42 U.S.C. 2996 et seq.) from pro12 viding legal assistance directly related to an applica13 tion for adjustment of status under this section. 

14 (9) APPLICATION FEES.— 

15 (A) FEE SCHEDULE.—The Secretary shall 

16 provide for a schedule of fees that— 

17 (i) shall be charged for the filing of 

18 applications for status under subsections 

19 (a) and (c); and 

20 (ii) may be charged by qualified des21 ignated entities to help defray the costs of 

22 services provided to such applicants. 

23 (B) PROHIBITION ON EXCESS FEES BY

24 QUALIFIED DESIGNATED ENTITIES.—A quali25 fied designated entity may not charge any fee 
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1 in excess of, or in addition to, the fees author2 ized under subparagraph (A)(ii) for services 

3 provided to applicants. 

4 (C) DISPOSITION OF FEES.— 

5 (i) IN GENERAL.—There is established 

6 in the general fund of the Treasury a sepa7 rate account, which shall be known as the 

8 ‘‘Agricultural Worker Immigration Status 

9 Adjustment Account’’. Notwithstanding 

10 any other provision of law, there shall be 

11 deposited as offsetting receipts into the ac12 count all fees collected under subparagraph 

13 (A)(i). 

14 (ii) USE OF FEES FOR APPLICATION

15 PROCESSING.—Amounts deposited in the 

16 ‘‘Agricultural Worker Immigration Status 

17 Adjustment Account’’ shall remain avail18 able to the Secretary until expended for 

19 processing applications for status under 

20 subsections (a) and (c). 

21 (e) WAIVER OF NUMERICAL LIMITATIONS AND CER22 TAIN GROUNDS FOR INADMISSIBILITY.— 

23 (1) NUMERICAL LIMITATIONS DO NOT APPLY.— 

24 The numerical limitations of sections 201 and 202 

25 of the Immigration and Nationality Act (8 U.S.C. 
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1 1151 and 1152) shall not apply to the adjustment 

2 of aliens to lawful permanent resident status under 

3 this section. 

4 (2) WAIVER OF CERTAIN GROUNDS OF INAD5 MISSIBILITY.—In the determination of an alien’s eli6 gibility for status under subsection (a)(1)(C) or an 

7 alien’s eligibility for adjustment of status under sub8 section (c)(1)(B)(ii)(I), the following rules shall 

9 apply: 

10 (A) GROUNDS OF EXCLUSION NOT APPLI11 CABLE.—The provisions of paragraphs (5), 

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

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

14 1182(a)) shall not apply. 

15 (B) WAIVER OF OTHER GROUNDS.— 

16 (i) IN GENERAL.—Except as provided 

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

18 other provision of such section 212(a) in 

19 the case of individual aliens for humani20 tarian purposes, to ensure family unity, or 

21 when it is otherwise in the public interest. 

22 (ii) GROUNDS THAT MAY NOT BE

23 WAIVED.—The following provisions of such 

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

25 Secretary under clause (i): 
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1 (I) Subparagraphs (A) and (B) 

2 of paragraph (2) (relating to crimi3 nals). 

4 (II) Paragraph (4) (relating to 

5 aliens likely to become public 

6 charges). 

7 (III) Paragraph (2)(C) (relating 

8 to drug offenses). 

9 (IV) Paragraph (3) (relating to 

10 security and related grounds). 

11 (iii) CONSTRUCTION.—Nothing in this 

12 subparagraph shall be construed as affect13 ing the authority of the Secretary other 

14 than under this subparagraph to waive 

15 provisions of such section 212(a). 

16 (C) SPECIAL RULE FOR DETERMINATION

17 OF PUBLIC CHARGE.—An alien is not ineligible 

18 for status under this section by reason of a 

19 ground of inadmissibility under section 

20 212(a)(4) of the Immigration and Nationality 

21 Act (8 U.S.C. 1182(a)(4)) if the alien dem22 onstrates a history of employment in the United 

23 States evidencing self-support without reliance 

24 on public cash assistance. 
29 

•S 2823 PCS 

1 (f) TEMPORARY STAY OF REMOVAL AND WORK AU2 THORIZATION FOR CERTAIN APPLICANTS.— 

3 (1) BEFORE APPLICATION PERIOD.—Effective 

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

5 shall provide that, in the case of an alien who is ap6 prehended before the beginning of the application 

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

8 can establish a nonfrivolous case of eligibility for 

9 temporary resident status under subsection (a) (but 

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

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

12 alien has had the opportunity during the first 30 

13 days of the application period to complete the filing 

14 of an application for temporary resident status, the 

15 alien— 

16 (A) may not be removed; and 

17 (B) shall be granted authorization to en18 gage in employment in the United States and 

19 be provided an ‘‘employment authorized’’ en20 dorsement or other appropriate work permit for 

21 such purpose. 

22 (2) DURING APPLICATION PERIOD.—The Sec23 retary shall provide that, in the case of an alien who 

24 presents a nonfrivolous application for temporary 

25 resident status under subsection (a) during the ap-
30 

•S 2823 PCS 

1 plication period described in subsection (a)(1)(B), 

2 including an alien who files such an application 

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

4 a final determination on the application has been 

5 made in accordance with this section, the alien— 

6 (A) may not be removed; and 

7 (B) shall be granted authorization to en8 gage in employment in the United States and 

9 be provided an ‘‘employment authorized’’ en10 dorsement or other appropriate work permit for 

11 such purpose. 

12 (g) ADMINISTRATIVE AND JUDICIAL REVIEW.— 

13 (1) IN GENERAL.—There shall be no adminis14 trative or judicial review of a determination respect15 ing an application for status under subsection (a) or 

16 (c) except in accordance with this subsection. 

17 (2) ADMINISTRATIVE REVIEW.— 

18 (A) SINGLE LEVEL OF ADMINISTRATIVE

19 APPELLATE REVIEW.—The Secretary shall es20 tablish an appellate authority to provide for a 

21 single level of administrative appellate review of 

22 such a determination. 

23 (B) STANDARD FOR REVIEW.—Such ad24 ministrative appellate review shall be based 

25 solely upon the administrative record estab-
31 

•S 2823 PCS 

1 lished at the time of the determination on the 

2 application and upon such additional or newly 

3 discovered evidence as may not have been avail4 able at the time of the determination. 

5 (3) JUDICIAL REVIEW.— 

6 (A) LIMITATION TO REVIEW OF RE7 MOVAL.—There shall be judicial review of such 

8 a determination only in the judicial review of an 

9 order of removal under section 242 of the Im10 migration and Nationality Act (8 U.S.C. 1252). 

11 (B) STANDARD FOR JUDICIAL REVIEW.— 

12 Such judicial review shall be based solely upon 

13 the administrative record established at the 

14 time of the review by the appellate authority 

15 and the findings of fact and determinations 

16 contained in such record shall be conclusive un17 less the applicant can establish abuse of discre18 tion or that the findings are directly contrary to 

19 clear and convincing facts contained in the 

20 record considered as a whole. 

21 (h) DISSEMINATION OF INFORMATION ON ADJUST22 MENT PROGRAM.—Beginning not later than the 1st day 

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

24 the Secretary, in cooperation with qualified designated en25 tities, shall broadly disseminate information respecting the 
32 

•S 2823 PCS 

1 benefits that aliens may receive under this section and the 

2 requirements to be satisfied to obtain such benefits. 

3 (i) REGULATIONS.—The Secretary shall issue regula4 tions to implement this section not later than the 1st day 

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

6 of this Act. 

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

8 on the date that regulations are issued implementing this 

9 section on an interim or other basis. 

10 (k) AUTHORIZATION OF APPROPRIATIONS.—There is 

11 hereby authorized to be appropriated to the Secretary to 

12 carry out this section $40,000,000 for each of fiscal years 

13 2005 through 2008. 

14 SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS. 

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

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

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

18 the end; 

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

20 the end; 

21 (3) by inserting after subparagraph (C) the fol22 lowing: 

23 ‘‘(D) who is granted status as a lawful tem24 porary resident under the Agricultural Job Oppor25 tunity, Benefits, and Security Act of 2004,’’; and 
33 

•S 2823 PCS 

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

2 in the case of an alien described in subparagraph 

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

4 to the date on which the alien was granted lawful 

5 temporary resident status.’’. 

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

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

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

9 TITLE II—REFORM OF H–2A 

10 WORKER PROGRAM 

11 SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION12 ALITY ACT. 

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

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

15 and inserting the following: 

16 ‘‘H–2A EMPLOYER APPLICATIONS

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

18 OF LABOR.— 

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

20 to the United States as an H–2A worker, or other21 wise provided status as an H–2A worker, unless the 

22 employer has filed with the Secretary of Labor an 

23 application containing— 

24 ‘‘(A) the assurances described in sub25 section (b); 
34 

•S 2823 PCS 

1 ‘‘(B) a description of the nature and loca2 tion of the work to be performed; 

3 ‘‘(C) the anticipated period (expected be4 ginning and ending dates) for which the work5 ers will be needed; and 

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

7 which the employer seeks to employ the work8 ers. 

