I 

112TH CONGRESS 

1ST SESSION H. R. 2847 

To create a nonimmigrant H–2C work visa program for agricultural workers, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 7, 2011 

Mr. SMITH of Texas introduced the following bill; which was referred to the 

Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by 

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To create a nonimmigrant H–2C work visa program for 

agricultural workers, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘American Specialty 

5 Agriculture Act’’. 

6 SEC. 2. H–2C TEMPORARY AGRICULTURAL WORK VISA PRO7 GRAM. 

8 Section 101(a)(15)(H) of the Immigration and Na9 tionality Act (8 U.S.C. 1101(a)(15)(H)) is amended by 


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1 striking ‘‘; or (iii)’’ and inserting ‘‘, or (c) having a resi2 dence in a foreign country which he has no intention of 

3 abandoning who is coming temporarily to the United 

4 States to perform agricultural labor or services that are 

5 defined as agricultural labor in section 3121(g) of the In6 ternal Revenue Code of 1986, as agriculture in section 3(f) 

7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

8 203(f)), and the pressing of apples for cider on a farm; 

9 or (iii)’’. 

10 SEC. 3. ADMISSION OF TEMPORARY H–2C WORKERS. 

11 (a) PROCEDURE FOR ADMISSION.—Chapter 2 of title 

12 II of the Immigration and Nationality Act (8 U.S.C. 1181 

13 et seq.) is amended by inserting after section 218 the fol14 lowing: 

15 ‘‘SEC. 218A. ADMISSION OF TEMPORARY H–2C WORKERS. 

16 ‘‘(a) DEFINITIONS.—In this section: 

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

18 of employment’ means the area within normal com19 muting distance of the worksite or physical location 

20 where the work of the H–2C worker is or will be 

21 performed. If such work site or location is within a 

22 Metropolitan Statistical Area, any place within such 

23 area shall be considered to be within the area of em24 ployment. 


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1 ‘‘(2) DISPLACE.—The term ‘displace’ means to 

2 lay off a worker from a job that is essentially equiv3 alent to the job for which an H–2C worker is 

4 sought. A job shall not be considered to be ‘essen5 tially equivalent’ to another job unless the job— 

6 ‘‘(A) involves essentially the same respon7 sibilities as such other job; 

8 ‘‘(B) was held by a United States worker 

9 with substantially equivalent qualifications and 

10 experience; and 

11 ‘‘(C) is located in the same area of employ12 ment as the other job. 

13 ‘‘(3) ELIGIBLE INDIVIDUAL.—The term ‘eligible 

14 individual’ means an individual who is not an unau15 thorized alien (as defined in section 274A(h)(3)) 

16 with respect to the employment of the individual. 

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

18 an employer who hires workers to perform agricul19 tural employment. 

20 ‘‘(5) H–2C WORKER.—The term ‘H–2C worker’ 

21 means a nonimmigrant described in section 

22 101(a)(15)(H)(ii)(c). 

23 ‘‘(6) LAY OFF.— 

24 ‘‘(A) IN GENERAL.—The term ‘lay off’— 


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1 ‘‘(i) means to cause a worker’s loss of 

2 employment, other than through a dis3 charge for inadequate performance, viola4 tion of workplace rules, cause, voluntary 

5 departure, voluntary retirement, or the ex6 piration of a grant or contract (other than 

7 a temporary employment contract entered 

8 into in order to evade a condition described 

9 in paragraph (3) of subsection (b)); and 

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

11 which the worker is offered, as an alter12 native to such loss of employment, a simi13 lar employment opportunity with the same 

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

15 a worker with another employer under sub16 section (b)(7), with either employer de17 scribed in such subsection) at equivalent or 

18 higher compensation and benefits than the 

19 position from which the employee was dis20 charged, regardless of whether or not the 

21 employee accepts the offer. 

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

23 paragraph is intended to limit an employee’s 

24 rights under a collective bargaining agreement 

25 or other employment contract. 


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1 ‘‘(7) PREVAILING WAGE.—The term ‘prevailing 

2 wage’ means the wage rate paid to workers in the 

3 same occupation in the area of employment that is 

4 calculated using the same methodology used by the 

5 Department of Labor to determine prevailing wages 

6 for the purpose of the program described in section 

7 101(a)(15)(H)(ii)(b) on January 1, 2011, except 

8 that if the wage rate is determined by means of a 

9 governmental survey, the survey shall provide at 

10 least four levels of wages commensurate with factors 

11 such as experience, qualifications, and the level of 

12 supervision (except that where an existing govern13 ment survey has only 2 levels, 2 intermediate levels 

14 may be created by dividing by 3, the difference be15 tween the 2 levels offered, adding the quotient thus 

16 obtained to the first level and subtracting that 

17 quotient from the second level), and that if the wage 

18 rate is determined by a survey that provides at least 

19 four levels of wages commensurate with factors such 

20 as experience, qualifications and the level of super21 vision, the prevailing wage shall be equal to the first 

22 wage level. 

