II 

109TH CONGRESS 

1ST SESSION S. 359 

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 

FEBRUARY 10, 2005 

Mr. CRAIG (for himself, Mr. KENNEDY, Mr. HAGEL, Mr. SPECTER, Mr. LAUTENBERG, Mr. VOINOVICH, Mr. SCHUMER, Mr. LUGAR, Mr. DURBIN, Mr. 

COLEMAN, Mr. KERRY, Mr. MCCAIN, Mr. DODD, Mr. COCHRAN, Mr. 

DOMENICI, Ms. CANTWELL, Mr. DEWINE, Mr. LIEBERMAN, Mr. BURNS, 

Mrs. BOXER, Mr. ROBERTS, Mr. LEAHY, Mr. HATCH, Mr. AKAKA, Mr. 

LOTT, Mr. NELSON of Nebraska, Mr. BROWNBACK, Mr. LEVIN, Mr. STEVENS, Mr. WYDEN, Mr. MARTINEZ, Mr. SALAZAR, Mr. CHAFEE, and 

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

referred to the Committee on the Judiciary 

A BILL 

To provide for the adjustment of status of certain foreign 

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

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

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

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

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

3 ‘‘Agricultural Job Opportunities, Benefits, and Security 

4 Act of 2005’’. 

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 alien— 

15 (A) has performed agricultural employment 

16 in the United States for at least 575 hours or 

17 100 work days, whichever is less, during any 12 

18 consecutive months during the 18-month period 

19 ending on December 31, 2004; 

20 (B) applied for such status during the 18- 

21 month application period beginning on the first 

22 day of the seventh month that begins after the 

23 date of enactment of this Act; and 

24 (C) is otherwise admissible to the United 

25 States under section 212 of the Immigration 
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1 and Nationality Act (8 U.S.C. 1182), except as 

2 otherwise provided under subsection (e)(2). 

3 (2) AUTHORIZED TRAVEL.—During the period 

4 an alien is in lawful temporary resident status 

5 granted under this subsection, the alien has the 

6 right to travel abroad (including commutation from 

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

8 lawfully admitted for permanent residence. 

9 (3) AUTHORIZED EMPLOYMENT.—During the 

10 period an alien is in lawful temporary resident sta11 tus granted under this subsection, the alien shall be 

12 provided an ‘‘employment authorized’’ endorsement 

13 or other appropriate work permit, in the same man14 ner as an alien lawfully admitted for permanent resi15 dence. 

16 (4) TERMINATION OF TEMPORARY RESIDENT

17 STATUS.— 

18 (A) IN GENERAL.—During the period of 

19 temporary resident status granted an alien 

20 under this subsection, the Secretary may termi21 nate such status only upon a determination 

22 under this Act that the alien is deportable. 

23 (B) GROUNDS FOR TERMINATION OF TEM24 PORARY RESIDENT STATUS.—Before any alien 

25 becomes eligible for adjustment of status under 
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1 subsection (c), the Secretary may deny adjust2 ment to permanent resident status and provide 

3 for termination of the temporary resident status 

4 granted such alien under paragraph (1) if— 

5 (i) the Secretary finds, by a prepon6 derance of the evidence, that the adjust7 ment to temporary resident status was the 

8 result of fraud or willful misrepresentation 

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

10 the Immigration and Nationality Act (8 

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

12 (ii) the alien— 

13 (I) commits an act that makes 

14 the alien inadmissible to the United 

15 States as an immigrant, except as 

16 provided under subsection (e)(2); or 

17 (II) is convicted of a felony or 3 

18 or more misdemeanors committed in 

19 the United States. 

20 (5) RECORD OF EMPLOYMENT.— 

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

22 worker granted status under this subsection 

23 shall annually— 

24 (i) provide a written record of employ25 ment to the alien; and 
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1 (ii) provide a copy of such record to 

2 the Secretary. 

3 (B) SUNSET.—The obligation under sub4 paragraph (A) shall terminate on the date that 

5 is 6 years after the date of enactment of this 

6 Act. 

7 (b) RIGHTS OF ALIENS GRANTED TEMPORARY RESI8 DENT STATUS.— 

9 (1) IN GENERAL.—Except as otherwise pro10 vided in this subsection, an alien who acquires the 

11 status of an alien lawfully admitted for temporary 

12 residence under subsection (a), such status not hav13 ing changed, shall be considered to be an alien law14 fully admitted for permanent residence for purposes 

15 of any law other than any provision of the Immigra16 tion and Nationality Act (8 U.S.C. 1101 et seq.). 

17 (2) DELAYED ELIGIBILITY FOR CERTAIN FED18 ERAL PUBLIC BENEFITS.—An alien who acquires the 

19 status of an alien lawfully admitted for temporary 

20 residence under subsection (a) as described in para21 graph (1) shall not be eligible, by reason of such ac22 quisition of that status, for any form of assistance 

23 or benefit described in section 403(a) of the Per24 sonal Responsibility and Work Opportunity Rec25 onciliation Act of 1996 (8 U.S.C. 1613(a)) until 5 
8 

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1 years after the date on which the Secretary confers 

2 temporary resident status upon that alien under 

3 subsection (a). 

4 (3) TERMS OF EMPLOYMENT RESPECTING

5 ALIENS ADMITTED UNDER THIS SECTION.— 

6 (A) PROHIBITION.—No alien granted tem7 porary resident status under subsection (a) may 

8 be terminated from employment by any em9 ployer during the period of temporary resident 

10 status except for just cause. 

11 (B) TREATMENT OF COMPLAINTS.— 

12 (i) ESTABLISHMENT OF PROCESS.— 

13 The Secretary shall establish a process for 

14 the receipt, initial review, and disposition 

15 in accordance with this subparagraph of 

16 complaints by aliens granted temporary 

17 resident status under subsection (a) who 

18 allege that they have been terminated with19 out just cause. No proceeding shall be con20 ducted under this subparagraph with re21 spect to a termination unless the Secretary 

22 determines that the complaint was filed 

23 not later than 6 months after the date of 

24 the termination. 
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1 (ii) INITIATION OF ARBITRATION.—If 

2 the Secretary finds that a complaint has 

3 been filed in accordance with clause (i) and 

4 there is reasonable cause to believe that 

5 the complainant was terminated without 

6 just cause, the Secretary shall initiate 

7 binding arbitration proceedings by request8 ing the Federal Mediation and Conciliation 

9 Service to appoint a mutually agreeable ar10 bitrator from the roster of arbitrators 

11 maintained by such Service for the geo12 graphical area in which the employer is lo13 cated. The procedures and rules of such 

14 Service shall be applicable to the selection 

15 of such arbitrator and to such arbitration 

16 proceedings. The Secretary shall pay the 

17 fee and expenses of the arbitrator, subject 

18 to the availability of appropriations for 

19 such purpose. 

20 (iii) ARBITRATION PROCEEDINGS.— 

21 The arbitrator shall conduct the pro22 ceeding in accordance with the policies and 

23 procedures promulgated by the American 

24 Arbitration Association applicable to pri25 vate arbitration of employment disputes. 
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1 The arbitrator shall make findings respect2 ing whether the termination was for just 

3 cause. The arbitrator may not find that 

4 the termination was for just cause unless 

5 the employer so demonstrates by a prepon6 derance of the evidence. If the arbitrator 

7 finds that the termination was not for just 

8 cause, the arbitrator shall make a specific 

9 finding of the number of days or hours of 

10 work lost by the employee as a result of 

11 the termination. The arbitrator shall have 

12 no authority to order any other remedy, in13 cluding, but not limited to, reinstatement, 

14 back pay, or front pay to the affected em15 ployee. Within 30 days from the conclusion 

16 of the arbitration proceeding, the arbi17 trator shall transmit the findings in the 

18 form of a written opinion to the parties to 

19 the arbitration and the Secretary. Such 

20 findings shall be final and conclusive, and 

21 no official or court of the United States 

22 shall have the power or jurisdiction to re23 view any such findings. 

24 (iv) EFFECT OF ARBITRATION FIND25 INGS.—If the Secretary receives a finding 
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1 of an arbitrator that an employer has ter2 minated an alien granted temporary resi3 dent status under subsection (a) without 

4 just cause, the Secretary shall credit the 

5 alien for the number of days or hours of 

6 work lost for purposes of the requirement 

7 of subsection (c)(1). 

8 (v) TREATMENT OF ATTORNEY’S

9 FEES.—The parties shall bear the cost of 

10 their own attorney’s fees involved in the 

11 litigation of the complaint. 

12 (vi) NONEXCLUSIVE REMEDY.—The 

13 complaint process provided for in this sub14 paragraph is in addition to any other 

15 rights an employee may have in accordance 

16 with applicable law. 

17 (vii) EFFECT ON OTHER ACTIONS OR

18 PROCEEDINGS.—Any finding of fact or 

19 law, judgment, conclusion, or final order 

20 made by an arbitrator in the proceeding 

21 before the Secretary shall not be conclusive 

22 or binding in any separate or subsequent 

23 action or proceeding between the employee 

24 and the employee’s current or prior em25 ployer brought before an arbitrator, admin-
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1 istrative agency, court, or judge of any 

2 State or the United States, regardless of 

3 whether the prior action was between the 

4 same or related parties or involved the 

5 same facts, except that the arbitrator’s 

6 specific finding of the number of days or 

7 hours of work lost by the employee as a re8 sult of the employment termination may be 

9 referred to the Secretary pursuant to 

10 clause (iv). 

11 (C) CIVIL PENALTIES.— 

12 (i) IN GENERAL.—If the Secretary 

13 finds, after notice and opportunity for a 

14 hearing, that an employer of an alien 

15 granted temporary resident status under 

16 subsection (a) has failed to provide the 

17 record of employment required under sub18 section (a)(5) or has provided a false state19 ment of material fact in such a record, the 

20 employer shall be subject to a civil money 

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

22 per violation. 

23 (ii) LIMITATION.—The penalty appli24 cable under clause (i) for failure to provide 

25 records shall not apply unless the alien has 
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1 provided the employer with evidence of em2 ployment authorization granted under this 

3 section. 

4 (c) ADJUSTMENT TO PERMANENT RESIDENCE.— 

5 (1) AGRICULTURAL WORKERS.— 

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

7 subparagraph (B), the Secretary shall adjust 

8 the status of an alien granted lawful temporary 

9 resident status under subsection (a) to that of 

10 an alien lawfully admitted for permanent resi11 dence if the Secretary determines that the fol12 lowing requirements are satisfied: 

13 (i) QUALIFYING EMPLOYMENT.—The 

14 alien has performed at least 360 work days 

15 or 2,060 hours, but in no case less than 

16 2,060 hours, of agricultural employment in 

17 the United States, during the 6-year period 

18 beginning after the date of enactment of 

19 this Act. 

20 (ii) QUALIFYING YEARS.—The alien 

21 has performed at least 75 work days or 

22 430 hours, but in no case less than 430 

23 hours, of agricultural employment in the 

24 United States in at least 3 nonoverlapping 

25 periods of 12 consecutive months during 
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1 the 6-year period beginning after the date 

2 of enactment of this Act. Qualifying peri3 ods under this clause may include non4 consecutive 12-month periods. 

5 (iii) QUALIFYING WORK IN FIRST 3

6 YEARS.—The alien has performed at least 

7 240 work days or 1,380 hours, but in no 

8 case less than 1,380 hours, of agricultural 

9 employment during the 3-year period be10 ginning after the date of enactment of this 

11 Act. 

12 (iv) APPLICATION PERIOD.—The alien 

13 applies for adjustment of status not later 

14 than 7 years after the date of enactment 

15 of this Act. 