9 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap10 plication filed under paragraph (1) shall be accom11 panied by a copy of the job offer describing the 

12 wages and other terms and conditions of employ13 ment and the bona fide occupational qualifications 

14 that must be possessed by a worker to be employed 

15 in the job opportunity in question. 

16 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA17 TIONS.—The assurances referred to in subsection (a)(1) 

18 are the following: 

19 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL20 LECTIVE BARGAINING AGREEMENTS.—With respect 

21 to a job opportunity that is covered under a collec22 tive bargaining agreement: 

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

24 job opportunity is covered by a union contract 
35 

•S 2823 PCS 

1 which was negotiated at arm’s length between a 

2 bona fide union and the employer. 

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

4 job opportunity for which the employer is re5 questing an H–2A worker is not vacant because 

6 the former occupant is on strike or being locked 

7 out in the course of a labor dispute. 

8 ‘‘(C) NOTIFICATION OF BARGAINING REP9 RESENTATIVES.—The employer, at the time of 

10 filing the application, has provided notice of the 

11 filing under this paragraph to the bargaining 

12 representative of the employer’s employees in 

13 the occupational classification at the place or 

14 places of employment for which aliens are 

15 sought. 

16 ‘‘(D) TEMPORARY OR SEASONAL JOB OP17 PORTUNITIES.—The job opportunity is tem18 porary or seasonal. 

19 ‘‘(E) OFFERS TO UNITED STATES WORK20 ERS.—The employer has offered or will offer 

21 the job to any eligible United States worker 

22 who applies and is equally or better qualified 

23 for the job for which the nonimmigrant is, or 

24 the nonimmigrants are, sought and who will be 

25 available at the time and place of need. 
36 

•S 2823 PCS 

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

2 job opportunity is not covered by the State 

3 workers’ compensation law, the employer will 

4 provide, at no cost to the worker, insurance cov5 ering injury and disease arising out of, and in 

6 the course of, the worker’s employment which 

7 will provide benefits at least equal to those pro8 vided under the State’s workers’ compensation 

9 law for comparable employment. 

10 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

11 COLLECTIVE BARGAINING AGREEMENTS.—With re12 spect to a job opportunity that is not covered under 

13 a collective bargaining agreement: 

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

15 job opportunity for which the employer is re16 questing an H–2A worker is not vacant because 

17 the former occupant is on strike or being locked 

18 out in the course of a labor dispute. 

19 ‘‘(B) TEMPORARY OR SEASONAL JOB OP20 PORTUNITIES.—The job opportunity is tem21 porary or seasonal. 

22 ‘‘(C) BENEFIT, WAGE, AND WORKING CON23 DITIONS.—The employer will provide, at a min24 imum, the benefits, wages, and working condi25 tions required by section 218A to all workers 
37 

•S 2823 PCS 

1 employed in the job opportunities for which the 

2 employer has applied under subsection (a) and 

3 to all other workers in the same occupation at 

4 the place of employment. 

5 ‘‘(D) NONDISPLACEMENT OF UNITED

6 STATES WORKERS.—The employer did not dis7 place and will not displace a United States 

8 worker employed by the employer during the 

9 period of employment and for a period of 30 

10 days preceding the period of employment in the 

11 occupation at the place of employment for 

12 which the employer seeks approval to employ 

13 H–2A workers. 

14 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

15 NONIMMIGRANT WITH OTHER EMPLOYERS.— 

16 The employer will not place the nonimmigrant 

17 with another employer unless— 

18 ‘‘(i) the nonimmigrant performs du19 ties in whole or in part at 1 or more work 

20 sites owned, operated, or controlled by 

21 such other employer; 

22 ‘‘(ii) there are indicia of an employ23 ment relationship between the non24 immigrant and such other employer; and 
38 

•S 2823 PCS 

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

2 other employer as to whether, and has no 

3 actual knowledge or notice that, during the 

4 period of employment and for a period of 

5 30 days preceding the period of employ6 ment, the other employer has displaced or 

7 intends to displace a United States worker 

8 employed by the other employer in the oc9 cupation at the place of employment for 

10 which the employer seeks approval to em11 ploy H–2A workers. 

12 ‘‘(F) STATEMENT OF LIABILITY.—The ap13 plication form shall include a clear statement 

14 explaining the liability under subparagraph (E) 

15 of an employer if the other employer described 

16 in such subparagraph displaces a United States 

17 worker as described in such subparagraph. 

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

19 job opportunity is not covered by the State 

20 workers’ compensation law, the employer will 

21 provide, at no cost to the worker, insurance cov22 ering injury and disease arising out of and in 

23 the course of the worker’s employment which 

24 will provide benefits at least equal to those pro-
39 

•S 2823 PCS 

1 vided under the State’s workers’ compensation 

2 law for comparable employment. 

3 ‘‘(H) EMPLOYMENT OF UNITED STATES

4 WORKERS.— 

5 ‘‘(i) RECRUITMENT.—The employer 

6 has taken or will take the following steps 

7 to recruit United States workers for the 

8 job opportunities for which the H–2A non9 immigrant is, or H–2A nonimmigrants are, 

10 sought: 

11 ‘‘(I) CONTACTING FORMER

12 WORKERS.—The employer shall make 

13 reasonable efforts through the sending 

14 of a letter by United States Postal 

15 Service mail, or otherwise, to contact 

16 any United States worker the em17 ployer employed during the previous 

18 season in the occupation at the place 

19 of intended employment for which the 

20 employer is applying for workers and 

21 has made the availability of the em22 ployer’s job opportunities in the occu23 pation at the place of intended em24 ployment known to such previous 

25 workers, unless the worker was termi-
40 

•S 2823 PCS 

1 nated from employment by the em2 ployer for a lawful job-related reason 

3 or abandoned the job before the work4 er completed the period of employ5 ment of the job opportunity for which 

6 the worker was hired. 

7 ‘‘(II) FILING A JOB OFFER WITH

8 THE LOCAL OFFICE OF THE STATE

9 EMPLOYMENT SECURITY AGENCY.— 

10 Not later than 28 days prior to the 

11 date on which the employer desires to 

12 employ an H–2A worker in a tem13 porary or seasonal agricultural job op14 portunity, the employer shall submit a 

15 copy of the job offer described in sub16 section (a)(2) to the local office of the 

17 State employment security agency 

18 which serves the area of intended em19 ployment and authorize the posting of 

20 the job opportunity on ‘America’s Job 

21 Bank’ or other electronic job registry, 

22 except that nothing in this subclause 

23 shall require the employer to file an 

24 interstate job order under section 653 
41 

•S 2823 PCS 

1 of title 20, Code of Federal Regula2 tions. 

3 ‘‘(III) ADVERTISING OF JOB OP4 PORTUNITIES.—Not later than 14 

5 days prior to the date on which the 

6 employer desires to employ an H–2A 

7 worker in a temporary or seasonal ag8 ricultural job opportunity, the em9 ployer shall advertise the availability of 

10 the job opportunities for which the em11 ployer is seeking workers in a publica12 tion in the local labor market that is 

13 likely to be patronized by potential 

14 farm workers. 

15 ‘‘(IV) EMERGENCY PROCE16 DURES.—The Secretary of Labor 

17 shall, by regulation, provide a proce18 dure for acceptance and approval of 

19 applications in which the employer 

20 has not complied with the provisions 

21 of this subparagraph because the em22 ployer’s need for H–2A workers could 

23 not reasonably have been foreseen. 

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

25 offered or will offer the job to any eligible 
42 

•S 2823 PCS 

1 United States worker who applies and is 

2 equally or better qualified for the job for 

3 which the nonimmigrant is, or non4 immigrants are, sought and who will be 

5 available at the time and place of need. 

6 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

7 employer will provide employment to any 

8 qualified United States worker who applies 

9 to the employer during the period begin10 ning on the date on which the foreign 

11 worker departs for the employer’s place of 

12 employment and ending on the date on 

13 which 50 percent of the period of employ14 ment for which the foreign worker who is 

15 in the job was hired has elapsed, subject to 

16 the following requirements: 

17 ‘‘(I) PROHIBITION.—No person 

18 or entity shall willfully and knowingly 

19 withhold United States workers prior 

20 to the arrival of H–2A workers in 

21 order to force the hiring of United 

22 States workers under this clause. 

23 ‘‘(II) COMPLAINTS.—Upon re24 ceipt of a complaint by an employer 

25 that a violation of subclause (I) has 
43 

•S 2823 PCS 

1 occurred, the Secretary of Labor shall 

2 immediately investigate. The Sec3 retary of Labor shall, within 36 hours 

4 of the receipt of the complaint, issue 

5 findings concerning the alleged viola6 tion. If the Secretary of Labor finds 

7 that a violation has occurred, the Sec8 retary of Labor shall immediately sus9 pend the application of this clause 

10 with respect to that certification for 

11 that date of need. 