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

24 ‘United States worker’ means any worker who is— 


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1 ‘‘(A) a citizen or national of the United 

2 States; or 

3 ‘‘(B) an alien who is lawfully admitted for 

4 permanent residence, is admitted as a refugee 

5 under section 207, is granted asylum under sec6 tion 208, or is an immigrant otherwise author7 ized, by this Act or by the Secretary of Home8 land Security, to be employed. 

9 ‘‘(b) PETITION.—An employer, or an association act10 ing as an agent or joint employer for its members, that 

11 seeks the admission into the United States of an H–2C 

12 worker shall file with the Secretary of Agriculture a peti13 tion attesting to the following: 

14 ‘‘(1) TEMPORARY WORK OR SERVICES.— 

15 ‘‘(A) IN GENERAL.—The employer is seek16 ing to employ a specific number of agricultural 

17 workers on a temporary basis and will provide 

18 compensation to such workers at a specified 

19 wage rate. 

20 ‘‘(B) DEFINITION.—For purposes of this 

21 paragraph, a worker is employed on a tem22 porary basis if the employer intends to employ 

23 the worker for no longer than 10 months dur24 ing any contract period. 


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1 ‘‘(2) BENEFITS, WAGES, AND WORKING CONDI2 TIONS.—The employer will provide, at a minimum, 

3 the benefits, wages, and working conditions required 

4 by subsection (k) to all workers employed in the jobs 

5 for which the H–2C worker is sought and to all 

6 other temporary workers in the same occupation at 

7 the place of employment. 

8 ‘‘(3) NONDISPLACEMENT OF UNITED STATES

9 WORKERS.—The employer did not displace and will 

10 not displace a United States worker employed by the 

11 employer during the period of employment of the H– 

12 2C worker and during the 30-day period imme13 diately preceding such period of employment in the 

14 occupation at the place of employment for which the 

15 employer seeks approval to employ H–2C workers. 

16 ‘‘(4) RECRUITMENT.— 

17 ‘‘(A) IN GENERAL.—The employer— 

18 ‘‘(i) conducted adequate recruitment 

19 in the area of intended employment before 

20 filing the attestation; and 

21 ‘‘(ii) was unsuccessful in locating a 

22 qualified United States worker for the job 

23 opportunity for which the H–2C worker is 

24 sought. 


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1 ‘‘(B) OTHER REQUIREMENTS.—The re2 cruitment requirement under subparagraph (A) 

3 is satisfied if the employer places— 

4 ‘‘(i) a local job order with the State 

5 workforce agency serving the local area 

6 where the work will be performed, except 

7 that nothing in this clause shall require the 

8 employer to file an interstate job order 

9 under section 653 of title 20, Code of Fed10 eral Regulations; and 

11 ‘‘(ii) a Sunday advertisement in a 

12 newspaper of general circulation in the 

13 area of intended employment. 

14 ‘‘(C) ADVERTISEMENT REQUIREMENT.— 

15 The advertisement requirement under subpara16 graph (B)(ii) is satisfied if the advertisement— 

17 ‘‘(i) names the employer; 

18 ‘‘(ii) directs applicants to contact the 

19 employer or their representative; 

20 ‘‘(iii) provides a description of the va21 cancy that is specific enough to apprise 

22 United States workers of the job oppor23 tunity for which certification is sought; 

24 ‘‘(iv) describes the geographic area 

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1 cants of any travel requirements and where 

2 applicants will likely have to reside to per3 form the job; and 

4 ‘‘(v) states the rate of pay, which 

5 shall not be less than the wage as de6 scribed in subsection (k)(2)(A). 

7 ‘‘(D) END OF RECRUITMENT REQUIRE8 MENT.—The requirement to recruit United 

9 States workers shall terminate on the first day 

10 of the contract period that work begins. 

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

12 The employer has offered or will offer the job for 

13 which the H–2C worker is sought to any eligible 

14 United States worker who— 

15 ‘‘(A) applies; 

16 ‘‘(B) is qualified for the job; and 

17 ‘‘(C) will be available at the time and place 

18 of need. 

19 This requirement shall not apply to a United States 

20 worker who applies for the job on or after the first 

21 day of the contract period that work begins. 

22 ‘‘(6) PROVISION OF INSURANCE.—If the job for 

23 which the H–2C worker is sought is not covered by 

24 State workers’ compensation law, the employer will 

25 provide, at no cost to the worker unless State law 


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1 provides otherwise, insurance covering injury and 

2 disease arising out of, and in the course of, the 

3 worker’s employment, which will provide benefits at 

4 least equal to those provided under the State work5 ers’ compensation law for comparable employment. 