16 (v) PROOF.—In meeting the require17 ments of clauses (i), (ii), and (iii), an alien 

18 may submit the record of employment de19 scribed in subsection (a)(5) or such docu20 mentation as may be submitted under sub21 section (d)(3). 

22 (vi) DISABILITY.—In determining 

23 whether an alien has met the requirements 

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

25 shall credit the alien with any work days 
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1 lost because the alien was unable to work 

2 in agricultural employment due to injury 

3 or disease arising out of and in the course 

4 of the alien’s agricultural employment, if 

5 the alien can establish such disabling in6 jury or disease through medical records. 

7 (B) GROUNDS FOR DENIAL OF ADJUST8 MENT OF STATUS.—The Secretary may deny an 

9 alien adjustment to permanent resident status, 

10 and provide for termination of the temporary 

11 resident status granted such alien under sub12 section (a), if— 

13 (i) the Secretary finds by a prepon14 derance of the evidence that the adjust15 ment to temporary resident status was the 

16 result of fraud or willful misrepresentation, 

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

18 the Immigration and Nationality Act (8 

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

20 (ii) the alien— 

21 (I) commits an act that makes 

22 the alien inadmissible to the United 

23 States under section 212 of the Immi24 gration and Nationality Act (8 U.S.C. 
16 

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1 1182), except as provided under sub2 section (e)(2); or 

3 (II) is convicted of a felony or 3 

4 or more misdemeanors committed in 

5 the United States. 

6 (C) GROUNDS FOR REMOVAL.—Any alien 

7 granted temporary resident status under sub8 section (a) who does not apply for adjustment 

9 of status under this subsection before the expi10 ration of the application period described in 

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

12 other requirements of subparagraph (A) by the 

13 end of the applicable period, is deportable and 

14 may be removed under section 240 of the Immi15 gration and Nationality Act (8 U.S.C. 1229a). 

16 The Secretary shall issue regulations estab17 lishing grounds to waive subparagraph (A)(iii) 

18 with respect to an alien who has completed at 

19 least 200 days of the work requirement speci20 fied in such subparagraph in the event of a nat21 ural disaster which substantially limits the 

22 availability of agricultural employment or a per23 sonal emergency that prevents compliance with 

24 such subparagraph. 

25 (2) SPOUSES AND MINOR CHILDREN.— 
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1 (A) IN GENERAL.—Notwithstanding any 

2 other provision of law, the Secretary shall con3 fer the status of lawful permanent resident on 

4 the spouse and minor child of an alien granted 

5 status under paragraph (1), including any indi6 vidual who was a minor child on the date such 

7 alien was granted temporary resident status, if 

8 the spouse or minor child applies for such sta9 tus, or if the principal alien includes the spouse 

10 or minor child in an application for adjustment 

11 of status to that of a lawful permanent resi12 dent. 

13 (B) TREATMENT OF SPOUSES AND MINOR

14 CHILDREN BEFORE ADJUSTMENT OF STATUS.— 

15 A spouse and minor child of an alien granted 

16 temporary resident status under subsection (a) 

17 may not be— 

18 (i) removed while such alien maintains 

19 such status, except as provided in subpara20 graph (C); and 

21 (ii) granted authorization to engage in 

22 employment in the United States or be 

23 provided an ‘‘employment authorized’’ en24 dorsement or other work permit, unless 
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1 such employment authorization is granted 

2 under another provision of law. 

3 (C) GROUNDS FOR DENIAL OF ADJUST4 MENT OF STATUS AND REMOVAL.—The Sec5 retary may deny an alien spouse or child ad6 justment of status under subparagraph (A) and 

7 may remove such spouse or child under section 

8 240 of the Immigration and Nationality Act (8 

9 U.S.C. 1229a) if the spouse or child— 

10 (i) commits an act that makes the 

11 alien spouse or child inadmissible to the 

12 United States under section 212 of such 

13 Act (8 U.S.C. 1182), except as provided 

14 under subsection (e)(2); or 

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

16 more misdemeanors committed in the 

17 United States. 

18 (d) APPLICATIONS.— 

19 (1) TO WHOM MAY BE MADE.— 

20 (A) WITHIN THE UNITED STATES.—The 

21 Secretary shall provide that— 

22 (i) applications for temporary resident 

23 status under subsection (a) may be filed— 
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1 (I) with the Secretary, but only if 

2 the applicant is represented by an at3 torney; or 

4 (II) with a qualified designated 

5 entity (designated under paragraph 

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

7 to the forwarding of the application to 

8 the Secretary; and 

9 (ii) applications for adjustment of sta10 tus under subsection (c) shall be filed di11 rectly with the Secretary. 

12 (B) OUTSIDE THE UNITED STATES.—The 

13 Secretary, in cooperation with the Secretary of 

14 State, shall establish a procedure whereby an 

15 alien may apply for temporary resident status 

16 under subsection (a) at an appropriate consular 

17 office outside the United States. 

18 (C) PRELIMINARY APPLICATIONS.— 

19 (i) IN GENERAL.—During the applica20 tion period described in subsection 

21 (a)(1)(B), the Secretary may grant admis22 sion to the United States as a temporary 

23 resident and provide an ‘‘employment au24 thorized’’ endorsement or other appro25 priate work permit to any alien who pre-
20 

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1 sents a preliminary application for such 

2 status under subsection (a) at a designated 

3 port of entry on the southern land border 

4 of the United States. An alien who does 

5 not enter through a port of entry is subject 

6 to deportation and removal as otherwise 

7 provided in this Act. 

8 (ii) DEFINITION.—For purposes of 

9 clause (i), the term ‘‘preliminary applica10 tion’’ means a fully completed and signed 

11 application which contains specific infor12 mation concerning the performance of 

13 qualifying employment in the United 

14 States, together with the payment of the 

15 appropriate fee and the submission of pho16 tographs and the documentary evidence 

17 which the applicant intends to submit as 

18 proof of such employment. 

19 (iii) ELIGIBILITY.—An applicant 

20 under clause (i) shall otherwise be admis21 sible to the United States under subsection 

22 (e)(2) and shall establish to the satisfac23 tion of the examining officer during an 

24 interview that the applicant’s claim to eli-
21 

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1 gibility for temporary resident status is 

2 credible. 

3 (D) TRAVEL DOCUMENTATION.—The Sec4 retary shall provide each alien granted status 

5 under this section with a counterfeit-resistant 

6 document of authorization to enter or reenter 

7 the United States that meets the requirements 

8 established by the Secretary. 

9 (2) DESIGNATION OF ENTITIES TO RECEIVE AP10 PLICATIONS.— 

11 (A) IN GENERAL.—For purposes of receiv12 ing applications under subsection (a), the Sec13 retary— 

14 (i) shall designate qualified farm labor 

15 organizations and associations of employ16 ers; and 

17 (ii) may designate such other persons 

18 as the Secretary determines are qualified 

19 and have substantial experience, dem20 onstrate competence, and have traditional 

21 long-term involvement in the preparation 

22 and submittal of applications for adjust23 ment of status under section 209, 210, or 

24 245 of the Immigration and Nationality 

25 Act, Public Law 89–732, Public Law 95– 
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1 145, or the Immigration Reform and Con2 trol Act of 1986. 

3 (B) REFERENCES.—Organizations, asso4 ciations, and persons designated under subpara5 graph (A) are referred to in this Act as ‘‘quali6 fied designated entities’’. 

7 (3) PROOF OF ELIGIBILITY.— 

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

9 that the alien meets the requirement of sub10 section (a)(1)(A) or (c)(1)(A) through govern11 ment employment records or records supplied 

12 by employers or collective bargaining organiza13 tions, and other reliable documentation as the 

14 alien may provide. The Secretary shall establish 

15 special procedures to properly credit work in 

16 cases in which an alien was employed under an 

17 assumed name. 

18 (B) DOCUMENTATION OF WORK HIS19 TORY.— 

20 (i) BURDEN OF PROOF.—An alien ap21 plying for status under subsection (a)(1) 

22 or (c)(1) has the burden of proving by a 

23 preponderance of the evidence that the 

24 alien has worked the requisite number of 
23 

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1 hours or days (as required under sub2 section (a)(1)(A) or (c)(1)(A)). 

3 (ii) TIMELY PRODUCTION OF

4 RECORDS.—If an employer or farm labor 

5 contractor employing such an alien has 

6 kept proper and adequate records respect7 ing such employment, the alien’s burden of 

8 proof under clause (i) may be met by se9 curing timely production of those records 

10 under regulations to be promulgated by the 

11 Secretary. 

12 (iii) SUFFICIENT EVIDENCE.—An 

13 alien can meet the burden of proof under 

14 clause (i) to establish that the alien has 

15 performed the work described in subsection 

16 (a)(1)(A) or (c)(1)(A) by producing suffi17 cient evidence to show the extent of that 

18 employment as a matter of just and rea19 sonable inference. 

20 (4) TREATMENT OF APPLICATIONS BY QUALI21 FIED DESIGNATED ENTITIES.—Each qualified des22 ignated entity shall agree to forward to the Sec23 retary applications filed with it in accordance with 

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

25 Secretary applications filed with it unless the appli-
24 

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1 cant has consented to such forwarding. No such en2 tity may make a determination required by this sec3 tion to be made by the Secretary. Upon the request 

4 of the alien, a qualified designated entity shall assist 

5 the alien in obtaining documentation of the work 

6 history of the alien. 

7 (5) LIMITATION ON ACCESS TO INFORMA8 TION.—Files and records prepared for purposes of 

9 this subsection by qualified designated entities oper10 ating under this subsection are confidential and the 

11 Secretary shall not have access to such files or 

12 records relating to an alien without the consent of 

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

14 pursuant to paragraph (6). 

15 (6) CONFIDENTIALITY OF INFORMATION.— 

16 (A) IN GENERAL.—Except as otherwise 

17 provided in this subsection, neither the Sec18 retary, nor any other official or employee of the 

19 Department of Homeland Security, or bureau 

20 or agency thereof, may— 

21 (i) use the information furnished by 

22 the applicant pursuant to an application 

23 filed under this section, the information 

24 provided to the applicant by a person des25 ignated under paragraph (2)(A), or any in-
25 

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1 formation provided by an employer or 

2 former employer, for any purpose other 

3 than to make a determination on the appli4 cation, or for enforcement of paragraph 

5 (7); 

6 (ii) make any publication whereby the 

7 information furnished by any particular in8 dividual can be identified; or 

9 (iii) permit anyone other than the 

10 sworn officers and employees of the De11 partment of Homeland Security, or bureau 

12 or agency thereof, or, with respect to appli13 cations filed with a qualified designated en14 tity, that qualified designated entity, to ex15 amine individual applications. 

16 (B) REQUIRED DISCLOSURES.—The Sec17 retary shall provide the information furnished 

18 under this section, or any other information de19 rived from such furnished information, to— 

20 (i) a duly recognized law enforcement 

21 entity in connection with a criminal inves22 tigation or prosecution, if such information 

23 is requested in writing by such entity; or 

24 (ii) an official coroner, for purposes of 

25 affirmatively identifying a deceased indi-
26 

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1 vidual, whether or not the death of such 

2 individual resulted from a crime. 

3 (C) CONSTRUCTION.— 

4 (i) IN GENERAL.—Nothing in this 

5 paragraph shall be construed to limit the 

6 use, or release, for immigration enforce7 ment purposes or law enforcement pur8 poses of information contained in files or 

9 records of the Department of Homeland 

10 Security pertaining to an application filed 

11 under this section, other than information 

12 furnished by an applicant pursuant to the 

13 application, or any other information de14 rived from the application, that is not 

15 available from any other source. 

16 (ii) CRIMINAL CONVICTIONS.—Infor17 mation concerning whether the applicant 

18 has at any time been convicted of a crime 

19 may be used or released for immigration 

20 enforcement or law enforcement purposes. 