12 ‘‘(III) PLACEMENT OF UNITED

13 STATES WORKERS.—Prior to referring 

14 a United States worker to an em15 ployer during the period described in 

16 the matter preceding subclause (I), 

17 the Secretary of Labor shall make all 

18 reasonable efforts to place the United 

19 States worker in an open job accept20 able to the worker, if there are other 

21 job offers pending with the job service 

22 that offer similar job opportunities in 

23 the area of intended employment. 

24 ‘‘(iv) STATUTORY CONSTRUCTION.— 

25 Nothing in this subparagraph shall be con-
44 

•S 2823 PCS 

1 strued to prohibit an employer from using 

2 such legitimate selection criteria relevant 

3 to the type of job that are normal or cus4 tomary to the type of job involved so long 

5 as such criteria are not applied in a dis6 criminatory manner. 

7 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

8 OF EMPLOYER MEMBERS.— 

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

10 may file an application under subsection (a) on be11 half of 1 or more of its employer members that the 

12 association certifies in its application has or have 

13 agreed in writing to comply with the requirements of 

14 this section and sections 218A through 218C. 

15 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

16 EMPLOYERS.—If an association filing an application 

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

18 the temporary or seasonal agricultural workers re19 quested on the application, the certifications granted 

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

21 used for the certified job opportunities of any of its 

22 producer members named on the application, and 

23 such workers may be transferred among such pro24 ducer members to perform the agricultural services 
45 

•S 2823 PCS 

1 of a temporary or seasonal nature for which the cer2 tifications were granted. 

3 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 

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

5 an application filed pursuant to subsection (a), ex6 cept that if the employer is an agricultural associa7 tion, the association may withdraw an application 

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

9 more of its members. To withdraw an application, 

10 the employer or association shall notify the Sec11 retary of Labor in writing, and the Secretary of 

12 Labor shall acknowledge in writing the receipt of 

13 such withdrawal notice. An employer who withdraws 

14 an application under subsection (a), or on whose be15 half an application is withdrawn, is relieved of the 

16 obligations undertaken in the application. 

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

18 withdrawn while any alien provided status under sec19 tion 101(a)(15)(H)(ii)(a) pursuant to such applica20 tion is employed by the employer. 

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

22 Any obligation incurred by an employer under any 

23 other law or regulation as a result of the recruit24 ment of United States workers or H–2A workers 

25 under an offer of terms and conditions of employ-
46 

•S 2823 PCS 

1 ment required as a result of making an application 

2 under subsection (a) is unaffected by withdrawal of 

3 such application. 

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

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

6 employer shall make available for public examina7 tion, within 1 working day after the date on which 

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

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

10 a copy of each such application (and such accom11 panying documents as are necessary). 

12 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

13 LABOR.— 

14 ‘‘(A) COMPILATION OF LIST.—The Sec15 retary of Labor shall compile, on a current 

16 basis, a list (by employer and by occupational 

17 classification) of the applications filed under 

18 this subsection. Such list shall include the wage 

19 rate, number of workers sought, period of in20 tended employment, and date of need. The Sec21 retary of Labor shall make such list available 

22 for examination in the District of Columbia. 

23 ‘‘(B) REVIEW OF APPLICATIONS.—The 

24 Secretary of Labor shall review such an applica25 tion only for completeness and obvious inac-
47 

•S 2823 PCS 

1 curacies. Unless the Secretary of Labor finds 

2 that the application is incomplete or obviously 

3 inaccurate, the Secretary of Labor shall certify 

4 that the intending employer has filed with the 

5 Secretary of Labor an application as described 

6 in subsection (a). Such certification shall be 

7 provided within 7 days of the filing of the appli8 cation. 

9 ‘‘H–2A EMPLOYMENT REQUIREMENTS

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

11 ALIENS PROHIBITED.—Employers seeking to hire United 

12 States workers shall offer the United States workers no 

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

14 that the employer is offering, intends to offer, or will pro15 vide to H–2A workers. Conversely, no job offer may im16 pose on United States workers any restrictions or obliga17 tions which will not be imposed on the employer’s H–2A 

18 workers. 

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

20 CONDITIONS.—Except in cases where higher benefits, 

21 wages, or working conditions are required by the provi22 sions of subsection (a), in order to protect similarly em23 ployed United States workers from adverse effects with 

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

25 job offer which must accompany an application under sec-
48 

•S 2823 PCS 

1 tion 218(b)(2) shall include each of the following benefit, 

2 wage, and working condition provisions: 

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

4 HOUSING ALLOWANCE.— 

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

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

7 offer to provide housing at no cost to all work8 ers in job opportunities for which the employer 

9 has applied under that section and to all other 

10 workers in the same occupation at the place of 

11 employment, whose place of residence is beyond 

12 normal commuting distance. 

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

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

15 the employer’s election, provide housing that 

16 meets applicable Federal standards for tem17 porary labor camps or secure housing that 

18 meets applicable local standards for rental or 

19 public accommodation housing or other sub20 stantially similar class of habitation, or in the 

21 absence of applicable local standards, State 

22 standards for rental or public accommodation 

23 housing or other substantially similar class of 

24 habitation. In the absence of applicable local or 
49 

•S 2823 PCS 

1 State standards, Federal temporary labor camp 

2 standards shall apply. 

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

4 prevailing practice in the occupation and area 

5 of intended employment to provide family hous6 ing, family housing shall be provided to workers 

7 with families who request it. 

8 ‘‘(D) WORKERS ENGAGED IN THE RANGE

9 PRODUCTION OF LIVESTOCK.—The Secretary of 

10 Labor shall issue regulations that address the 

11 specific requirements for the provision of hous12 ing to workers engaged in the range production 

13 of livestock. 

14 ‘‘(E) LIMITATION.—Nothing in this para15 graph shall be construed to require an employer 

16 to provide or secure housing for persons who 

17 were not entitled to such housing under the 

18 temporary labor certification regulations in ef19 fect on June 1, 1986. 

20 ‘‘(F) CHARGES FOR HOUSING.— 

21 ‘‘(i) CHARGES FOR PUBLIC HOUS22 ING.—If public housing provided for mi23 grant agricultural workers under the aus24 pices of a local, county, or State govern25 ment is secured by an employer, and use of 
50 

•S 2823 PCS 

1 the public housing unit normally requires 

2 charges from migrant workers, such 

3 charges shall be paid by the employer di4 rectly to the appropriate individual or enti5 ty affiliated with the housing’s manage6 ment. 

7 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

8 the form of deposits for bedding or other 

9 similar incidentals related to housing shall 

10 not be levied upon workers by employers 

11 who provide housing for their workers. 

12 However, an employer may require a work13 er found to have been responsible for dam14 age to such housing which is not the result 

15 of normal wear and tear related to habi16 tation to reimburse the employer for the 

17 reasonable cost of repair of such damage. 

18 ‘‘(G) HOUSING ALLOWANCE AS ALTER19 NATIVE.— 

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

21 housing pursuant to subparagraph (A), the 

22 employer may provide a reasonable housing 

23 allowance, but only if the requirement of 

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

25 a worker seeking assistance in locating 
51 

•S 2823 PCS 

1 housing, the employer shall make a good 

2 faith effort to assist the worker in identi3 fying and locating housing in the area of 

4 intended employment. An employer who of5 fers a housing allowance to a worker, or 

6 assists a worker in locating housing which 

7 the worker occupies, pursuant to this 

8 clause shall not be deemed a housing pro9 vider under section 203 of the Migrant and 

10 Seasonal Agricultural Worker Protection 

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

12 providing such housing allowance. How13 ever, no housing allowance may be used for 

14 housing which is owned or controlled by 

15 the employer. 

16 ‘‘(ii) CERTIFICATION.—The require17 ment of this clause is satisfied if the Gov18 ernor of the State certifies to the Secretary 

19 of Labor that there is adequate housing 

20 available in the area of intended employ21 ment for migrant farm workers, and H–2A 

22 workers, who are seeking temporary hous23 ing while employed at farm work. Such 

24 certification shall expire after 3 years un25 less renewed by the Governor of the State. 
52 

•S 2823 PCS 

1 ‘‘(iii) AMOUNT OF ALLOWANCE.— 

2 ‘‘(I) NONMETROPOLITAN COUN3 TIES.—If the place of employment of 

4 the workers provided an allowance 

5 under this subparagraph is a non6 metropolitan county, the amount of the 

7 housing allowance under this subpara8 graph shall be equal to the statewide 

9 average fair market rental for existing 

10 housing for nonmetropolitan counties 

11 for the State, as established by the 

12 Secretary of Housing and Urban De13 velopment pursuant to section 8(c) of 

14 the United States Housing Act of 

15 1937 (42 U.S.C. 1437f(c)), based on 

16 a 2-bedroom dwelling unit and an as17 sumption of 2 persons per bedroom. 

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

20 the workers provided an allowance 

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

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

25 average fair market rental for existing 
53 

•S 2823 PCS 

1 housing for metropolitan counties for 

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

5 the United States Housing Act of 

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

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

9 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 

10 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

11 worker who completes 50 percent of the period 

12 of employment of the job opportunity for which 

13 the worker was hired shall be reimbursed by the 

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

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

18 worker traveled from such place) to the place of 

19 employment. 