6 ‘‘(7) REQUIREMENTS FOR PLACEMENT OF H–2C

7 WORKERS WITH OTHER EMPLOYERS.—A non8 immigrant who is admitted into the United States as 

9 an H–2C worker may be transferred to another em10 ployer that has filed a petition under this subsection 

11 and is in compliance with this section. 

12 ‘‘(8) STRIKE OR LOCKOUT.—There is not a 

13 strike or lockout in the course of a labor dispute 

14 which, under regulations promulgated by the Sec15 retary of Agriculture, precludes the hiring of H–2C 

16 workers. 

17 ‘‘(9) HOUSING.—Except for H–2C workers who 

18 are reasonably able to return to their permanent res19 idence (either within or outside the United States) 

20 within the same day, the employer will provide hous21 ing to H–2C workers through one of the following 

22 means: 

23 ‘‘(A) Employer-owned housing in accord24 ance with regulations promulgated by the Sec25 retary of Agriculture. 


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1 ‘‘(B) Rental or public accommodations or 

2 other substantially similar class of habitation in 

3 accordance with regulations promulgated by the 

4 Secretary of Agriculture. 

5 ‘‘(C) Except where the Governor of the 

6 State has certified that there is inadequate 

7 housing available in the area of intended em8 ployment for migrant farm workers and H–2C 

9 workers seeking temporary housing while em10 ployed in agricultural work, the employer may 

11 furnish the worker with a housing voucher in 

12 accordance with regulations, if— 

13 ‘‘(i) the employer has verified that 

14 housing is available for the period during 

15 which the work is to be performed, within 

16 a reasonable commuting distance of the 

17 place of employment, for the amount of the 

18 voucher provided, and that the voucher is 

19 useable for that housing; 

20 ‘‘(ii) upon the request of a worker 

21 seeking assistance in locating housing for 

22 which the voucher will be accepted, the em23 ployer makes a good faith effort to assist 

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1 curing housing in the area of intended em2 ployment; and 

3 ‘‘(iii) payment for the housing is made 

4 with a housing voucher that is only re5 deemable by the housing owner or their 

6 agent. 

7 An employer who provides housing through one of 

8 the foregoing means shall not be deemed a housing 

9 provider under section 203 of the Migrant and Sea10 sonal Agricultural Worker Protection Act (29 U.S.C. 

11 1823) by virtue of providing such housing. 

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

13 has not, during the previous two-year period, em14 ployed H–2C workers and knowingly violated a ma15 terial term or condition of approval with respect to 

16 the employment of domestic or nonimmigrant work17 ers, as determined by the Secretary of Agriculture 

18 after notice and opportunity for a hearing. 

19 ‘‘(c) PUBLIC EXAMINATION.—Not later than 1 work20 ing day after the date on which a petition under this sec21 tion is filed, the employer shall make a copy of each such 

22 petition available for public examination, at the employer’s 

23 principal place of business or worksite. 

24 ‘‘(d) LIST.— 


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1 ‘‘(1) IN GENERAL.—The Secretary of Agri2 culture shall maintain a list of the petitions filed 

3 under subsection (b), which shall— 

4 ‘‘(A) be sorted by employer; and 

5 ‘‘(B) include the number of H–2C workers 

6 sought, the wage rate, the period of intended 

7 employment, and the date of need for each 

8 alien. 

9 ‘‘(2) AVAILABILITY.—The Secretary of Agri10 culture shall make the list available for public exam11 ination. 

12 ‘‘(e) PETITIONING FOR ADMISSION.— 

13 ‘‘(1) CONSIDERATION OF PETITIONS.—For peti14 tions filed and considered under subsection (b)— 

15 ‘‘(A) the Secretary of Agriculture may not 

16 require such petition to be filed more than 28 

17 calendar days before the first date the employer 

18 requires the labor or services of the H–2C 

19 worker; 

20 ‘‘(B) unless the Secretary of Agriculture 

21 determines that the petition is incomplete or ob22 viously inaccurate, the Secretary, not later than 

23 10 business days after the date on which such 

24 petition was filed, shall either approve or reject 

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1 tice of such action by means ensuring same or 

2 next day delivery; and 

3 ‘‘(C) if the Secretary determines that the 

4 petition is incomplete or obviously inaccurate, 

5 the Secretary shall— 

6 ‘‘(i) within 5 business days of receipt 

7 of the petition, notify the petitioner of the 

8 deficiencies to be corrected by means en9 suring same or next day delivery; and 

10 ‘‘(ii) within 10 business days of re11 ceipt of the corrected petition, approve or 

12 deny the petition and provide the petitioner 

13 with notice of such action by means ensur14 ing same or next day delivery. 

15 ‘‘(2) PETITION AGREEMENTS.—By filing an H– 

16 2C petition, a petitioner and each employer consents 

17 to allow access to the site where the labor is being 

18 performed to the Department of Agriculture or the 

19 Department of Homeland Security for the purpose 

20 of investigations to determine compliance with H–2C 

21 requirements and the immigration laws. Notwith22 standing any other provision of law, the Depart23 ments of Agriculture and Homeland Security cannot 

24 delegate their compliance functions to other agencies 

25 or Departments. 