21 (D) CRIME.—Any person who knowingly 

22 uses, publishes, or permits information to be ex23 amined in violation of this paragraph shall be 

24 subject to a fine in an amount not to exceed 

25 $10,000. 
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1 (7) PENALTIES FOR FALSE STATEMENTS IN AP2 PLICATIONS.— 

3 (A) CRIMINAL PENALTY.—Any person 

4 who— 

5 (i) files an application for status 

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

7 and willfully falsifies, conceals, or covers 

8 up a material fact or makes any false, fic9 titious, or fraudulent statements or rep10 resentations, or makes or uses any false 

11 writing or document knowing the same to 

12 contain any false, fictitious, or fraudulent 

13 statement or entry; or 

14 (ii) creates or supplies a false writing 

15 or document for use in making such an ap16 plication, 

17 shall be fined in accordance with title 18, 

18 United States Code, imprisoned not more than 

19 5 years, or both. 

20 (B) INADMISSIBILITY.—An alien who is 

21 convicted of a crime under subparagraph (A) 

22 shall be considered to be inadmissible to the 

23 United States on the ground described in sec24 tion 212(a)(6)(C)(i) of the Immigration and 

25 Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)). 
28 

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1 (8) ELIGIBILITY FOR LEGAL SERVICES.—Sec2 tion 504(a)(11) of Public Law 104–134 (110 Stat. 

3 1321–53 et seq.) shall not be construed to prevent 

4 a recipient of funds under the Legal Services Cor5 poration Act (42 U.S.C. 2996 et seq.) from pro6 viding legal assistance directly related to an applica7 tion for adjustment of status under this section. 

8 (9) APPLICATION FEES.— 

9 (A) FEE SCHEDULE.—The Secretary shall 

10 provide for a schedule of fees that— 

11 (i) shall be charged for the filing of 

12 applications for status under subsections 

13 (a) and (c); and 

14 (ii) may be charged by qualified des15 ignated entities to help defray the costs of 

16 services provided to such applicants. 

17 (B) PROHIBITION ON EXCESS FEES BY

18 QUALIFIED DESIGNATED ENTITIES.—A quali19 fied designated entity may not charge any fee 

20 in excess of, or in addition to, the fees author21 ized under subparagraph (A)(ii) for services 

22 provided to applicants. 

23 (C) DISPOSITION OF FEES.— 

24 (i) IN GENERAL.—There is established 

25 in the general fund of the Treasury a sepa-
29 

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1 rate account, which shall be known as the 

2 ‘‘Agricultural Worker Immigration Status 

3 Adjustment Account’’. Notwithstanding 

4 any other provision of law, there shall be 

5 deposited as offsetting receipts into the ac6 count all fees collected under subparagraph 

7 (A)(i). 

8 (ii) USE OF FEES FOR APPLICATION

9 PROCESSING.—Amounts deposited in the 

10 ‘‘Agricultural Worker Immigration Status 

11 Adjustment Account’’ shall remain avail12 able to the Secretary until expended for 

13 processing applications for status under 

14 subsections (a) and (c). 

15 (e) WAIVER OF NUMERICAL LIMITATIONS AND CER16 TAIN GROUNDS FOR INADMISSIBILITY.— 

17 (1) NUMERICAL LIMITATIONS DO NOT APPLY.— 

18 The numerical limitations of sections 201 and 202 

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

20 1151 and 1152) shall not apply to the adjustment 

21 of aliens to lawful permanent resident status under 

22 this section. 

23 (2) WAIVER OF CERTAIN GROUNDS OF INAD24 MISSIBILITY.—In the determination of an alien’s eli25 gibility for status under subsection (a)(1)(C) or an 
30 

•S 359 IS

1 alien’s eligibility for adjustment of status under sub2 section (c)(1)(B)(ii)(I), the following rules shall 

3 apply: 

4 (A) GROUNDS OF EXCLUSION NOT APPLI5 CABLE.—The provisions of paragraphs (5), 

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

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

8 1182(a)) shall not apply. 

9 (B) WAIVER OF OTHER GROUNDS.— 

10 (i) IN GENERAL.—Except as provided 

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

12 other provision of such section 212(a) in 

13 the case of individual aliens for humani14 tarian purposes, to ensure family unity, or 

15 if otherwise in the public interest. 

16 (ii) GROUNDS THAT MAY NOT BE

17 WAIVED.—Paragraphs (2)(A), (2)(B), 

18 (2)(C), (3), and (4) of such section 212(a) 

19 may not be waived by the Secretary under 

20 clause (i). 

21 (iii) CONSTRUCTION.—Nothing in this 

22 subparagraph shall be construed as affect23 ing the authority of the Secretary other 

24 than under this subparagraph to waive 

25 provisions of such section 212(a). 
31 

•S 359 IS

1 (C) SPECIAL RULE FOR DETERMINATION

2 OF PUBLIC CHARGE.—An alien is not ineligible 

3 for status under this section by reason of a 

4 ground of inadmissibility under section 

5 212(a)(4) of the Immigration and Nationality 

6 Act (8 U.S.C. 1182(a)(4)) if the alien dem7 onstrates a history of employment in the United 

8 States evidencing self-support without reliance 

9 on public cash assistance. 

10 (f) TEMPORARY STAY OF REMOVAL AND WORK AU11 THORIZATION FOR CERTAIN APPLICANTS.— 

12 (1) BEFORE APPLICATION PERIOD.—Effective 

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

14 shall provide that, in the case of an alien who is ap15 prehended before the beginning of the application 

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

17 can establish a nonfrivolous case of eligibility for 

18 temporary resident status under subsection (a) (but 

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

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

21 alien has had the opportunity during the first 30 

22 days of the application period to complete the filing 

23 of an application for temporary resident status, the 

24 alien— 

25 (A) may not be removed; and 
32 

•S 359 IS

1 (B) shall be granted authorization to en2 gage in employment in the United States and 

3 be provided an ‘‘employment authorized’’ en4 dorsement or other appropriate work permit for 

5 such purpose. 

6 (2) DURING APPLICATION PERIOD.—The Sec7 retary shall provide that, in the case of an alien who 

8 presents a nonfrivolous application for temporary 

9 resident status under subsection (a) during the ap10 plication period described in subsection (a)(1)(B), 

11 including an alien who files such an application 

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

13 a final determination on the application has been 

14 made in accordance with this section, the alien— 

15 (A) may not be removed; and 

16 (B) shall be granted authorization to en17 gage in employment in the United States and 

18 be provided an ‘‘employment authorized’’ en19 dorsement or other appropriate work permit for 

20 such purpose. 

21 (g) ADMINISTRATIVE AND JUDICIAL REVIEW.— 

22 (1) IN GENERAL.—There shall be no adminis23 trative or judicial review of a determination respect24 ing an application for status under subsection (a) or 

25 (c) except in accordance with this subsection. 
33 

•S 359 IS

1 (2) ADMINISTRATIVE REVIEW.— 

2 (A) SINGLE LEVEL OF ADMINISTRATIVE

3 APPELLATE REVIEW.—The Secretary shall es4 tablish an appellate authority to provide for a 

5 single level of administrative appellate review of 

6 such a determination. 

7 (B) STANDARD FOR REVIEW.—Such ad8 ministrative appellate review shall be based 

9 solely upon the administrative record estab10 lished at the time of the determination on the 

11 application and upon such additional or newly 

12 discovered evidence as may not have been avail13 able at the time of the determination. 

14 (3) JUDICIAL REVIEW.— 

15 (A) LIMITATION TO REVIEW OF RE16 MOVAL.—There shall be judicial review of such 

17 a determination only in the judicial review of an 

18 order of removal under section 242 of the Im19 migration and Nationality Act (8 U.S.C. 1252). 

20 (B) STANDARD FOR JUDICIAL REVIEW.— 

21 Such judicial review shall be based solely upon 

22 the administrative record established at the 

23 time of the review by the appellate authority 

24 and the findings of fact and determinations 

25 contained in such record shall be conclusive un-
34 

•S 359 IS

1 less the applicant can establish abuse of discre2 tion or that the findings are directly contrary to 

3 clear and convincing facts contained in the 

4 record considered as a whole. 

5 (h) DISSEMINATION OF INFORMATION ON ADJUST6 MENT PROGRAM.—Beginning not later than the first day 

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

8 the Secretary, in cooperation with qualified designated en9 tities, shall broadly disseminate information respecting the 

10 benefits that aliens may receive under this section and the 

11 requirements to be satisfied to obtain such benefits. 

12 (i) REGULATIONS.—The Secretary shall issue regula13 tions to implement this section not later than the first day 

14 of the seventh month that begins after the date of enact15 ment of this Act. 

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

17 on the date that regulations are issued implementing this 

18 section on an interim or other basis. 

19 (k) AUTHORIZATION OF APPROPRIATIONS.—There 

20 are authorized to be appropriated to the Secretary to carry 

21 out this section $40,000,000 for each of fiscal years 2006 

22 through 2009. 

23 SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS. 

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

25 Security Act (42 U.S.C. 408(d)(1)) is amended— 
35 

•S 359 IS

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

2 the end; 

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

4 the end; 

5 (3) by inserting after subparagraph (C) the fol6 lowing: 

7 ‘‘(D) who is granted status as a lawful tem8 porary resident under the Agricultural Job Oppor9 tunity, Benefits, and Security Act of 2005,’’; and 

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

11 in the case of an alien described in subparagraph 

12 (D), if such conduct is alleged to have occurred be13 fore the date on which the alien was granted lawful 

14 temporary resident status.’’. 

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

16 subsection (a) shall take effect on the first day of the sev17 enth month that begins after the date of enactment of this 

18 Act. 

19 TITLE II—REFORM OF H–2A 

20 WORKER PROGRAM 

21 SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION22 ALITY ACT. 

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

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

25 and inserting the following: 
36 

•S 359 IS

1 ‘‘H–2A EMPLOYER APPLICATIONS

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

3 OF LABOR.— 

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

5 to the United States as an H–2A worker, or other6 wise provided status as an H–2A worker, unless the 

7 employer has filed with the Secretary of Labor an 

8 application containing— 

9 ‘‘(A) the assurances described in sub10 section (b); 

11 ‘‘(B) a description of the nature and loca12 tion of the work to be performed; 

13 ‘‘(C) the anticipated period (expected be14 ginning and ending dates) for which the work15 ers will be needed; and 

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

17 which the employer seeks to employ the work18 ers. 

19 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap20 plication filed under paragraph (1) shall be accom21 panied by a copy of the job offer describing the 

22 wages and other terms and conditions of employ23 ment and the bona fide occupational qualifications 

24 that shall be possessed by a worker to be employed 

25 in the job opportunity in question. 
37 

•S 359 IS

1 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA2 TIONS.—The assurances referred to in subsection (a)(1) 

3 are the following: 

4 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL5 LECTIVE BARGAINING AGREEMENTS.—With respect 

6 to a job opportunity that is covered under a collec7 tive bargaining agreement: 

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

9 job opportunity is covered by a union contract 

10 which was negotiated at arm’s length between a 

11 bona fide union and the employer. 

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

13 job opportunity for which the employer is re14 questing an H–2A worker is not vacant because 

15 the former occupant is on strike or being locked 

16 out in the course of a labor dispute. 

17 ‘‘(C) NOTIFICATION OF BARGAINING REP18 RESENTATIVES.—The employer, at the time of 

19 filing the application, has provided notice of the 

20 filing under this paragraph to the bargaining 

21 representative of the employer’s employees in 

22 the occupational classification at the place or 

23 places of employment for which aliens are 

24 sought. 
38 

•S 359 IS

1 ‘‘(D) TEMPORARY OR SEASONAL JOB OP2 PORTUNITIES.—The job opportunity is tem3 porary or seasonal. 