20 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

21 worker who completes the period of employment 

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

24 worker’s transportation and subsistence from 

25 the place of employment to the place from 
54 

•S 2823 PCS 

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

3 the place of next employment, if the worker has 

4 contracted with a subsequent employer who has 

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

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

8 ‘‘(C) LIMITATION.— 

9 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

10 Except as provided in clause (ii), the 

11 amount of reimbursement provided under 

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

13 alien shall not exceed the lesser of— 

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

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

17 ‘‘(II) the most economical and 

18 reasonable common carrier transpor19 tation charges and subsistence costs 

20 for the distance involved. 

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

23 shall be required if the distance traveled is 

24 100 miles or less, or the worker is not re25 siding in employer-provided housing or 
55 

•S 2823 PCS 

1 housing secured through an allowance as 

2 provided in paragraph (1)(G). 

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

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

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

7 employment, the employer shall provide the 

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

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

13 (A). 

14 ‘‘(E) TRANSPORTATION BETWEEN LIVING

15 QUARTERS AND WORK SITE.—The employer 

16 shall provide transportation between the work17 er’s living quarters (i.e., housing provided by 

18 the employer pursuant to paragraph (1), includ19 ing housing provided through a housing allow20 ance) and the employer’s work site without cost 

21 to the worker, and such transportation will be 

22 in accordance with applicable laws and regula23 tions. 

24 ‘‘(3) REQUIRED WAGES.— 
56 

•S 2823 PCS 

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

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

3 pay, and shall pay, all workers in the occupa4 tion for which the employer has applied for 

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

6 more) than the greater of the prevailing wage 

7 in the occupation in the area of intended em8 ployment or the adverse effect wage rate. No 

9 worker shall be paid less than the greater of the 

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

11 the Fair Labor Standards Act of 1938 (29 

12 U.S.C. 206(a)(1)) or the applicable State min13 imum wage. 

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

15 of enactment of the Agricultural Job Oppor16 tunity, Benefits, and Security Act of 2004 and 

17 continuing for 3 years thereafter, no adverse ef18 fect wage rate for a State may be more than 

19 the adverse effect wage rate for that State in 

20 effect on January 1, 2003, as established by 

21 section 655.107 of title 20, Code of Federal 

22 Regulations. 

23 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

24 FREEZE.— 
57 

•S 2823 PCS 

1 ‘‘(i) FIRST ADJUSTMENT.—Unless 

2 Congress acts to set a new wage standard 

3 applicable to this section, effective on De4 cember 1, 2006, the adverse effect wage 

5 rate then in effect shall be adjusted by the 

6 12 month percentage change in the Con7 sumer Price Index for All Urban Con8 sumers between December of the preceding 

9 year and December of the second preceding 

10 year, except that such adjustment shall not 

11 exceed 4 percent. 

12 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST13 MENTS.—Effective on March 1, 2007, and 

14 each March 1 thereafter, the adverse effect 

15 wage rate then in effect shall be adjusted 

16 in accordance with the requirements of 

17 clause (i). 

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

19 make only those deductions from the worker’s 

20 wages that are authorized by law or are reason21 able and customary in the occupation and area 

22 of employment. The job offer shall specify all 

23 deductions not required by law which the em24 ployer will make from the worker’s wages. 
58 

•S 2823 PCS 

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

2 shall pay the worker not less frequently than 

3 twice monthly, or in accordance with the pre4 vailing practice in the area of employment, 

5 whichever is more frequent. 

6 ‘‘(F) HOURS AND EARNINGS STATE7 MENTS.—The employer shall furnish to the 

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

9 more written statements the following informa10 tion: 

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

12 the pay period. 

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

14 piece rate of pay, or both. 

15 ‘‘(iii) The hours of employment which 

16 have been offered to the worker (broken 

17 out by hours offered in accordance with 

18 and over and above the three-quarters 

19 guarantee described in paragraph (4)). 

20 ‘‘(iv) The hours actually worked by 

21 the worker. 

22 ‘‘(v) An itemization of the deductions 

23 made from the worker’s wages. 

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

25 the units produced daily. 
59 

•S 2823 PCS 

1 ‘‘(G) REPORT ON WAGE PROTECTIONS.— 

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

3 Community and Economic Development Divi4 sion, and the Health, Education and Human 

5 Services Division, of the General Accounting 

6 Office shall jointly prepare and transmit to the 

7 Secretary of Labor and to the Committees on 

8 the Judiciary of the House of Representatives 

9 and the Senate a report which shall address— 

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

11 or unauthorized aliens in the United States 

12 agricultural work force has depressed 

13 United States farm worker wages below 

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

16 employed in the United States; 

17 ‘‘(ii) whether an adverse effect wage 

18 rate is necessary to prevent wages of 

19 United States farm workers in occupations 

20 in which H–2A workers are employed from 

21 falling below the wage levels that would 

22 have prevailed in the absence of the em23 ployment of H–2A workers in those occu24 pations; 
60 

•S 2823 PCS 

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

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

6 that would have prevailed in the absence of 

7 H–2A employment; 

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

10 calculating the adverse effect wage rate 

11 and the prevailing wage; and 

12 ‘‘(v) recommendations for future wage 

13 protection under this section. 

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

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

18 Wage Standards under the H–2A program 

19 (in this subparagraph referred to as the 

20 ‘Commission’). 

21 ‘‘(ii) COMPOSITION.—The Commission 

22 shall consist of 10 members as follows: 

23 ‘‘(I) 4 representatives of agricul24 tural employers and 1 representative 

25 of the Department of Agriculture, 
61 

•S 2823 PCS 

1 each appointed by the Secretary of 

2 Agriculture. 

3 ‘‘(II) 4 representatives of agricul4 tural workers and 1 representative of 

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

7 ‘‘(iii) FUNCTIONS.—The Commission 

8 shall conduct a study that shall address— 

9 ‘‘(I) whether the employment of 

10 H–2A or unauthorized aliens in the 

11 United States agricultural workforce 

12 has depressed United States farm 

13 worker wages below the levels that 

14 would otherwise have prevailed if alien 

15 farm workers had not been employed 

16 in the United States; 

17 ‘‘(II) whether an adverse effect 

18 wage rate is necessary to prevent 

19 wages of United States farm workers 

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

22 the wage levels that would have pre23 vailed in the absence of the employ24 ment of H–2A workers in those occu25 pations; 
62 

•S 2823 PCS 

1 ‘‘(III) whether alternative wage 

2 standards, such as a prevailing wage 

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

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

7 have prevailed in the absence of H–2A 

8 employment; 

9 ‘‘(IV) whether any changes are 

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

12 wage rate and the prevailing wage 

13 rate; and 

14 ‘‘(V) recommendations for future 

15 wage protection under this section. 

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

17 June 1, 2007, the Commission shall sub18 mit a report to the Congress setting forth 

19 the findings of the study conducted under 

20 clause (iii). 

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

23 its final report. 

24 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 
63 

•S 2823 PCS 

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

2 shall guarantee to offer the worker employment 

3 for the hourly equivalent of at least three4 fourths of the work days of the total period of 

5 employment, beginning with the first work day 

6 after the arrival of the worker at the place of 

7 employment and ending on the expiration date 

8 specified in the job offer. For purposes of this 

9 subparagraph, the hourly equivalent means the 

10 number of hours in the work days as stated in 

11 the job offer and shall exclude the worker’s 

12 Sabbath and Federal holidays. If the employer 

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

14 employment than that required under this para15 graph, the employer shall pay such worker the 

16 amount which the worker would have earned 

17 had the worker, in fact, worked for the guaran18 teed number of hours. 

19 ‘‘(B) FAILURE TO WORK.—Any hours 

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

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

23 been offered an opportunity to do so, and all 

24 hours of work actually performed (including vol25 untary work in excess of the number of hours 
64 

•S 2823 PCS 

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

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

3 be counted by the employer in calculating 

4 whether the period of guaranteed employment 

5 has been met. 

6 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

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

9 of the contract period, or is terminated for 

10 cause, the worker is not entitled to the ‘three11 fourths guarantee’ described in subparagraph 

12 (A). 

13 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be14 fore the expiration of the period of employment 

15 specified in the job offer, the services of the 

16 worker are no longer required for reasons be17 yond the control of the employer due to any 

18 form of natural disaster, including but not lim19 ited to a flood, hurricane, freeze, earthquake, 

20 fire, drought, plant or animal disease or pest in21 festation, or regulatory drought, before the 

22 guarantee in subparagraph (A) is fulfilled, the 

23 employer may terminate the worker’s employ24 ment. In the event of such termination, the em25 ployer shall fulfill the employment guarantee in 
65 

•S 2823 PCS 

1 subparagraph (A) for the work days that have 

2 elapsed from the first work day after the arrival 

3 of the worker to the termination of employ4 ment. In such cases, the employer will make ef5 forts to transfer the United States worker to 

6 other comparable employment acceptable to the 

7 worker. If such transfer is not effected, the em8 ployer shall provide the return transportation 

9 required in paragraph (2)(D). 