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1 ‘‘(f) ROLES OF AGRICULTURAL ASSOCIATIONS.— 

2 ‘‘(1) PERMITTING FILING BY AGRICULTURAL

3 ASSOCIATIONS.—A petition under subsection (b) to 

4 hire an alien as a temporary agricultural worker 

5 may be filed by an association of agricultural em6 ployers which use agricultural services. 

7 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

8 EMPLOYERS.—If an association is a joint employer 

9 of temporary agricultural workers, such workers may 

10 be transferred among its members to perform agri11 cultural services of a temporary nature for which the 

12 petition was approved. 

13 ‘‘(3) TREATMENT OF VIOLATIONS.— 

14 ‘‘(A) INDIVIDUAL MEMBER.—If an indi15 vidual member of a joint employer association 

16 violates any condition for approval with respect 

17 to the member’s petition, the Secretary of Agri18 culture shall consider as an employer for pur19 poses of subsection (b)(10) and invoke penalties 

20 pursuant to subsection (i) against only that 

21 member of the association unless the Secretary 

22 of Agriculture determines that the association 

23 or other member participated in, had knowledge 

24 of, or had reason to know of the violation. 


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1 ‘‘(B) ASSOCIATION OF AGRICULTURAL EM2 PLOYERS.—If an association representing agri3 cultural employers as a joint employer violates 

4 any condition for approval with respect to the 

5 association’s petition, the Secretary of Agri6 culture shall consider as an employer for pur7 poses of subsection (b)(10) and invoke penalties 

8 pursuant to subsection (i) against only the as9 sociation and not any individual member of the 

10 association, unless the Secretary determines 

11 that the member participated in, had knowledge 

12 of, or had reason to know of the violation. 

13 ‘‘(g) EXPEDITED ADMINISTRATIVE APPEALS.—The 

14 Secretary of Agriculture shall promulgate regulations to 

15 provide for an expedited procedure— 

16 ‘‘(1) for the review of a denial of a petition 

17 under this section by the Secretary; or 

18 ‘‘(2) at the petitioner’s request, for a de novo 

19 administrative hearing at which new evidence may 

20 be introduced. 

21 ‘‘(h) MISCELLANEOUS PROVISIONS.— 

22 ‘‘(1) ENDORSEMENT OF DOCUMENTS.—The 

23 Secretary of Homeland Security shall provide for the 

24 endorsement of entry and exit documents of H–2C 

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1 tion and to provide notice for purposes of section 

2 274A. 

3 ‘‘(2) FEES.— 

4 ‘‘(A) IN GENERAL.—The Secretary of Ag5 riculture shall require, as a condition of approv6 ing the petition, the payment of a fee, in ac7 cordance with subparagraph (B), to recover the 

8 reasonable cost of processing petitions. 

9 ‘‘(B) FEE BY TYPE OF EMPLOYEE.— 

10 ‘‘(i) SINGLE EMPLOYER.—An em11 ployer whose petition for temporary alien 

12 agricultural workers is approved shall, for 

13 each approved petition, pay a fee that— 

14 ‘‘(I) subject to subclause (II), is 

15 equal to $100 plus $10 for each ap16 proved H–2C worker; and 

17 ‘‘(II) does not exceed $1,000. 

18 ‘‘(ii) ASSOCIATION.—Each employer19 member of a joint employer association 

20 whose petition for H–2C workers is ap21 proved shall, for each such approved peti22 tion, pay a fee that— 

23 ‘‘(I) subject to subclause (II), is 

24 equal to $100 plus $10 for each ap25 proved H–2C worker; and 


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1 ‘‘(II) does not exceed $1,000. 

2 ‘‘(iii) LIMITATION ON ASSOCIATION

3 FEES.—A joint employer association under 

4 clause (ii) shall not be charged a separate 

5 fee. 

6 ‘‘(C) METHOD OF PAYMENT.—The fees 

7 collected under this paragraph shall be paid by 

8 check or money order to the Department of Ag9 riculture. In the case of employers of H–2C 

10 workers that are members of a joint employer 

11 association petitioning on their behalf, the ag12 gregate fees for all employers of H–2C workers 

13 under the petition may be paid by 1 check or 

14 money order. 

15 ‘‘(i) ENFORCEMENT.— 

16 ‘‘(1) INVESTIGATIONS AND AUDITS.—The Sec17 retary of Agriculture shall be responsible for con18 ducting investigations and random audits of em19 ployer work sites to ensure compliance with the re20 quirements of the H–2C program. All monetary 

21 fines levied against violating employers shall be paid 

22 to the Department of Agriculture and used to en23 hance the Department of Agriculture’s investigatory 

24 and auditing power. 