4 ‘‘(E) OFFERS TO UNITED STATES WORK5 ERS.—The employer has offered or will offer 

6 the job to any eligible United States worker 

7 who applies and is equally or better qualified 

8 for the job for which the nonimmigrant is, or 

9 the nonimmigrants are, sought and who will be 

10 available at the time and place of need. 

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

12 job opportunity is not covered by the State 

13 workers’ compensation law, the employer will 

14 provide, at no cost to the worker, insurance cov15 ering injury and disease arising out of, and in 

16 the course of, the worker’s employment which 

17 will provide benefits at least equal to those pro18 vided under the State’s workers’ compensation 

19 law for comparable employment. 

20 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

21 COLLECTIVE BARGAINING AGREEMENTS.—With re22 spect to a job opportunity that is not covered under 

23 a collective bargaining agreement: 

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

25 job opportunity for which the employer is re-
39 

•S 359 IS

1 questing an H–2A worker is not vacant because 

2 the former occupant is on strike or being locked 

3 out in the course of a labor dispute. 

4 ‘‘(B) TEMPORARY OR SEASONAL JOB OP5 PORTUNITIES.—The job opportunity is tem6 porary or seasonal. 

7 ‘‘(C) BENEFIT, WAGE, AND WORKING CON8 DITIONS.—The employer will provide, at a min9 imum, the benefits, wages, and working condi10 tions required by section 218A to all workers 

11 employed in the job opportunities for which the 

12 employer has applied under subsection (a) and 

13 to all other workers in the same occupation at 

14 the place of employment. 

15 ‘‘(D) NONDISPLACEMENT OF UNITED

16 STATES WORKERS.—The employer did not dis17 place and will not displace a United States 

18 worker employed by the employer during the 

19 period of employment and for a period of 30 

20 days preceding the period of employment in the 

21 occupation at the place of employment for 

22 which the employer seeks approval to employ 

23 H–2A workers. 

24 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

25 NONIMMIGRANT WITH OTHER EMPLOYERS.— 
40 

•S 359 IS

1 The employer will not place the nonimmigrant 

2 with another employer unless— 

3 ‘‘(i) the nonimmigrant performs du4 ties in whole or in part at 1 or more work 

5 sites owned, operated, or controlled by 

6 such other employer; 

7 ‘‘(ii) there are indicia of an employ8 ment relationship between the non9 immigrant and such other employer; and 

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

11 other employer as to whether, and has no 

12 actual knowledge or notice that, during the 

13 period of employment and for a period of 

14 30 days preceding the period of employ15 ment, the other employer has displaced or 

16 intends to displace a United States worker 

17 employed by the other employer in the oc18 cupation at the place of employment for 

19 which the employer seeks approval to em20 ploy H–2A workers. 

21 ‘‘(F) STATEMENT OF LIABILITY.—The ap22 plication form shall include a clear statement 

23 explaining the liability under subparagraph (E) 

24 of an employer if the other employer described 
41 

•S 359 IS

1 in such subparagraph displaces a United States 

2 worker as described in such subparagraph. 

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

4 job opportunity is not covered by the State 

5 workers’ compensation law, the employer will 

6 provide, at no cost to the worker, insurance cov7 ering injury and disease arising out of and in 

8 the course of the worker’s employment which 

9 will provide benefits at least equal to those pro10 vided under the State’s workers’ compensation 

11 law for comparable employment. 

12 ‘‘(H) EMPLOYMENT OF UNITED STATES

13 WORKERS.— 

14 ‘‘(i) RECRUITMENT.—The employer 

15 has taken or will take the following steps 

16 to recruit United States workers for the 

17 job opportunities for which the H–2A non18 immigrant is, or H–2A nonimmigrants are, 

19 sought: 

20 ‘‘(I) CONTACTING FORMER

21 WORKERS.—The employer shall make 

22 reasonable efforts through the sending 

23 of a letter by United States Postal 

24 Service mail, or otherwise, to contact 

25 any United States worker the em-
42 

•S 359 IS

1 ployer employed during the previous 

2 season in the occupation at the place 

3 of intended employment for which the 

4 employer is applying for workers and 

5 has made the availability of the em6 ployer’s job opportunities in the occu7 pation at the place of intended em8 ployment known to such previous 

9 workers, unless the worker was termi10 nated from employment by the em11 ployer for a lawful job-related reason 

12 or abandoned the job before the work13 er completed the period of employ14 ment of the job opportunity for which 

15 the worker was hired. 

16 ‘‘(II) FILING A JOB OFFER WITH

17 THE LOCAL OFFICE OF THE STATE

18 EMPLOYMENT SECURITY AGENCY.— 

19 Not later than 28 days before the 

20 date on which the employer desires to 

21 employ an H–2A worker in a tem22 porary or seasonal agricultural job op23 portunity, the employer shall submit a 

24 copy of the job offer described in sub25 section (a)(2) to the local office of the 
43 

•S 359 IS

1 State employment security agency 

2 which serves the area of intended em3 ployment and authorize the posting of 

4 the job opportunity on ‘America’s Job 

5 Bank’ or other electronic job registry, 

6 except that nothing in this subclause 

7 shall require the employer to file an 

8 interstate job order under section 653 

9 of title 20, Code of Federal Regula10 tions. 

11 ‘‘(III) ADVERTISING OF JOB OP12 PORTUNITIES.—Not later than 14 

13 days before the date on which the em14 ployer desires to employ an H–2A 

15 worker in a temporary or seasonal ag16 ricultural job opportunity, the em17 ployer shall advertise the availability 

18 of the job opportunities for which the 

19 employer is seeking workers in a pub20 lication in the local labor market that 

21 is likely to be patronized by potential 

22 farm workers. 

23 ‘‘(IV) EMERGENCY PROCE24 DURES.—The Secretary of Labor 

25 shall, by regulation, provide a proce-
44 

•S 359 IS

1 dure for acceptance and approval of 

2 applications in which the employer 

3 has not complied with the provisions 

4 of this subparagraph because the em5 ployer’s need for H–2A workers could 

6 not reasonably have been foreseen. 

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

8 offered or will offer the job to any eligible 

9 United States worker who applies and is 

10 equally or better qualified for the job for 

11 which the nonimmigrant is, or non12 immigrants are, sought and who will be 

13 available at the time and place of need. 

14 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

15 employer will provide employment to any 

16 qualified United States worker who applies 

17 to the employer during the period begin18 ning on the date on which the foreign 

19 worker departs for the employer’s place of 

20 employment and ending on the date on 

21 which 50 percent of the period of employ22 ment for which the foreign worker who is 

23 in the job was hired has elapsed, subject to 

24 the following requirements: 
45 

•S 359 IS

1 ‘‘(I) PROHIBITION.—No person 

2 or entity shall willfully and knowingly 

3 withhold United States workers before 

4 the arrival of H–2A workers in order 

5 to force the hiring of United States 

6 workers under this clause. 

7 ‘‘(II) COMPLAINTS.—Upon re8 ceipt of a complaint by an employer 

9 that a violation of subclause (I) has 

10 occurred, the Secretary of Labor shall 

11 immediately investigate. The Sec12 retary of Labor shall, within 36 hours 

13 of the receipt of the complaint, issue 

14 findings concerning the alleged viola15 tion. If the Secretary of Labor finds 

16 that a violation has occurred, the Sec17 retary of Labor shall immediately sus18 pend the application of this clause 

19 with respect to that certification for 

20 that date of need. 

21 ‘‘(III) PLACEMENT OF UNITED

22 STATES WORKERS.—Before referring 

23 a United States worker to an em24 ployer during the period described in 

25 the matter preceding subclause (I), 
46 

•S 359 IS

1 the Secretary of Labor shall make all 

2 reasonable efforts to place the United 

3 States worker in an open job accept4 able to the worker, if there are other 

5 job offers pending with the job service 

6 that offer similar job opportunities in 

7 the area of intended employment. 

8 ‘‘(iv) STATUTORY CONSTRUCTION.— 

9 Nothing in this subparagraph shall be con10 strued to prohibit an employer from using 

11 such legitimate selection criteria relevant 

12 to the type of job that are normal or cus13 tomary to the type of job involved so long 

14 as such criteria are not applied in a dis15 criminatory manner. 

16 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

17 OF EMPLOYER MEMBERS.— 

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

19 may file an application under subsection (a) on be20 half of 1 or more of its employer members that the 

21 association certifies in its application has or have 

22 agreed in writing to comply with the requirements of 

23 this section and sections 218A through 218C. 

24 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

25 EMPLOYERS.—If an association filing an application 
47 

•S 359 IS

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

2 the temporary or seasonal agricultural workers re3 quested on the application, the certifications granted 

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

5 used for the certified job opportunities of any of its 

6 producer members named on the application, and 

7 such workers may be transferred among such pro8 ducer members to perform the agricultural services 

9 of a temporary or seasonal nature for which the cer10 tifications were granted. 

11 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 

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

13 an application filed pursuant to subsection (a), ex14 cept that if the employer is an agricultural associa15 tion, the association may withdraw an application 

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

17 more of its members. To withdraw an application, 

18 the employer or association shall notify the Sec19 retary of Labor in writing, and the Secretary of 

20 Labor shall acknowledge in writing the receipt of 

21 such withdrawal notice. An employer who withdraws 

22 an application under subsection (a), or on whose be23 half an application is withdrawn, is relieved of the 

24 obligations undertaken in the application. 
48 

•S 359 IS

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

2 withdrawn while any alien provided status under sec3 tion 101(a)(15)(H)(ii)(a) pursuant to such applica4 tion is employed by the employer. 

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

6 Any obligation incurred by an employer under any 

7 other law or regulation as a result of the recruit8 ment of United States workers or H–2A workers 

9 under an offer of terms and conditions of employ10 ment required as a result of making an application 

11 under subsection (a) is unaffected by withdrawal of 

12 such application. 

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

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

15 employer shall make available for public examina16 tion, within 1 working day after the date on which 

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

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

19 a copy of each such application (and such accom20 panying documents as are necessary). 

21 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

22 LABOR.— 

23 ‘‘(A) COMPILATION OF LIST.—The Sec24 retary of Labor shall compile, on a current 

25 basis, a list (by employer and by occupational 
49 

•S 359 IS

1 classification) of the applications filed under 

2 this subsection. Such list shall include the wage 

3 rate, number of workers sought, period of in4 tended employment, and date of need. The Sec5 retary of Labor shall make such list available 

6 for examination in the District of Columbia. 

7 ‘‘(B) REVIEW OF APPLICATIONS.—The 

8 Secretary of Labor shall review such an applica9 tion only for completeness and obvious inac10 curacies. Unless the Secretary of Labor finds 

11 that the application is incomplete or obviously 

12 inaccurate, the Secretary of Labor shall certify 

13 that the intending employer has filed with the 

14 Secretary of Labor an application as described 

15 in subsection (a). Such certification shall be 

16 provided within 7 days of the filing of the appli17 cation. 

18 ‘‘H–2A EMPLOYMENT REQUIREMENTS

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

20 ALIENS PROHIBITED.—Employers seeking to hire United 

21 States workers shall offer the United States workers no 

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

23 that the employer is offering, intends to offer, or will pro24 vide to H–2A workers. Conversely, no job offer may im25 pose on United States workers any restrictions or obliga-
50 

•S 359 IS

1 tions which will not be imposed on the employer’s H–2A 

2 workers. 