10 ‘‘(5) MOTOR VEHICLE SAFETY.— 

11 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

12 TO COVERAGE.— 

13 ‘‘(i) IN GENERAL.—Except as pro14 vided in clauses (iii) and (iv), this sub15 section applies to any H–2A employer that 

16 uses or causes to be used any vehicle to 

17 transport an H–2A worker within the 

18 United States. 

19 ‘‘(ii) USES OR CAUSES TO BE USED.— 

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

21 causes to be used’ applies only to transpor22 tation provided by an H–2A employer to 

23 an H–2A worker, or by a farm labor con24 tractor to an H–2A worker at the request 

25 or direction of an H–2A employer. 
66 

•S 2823 PCS 

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

2 used’ does not apply to— 

3 ‘‘(aa) transportation provided, or 

4 transportation arrangements made, by 

5 an H–2A worker himself or herself, 

6 unless the employer specifically re7 quested or arranged such transpor8 tation; or 

9 ‘‘(bb) carpooling arrangements 

10 made by H–2A workers themselves, 

11 using one of the workers’ own vehi12 cles, unless specifically requested by 

13 the employer directly or through a 

14 farm labor contractor. 

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

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

17 that causes the worker to travel to or from 

18 the place of employment, or the payment 

19 or reimbursement of the transportation 

20 costs of an H–2A worker by an H–2A em21 ployer, shall not constitute an arrangement 

22 of, or participation in, such transportation. 

23 ‘‘(iii) AGRICULTURAL MACHINERY

24 AND EQUIPMENT EXCLUDED.—This sub25 section does not apply to the transpor-
67 

•S 2823 PCS 

1 tation of an H–2A worker on a tractor, 

2 combine, harvester, picker, or other similar 

3 machinery or equipment while such worker 

4 is actually engaged in the planting, culti5 vating, or harvesting of agricultural com6 modities or the care of livestock or poultry 

7 or engaged in transportation incidental 

8 thereto. 

9 ‘‘(iv) COMMON CARRIERS EX10 CLUDED.—This subsection does not apply 

11 to common carrier motor vehicle transpor12 tation in which the provider holds itself out 

13 to the general public as engaging in the 

14 transportation of passengers for hire and 

15 holds a valid certification of authorization 

16 for such purposes from an appropriate 

17 Federal, State, or local agency. 

18 ‘‘(B) APPLICABILITY OF STANDARDS, LI19 CENSING, AND INSURANCE REQUIREMENTS.— 

20 ‘‘(i) IN GENERAL.—When using, or 

21 causing to be used, any vehicle for the pur22 pose of providing transportation to which 

23 this subparagraph applies, each employer 

24 shall— 
68 

•S 2823 PCS 

1 ‘‘(I) ensure that each such vehi2 cle conforms to the standards pre3 scribed by the Secretary of Labor 

4 under section 401(b) of the Migrant 

5 and Seasonal Agricultural Worker 

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

7 and other applicable Federal and 

8 State safety standards; 

9 ‘‘(II) ensure that each driver has 

10 a valid and appropriate license, as 

11 provided by State law, to operate the 

12 vehicle; and 

13 ‘‘(III) have an insurance policy 

14 or a liability bond that is in effect 

15 which insures the employer against li16 ability for damage to persons or prop17 erty arising from the ownership, oper18 ation, or causing to be operated, of 

19 any vehicle used to transport any H– 

20 2A worker. 

21 ‘‘(ii) AMOUNT OF INSURANCE RE22 QUIRED.—The level of insurance required 

23 shall be determined by the Secretary of 

24 Labor pursuant to regulations to be issued 

25 under this subsection. 
69 

•S 2823 PCS 

1 ‘‘(iii) EFFECT OF WORKERS’ COM2 PENSATION COVERAGE.—If the employer 

3 of any H–2A worker provides workers’ 

4 compensation coverage for such worker in 

5 the case of bodily injury or death as pro6 vided by State law, the following adjust7 ments in the requirements of subparagraph 

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

9 policy or liability bond apply: 

10 ‘‘(I) No insurance policy or liabil11 ity bond shall be required of the em12 ployer, if such workers are trans13 ported only under circumstances for 

14 which there is coverage under such 

15 State law. 

16 ‘‘(II) An insurance policy or li17 ability bond shall be required of the 

18 employer for circumstances under 

19 which coverage for the transportation 

20 of such workers is not provided under 

21 such State law. 

22 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em23 ployer shall assure that, except as otherwise provided in 

24 this section, the employer will comply with all applicable 

25 Federal, State, and local labor laws, including laws affect-
70 

•S 2823 PCS 

1 ing migrant and seasonal agricultural workers, with re2 spect to all United States workers and alien workers em3 ployed by the employer, except that a violation of this as4 surance shall not constitute a violation of the Migrant and 

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

6 1801 et seq.). 

7 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro8 vide to the worker, not later than the day the work com9 mences, a copy of the employer’s application and job offer 

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

11 the worker to enter into a separate employment contract 

12 covering the employment in question, such separate em13 ployment contract. 

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

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

16 Secretary of Labor and the Secretary from continuing to 

17 apply special procedures and requirements to the admis18 sion and employment of aliens in occupations involving the 

19 range production of livestock. 

20 ‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY

21 OF H–2A WORKERS

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

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

24 employer for its members, that seeks the admission into 

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

26 with the Secretary. The petition shall be accompanied by 
71 

•S 2823 PCS 

1 an accepted and currently valid certification provided by 

2 the Secretary of Labor under section 218(e)(2)(B) cov3 ering the petitioner. 

4 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC5 RETARY.—The Secretary shall establish a procedure for 

6 expedited adjudication of petitions filed under subsection 

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

8 means assuring expedited delivery, transmit a copy of no9 tice of action on the petition to the petitioner and, in the 

10 case of approved petitions, to the appropriate immigration 

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

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

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

14 or admission to the United States. 

15 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 

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

17 considered admissible to the United States if the 

18 alien is otherwise admissible under this section, sec19 tion 218, and section 218A, and the alien is not in20 eligible under paragraph (2). 

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

22 considered inadmissible to the United States and in23 eligible for nonimmigrant status under section 

24 101(a)(15)(H)(ii)(a) if the alien has, at any time 

25 during the past 5 years— 
72 

•S 2823 PCS 

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

2 section, including the requirement to promptly 

3 depart the United States when the alien’s au4 thorized period of admission under this section 

5 has expired; or 

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

7 of admission into the United States as a non8 immigrant, including overstaying the period of 

9 authorized admission as such a nonimmigrant. 

10 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW11 FUL PRESENCE.— 

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

13 previously been admitted into the United States 

14 pursuant to this section, and who is otherwise 

15 eligible for admission in accordance with para16 graphs (1) and (2), shall not be deemed inad17 missible by virtue of section 212(a)(9)(B). If an 

18 alien described in the preceding sentence is 

19 present in the United States, the alien may 

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

21 not be granted that status in the United States. 

22 ‘‘(B) MAINTENANCE OF WAIVER.—An 

23 alien provided an initial waiver of ineligibility 

24 pursuant to subparagraph (A) shall remain eli25 gible for such waiver unless the alien violates 
73 

•S 2823 PCS 

1 the terms of this section or again becomes ineli2 gible under section 212(a)(9)(B) by virtue of 

3 unlawful presence in the United States after 

4 the date of the initial waiver of ineligibility pur5 suant to subparagraph (A). 

6 ‘‘(d) PERIOD OF ADMISSION.— 

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

8 for the period of employment in the application cer9 tified by the Secretary of Labor pursuant to section 

10 218(e)(2)(B), not to exceed 10 months, supple11 mented by a period of up to 1 week before the begin12 ning of the period of employment (to be granted for 

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

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

15 granted for the purpose of departure or extension 

16 based on a subsequent offer of employment), except 

17 that— 

18 ‘‘(A) the alien is not authorized to be em19 ployed during such 14-day period except in the 

20 employment for which the alien was previously 

21 authorized; and 

22 ‘‘(B) the total period of employment, in23 cluding such 14-day period, may not exceed 10 

24 months. 
74 

•S 2823 PCS 

1 ‘‘(2) CONSTRUCTION.—Nothing in this sub2 section shall limit the authority of the Secretary to 

3 extend the stay of the alien under any other provi4 sion of this Act. 

5 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 

6 ‘‘(1) IN GENERAL.—An alien admitted or pro7 vided status under section 101(a)(15)(H)(ii)(a) who 

8 abandons the employment which was the basis for 

9 such admission or status shall be considered to have 

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

11 worker and shall depart the United States or be sub12 ject to removal under section 237(a)(1)(C)(i). 

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

14 (or association acting as agent for the employer) 

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

16 worker’s having prematurely abandoned employ17 ment. 

18 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec19 retary shall promptly remove from the United States 

20 any H–2A worker who violates any term or condi21 tion of the worker’s nonimmigrant status. 

22 ‘‘(4) VOLUNTARY TERMINATION.—Notwith23 standing paragraph (1), an alien may voluntarily 

24 terminate his or her employment if the alien prompt-
75 

•S 2823 PCS 

1 ly departs the United States upon termination of 

2 such employment. 