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1 ‘‘(2) FAILURE TO MEET CONDITIONS.—If the 

2 Secretary of Agriculture finds, after notice and op3 portunity for a hearing, a failure to meet a condition 

4 of subsection (b), or a material misrepresentation of 

5 fact in a petition under subsection (b), the Sec6 retary— 

7 ‘‘(A) may impose such other administrative 

8 remedies (including civil money penalties in an 

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

10 the Secretary determines to be appropriate; and 

11 ‘‘(B) may disqualify the employer from the 

12 employment of H–2C workers for a period of 1 

13 year. 

14 ‘‘(3) PENALTIES FOR WILLFUL FAILURE.—If 

15 the Secretary of Agriculture finds, after notice and 

16 opportunity for a hearing, a willful failure to meet 

17 a material condition of subsection (b), or a willful 

18 misrepresentation of a material fact in a petition 

19 under subsection (b), the Secretary— 

20 ‘‘(A) may impose such other administrative 

21 remedies (including civil money penalties in an 

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

23 the Secretary determines to be appropriate; 


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1 ‘‘(B) may disqualify the employer from the 

2 employment of H–2C workers for a period of 2 

3 years; 

4 ‘‘(C) may, for a subsequent violation not 

5 arising out of the prior incident, disqualify the 

6 employer from the employment of H–2C work7 ers for a period of 5 years; and 

8 ‘‘(D) may, for a subsequent violation not 

9 arising out of the prior incident, permanently 

10 disqualify the employer from the employment of 

11 H–2C workers. 

12 ‘‘(4) PENALTIES FOR DISPLACEMENT OF

13 UNITED STATES WORKERS.—If the Secretary of Ag14 riculture finds, after notice and opportunity for a 

15 hearing, a willful failure to meet a material condition 

16 of subsection (b) or a willful misrepresentation of a 

17 material fact in a petition under subsection (b), in 

18 the course of which failure or misrepresentation the 

19 employer displaced a United States worker employed 

20 by the employer during the period of employment on 

21 the employer’s petition under subsection (b) or dur22 ing the period of 30 days preceding such period of 

23 employment, the Secretary— 

24 ‘‘(A) may impose such other administrative 

25 remedies (including civil money penalties in an 


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

2 the Secretary determines to be appropriate; 

3 ‘‘(B) may disqualify the employer from the 

4 employment of H–2C workers for a period of 5 

5 years; and 

6 ‘‘(C) may, for a second violation, perma7 nently disqualify the employer from the employ8 ment of H–2C workers. 

9 ‘‘(j) FAILURE TO PAY WAGES OR REQUIRED BENE10 FITS.— 

11 ‘‘(1) ASSESSMENT.—If the Secretary of Agri12 culture finds, after notice and opportunity for a 

13 hearing, that the employer has failed to pay the 

14 wages, transportation, subsistence reimbursement, or 

15 guarantee of employment attested by the employer 

16 under subsection (b)(2), the Secretary shall assess 

17 payment of back wages, or such other required bene18 fits, due any United States worker or H–2C worker 

19 employed by the employer in the specific employment 

20 in question. 

21 ‘‘(2) AMOUNT.—The back wages or other re22 quired benefits described in paragraph (1)— 

23 ‘‘(A) shall be equal to the difference be24 tween the amount that should have been paid 


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1 and the amount that was paid to such worker; 

2 and 

3 ‘‘(B) shall be distributed to the worker to 

4 whom such wages are due. 

5 ‘‘(k) MINIMUM WAGES, BENEFITS, AND WORKING

6 CONDITIONS.— 

7 ‘‘(1) PREFERENTIAL TREATMENT OF ALIENS

8 PROHIBITED.— 

9 ‘‘(A) IN GENERAL.—Each employer seek10 ing to hire United States workers shall offer 

11 such workers not less than the same benefits, 

12 wages, and working conditions that the em13 ployer is offering, intends to offer, or will pro14 vide to H–2C workers. No job offer may impose 

15 on United States workers any restrictions or 

16 obligations which will not be imposed on the 

17 employer’s H–2C workers. 

18 ‘‘(B) INTERPRETATION.—Every interpreta19 tion and determination made under this section 

20 or under any other law, regulation, or interpre21 tative provision regarding the nature, scope, 

22 and timing of the provision of these and any 

23 other benefits, wages, and other terms and con24 ditions of employment shall be made so that— 


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1 ‘‘(i) the services of workers to their 

2 employers and the employment opportuni3 ties afforded to workers by the employers, 

4 including those employment opportunities 

5 that require United States workers or H– 

6 2C workers to travel or relocate in order to 

7 accept or perform employment— 

8 ‘‘(I) mutually benefit such work9 ers, as well as their families, and em10 ployers; and 

11 ‘‘(II) principally benefit neither 

12 employer nor employee; and 

13 ‘‘(ii) employment opportunities within 

14 the United States benefit the United 

15 States economy. 

16 ‘‘(2) REQUIRED WAGES.— 

17 ‘‘(A) IN GENERAL.—Each employer peti18 tioning for workers under subsection (b) shall 

19 pay not less than the greater of— 

20 ‘‘(i) the prevailing wage; or 

21 ‘‘(ii) the applicable Federal, State, or 

22 local minimum wage, whichever is greatest. 