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

4 CONDITIONS.—Except in cases where higher benefits, 

5 wages, or working conditions are required by the provi6 sions of subsection (a), in order to protect similarly em7 ployed United States workers from adverse effects with 

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

9 job offer which shall accompany an application under sec10 tion 218(b)(2) shall include each of the following benefit, 

11 wage, and working condition provisions: 

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

13 HOUSING ALLOWANCE.— 

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

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

16 offer to provide housing at no cost to all work17 ers in job opportunities for which the employer 

18 has applied under that section and to all other 

19 workers in the same occupation at the place of 

20 employment, whose place of residence is beyond 

21 normal commuting distance. 

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

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

24 the employer’s election, provide housing that 

25 meets applicable Federal standards for tem-
51 

•S 359 IS

1 porary labor camps or secure housing that 

2 meets applicable local standards for rental or 

3 public accommodation housing or other sub4 stantially similar class of habitation, or in the 

5 absence of applicable local standards, State 

6 standards for rental or public accommodation 

7 housing or other substantially similar class of 

8 habitation. In the absence of applicable local or 

9 State standards, Federal temporary labor camp 

10 standards shall apply. 

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

12 prevailing practice in the occupation and area 

13 of intended employment to provide family hous14 ing, family housing shall be provided to workers 

15 with families who request it. 

16 ‘‘(D) WORKERS ENGAGED IN THE RANGE

17 PRODUCTION OF LIVESTOCK.—The Secretary of 

18 Labor shall issue regulations that address the 

19 specific requirements for the provision of hous20 ing to workers engaged in the range production 

21 of livestock. 

22 ‘‘(E) LIMITATION.—Nothing in this para23 graph shall be construed to require an employer 

24 to provide or secure housing for persons who 

25 were not entitled to such housing under the 
52 

•S 359 IS

1 temporary labor certification regulations in ef2 fect on June 1, 1986. 

3 ‘‘(F) CHARGES FOR HOUSING.— 

4 ‘‘(i) CHARGES FOR PUBLIC HOUS5 ING.—If public housing provided for mi6 grant agricultural workers under the aus7 pices of a local, county, or State govern8 ment is secured by an employer, and use of 

9 the public housing unit normally requires 

10 charges from migrant workers, such 

11 charges shall be paid by the employer di12 rectly to the appropriate individual or enti13 ty affiliated with the housing’s manage14 ment. 

15 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

16 the form of deposits for bedding or other 

17 similar incidentals related to housing shall 

18 not be levied upon workers by employers 

19 who provide housing for their workers. An 

20 employer may require a worker found to 

21 have been responsible for damage to such 

22 housing which is not the result of normal 

23 wear and tear related to habitation to re24 imburse the employer for the reasonable 

25 cost of repair of such damage. 
53 

•S 359 IS

1 ‘‘(G) HOUSING ALLOWANCE AS ALTER2 NATIVE.— 

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

4 under clause (ii) is satisfied, the employer 

5 may provide a reasonable housing allow6 ance instead of offering housing under sub7 paragraph (A). Upon the request of a 

8 worker seeking assistance in locating hous9 ing, the employer shall make a good faith 

10 effort to assist the worker in identifying 

11 and locating housing in the area of in12 tended employment. An employer who of13 fers a housing allowance to a worker, or 

14 assists a worker in locating housing which 

15 the worker occupies, pursuant to this 

16 clause shall not be deemed a housing pro17 vider under section 203 of the Migrant and 

18 Seasonal Agricultural Worker Protection 

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

20 providing such housing allowance. No 

21 housing allowance may be used for housing 

22 which is owned or controlled by the em23 ployer. 

24 ‘‘(ii) CERTIFICATION.—The require25 ment of this clause is satisfied if the Gov-
54 

•S 359 IS

1 ernor of the State certifies to the Secretary 

2 of Labor that there is adequate housing 

3 available in the area of intended employ4 ment for migrant farm workers, and H–2A 

5 workers, who are seeking temporary hous6 ing while employed at farm work. Such 

7 certification shall expire after 3 years un8 less renewed by the Governor of the State. 

9 ‘‘(iii) AMOUNT OF ALLOWANCE.— 

10 ‘‘(I) NONMETROPOLITAN COUN11 TIES.—If the place of employment of 

12 the workers provided an allowance 

13 under this subparagraph is a non14 metropolitan county, the amount of 

15 the housing allowance under this sub16 paragraph shall be equal to the state17 wide average fair market rental for 

18 existing housing for nonmetropolitan 

19 counties for the State, as established 

20 by the Secretary of Housing and 

21 Urban Development pursuant to sec22 tion 8(c) of the United States Hous23 ing Act of 1937 (42 U.S.C. 1437f(c)), 

24 based on a 2 bedroom dwelling unit 
55 

•S 359 IS

1 and an assumption of 2 persons per 

2 bedroom. 

3 ‘‘(II) METROPOLITAN COUN4 TIES.—If the place of employment of 

5 the workers provided an allowance 

6 under this paragraph is in a metro7 politan county, the amount of the 

8 housing allowance under this subpara9 graph shall be equal to the statewide 

10 average fair market rental for existing 

11 housing for metropolitan counties for 

12 the State, as established by the Sec13 retary of Housing and Urban Devel14 opment pursuant to section 8(c) of 

15 the United States Housing Act of 

16 1937 (42 U.S.C. 1437f(c)), based on 

17 a 2-bedroom dwelling unit and an as18 sumption of 2 persons per bedroom. 

19 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 

20 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

21 worker who completes 50 percent of the period 

22 of employment of the job opportunity for which 

23 the worker was hired shall be reimbursed by the 

24 employer for the cost of the worker’s transpor25 tation and subsistence from the place from 
56 

•S 359 IS

1 which the worker came to work for the em2 ployer (or place of last employment, if the 

3 worker traveled from such place) to the place of 

4 employment. 

5 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

6 worker who completes the period of employment 

7 for the job opportunity involved shall be reim8 bursed by the employer for the cost of the 

9 worker’s transportation and subsistence from 

10 the place of employment to the place from 

11 which the worker, disregarding intervening em12 ployment, came to work for the employer, or to 

13 the place of next employment, if the worker has 

14 contracted with a subsequent employer who has 

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

16 transportation and subsistence to such subse17 quent employer’s place of employment. 

18 ‘‘(C) LIMITATION.— 

19 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

20 Except as provided in clause (ii), the 

21 amount of reimbursement provided under 

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

23 alien shall not exceed the lesser of— 
57 

•S 359 IS

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

2 or alien of the transportation and sub3 sistence involved; or 

4 ‘‘(II) the most economical and 

5 reasonable common carrier transpor6 tation charges and subsistence costs 

7 for the distance involved. 

8 ‘‘(ii) DISTANCE TRAVELED.—No reim9 bursement under subparagraph (A) or (B) 

10 shall be required if the distance traveled is 

11 100 miles or less, or the worker is not re12 siding in employer-provided housing or 

13 housing secured through an allowance as 

14 provided in paragraph (1)(G). 

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

16 is laid off or employment is terminated for con17 tract impossibility (as described in paragraph 

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

19 employment, the employer shall provide the 

20 transportation and subsistence required by sub21 paragraph (B) and, notwithstanding whether 

22 the worker has completed 50 percent of the pe23 riod of employment, shall provide the transpor24 tation reimbursement required by subparagraph 

25 (A). 
58 

•S 359 IS

1 ‘‘(E) TRANSPORTATION BETWEEN LIVING

2 QUARTERS AND WORK SITE.—The employer 

3 shall provide transportation between the work4 er’s living quarters and the employer’s work site 

5 without cost to the worker, and such transpor6 tation will be in accordance with applicable laws 

7 and regulations. 

8 ‘‘(3) REQUIRED WAGES.— 

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

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

11 pay, and shall pay, all workers in the occupa12 tion for which the employer has applied for 

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

14 more) than the greater of the prevailing wage 

15 in the occupation in the area of intended em16 ployment or the adverse effect wage rate. No 

17 worker shall be paid less than the greater of the 

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

19 the Fair Labor Standards Act of 1938 (29 

20 U.S.C. 206(a)(1)) or the applicable State min21 imum wage. 

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

23 of enactment of the Agricultural Job Oppor24 tunity, Benefits, and Security Act of 2005 and 

25 continuing for 3 years thereafter, no adverse ef-
59 

•S 359 IS

1 fect wage rate for a State may be more than 

2 the adverse effect wage rate for that State in 

3 effect on January 1, 2003, as established by 

4 section 655.107 of title 20, Code of Federal 

5 Regulations. 

6 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

7 FREEZE.— 

8 ‘‘(i) FIRST ADJUSTMENT.—If Con9 gress does not set a new wage standard 

10 applicable to this section before the first 

11 March 1 that is not less than 3 years after 

12 the date of enactment of this section, the 

13 adverse effect wage rate for each State be14 ginning on such March 1 shall be the wage 

15 rate that would have resulted if the ad16 verse effect wage rate in effect on January 

17 1, 2003, had been annually adjusted, be18 ginning on March 1, 2006, by the lesser 

19 of— 

20 ‘‘(I) the 12 month percentage 

21 change in the Consumer Price Index 

22 for All Urban Consumers between De23 cember of the second preceding year 

24 and December of the preceding year; 

25 and 
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•S 359 IS

1 ‘‘(II) 4 percent. 

2 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST3 MENTS.—Beginning on the first March 1 

4 that is not less than 4 years after the date 

5 of enactment of this section, and each 

6 March 1 thereafter, the adverse effect 

7 wage rate then in effect for each State 

8 shall be adjusted by the lesser of— 

9 ‘‘(I) the 12 month percentage 

10 change in the Consumer Price Index 

11 for All Urban Consumers between De12 cember of the second preceding year 

13 and December of the preceding year; 

14 and 

15 ‘‘(II) 4 percent. 

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

17 make only those deductions from the worker’s 

18 wages that are authorized by law or are reason19 able and customary in the occupation and area 

20 of employment. The job offer shall specify all 

21 deductions not required by law which the em22 ployer will make from the worker’s wages. 

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

24 shall pay the worker not less frequently than 

25 twice monthly, or in accordance with the pre-
61 

•S 359 IS

1 vailing practice in the area of employment, 

2 whichever is more frequent. 

3 ‘‘(F) HOURS AND EARNINGS STATE4 MENTS.—The employer shall furnish to the 

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

6 written statements— 

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

8 the pay period; 

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

10 piece rate of pay, or both; 

11 ‘‘(iii) the hours of employment which 

12 have been offered to the worker (broken 

13 out by hours offered in accordance with 

14 and over and above the three-quarters 

15 guarantee described in paragraph (4); 

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

17 worker; 

18 ‘‘(v) an itemization of the deductions 

19 made from the worker’s wages; and 

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

21 the units produced daily. 

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

23 Not later than June 1, 2007, the Comptroller 

24 General of the United States shall prepare and 

25 transmit to the Secretary of Labor, the Com-
62 

•S 359 IS

1 mittee on the Judiciary of the Senate, and 

2 Committee on the Judiciary of the House of 

3 Representatives, a report that addresses— 

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

5 or unauthorized aliens in the United States 

6 agricultural work force has depressed 

7 United States farm worker wages below 

8 the levels that would otherwise have pre9 vailed if alien farm workers had not been 

10 employed in the United States; 

11 ‘‘(ii) whether an adverse effect wage 

12 rate is necessary to prevent wages of 

13 United States farm workers in occupations 

14 in which H–2A workers are employed from 

15 falling below the wage levels that would 

16 have prevailed in the absence of the em17 ployment of H–2A workers in those occu18 pations; 

19 ‘‘(iii) whether alternative wage stand20 ards, such as a prevailing wage standard, 

21 would be sufficient to prevent wages in oc22 cupations in which H–2A workers are em23 ployed from falling below the wage level 

24 that would have prevailed in the absence of 

25 H–2A employment; 
63 

•S 359 IS

1 ‘‘(iv) whether any changes are war2 ranted in the current methodologies for 

3 calculating the adverse effect wage rate 

4 and the prevailing wage; and 

5 ‘‘(v) recommendations for future wage 

6 protection under this section. 