3 ‘‘(f) REPLACEMENT OF ALIEN.— 

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

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

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

7 and the Secretary shall admit into the United 

8 States, an eligible alien designated by the employer 

9 to replace an H–2A worker— 

10 ‘‘(A) who abandons or prematurely termi11 nates employment; or 

12 ‘‘(B) whose employment is terminated 

13 after a United States worker is employed pur14 suant to section 218(b)(2)(H)(iii), if the United 

15 States worker voluntarily departs before the 

16 end of the period of intended employment or if 

17 the employment termination is for a lawful job18 related reason. 

19 ‘‘(2) CONSTRUCTION.—Nothing in this sub20 section is intended to limit any preference required 

21 to be accorded United States workers under any 

22 other provision of this Act. 

23 ‘‘(g) IDENTIFICATION DOCUMENT.— 

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

25 admitted under section 101(a)(15)(H)(ii)(a) shall be 
76 

•S 2823 PCS 

1 provided an identification and employment eligibility 

2 document to verify eligibility for employment in the 

3 United States and verify such person’s proper iden4 tity. 

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

6 employment eligibility document may be issued 

7 which does not meet the following requirements: 

8 ‘‘(A) The document shall be capable of re9 liably determining whether— 

10 ‘‘(i) the individual with the identifica11 tion and employment eligibility document 

12 whose eligibility is being verified is in fact 

13 eligible for employment; 

14 ‘‘(ii) the individual whose eligibility is 

15 being verified is claiming the identity of 

16 another person; and 

17 ‘‘(iii) the individual whose eligibility is 

18 being verified is authorized to be admitted 

19 into, and employed in, the United States 

20 as an H–2A worker. 

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

22 is resistant to counterfeiting and to tampering. 

23 ‘‘(C) The document shall— 

24 ‘‘(i) be compatible with other data25 bases of the Secretary for the purpose of 
77 

•S 2823 PCS 

1 excluding aliens from benefits for which 

2 they are not eligible and determining 

3 whether the alien is unlawfully present in 

4 the United States; and 

5 ‘‘(ii) be compatible with law enforce6 ment databases to determine if the alien 

7 has been convicted of criminal offenses. 

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

9 UNITED STATES.— 

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

11 seeks approval to employ an H–2A alien who is law12 fully present in the United States, the petition filed 

13 by the employer or an association pursuant to sub14 section (a), shall request an extension of the alien’s 

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

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

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

18 for an extension of an alien’s stay— 

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

20 or 

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

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

23 the United States under this section. 

24 ‘‘(3) WORK AUTHORIZATION UPON FILING A

25 PETITION FOR EXTENSION OF STAY.—In the case of 
78 

•S 2823 PCS 

1 an alien who is lawfully present in the United 

2 States, the alien is authorized to commence the em3 ployment described in a petition under paragraph 

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

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

6 means sending the petition by certified mail via the 

7 United States Postal Service, return receipt re8 quested, or delivered by guaranteed commercial de9 livery which will provide the employer with a docu10 mented acknowledgment of the date of receipt of the 

11 petition. The employer shall provide a copy of the 

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

13 petition with the alien’s identification and employ14 ment eligibility document as evidence that the peti15 tion has been filed and that the alien is authorized 

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

17 petition for an extension of stay or change in the 

18 alien’s authorized employment, the Secretary shall 

19 provide a new or updated employment eligibility doc20 ument to the alien indicating the new validity date, 

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

22 of the petition. 

23 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA24 TION OF ALIENS WITHOUT VALID IDENTIFICATION

25 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex-
79 

•S 2823 PCS 

1 pired identification and employment eligibility docu2 ment, together with a copy of a petition for exten3 sion of stay or change in the alien’s authorized em4 ployment that complies with the requirements of 

5 paragraph (1), shall constitute a valid work author6 ization document for a period of not more than 60 

7 days beginning on the date on which such petition 

8 is filed, after which time only a currently valid iden9 tification and employment eligibility document shall 

10 be acceptable. 

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

12 STATUS.— 

13 ‘‘(A) MAXIMUM PERIOD.—The maximum 

14 continuous period of authorized status as an 

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

16 years. 

17 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

18 THE UNITED STATES.— 

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

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

21 United States whose period of authorized 

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

23 extensions) has expired, the alien may not 

24 again apply for admission to the United 

25 States as an H–2A worker unless the alien 
80 

•S 2823 PCS 

1 has remained outside the United States for 

a continuous period equal to at least 1 2 ⁄5

3 the duration of the alien’s previous period 

4 of authorized status as an H–2A worker 

5 (including any extensions). 

6 ‘‘(ii) EXCEPTION.—Clause (i) shall 

7 not apply in the case of an alien if the 

8 alien’s period of authorized status as an 

9 H–2A worker (including any extensions) 

10 was for a period of not more than 10 

11 months and such alien has been outside 

12 the United States for at least 2 months 

13 during the 12 months preceding the date 

14 the alien again is applying for admission to 

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

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

17 SHEEPHERDERS.—Notwithstanding any other provision 

18 of the Agricultural Job Opportunity, Benefits, and Secu19 rity Act of 2004, aliens admitted under section 

20 101(a)(15)(H)(ii)(a) for employment as sheepherders— 

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

22 months; 

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

24 of up to 3 years; and 
81 

•S 2823 PCS 

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

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

3 the United States. 

4 ‘‘WORKER PROTECTIONS AND LABOR STANDARDS

5 ENFORCEMENT

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

7 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 

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

9 COMPLAINTS.—The Secretary of Labor shall es10 tablish a process for the receipt, investigation, 

11 and disposition of complaints respecting a peti12 tioner’s failure to meet a condition specified in 

13 section 218(b), or an employer’s misrepresenta14 tion of material facts in an application under 

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

16 aggrieved person or organization (including bar17 gaining representatives). No investigation or 

18 hearing shall be conducted on a complaint con19 cerning such a failure or misrepresentation un20 less the complaint was filed not later than 12 

21 months after the date of the failure, or mis22 representation, respectively. The Secretary of 

23 Labor shall conduct an investigation under this 

24 subparagraph if there is reasonable cause to be25 lieve that such a failure or misrepresentation 

26 has occurred. 
82 

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1 ‘‘(B) DETERMINATION ON COMPLAINT.— 

2 Under such process, the Secretary of Labor 

3 shall provide, within 30 days after the date 

4 such a complaint is filed, for a determination as 

5 to whether or not a reasonable basis exists to 

6 make a finding described in subparagraph (C), 

7 (D), (E), or (H). If the Secretary of Labor de8 termines that such a reasonable basis exists, 

9 the Secretary of Labor shall provide for notice 

10 of such determination to the interested parties 

11 and an opportunity for a hearing on the com12 plaint, in accordance with section 556 of title 5, 

13 United States Code, within 60 days after the 

14 date of the determination. If such a hearing is 

15 requested, the Secretary of Labor shall make a 

16 finding concerning the matter not later than 60 

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

18 of similar complaints respecting the same appli19 cant, the Secretary of Labor may consolidate 

20 the hearings under this subparagraph on such 

21 complaints. 

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

23 the Secretary of Labor finds, after notice and 

24 opportunity for a hearing, a failure to meet a 

25 condition of paragraph (1)(A), (1)(B), (1)(D), 
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•S 2823 PCS 

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

2 218(b), a substantial failure to meet a condition 

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

4 (2)(E), or (2)(H) of section 218(b), or a mate5 rial misrepresentation of fact in an application 

6 under section 218(a)— 

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 $1,000 

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 aliens 

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

17 for a period of 1 year. 

18 ‘‘(D) WILLFUL FAILURES AND WILLFUL

19 MISREPRESENTATIONS.—If the Secretary of 

20 Labor finds, after notice and opportunity for 

21 hearing, a willful failure to meet a condition of 

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

23 material fact in an application under section 

24 218(a), or a violation of subsection (d)(1)— 
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•S 2823 PCS 

1 ‘‘(i) the Secretary of Labor shall no2 tify the Secretary of such finding and may, 

3 in addition, impose such other administra4 tive remedies (including civil money pen5 alties in an amount not to exceed $5,000 

6 per violation) as the Secretary of Labor 

7 determines to be appropriate; 

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

9 appropriate legal or equitable relief to ef10 fectuate the purposes of subsection (d)(1); 

11 and 

12 ‘‘(iii) the Secretary may disqualify the 

13 employer from the employment of H–2A 

14 workers for a period of 2 years. 

15 ‘‘(E) DISPLACEMENT OF UNITED STATES

16 WORKERS.—If the Secretary of Labor finds, 

17 after notice and opportunity for hearing, a will18 ful failure to meet a condition of section 218(b) 

19 or a willful misrepresentation of a material fact 

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

21 course of which failure or misrepresentation the 

22 employer displaced a United States worker em23 ployed by the employer during the period of em24 ployment on the employer’s application under 
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•S 2823 PCS 

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

2 preceding such period of employment— 

3 ‘‘(i) the Secretary of Labor shall no4 tify the Secretary of such finding and may, 

5 in addition, impose such other administra6 tive remedies (including civil money pen7 alties in an amount not to exceed $15,000 

8 per violation) as the Secretary of Labor 

9 determines to be appropriate; and 

10 ‘‘(ii) the Secretary may disqualify the 

11 employer from the employment of H–2A 

12 workers for a period of 3 years. 