23 ‘‘(B) SPECIAL RULE.—An employer can 

24 utilize a piece rate or other alternative wage 

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1 antees each worker a wage rate that equals or 

2 exceeds the amount required under subpara3 graph (A). 

4 ‘‘(3) REIMBURSEMENT OF TRANSPORTATION

5 COSTS.— 

6 ‘‘(A) REQUIREMENT FOR REIMBURSE7 MENT.— 

8 ‘‘(i) IN GENERAL.—Except for H–2C 

9 workers who are reasonably able to return 

10 to their permanent residence (either within 

11 or outside the United States) within the 

12 same day, an H–2C worker who completes 

13 50 percent of the period of employment of 

14 the job for which the worker was hired, be15 ginning on the first day of such employ16 ment, shall be reimbursed by the employer 

17 for the cost of the worker’s transportation 

18 and subsistence from— 

19 ‘‘(I) the place from which the H– 

20 2C worker was approved to enter the 

21 United States to the location at which 

22 the work for the employer is per23 formed; or 

24 ‘‘(II) if the H–2C worker trav25 eled from a place in the United States 


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1 at which the H–2C worker was last 

2 employed, from such place of last em3 ployment to the location at which the 

4 work for the employer is performed. 

5 ‘‘(ii) CONSTRUCTION.—Notwith6 standing the Fair Labor Standards Act of 

7 1938 (29 U.S.C. 201 et seq.), the employer 

8 need not reimburse the cost of the H–2C 

9 worker’s transportation and subsistence 

10 unless the worker has completed 50 per11 cent of the period of employment of the job 

12 for which the workers was hired. 

13 ‘‘(B) TIMING OF REIMBURSEMENT.—Reim14 bursement to the worker of expenses for the 

15 cost of the worker’s transportation and subsist16 ence to the place of employment under subpara17 graph (A) shall be considered timely if such re18 imbursement is made not later than the work19 er’s first regular payday after a worker com20 pletes 50 percent of the period of employment 

21 of the job opportunity as provided under this 

22 paragraph. 

23 ‘‘(C) ADDITIONAL REIMBURSEMENT.—Ex24 cept for H–2C workers who are reasonably able 

25 to return to their permanent residence (either 


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1 within or outside the United States) within the 

2 same day, an H–2C worker who completes the 

3 period of employment for the job opportunity 

4 involved shall be reimbursed by the employer 

5 for the cost of the worker’s transportation and 

6 subsistence from the work site to the place 

7 where the worker was approved to enter the 

8 United States to work for the employer. If the 

9 worker has contracted with a subsequent em10 ployer, the previous and subsequent employer 

11 shall share the cost of the worker’s transpor12 tation and subsistence from work site to work 

13 site. 

14 ‘‘(D) LIMITATION.— 

15 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

16 The amount of reimbursement provided to 

17 a worker or alien under this paragraph 

18 shall be equal to the lesser of— 

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

20 or alien of the transportation and sub21 sistence involved; or 

22 ‘‘(II) the most economical and 

23 reasonable common carrier transpor24 tation charges and subsistence costs 

25 for the distance involved. 


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1 ‘‘(ii) DISTANCE TRAVELED.—No reim2 bursement under subparagraph (A) or (B) 

3 shall be required if the distance traveled is 

4 100 miles or less. 

5 ‘‘(E) REIMBURSEMENT FOR LAID OFF

6 WORKERS.—If the worker is laid off or employ7 ment is terminated for contract impossibility 

8 (as described in paragraph (5)(D)) before the 

9 anticipated ending date of employment, the em10 ployer shall provide— 

11 ‘‘(i) the transportation and subsist12 ence reimbursement required under sub13 paragraph (C); and 

14 ‘‘(ii) notwithstanding whether the 

15 worker has completed 50 percent of the pe16 riod of employment, the transportation and 

17 subsistence reimbursement required under 

18 subparagraph (A). 

19 ‘‘(F) CONSTRUCTION.—Notwithstanding 

20 the Fair Labor Standards Act of 1938 (29 

21 U.S.C. 201 et seq.), the employer is not re22 quired to reimburse visa, passport, consular, or 

23 international border crossing fees or any other 

24 fees associated with the H–2C worker’s lawful 

25 admission into the United States to perform 


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1 employment that may be incurred by the work2 er. 