7 ‘‘(H) COMMISSION ON WAGE STAND8 ARDS.— 

9 ‘‘(i) ESTABLISHMENT.—There is es10 tablished the Commission on Agricultural 

11 Wage Standards under the H–2A program 

12 (in this subparagraph referred to as the 

13 ‘Commission’). 

14 ‘‘(ii) COMPOSITION.—The Commission 

15 shall consist of 10 members as follows: 

16 ‘‘(I) 4 representatives of agricul17 tural employers and 1 representative 

18 of the Department of Agriculture, 

19 each appointed by the Secretary of 

20 Agriculture. 

21 ‘‘(II) 4 representatives of agricul22 tural workers and 1 representative of 

23 the Department of Labor, each ap24 pointed by the Secretary of Labor. 
64 

•S 359 IS

1 ‘‘(iii) FUNCTIONS.—The Commission 

2 shall conduct a study that shall address— 

3 ‘‘(I) whether the employment of 

4 H–2A or unauthorized aliens in the 

5 United States agricultural workforce 

6 has depressed United States farm 

7 worker wages below the levels that 

8 would otherwise have prevailed if alien 

9 farm workers had not been employed 

10 in the United States; 

11 ‘‘(II) whether an adverse effect 

12 wage rate is necessary to prevent 

13 wages of United States farm workers 

14 in occupations in which H–2A work15 ers are employed from falling below 

16 the wage levels that would have pre17 vailed in the absence of the employ18 ment of H–2A workers in those occu19 pations; 

20 ‘‘(III) whether alternative wage 

21 standards, such as a prevailing wage 

22 standard, would be sufficient to pre23 vent wages in occupations in which 

24 H–2A workers are employed from fall25 ing below the wage level that would 
65 

•S 359 IS

1 have prevailed in the absence of H–2A 

2 employment; 

3 ‘‘(IV) whether any changes are 

4 warranted in the current methodolo5 gies for calculating the adverse effect 

6 wage rate and the prevailing wage 

7 rate; and 

8 ‘‘(V) recommendations for future 

9 wage protection under this section. 

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

11 June 1, 2007, the Commission shall sub12 mit a report to the Congress setting forth 

13 the findings of the study conducted under 

14 clause (iii). 

15 ‘‘(v) TERMINATION DATE.—The Com16 mission shall terminate upon submitting 

17 its final report. 

18 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 

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

20 shall guarantee to offer the worker employment 

21 for the hourly equivalent of at least three22 fourths of the work days of the total period of 

23 employment, beginning with the first work day 

24 after the arrival of the worker at the place of 

25 employment and ending on the expiration date 
66 

•S 359 IS

1 specified in the job offer. For purposes of this 

2 subparagraph, the hourly equivalent means the 

3 number of hours in the work days as stated in 

4 the job offer and shall exclude the worker’s 

5 Sabbath and Federal holidays. If the employer 

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

7 employment than that required under this para8 graph, the employer shall pay such worker the 

9 amount which the worker would have earned 

10 had the worker, in fact, worked for the guaran11 teed number of hours. 

12 ‘‘(B) FAILURE TO WORK.—Any hours 

13 which the worker fails to work, up to a max14 imum of the number of hours specified in the 

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

16 been offered an opportunity to do so, and all 

17 hours of work actually performed (including vol18 untary work in excess of the number of hours 

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

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

21 be counted by the employer in calculating 

22 whether the period of guaranteed employment 

23 has been met. 

24 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

25 TERMINATION FOR CAUSE.—If the worker vol-
67 

•S 359 IS

1 untarily abandons employment before the end 

2 of the contract period, or is terminated for 

3 cause, the worker is not entitled to the ‘three4 fourths guarantee’ described in subparagraph 

5 (A). 

6 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be7 fore the expiration of the period of employment 

8 specified in the job offer, the services of the 

9 worker are no longer required for reasons be10 yond the control of the employer due to any 

11 form of natural disaster, including but not lim12 ited to a flood, hurricane, freeze, earthquake, 

13 fire, drought, plant or animal disease or pest in14 festation, or regulatory drought, before the 

15 guarantee in subparagraph (A) is fulfilled, the 

16 employer may terminate the worker’s employ17 ment. In the event of such termination, the em18 ployer shall fulfill the employment guarantee in 

19 subparagraph (A) for the work days that have 

20 elapsed from the first work day after the arrival 

21 of the worker to the termination of employ22 ment. In such cases, the employer will make ef23 forts to transfer the United States worker to 

24 other comparable employment acceptable to the 

25 worker. If such transfer is not effected, the em-
68 

•S 359 IS

1 ployer shall provide the return transportation 

2 required in paragraph (2)(D). 

3 ‘‘(5) MOTOR VEHICLE SAFETY.— 

4 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

5 TO COVERAGE.— 

6 ‘‘(i) IN GENERAL.—Except as pro7 vided in clauses (iii) and (iv), this sub8 section applies to any H–2A employer that 

9 uses or causes to be used any vehicle to 

10 transport an H–2A worker within the 

11 United States. 

12 ‘‘(ii) DEFINED TERM.—In this para13 graph, the term ‘uses or causes to be 

14 used’— 

15 ‘‘(I) applies only to transpor16 tation provided by an H–2A employer 

17 to an H–2A worker, or by a farm 

18 labor contractor to an H–2A worker 

19 at the request or direction of an H– 

20 2A employer; and 

21 ‘‘(II) does not apply to— 

22 ‘‘(aa) transportation pro23 vided, or transportation arrange24 ments made, by an H–2A work25 er, unless the employer specifi-
69 

•S 359 IS

1 cally requested or arranged such 

2 transportation; or 

3 ‘‘(bb) car pooling arrange4 ments made by H–2A workers 

5 themselves, using 1 of the work6 ers’ own vehicles, unless specifi7 cally requested by the employer 

8 directly or through a farm labor 

9 contractor. 

10 ‘‘(iii) CLARIFICATION.—Providing a 

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

12 the worker to travel to or from the place 

13 of employment, or the payment or reim14 bursement of the transportation costs of 

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

16 shall not constitute an arrangement of, or 

17 participation in, such transportation. 

18 ‘‘(iv) AGRICULTURAL MACHINERY AND

19 EQUIPMENT EXCLUDED.—This subsection 

20 does not apply to the transportation of an 

21 H–2A worker on a tractor, combine, har22 vester, picker, or other similar machinery 

23 or equipment while such worker is actually 

24 engaged in the planting, cultivating, or 

25 harvesting of agricultural commodities or 
70 

•S 359 IS

1 the care of livestock or poultry or engaged 

2 in transportation incidental thereto. 

3 ‘‘(v) COMMON CARRIERS EX4 CLUDED.—This subsection does not apply 

5 to common carrier motor vehicle transpor6 tation in which the provider holds itself out 

7 to the general public as engaging in the 

8 transportation of passengers for hire and 

9 holds a valid certification of authorization 

10 for such purposes from an appropriate 

11 Federal, State, or local agency. 

12 ‘‘(B) APPLICABILITY OF STANDARDS, LI13 CENSING, AND INSURANCE REQUIREMENTS.— 

14 ‘‘(i) IN GENERAL.—When using, or 

15 causing to be used, any vehicle for the pur16 pose of providing transportation to which 

17 this subparagraph applies, each employer 

18 shall— 

19 ‘‘(I) ensure that each such vehi20 cle conforms to the standards pre21 scribed by the Secretary of Labor 

22 under section 401(b) of the Migrant 

23 and Seasonal Agricultural Worker 

24 Protection Act (29 U.S.C. 1841(b)) 
71 

•S 359 IS

1 and other applicable Federal and 

2 State safety standards; 

3 ‘‘(II) ensure that each driver has 

4 a valid and appropriate license, as 

5 provided by State law, to operate the 

6 vehicle; and 

7 ‘‘(III) have an insurance policy 

8 or a liability bond that is in effect 

9 which insures the employer against li10 ability for damage to persons or prop11 erty arising from the ownership, oper12 ation, or causing to be operated, of 

13 any vehicle used to transport any H– 

14 2A worker. 

15 ‘‘(ii) AMOUNT OF INSURANCE RE16 QUIRED.—The level of insurance required 

17 shall be determined by the Secretary of 

18 Labor pursuant to regulations to be issued 

19 under this subsection. 

20 ‘‘(iii) EFFECT OF WORKERS’ COM21 PENSATION COVERAGE.—If the employer 

22 of any H–2A worker provides workers’ 

23 compensation coverage for such worker in 

24 the case of bodily injury or death as pro25 vided by State law, the following adjust-
72 

•S 359 IS

1 ments in the requirements of subparagraph 

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

3 policy or liability bond apply: 

4 ‘‘(I) No insurance policy or liabil5 ity bond shall be required of the em6 ployer, if such workers are trans7 ported only under circumstances for 

8 which there is coverage under such 

9 State law. 

10 ‘‘(II) An insurance policy or li11 ability bond shall be required of the 

12 employer for circumstances under 

13 which coverage for the transportation 

14 of such workers is not provided under 

15 such State law. 

16 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em17 ployer shall assure that, except as otherwise provided in 

18 this section, the employer will comply with all applicable 

19 Federal, State, and local labor laws, including laws affect20 ing migrant and seasonal agricultural workers, with re21 spect to all United States workers and alien workers em22 ployed by the employer, except that a violation of this as23 surance shall not constitute a violation of the Migrant and 

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

25 1801 et seq.). 
73 

•S 359 IS

1 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro2 vide to the worker, not later than the day the work com3 mences, a copy of the employer’s application and job offer 

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

5 the worker to enter into a separate employment contract 

6 covering the employment in question, such separate em7 ployment contract. 

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

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

10 the Secretary of Labor and the Secretary from continuing 

11 to apply special procedures and requirements to the ad12 mission and employment of aliens in occupations involving 

13 the range production of livestock. 

14 ‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY

15 OF H–2A WORKERS

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

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

18 employer for its members, that seeks the admission into 

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

20 with the Secretary. The petition shall be accompanied by 

21 an accepted and currently valid certification provided by 

22 the Secretary of Labor under section 218(e)(2)(B) cov23 ering the petitioner. 

24 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC25 RETARY.—The Secretary shall establish a procedure for 

26 expedited adjudication of petitions filed under subsection 
74 

•S 359 IS

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

2 means assuring expedited delivery, transmit a copy of no3 tice of action on the petition to the petitioner and, in the 

4 case of approved petitions, to the appropriate immigration 

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

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

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

8 or admission to the United States. 

9 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 

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

11 considered admissible to the United States if the 

12 alien is otherwise admissible under this section, sec13 tion 218, and section 218A, and the alien is not in14 eligible under paragraph (2). 

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

16 considered inadmissible to the United States and in17 eligible for nonimmigrant status under section 

18 101(a)(15)(H)(ii)(a) if the alien has, at any time 

19 during the past 5 years— 

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

21 section, including the requirement to promptly 

22 depart the United States when the alien’s au23 thorized period of admission under this section 

24 has expired; or 
75 

•S 359 IS

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

2 of admission into the United States as a non3 immigrant, including overstaying the period of 

4 authorized admission as such a nonimmigrant. 

5 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW6 FUL PRESENCE.— 

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

8 previously been admitted into the United States 

9 pursuant to this section, and who is otherwise 

10 eligible for admission in accordance with para11 graphs (1) and (2), shall not be deemed inad12 missible by virtue of section 212(a)(9)(B). If an 

13 alien described in the preceding sentence is 

14 present in the United States, the alien may 

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

16 not be granted that status in the United States. 