13 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN14 ALTIES.—The Secretary of Labor shall not im15 pose total civil money penalties with respect to 

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

17 $90,000. 

18 ‘‘(G) FAILURES TO PAY WAGES OR RE19 QUIRED BENEFITS.—If the Secretary of Labor 

20 finds, after notice and opportunity for a hear21 ing, that the employer has failed to pay the 

22 wages, or provide the housing allowance, trans23 portation, subsistence reimbursement, or guar24 antee of employment, required under section 

25 218A(b), the Secretary of Labor shall assess 
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•S 2823 PCS 

1 payment of back wages, or other required bene2 fits, due any United States worker or H–2A 

3 worker employed by the employer in the specific 

4 employment in question. The back wages or 

5 other required benefits under section 218A(b) 

6 shall be equal to the difference between the 

7 amount that should have been paid and the 

8 amount that actually was paid to such worker. 

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

10 this section shall be construed as limiting the au11 thority of the Secretary of Labor to conduct any 

12 compliance investigation under any other labor law, 

13 including any law affecting migrant and seasonal ag14 ricultural workers, or, in the absence of a complaint 

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

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

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

18 through the private right of action provided in subsection 

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

20 or State law to enforce such rights: 

21 ‘‘(1) The providing of housing or a housing al22 lowance as required under section 218A(b)(1). 

23 ‘‘(2) The reimbursement of transportation as 

24 required under section 218A(b)(2). 
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1 ‘‘(3) The payment of wages required under sec2 tion 218A(b)(3) when due. 

3 ‘‘(4) The benefits and material terms and con4 ditions of employment expressly provided in the job 

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

6 the assurance to comply with other Federal, State, 

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

8 compliance with which shall be governed by the pro9 visions of such laws. 

10 ‘‘(5) The guarantee of employment required 

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

12 ‘‘(6) The motor vehicle safety requirements 

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

14 ‘‘(7) The prohibition of discrimination under 

15 subsection (d)(2). 

16 ‘‘(c) PRIVATE RIGHT OF ACTION.— 

17 ‘‘(1) MEDIATION.—Upon the filing of a com18 plaint by an H–2A worker aggrieved by a violation 

19 of rights enforceable under subsection (b), and with20 in 60 days of the filing of proof of service of the 

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

22 with the Federal Mediation and Conciliation Service 

23 to assist the parties in reaching a satisfactory reso24 lution of all issues involving all parties to the dis25 pute. Upon a filing of such request and giving of no-
88 

•S 2823 PCS 

1 tice to the parties, the parties shall attempt medi2 ation within the period specified in subparagraph 

3 (B). 

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

5 Mediation and Conciliation Service shall be 

6 available to assist in resolving disputes arising 

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

8 and agricultural employers without charge to 

9 the parties. 

10 ‘‘(B) 90-DAY LIMIT.—The Federal Medi11 ation and Conciliation Service may conduct me12 diation or other non-binding dispute resolution 

13 activities for a period not to exceed 90 days be14 ginning on the date on which the Federal Medi15 ation and Conciliation Service receives the re16 quest for assistance unless the parties agree to 

17 an extension of this period of time. 

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

19 authorized to be appropriated annually not to 

20 exceed $500,000 to the Federal Mediation and 

21 Conciliation Service to carry out this section, 

22 provided that, any contrary provision of law 

23 notwithstanding, the Director of the Federal 

24 Mediation and Conciliation Service is author25 ized to conduct the mediation or other dispute 
89 

•S 2823 PCS 

1 resolution activities from any other appro2 priated funds available to the Director and to 

3 reimburse such appropriated funds when the 

4 funds are appropriated pursuant to this author5 ization, such reimbursement to be credited to 

6 appropriations currently available at the time of 

7 receipt thereof. 

8 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS9 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

10 worker aggrieved by a violation of rights enforceable 

11 under subsection (b) by an agricultural employer or 

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

13 United States having jurisdiction of the parties, 

14 without regard to the amount in controversy, with15 out regard to the citizenship of the parties, and 

16 without regard to the exhaustion of any alternative 

17 administrative remedies under this Act, not later 

18 than 3 years after the date the violation occurs. 

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

20 filed an administrative complaint with the Secretary 

21 of Labor may not maintain a civil action under 

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

23 violation filed with the Secretary of Labor under 

24 subsection (a)(1) is withdrawn prior to the filing of 
90 

•S 2823 PCS 

1 such action, in which case the rights and remedies 

2 available under this subsection shall be exclusive. 

3 ‘‘(4) PREEMPTION OF STATE CONTRACT

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

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

6 under any other Federal or State law or regulation 

7 or under any collective bargaining agreement, except 

8 that no court or administrative action shall be avail9 able under any State contract law to enforce the 

10 rights created by this Act. 

11 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree12 ments by employees purporting to waive or modify 

13 their rights under this Act shall be void as contrary 

14 to public policy, except that a waiver or modification 

15 of the rights or obligations in favor of the Secretary 

16 of Labor shall be valid for purposes of the enforce17 ment of this Act. The preceding sentence may not 

18 be construed to prohibit agreements to settle private 

19 disputes or litigation. 

20 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI21 TABLE RELIEF.— 

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

23 has intentionally violated any of the rights en24 forceable under subsection (b), it shall award 

25 actual damages, if any, or equitable relief. 
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•S 2823 PCS 

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

2 section shall be subject to appeal as provided in 

3 chapter 83 of title 28, United States Code. 

4 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX5 CLUSIVE REMEDY.— 

6 ‘‘(A) Notwithstanding any other provision 

7 of this section, where a State’s workers’ com8 pensation law is applicable and coverage is pro9 vided for an H–2A worker, the workers’ com10 pensation benefits shall be the exclusive remedy 

11 for the loss of such worker under this section 

12 in the case of bodily injury or death in accord13 ance with such State’s workers’ compensation 

14 law. 

15 ‘‘(B) The exclusive remedy prescribed in 

16 subparagraph (A) precludes the recovery under 

17 paragraph (6) of actual damages for loss from 

18 an injury or death but does not preclude other 

19 equitable relief, except that such relief shall not 

20 include back or front pay or in any manner, di21 rectly or indirectly, expand or otherwise alter or 

22 affect— 

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

24 compensation law; or 
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•S 2823 PCS 

1 ‘‘(ii) rights conferred under a State 

2 workers’ compensation law. 

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

4 If it is determined under a State workers’ compensa5 tion law that the workers’ compensation law is not 

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

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

8 an action for actual damages for such injury or 

9 death under subsection (c) shall be tolled for the pe10 riod during which the claim for such injury or death 

11 under such State workers’ compensation law was 

12 pending. The statute of limitations for an action for 

13 actual damages or other equitable relief arising out 

14 of the same transaction or occurrence as the injury 

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

16 period during which the claim for such injury or 

17 death was pending under the State workers’ com18 pensation law. 

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

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

21 through the mediation process required under sub22 section (c)(1) shall preclude any right of action aris23 ing out of the same facts between the parties in any 

24 Federal or State court or administrative proceeding, 
93 

•S 2823 PCS 

1 unless specifically provided otherwise in the settle2 ment agreement. 

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

4 Secretary of Labor with an H–2A employer on be5 half of an H–2A worker of a complaint filed with the 

6 Secretary of Labor under this section or any finding 

7 by the Secretary of Labor under subsection 

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

9 out of the same facts between the parties under any 

10 Federal or State court or administrative proceeding, 

11 unless specifically provided otherwise in the settle12 ment agreement. 

13 ‘‘(d) DISCRIMINATION PROHIBITED.— 

14 ‘‘(1) IN GENERAL.—It is a violation of this sub15 section for any person who has filed an application 

16 under section 218(a), to intimidate, threaten, re17 strain, coerce, blacklist, discharge, or in any other 

18 manner discriminate against an employee (which 

19 term, for purposes of this subsection, includes a 

20 former employee and an applicant for employment) 

21 because the employee has disclosed information to 

22 the employer, or to any other person, that the em23 ployee reasonably believes evidences a violation of 

24 section 218 or 218A or any rule or regulation per25 taining to section 218 or 218A, or because the em-
94 

•S 2823 PCS 

1 ployee cooperates or seeks to cooperate in an inves2 tigation or other proceeding concerning the employ3 er’s compliance with the requirements of section 218 

4 or 218A or any rule or regulation pertaining to ei5 ther of such sections. 