3 ‘‘(4) EMPLOYMENT GUARANTEE.— 

4 ‘‘(A) IN GENERAL.— 

5 ‘‘(i) REQUIREMENT.—Each employer 

6 petitioning for workers under subsection 

7 (b) shall guarantee to offer the worker em8 ployment for the hourly equivalent of not 

9 less than 50 percent of the work hours 

10 during the total anticipated period of em11 ployment, beginning with the first work 

12 day after the arrival of the worker at the 

13 place of employment and ending on the ex14 piration date specified in the job offer. 

15 ‘‘(ii) FAILURE TO MEET GUAR16 ANTEE.—If the employer affords the 

17 United States worker or the H–2C worker 

18 less employment than that required under 

19 this subparagraph, the employer shall pay 

20 such worker the amount which the worker 

21 would have earned if the worker had 

22 worked for the guaranteed number of 

23 hours. 

24 ‘‘(iii) PERIOD OF EMPLOYMENT.—For 

25 purposes of this subparagraph, the term 


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1 ‘period of employment’ means the total 

2 number of anticipated work hours and 

3 workdays described in the job offer and 

4 shall exclude the worker’s Sabbath and 

5 Federal holidays. 

6 ‘‘(B) CALCULATION OF HOURS.—Any 

7 hours which the worker fails to work, up to a 

8 maximum of the number of hours specified in 

9 the job offer for a work day, when the worker 

10 has been offered an opportunity to do so, and 

11 all hours of work actually performed (including 

12 voluntary work in excess of the number of 

13 hours specified in the job offer in a work day, 

14 on the worker’s Sabbath, or on Federal holi15 days) may be counted by the employer in calcu16 lating whether the period of guaranteed employ17 ment has been met. 

18 ‘‘(C) LIMITATION.—If the worker volun19 tarily abandons employment before the end of 

20 the contract period, or is terminated for cause, 

21 the worker is not entitled to the 50 percent 

22 guarantee described in subparagraph (A). 

23 ‘‘(D) TERMINATION OF EMPLOYMENT.— 

24 ‘‘(i) IN GENERAL.—If, before the expi25 ration of the period of employment speciVerDate Mar 15 2010 05:10 Sep 08, 2011 Jkt 099200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H2847.IH H2847

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1 fied in the job offer, the services of the 

2 worker are no longer required due to any 

3 form of natural disaster, including flood, 

4 hurricane, freeze, earthquake, fire, 

5 drought, plant or animal disease, pest in6 festation, regulatory action, or any other 

7 reason beyond the control of the employer 

8 before the employment guarantee in sub9 paragraph (A) is fulfilled, the employer 

10 may terminate the worker’s employment. 

11 ‘‘(ii) REQUIREMENTS.—If a worker’s 

12 employment is terminated under clause (i), 

13 the employer shall— 

14 ‘‘(I) fulfill the employment guar15 antee in subparagraph (A) for the 

16 work days that have elapsed during 

17 the period beginning on the first work 

18 day after the arrival of the worker 

19 and ending on the date on which such 

20 employment is terminated; 

21 ‘‘(II) make efforts to transfer the 

22 United States worker to other com23 parable employment acceptable to the 

24 worker; and 


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1 ‘‘(III) not later than 24 hours 

2 after termination, notify (or have an 

3 association acting as an agent for the 

4 employer notify) the Secretary of 

5 Homeland Security of such termi6 nation. 

7 ‘‘(l) PERIOD OF ADMISSION.— 

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

9 admitted for a period of employment, not to exceed 

10 10 months, that includes— 

11 ‘‘(A) a period of not more than 7 days 

12 prior to the beginning of the period of employ13 ment for the purpose of travel to the work site; 

14 and 

15 ‘‘(B) a period of not more than 14 days 

16 following the period of employment for the pur17 pose of departure or extension based on a sub18 sequent offer of employment. 

19 ‘‘(2) EMPLOYMENT LIMITATION.—An alien may 

20 not be employed during the 14-day period described 

21 in paragraph (1)(B) except in the employment for 

22 which the alien is otherwise authorized. 

23 ‘‘(m) ABANDONMENT OF EMPLOYMENT.— 

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


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1 abandons the employment which was the basis for 

2 such admission or status— 

3 ‘‘(A) shall have failed to maintain non4 immigrant status as an H–2C worker; and 

5 ‘‘(B) shall depart the United States or be 

6 subject to removal under section 

7 237(a)(1)(C)(i). 

8 ‘‘(2) REPORT BY EMPLOYER.—Not later than 

9 24 hours after an employer learns of the abandon10 ment of employment by an H–2C worker, the em11 ployer or association acting as an agent for the em12 ployer, shall notify the Secretary of Homeland Secu13 rity of such abandonment. 

14 ‘‘(3) REMOVAL.—The Secretary of Homeland 

15 Security shall promptly remove from the United 

16 States any H–2C worker who violates any term or 

17 condition of the worker’s nonimmigrant status. 

18 ‘‘(4) VOLUNTARY TERMINATION.—Notwith19 standing paragraph (1), an alien may voluntarily 

20 terminate the alien’s employment if the alien 

21 promptly departs the United States upon termi22 nation of such employment. 