17 ‘‘(B) MAINTENANCE OF WAIVER.—An 

18 alien provided an initial waiver of ineligibility 

19 pursuant to subparagraph (A) shall remain eli20 gible for such waiver unless the alien violates 

21 the terms of this section or again becomes ineli22 gible under section 212(a)(9)(B) by virtue of 

23 unlawful presence in the United States after 

24 the date of the initial waiver of ineligibility pur25 suant to subparagraph (A). 
76 

•S 359 IS

1 ‘‘(d) PERIOD OF ADMISSION.— 

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

3 for the period of employment in the application cer4 tified by the Secretary of Labor pursuant to section 

5 218(e)(2)(B), not to exceed 10 months, supple6 mented by a period of not more than 1 week before 

7 the beginning of the period of employment for the 

8 purpose of travel to the work site and a period of 

9 14 days following the period of employment for the 

10 purpose of departure or extension based on a subse11 quent offer of employment, except that— 

12 ‘‘(A) the alien is not authorized to be em13 ployed during such 14-day period except in the 

14 employment for which the alien was previously 

15 authorized; and 

16 ‘‘(B) the total period of employment, in17 cluding such 14-day period, may not exceed 10 

18 months. 

19 ‘‘(2) CONSTRUCTION.—Nothing in this sub20 section shall limit the authority of the Secretary to 

21 extend the stay of the alien under any other provi22 sion of this Act. 

23 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 

24 ‘‘(1) IN GENERAL.—An alien admitted or pro25 vided status under section 101(a)(15)(H)(ii)(a) who 
77 

•S 359 IS

1 abandons the employment which was the basis for 

2 such admission or status shall be considered to have 

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

4 worker and shall depart the United States or be sub5 ject to removal under section 237(a)(1)(C)(i). 

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

7 association acting as agent for the employer, shall 

8 notify the Secretary not later than 7 days after an 

9 H–2A worker prematurely abandons employment. 

10 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec11 retary shall promptly remove from the United States 

12 any H–2A worker who violates any term or condi13 tion of the worker’s nonimmigrant status. 

14 ‘‘(4) VOLUNTARY TERMINATION.—Notwith15 standing paragraph (1), an alien may voluntarily 

16 terminate his or her employment if the alien prompt17 ly departs the United States upon termination of 

18 such employment. 

19 ‘‘(f) REPLACEMENT OF ALIEN.— 

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

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

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

23 and the Secretary shall admit into the United 

24 States, an eligible alien designated by the employer 

25 to replace an H–2A worker— 
78 

•S 359 IS

1 ‘‘(A) who abandons or prematurely termi2 nates employment; or 

3 ‘‘(B) whose employment is terminated 

4 after a United States worker is employed pur5 suant to section 218(b)(2)(H)(iii), if the United 

6 States worker voluntarily departs before the 

7 end of the period of intended employment or if 

8 the employment termination is for a lawful job9 related reason. 

10 ‘‘(2) CONSTRUCTION.—Nothing in this sub11 section is intended to limit any preference required 

12 to be accorded United States workers under any 

13 other provision of this Act. 

14 ‘‘(g) IDENTIFICATION DOCUMENT.— 

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

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

17 provided an identification and employment eligibility 

18 document to verify eligibility for employment in the 

19 United States and verify such person’s proper iden20 tity. 

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

22 employment eligibility document may be issued 

23 which does not meet the following requirements: 

24 ‘‘(A) The document shall be capable of re25 liably determining whether— 
79 

•S 359 IS

1 ‘‘(i) the individual with the identifica2 tion and employment eligibility document 

3 whose eligibility is being verified is in fact 

4 eligible for employment; 

5 ‘‘(ii) the individual whose eligibility is 

6 being verified is claiming the identity of 

7 another person; and 

8 ‘‘(iii) the individual whose eligibility is 

9 being verified is authorized to be admitted 

10 into, and employed in, the United States 

11 as an H–2A worker. 

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

13 is resistant to counterfeiting and to tampering. 

14 ‘‘(C) The document shall— 

15 ‘‘(i) be compatible with other data16 bases of the Secretary for the purpose of 

17 excluding aliens from benefits for which 

18 they are not eligible and determining 

19 whether the alien is unlawfully present in 

20 the United States; and 

21 ‘‘(ii) be compatible with law enforce22 ment databases to determine if the alien 

23 has been convicted of criminal offenses. 

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

25 UNITED STATES.— 
80 

•S 359 IS

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

2 seeks approval to employ an H–2A alien who is law3 fully present in the United States, the petition filed 

4 by the employer or an association pursuant to sub5 section (a), shall request an extension of the alien’s 

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

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

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

9 for an extension of an alien’s stay— 

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

11 or 

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

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

14 the United States under this section. 

15 ‘‘(3) WORK AUTHORIZATION UPON FILING A

16 PETITION FOR EXTENSION OF STAY.— 

17 ‘‘(A) IN GENERAL.—An alien who is law18 fully present in the United States may com19 mence the employment described in a petition 

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

21 petition is filed. 

22 ‘‘(B) DEFINITION.—For purposes of sub23 paragraph (A), the term ‘file’ means sending 

24 the petition by certified mail via the United 

25 States Postal Service, return receipt requested, 
81 

•S 359 IS

1 or delivered by guaranteed commercial delivery 

2 which will provide the employer with a docu3 mented acknowledgment of the date of receipt 

4 of the petition. 

5 ‘‘(C) HANDLING OF PETITION.—The em6 ployer shall provide a copy of the employer’s pe7 tition to the alien, who shall keep the petition 

8 with the alien’s identification and employment 

9 eligibility document as evidence that the peti10 tion has been filed and that the alien is author11 ized to work in the United States. 

12 ‘‘(D) APPROVAL OF PETITION.—Upon ap13 proval of a petition for an extension of stay or 

14 change in the alien’s authorized employment, 

15 the Secretary shall provide a new or updated 

16 employment eligibility document to the alien in17 dicating the new validity date, after which the 

18 alien is not required to retain a copy of the pe19 tition. 

20 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA21 TION OF ALIENS WITHOUT VALID IDENTIFICATION

22 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex23 pired identification and employment eligibility docu24 ment, together with a copy of a petition for exten25 sion of stay or change in the alien’s authorized em-
82 

•S 359 IS

1 ployment that complies with the requirements of 

2 paragraph (1), shall constitute a valid work author3 ization document for a period of not more than 60 

4 days beginning on the date on which such petition 

5 is filed, after which time only a currently valid iden6 tification and employment eligibility document shall 

7 be acceptable. 

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

9 STATUS.— 

10 ‘‘(A) MAXIMUM PERIOD.—The maximum 

11 continuous period of authorized status as an 

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

13 years. 

14 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

15 THE UNITED STATES.— 

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

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

18 United States whose period of authorized 

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

20 extensions) has expired, the alien may not 

21 again apply for admission to the United 

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

23 has remained outside the United States for 

a continuous period equal to at least 1 24 ⁄5

25 the duration of the alien’s previous period 
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1 of authorized status as an H–2A worker 

2 (including any extensions). 

3 ‘‘(ii) EXCEPTION.—Clause (i) shall 

4 not apply in the case of an alien if the 

5 alien’s period of authorized status as an 

6 H–2A worker (including any extensions) 

7 was for a period of not more than 10 

8 months and such alien has been outside 

9 the United States for at least 2 months 

10 during the 12 months preceding the date 

11 the alien again is applying for admission to 

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

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

14 SHEEPHERDERS.—Notwithstanding any provision of the 

15 Agricultural Job Opportunity, Benefits, and Security Act 

16 of 2005, aliens admitted under section 

17 101(a)(15)(H)(ii)(a) for employment as sheepherders— 

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

19 months; 

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

21 of up to 3 years; and 

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

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

24 the United States. 
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1 ‘‘WORKER PROTECTIONS AND LABOR STANDARDS

2 ENFORCEMENT

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

4 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 

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

6 COMPLAINTS.—The Secretary of Labor shall es7 tablish a process for the receipt, investigation, 

8 and disposition of complaints respecting a peti9 tioner’s failure to meet a condition specified in 

10 section 218(b), or an employer’s misrepresenta11 tion of material facts in an application under 

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

13 aggrieved person or organization (including bar14 gaining representatives). No investigation or 

15 hearing shall be conducted on a complaint con16 cerning such a failure or misrepresentation un17 less the complaint was filed not later than 12 

18 months after the date of the failure, or mis19 representation, respectively. The Secretary of 

20 Labor shall conduct an investigation under this 

21 subparagraph if there is reasonable cause to be22 lieve that such a failure or misrepresentation 

23 has occurred. 

24 ‘‘(B) DETERMINATION ON COMPLAINT.— 

25 Under such process, the Secretary of Labor 
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1 shall provide, within 30 days after the date 

2 such a complaint is filed, for a determination as 

3 to whether or not a reasonable basis exists to 

4 make a finding described in subparagraph (C), 

5 (D), (E), or (H). If the Secretary of Labor de6 termines that such a reasonable basis exists, 

7 the Secretary of Labor shall provide for notice 

8 of such determination to the interested parties 

9 and an opportunity for a hearing on the com10 plaint, in accordance with section 556 of title 5, 

11 United States Code, within 60 days after the 

12 date of the determination. If such a hearing is 

13 requested, the Secretary of Labor shall make a 

14 finding concerning the matter not later than 60 

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

16 of similar complaints respecting the same appli17 cant, the Secretary of Labor may consolidate 

18 the hearings under this subparagraph on such 

19 complaints. 

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

21 the Secretary of Labor finds, after notice and 

22 opportunity for a hearing, a failure to meet a 

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

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

25 218(b), a substantial failure to meet a condition 
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1 of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 

2 (2)(E), or (2)(H) of section 218(b), or a mate3 rial misrepresentation of fact in an application 

4 under section 218(a)— 

5 ‘‘(i) the Secretary of Labor shall no6 tify the Secretary of such finding and may, 

7 in addition, impose such other administra8 tive remedies (including civil money pen9 alties in an amount not to exceed $1,000 

10 per violation) as the Secretary of Labor 

11 determines to be appropriate; and 

12 ‘‘(ii) the Secretary may disqualify the 

13 employer from the employment of aliens 

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

15 for a period of 1 year. 

16 ‘‘(D) WILLFUL FAILURES AND WILLFUL

17 MISREPRESENTATIONS.—If the Secretary of 

18 Labor finds, after notice and opportunity for 

19 hearing, a willful failure to meet a condition of 

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

21 material fact in an application under section 

22 218(a), or a violation of subsection (d)(1)— 

23 ‘‘(i) the Secretary of Labor shall no24 tify the Secretary of such finding and may, 

25 in addition, impose such other administra-
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1 tive remedies (including civil money pen2 alties in an amount not to exceed $5,000 

3 per violation) as the Secretary of Labor 

4 determines to be appropriate; 

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

6 appropriate legal or equitable relief to ef7 fectuate the purposes of subsection (d)(1); 

8 and 

9 ‘‘(iii) the Secretary may disqualify the 

10 employer from the employment of H–2A 

11 workers for a period of 2 years. 

12 ‘‘(E) DISPLACEMENT OF UNITED STATES

13 WORKERS.—If the Secretary of Labor finds, 

14 after notice and opportunity for hearing, a will15 ful failure to meet a condition of section 218(b) 

16 or a willful misrepresentation of a material fact 

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

18 course of which failure or misrepresentation the 

19 employer displaced a United States worker em20 ployed by the employer during the period of em21 ployment on the employer’s application under 

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

23 preceding such period of employment— 

24 ‘‘(i) the Secretary of Labor shall no25 tify the Secretary of such finding and may, 
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1 in addition, impose such other administra2 tive remedies (including civil money pen3 alties in an amount not to exceed $15,000 

4 per violation) as the Secretary of Labor 

5 determines to be appropriate; and 

6 ‘‘(ii) the Secretary may disqualify the 

7 employer from the employment of H–2A 

8 workers for a period of 3 years. 