6 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK7 ERS.—It is a violation of this subsection for any per8 son who has filed an application under section 

9 218(a), to intimidate, threaten, restrain, coerce, 

10 blacklist, discharge, or in any manner discriminate 

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

12 with just cause, filed a complaint with the Secretary 

13 of Labor regarding a denial of the rights enumer14 ated and enforceable under subsection (b) or insti15 tuted, or caused to be instituted, a private right of 

16 action under subsection (c) regarding the denial of 

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

18 testified or is about to testify in any court pro19 ceeding brought under subsection (c). 

20 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO21 PRIATE EMPLOYMENT.—The Secretary of Labor and the 

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

23 worker who files a complaint regarding a violation of sub24 section (d) and is otherwise eligible to remain and work 

25 in the United States may be allowed to seek other appro-
95 

•S 2823 PCS 

1 priate employment in the United States for a period not 

2 to exceed the maximum period of stay authorized for such 

3 nonimmigrant classification. 

4 ‘‘(f) ROLE OF ASSOCIATIONS.— 

5 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA6 TION.—An employer on whose behalf an application 

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

8 responsible for such application, and for complying 

9 with the terms and conditions of sections 218 and 

10 218A, as though the employer had filed the applica11 tion itself. If such an employer is determined, under 

12 this section, to have committed a violation, the pen13 alty for such violation shall apply only to that mem14 ber of the association unless the Secretary of Labor 

15 determines that the association or other member 

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

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

18 invoked against the association or other association 

19 member as well. 

20 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

21 AS AN EMPLOYER.—If an association filing an appli22 cation as a sole or joint employer is determined to 

23 have committed a violation under this section, the 

24 penalty for such violation shall apply only to the as25 sociation unless the Secretary of Labor determines 
96 

•S 2823 PCS 

1 that an association member or members participated 

2 in or had knowledge, or reason to know of the viola3 tion, in which case the penalty shall be invoked 

4 against the association member or members as well. 

5 ‘‘DEFINITIONS

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

7 218C: 

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

9 ‘agricultural employment’ means any service or ac10 tivity that is considered to be agricultural under sec11 tion 3(f) of the Fair Labor Standards Act of 1938 

12 (29 U.S.C. 203(f)) or agricultural labor under sec13 tion 3121(g) of the Internal Revenue Code of 1986 

14 (26 U.S.C. 3121(g)). For purposes of this para15 graph, agricultural employment includes employment 

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

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

18 union’ means any organization in which employees 

19 participate and which exists for the purpose of deal20 ing with employers concerning grievances, labor dis21 putes, wages, rates of pay, hours of employment, or 

22 other terms and conditions of work for agricultural 

23 employees. Such term does not include an organiza24 tion formed, created, administered, supported, domi25 nated, financed, or controlled by an employer or em26 ployer association or its agents or representatives. 
97 

•S 2823 PCS 

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

2 with respect to 1 or more H–2A workers by an em3 ployer, the employer is considered to ‘displace’ a 

4 United States worker from a job if the employer lays 

5 off the worker from a job for which the H–2A work6 er or workers is or are sought. 

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

8 with respect to an individual, means an individual 

9 who is not an unauthorized alien (as defined in sec10 tion 274A(h)(3)). 

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

12 any person or entity, including any farm labor con13 tractor and any agricultural association, that em14 ploys workers in agricultural employment. 

15 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em16 ployer’ means an employer who seeks to hire 1 or 

17 more nonimmigrant aliens described in section 

18 101(a)(15)(H)(ii)(a). 

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

20 means a nonimmigrant described in section 

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

22 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor23 tunity’ means a job opening for temporary full-time 

24 employment at a place in the United States to which 

25 United States workers can be referred. 
98 

•S 2823 PCS 

1 ‘‘(9) LAYS OFF.— 

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

3 with respect to a worker— 

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

5 of employment, other than through a dis6 charge for inadequate performance, viola7 tion of workplace rules, cause, voluntary 

8 departure, voluntary retirement, contract 

9 impossibility (as described in section 

10 218A(b)(4)(D)), or temporary layoffs due 

11 to weather, markets, or other temporary 

12 conditions; but 

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

14 which the worker is offered, as an alter15 native to such loss of employment, a simi16 lar employment opportunity with the same 

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

18 a worker with another employer under sec19 tion 218(b)(2)(E), with either employer de20 scribed in such section) at equivalent or 

21 higher compensation and benefits than the 

22 position from which the employee was dis23 charged, regardless of whether or not the 

24 employee accepts the offer. 
99 

•S 2823 PCS 

1 ‘‘(B) STATUTORY CONSTRUCTION.—Noth2 ing in this paragraph is intended to limit an 

3 employee’s rights under a collective bargaining 

4 agreement or other employment contract. 

5 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg6 ulatory drought’ means a decision subsequent to the 

7 filing of the application under section 218 by an en8 tity not under the control of the employer making 

9 such filing which restricts the employer’s access to 

10 water for irrigation purposes and reduces or limits 

11 the employer’s ability to produce an agricultural 

12 commodity, thereby reducing the need for labor. 

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

14 ‘seasonal’ basis if— 

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

16 kind exclusively performed at certain seasons or 

17 periods of the year; and 

18 (B) from its nature, it may not be contin19 uous or carried on throughout the year. 

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

21 means the Secretary of Homeland Security. 

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

23 ‘temporary’ basis where the employment is intended 

24 not to exceed 10 months. 
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•S 2823 PCS 

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

2 ‘United States worker’ means any worker, whether 

3 a United States citizen or national, a lawfully admit4 ted permanent resident alien, or any other alien, 

5 who is authorized to work in the job opportunity 

6 within the United States, except an alien admitted 

7 or otherwise provided status under section 

8 101(a)(15)(H)(ii)(a).’’. 

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

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

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

12 218 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.’’. 

13 TITLE III—MISCELLANEOUS 

14 PROVISIONS 

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

16 (a) SCHEDULE OF FEES.—The Secretary shall estab17 lish and periodically adjust a schedule of fees for the em18 ployment of aliens under this Act, and a collection process 

19 for such fees from employers participating in the program 

20 provided under this Act. Such fees shall be the only fees 

21 chargeable to employers for services provided under this 

22 Act. 

23 (b) DETERMINATION OF SCHEDULE.— 
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•S 2823 PCS 

1 (1) IN GENERAL.—The schedule under sub2 section (a) shall reflect a fee rate based on the num3 ber of job opportunities indicated in the employer’s 

4 application under section 218 of the Immigration 

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

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

7 providing services related to an employer’s author8 ization to employ eligible aliens pursuant to this Act, 

9 to include the certification of eligible employers, the 

10 issuance of documentation, and the admission of eli11 gible aliens. 

12 (2) PROCEDURE.— 

13 (A) IN GENERAL.—In establishing and ad14 justing such a schedule, the Secretary shall 

15 comply with Federal cost accounting and fee 

16 setting standards. 

17 (B) PUBLICATION AND COMMENT.—The 

18 Secretary shall publish in the Federal Register 

19 an initial fee schedule and associated collection 

20 process and the cost data or estimates upon 

21 which such fee schedule is based, and any sub22 sequent amendments thereto, pursuant to which 

23 public comment shall be sought and a final rule 

24 issued. 
102 

•S 2823 PCS 

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

2 provision of law, all proceeds resulting from the payment 

3 of the alien employment user fees shall be available with4 out further appropriation and shall remain available with5 out fiscal year limitation to reimburse the Secretary, the 

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

7 costs of carrying out sections 218 and 218B of the Immi8 gration and Nationality Act, as added by section 201 of 

9 this Act, and the provisions of this Act. 

10 SEC. 302. REGULATIONS. 

11 (a) REGULATIONS OF THE SECRETARY.—The Sec12 retary shall consult with the Secretary of Labor and the 

13 Secretary of Agriculture on all regulations to implement 

14 the duties of the Secretary under this Act. 

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

16 The Secretary of State shall consult with the Secretary, 

17 the Secretary of Labor, and the Secretary of Agriculture 

18 on all regulations to implement the duties of the Secretary 

19 of State under this Act. 

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

21 The Secretary of Labor shall consult with the Secretary 

22 of Agriculture and the Secretary on all regulations to im23 plement the duties of the Secretary of Labor under this 

24 Act. 
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•S 2823 PCS 

1 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 

2 All regulations to implement the duties of the Secretary, 

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

4 under sections 218, 218A, 218B, and 218C of the Immi5 gration and Nationality Act, as added by section 201, shall 

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

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

8 of this Act. 

9 SEC. 303. EFFECTIVE DATE. 

10 (a) IN GENERAL.—Except as otherwise provided, sec11 tions 201 and 301 shall take effect 1 year after the date 

12 of enactment of this Act. 

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

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

15 submit to the appropriate committees of Congress a report 

16 that describes the measures being taken and the progress 

17 made in implementing this Act. 
Calendar No. 711 

108TH CONGRESS 

2D SESSION S. 2823 

A BILL 

To provide for the adjustment of status of certain 

more workers, and for other purposes. legal protections and better working conditions to ble, legal agricultural workforce, to extend basic worker program under that Act, to provide a stagration and Nationality Act to reform the H–2A foreign agricultural workers, to amend the ImmiSEPTEMBER 22, 2004 

Read the second time and placed on the calendar