9 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN10 ALTIES.—The Secretary of Labor shall not im11 pose total civil money penalties with respect to 

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

13 $90,000. 

14 ‘‘(G) FAILURES TO PAY WAGES OR RE15 QUIRED BENEFITS.—If the Secretary of Labor 

16 finds, after notice and opportunity for a hear17 ing, that the employer has failed to pay the 

18 wages, or provide the housing allowance, trans19 portation, subsistence reimbursement, or guar20 antee of employment, required under section 

21 218A(b), the Secretary of Labor shall assess 

22 payment of back wages, or other required bene23 fits, due any United States worker or H–2A 

24 worker employed by the employer in the specific 

25 employment in question. The back wages or 
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1 other required benefits under section 218A(b) 

2 shall be equal to the difference between the 

3 amount that should have been paid and the 

4 amount that actually was paid to such worker. 

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

6 this section shall be construed as limiting the au7 thority of the Secretary of Labor to conduct any 

8 compliance investigation under any other labor law, 

9 including any law affecting migrant and seasonal ag10 ricultural workers, or, in the absence of a complaint 

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

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

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

14 through the private right of action provided in subsection 

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

16 or State law to enforce such rights: 

17 ‘‘(1) The providing of housing or a housing al18 lowance as required under section 218A(b)(1). 

19 ‘‘(2) The reimbursement of transportation as 

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

21 ‘‘(3) The payment of wages required under sec22 tion 218A(b)(3) when due. 

23 ‘‘(4) The benefits and material terms and con24 ditions of employment expressly provided in the job 

25 offer described in section 218(a)(2), not including 
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1 the assurance to comply with other Federal, State, 

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

3 compliance with which shall be governed by the pro4 visions of such laws. 

5 ‘‘(5) The guarantee of employment required 

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

7 ‘‘(6) The motor vehicle safety requirements 

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

9 ‘‘(7) The prohibition of discrimination under 

10 subsection (d)(2). 

11 ‘‘(c) PRIVATE RIGHT OF ACTION.— 

12 ‘‘(1) MEDIATION.—Upon the filing of a com13 plaint by an H–2A worker aggrieved by a violation 

14 of rights enforceable under subsection (b), and with15 in 60 days of the filing of proof of service of the 

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

17 with the Federal Mediation and Conciliation Service 

18 to assist the parties in reaching a satisfactory reso19 lution of all issues involving all parties to the dis20 pute. Upon a filing of such request and giving of no21 tice to the parties, the parties shall attempt medi22 ation within the period specified in subparagraph 

23 (B). 

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

25 Mediation and Conciliation Service shall be 
91 

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1 available to assist in resolving disputes arising 

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

3 and agricultural employers without charge to 

4 the parties. 

5 ‘‘(B) 90-DAY LIMIT.—The Federal Medi6 ation and Conciliation Service may conduct me7 diation or other non-binding dispute resolution 

8 activities for a period not to exceed 90 days be9 ginning on the date on which the Federal Medi10 ation and Conciliation Service receives the re11 quest for assistance unless the parties agree to 

12 an extension of this period of time. 

13 ‘‘(C) AUTHORIZATION.— 

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

15 (ii), there are authorized to be appro16 priated to the Federal Mediation and Con17 ciliation Service $500,000 for each fiscal 

18 year to carry out this section. 

19 ‘‘(ii) MEDIATION.—Notwithstanding 

20 any other provision of law, the Director of 

21 the Federal Mediation and Conciliation 

22 Service is authorized to conduct the medi23 ation or other dispute resolution activities 

24 from any other appropriated funds avail25 able to the Director and to reimburse such 
92 

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1 appropriated funds when the funds are ap2 propriated pursuant to this authorization, 

3 such reimbursement to be credited to ap4 propriations currently available at the time 

5 of receipt. 

6 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS7 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

8 worker aggrieved by a violation of rights enforceable 

9 under subsection (b) by an agricultural employer or 

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

11 United States having jurisdiction of the parties, 

12 without regard to the amount in controversy, with13 out regard to the citizenship of the parties, and 

14 without regard to the exhaustion of any alternative 

15 administrative remedies under this Act, not later 

16 than 3 years after the date the violation occurs. 

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

18 filed an administrative complaint with the Secretary 

19 of Labor may not maintain a civil action under 

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

21 violation filed with the Secretary of Labor under 

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

23 such action, in which case the rights and remedies 

24 available under this subsection shall be exclusive. 
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1 ‘‘(4) PREEMPTION OF STATE CONTRACT

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

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

4 under any other Federal or State law or regulation 

5 or under any collective bargaining agreement, except 

6 that no court or administrative action shall be avail7 able under any State contract law to enforce the 

8 rights created by this Act. 

9 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree10 ments by employees purporting to waive or modify 

11 their rights under this Act shall be void as contrary 

12 to public policy, except that a waiver or modification 

13 of the rights or obligations in favor of the Secretary 

14 of Labor shall be valid for purposes of the enforce15 ment of this Act. The preceding sentence may not 

16 be construed to prohibit agreements to settle private 

17 disputes or litigation. 

18 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI19 TABLE RELIEF.— 

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

21 has intentionally violated any of the rights en22 forceable under subsection (b), it shall award 

23 actual damages, if any, or equitable relief. 
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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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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, 
96 

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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-
97 

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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 APPROPRIATE

21 EMPLOYMENT.—The Secretary of Labor and the Sec22 retary 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-
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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 
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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. 
100 

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

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

3 2A workers by an employer, means laying off a 

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

5 2A worker or workers is or are sought. 

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

7 with respect to an individual, means an individual 

8 who is not an unauthorized alien (as defined in sec9 tion 274A(h)(3)). 

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

11 any person or entity, including any farm labor con12 tractor and any agricultural association, that em13 ploys workers in agricultural employment. 

14 ‘‘(6) H-2A EMPLOYER.—The term ‘H–2A em15 ployer’ means an employer who seeks to hire 1 or 

16 more nonimmigrant aliens described in section 

17 101(a)(15)(H)(ii)(a). 

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

19 means a nonimmigrant described in section 

20 101(a)(15)(H)(ii)(a). 

21 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor22 tunity’ means a job opening for temporary full-time 

23 employment at a place in the United States to which 

24 United States workers can be referred. 

25 ‘‘(9) LAYS OFF.— 
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1 ‘‘(A) IN GENERAL.—The term ‘lays off’, 

2 with respect to a worker— 

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

4 of employment, other than through a dis5 charge for inadequate performance, viola6 tion of workplace rules, cause, voluntary 

7 departure, voluntary retirement, contract 

8 impossibility (as described in section 

9 218A(b)(4)(D)), or temporary layoffs due 

10 to weather, markets, or other temporary 

11 conditions; but 

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

13 which the worker is offered, as an alter14 native to such loss of employment, a simi15 lar employment opportunity with the same 

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

17 a worker with another employer under sec18 tion 218(b)(2)(E), with either employer de19 scribed in such section) at equivalent or 

20 higher compensation and benefits than the 

21 position from which the employee was dis22 charged, regardless of whether or not the 

23 employee accepts the offer. 

24 ‘‘(B) STATUTORY CONSTRUCTION.—Noth25 ing in this paragraph is intended to limit an 
102 

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1 employee’s rights under a collective bargaining 

2 agreement or other employment contract. 

3 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg4 ulatory drought’ means a decision subsequent to the 

5 filing of the application under section 218 by an en6 tity not under the control of the employer making 

7 such filing which restricts the employer’s access to 

8 water for irrigation purposes and reduces or limits 

9 the employer’s ability to produce an agricultural 

10 commodity, thereby reducing the need for labor. 

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

12 ‘seasonal’ basis if— 

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

14 kind exclusively performed at certain seasons or 

15 periods of the year; and 

16 ‘‘(B) from its nature, it may not be contin17 uous or carried on throughout the year. 

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

19 means the Secretary of Homeland Security. 

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

21 ‘temporary’ basis where the employment is intended 

22 not to exceed 10 months. 

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

24 ‘United States worker’ means any worker, whether 

25 a United States citizen or national, a lawfully admit-
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1 ted permanent resident alien, or any other alien, 

2 who is authorized to work in the job opportunity 

3 within the United States, except an alien admitted 

4 or otherwise provided status under section 

5 101(a)(15)(H)(ii)(a).’’. 

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

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

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

9 218 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.’’. 

10 TITLE III—MISCELLANEOUS 

11 PROVISIONS 

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

13 (a) SCHEDULE OF FEES.—The Secretary shall estab14 lish and periodically adjust a schedule of fees for the em15 ployment of aliens under this Act, and a collection process 

16 for such fees from employers participating in the program 

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

18 chargeable to employers for services provided under this 

19 Act. 

20 (b) DETERMINATION OF SCHEDULE.— 

21 (1) IN GENERAL.—The schedule under sub22 section (a) shall reflect a fee rate based on the num23 ber of job opportunities indicated in the employer’s 
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1 application under section 218 of the Immigration 

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

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

4 providing services related to an employer’s author5 ization to employ eligible aliens pursuant to this Act, 

6 to include the certification of eligible employers, the 

7 issuance of documentation, and the admission of eli8 gible aliens. 

9 (2) PROCEDURE.— 

10 (A) IN GENERAL.—In establishing and ad11 justing such a schedule, the Secretary shall 

12 comply with Federal cost accounting and fee 

13 setting standards. 

14 (B) PUBLICATION AND COMMENT.—The 

15 Secretary shall publish in the Federal Register 

16 an initial fee schedule and associated collection 

17 process and the cost data or estimates upon 

18 which such fee schedule is based, and any sub19 sequent amendments thereto, pursuant to which 

20 public comment shall be sought and a final rule 

21 issued. 

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

23 provision of law, all proceeds resulting from the payment 

24 of the alien employment user fees shall be available with25 out further appropriation and shall remain available with-
105 

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1 out fiscal year limitation to reimburse the Secretary, the 

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

3 costs of carrying out sections 218 and 218B of the Immi4 gration and Nationality Act, as added by section 201 of 

5 this Act, and the provisions of this Act. 

6 SEC. 302. REGULATIONS. 

7 (a) REGULATIONS OF THE SECRETARY.—The Sec8 retary shall consult with the Secretary of Labor and the 

9 Secretary of Agriculture on all regulations to implement 

10 the duties of the Secretary under this Act. 

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

12 The Secretary of State shall consult with the Secretary, 

13 the Secretary of Labor, and the Secretary of Agriculture 

14 on all regulations to implement the duties of the Secretary 

15 of State under this Act. 

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

17 The Secretary of Labor shall consult with the Secretary 

18 of Agriculture and the Secretary on all regulations to im19 plement the duties of the Secretary of Labor under this 

20 Act. 

21 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 

22 All regulations to implement the duties of the Secretary, 

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

24 under sections 218, 218A, 218B, and 218C of the Immi25 gration and Nationality Act, as added by section 201, shall 
106 

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

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

3 of this Act. 

4 SEC. 303. EFFECTIVE DATE. 

5 (a) IN GENERAL.—Except as otherwise provided, sec6 tions 201 and 301 shall take effect 1 year after the date 

7 of enactment of this Act. 

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

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

10 submit to the appropriate committees of Congress a report 

11 that describes the measures being taken and the progress 

12 made in implementing this Act. 

Æ