23 ‘‘(n) REPLACEMENT OF ALIEN.—An employer may 

24 designate an eligible alien to replace an H–2C worker who 


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1 abandons employment notwithstanding the numerical limi2 tation found in section 214(g)(1)(C). 

3 ‘‘(o) EXTENSION OF STAY OF H–2C WORKERS IN

4 THE UNITED STATES.— 

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

6 seeks approval to employ an H–2C worker who is 

7 lawfully present in the United States, the petition 

8 filed by the employer or an association pursuant to 

9 subsection (b) shall request an extension of the 

10 alien’s stay and, if applicable, a change in the alien’s 

11 employment. 

12 ‘‘(2) WORK AUTHORIZATION UPON FILING PE13 TITION FOR EXTENSION OF STAY.— 

14 ‘‘(A) IN GENERAL.—An alien who is law15 fully present in the United States on the date 

16 of the filing of a petition to extend the stay of 

17 the alien may commence or continue the em18 ployment described in a petition under para19 graph (1) until and unless the petition is de20 nied. The employer shall provide a copy of the 

21 employer’s petition for extension of stay to the 

22 alien. The alien shall keep the petition with the 

23 alien’s identification and employment eligibility 

24 document, as evidence that the petition has 


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1 been filed and that the alien is authorized to 

2 work in the United States. 

3 ‘‘(B) EMPLOYMENT ELIGIBILITY DOCU4 MENT.—Upon approval of a petition for an ex5 tension of stay or change in the alien’s author6 ized employment, the Secretary of Homeland 

7 Security shall provide a new or updated employ8 ment eligibility document to the alien indicating 

9 the new validity date, after which the alien is 

10 not required to retain a copy of the petition. 

11 ‘‘(C) FILE DEFINED.—In this paragraph, 

12 the term ‘file’ means sending the petition by 

13 certified mail via the United States Postal Serv14 ice, return receipt requested, or delivering by 

15 guaranteed commercial delivery which will pro16 vide the employer with a documented acknowl17 edgment of the date of receipt of the petition 

18 for an extension of stay. 

19 ‘‘(3) LIMITATION ON AN INDIVIDUAL’S STAY IN

20 STATUS.— 

21 ‘‘(A) MAXIMUM PERIOD.—The maximum 

22 continuous period of authorized status as an 

23 H–2C worker (including any extensions) is 10 

24 months. 


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1 ‘‘(B) REQUIREMENT TO REMAINS OUTSIDE

2 THE UNITED STATES.—In the case of an alien 

3 outside the United States whose period of au4 thorized status as an H–2C worker (including 

5 any extensions) has expired, the alien may not 

6 again apply for admission to the United States 

7 as an H–2C worker unless the alien has re8 mained outside the United States for a continuous period equal to at least 1 9 ⁄5 the duration of 

10 the alien’s previous period of authorized status 

11 as an H–2C worker (including any exten12 sions).’’. 

13 (b) PROHIBITION ON FAMILY MEMBERS.—Section 

14 101(a)(15)(H) of the Immigration and Nationality Act (8 

15 U.S.C. 1101(a)(15)(H)) is amended by striking ‘‘him;’’ at 

16 the end and inserting ‘‘him, except that no spouse or child 

17 may be admitted under clause (ii)(c);’’. 

18 (c) NUMERICAL CAP.—Section 214(g)(1) of the Im19 migration and Nationality Act (8 U.S.C. 1184(g)(1)) is 

20 amended— 

21 (1) in subparagraph (A), by striking ‘‘or’’ at 

22 the end; 

23 (2) in subparagraph (B), by striking the period 

24 at the end and inserting ‘‘; or’’; and 

25 (3) by adding at the end the following: 


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1 ‘‘(C) under section 1101(a)(15)(H)(ii)(c) 

2 may not exceed 500,000.’’. 

3 (d) CLERICAL AMENDMENT.—The table of contents 

4 for the Immigration and Nationality Act (8 U.S.C. 1101 

5 et seq.) is amended by inserting after the item relating 

6 to section 218 the following: 

‘‘Sec. 218A. Admission of temporary H–2C workers.’’. 

7 SEC. 4. LEGAL ASSISTANCE. 

8 (a) IN GENERAL.—A nonimmigrant worker admitted 

9 to or permitted to remain in the United States under sec10 tion 101(a)(15)(H)(ii)(c) of the Immigration and Nation11 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) for agricultural 

12 labor or service shall be considered to be an alien described 

13 in section 101(a)(20) of such Act (8 U.S.C. 1101(a)(20)) 

14 for purposes of establishing eligibility for legal assistance 

15 under the Legal Services Corporation Act (42 U.S.C. 2996 

16 et seq.), but only with respect to legal assistance on mat17 ters relating to wages, housing, transportation, and other 

18 employment rights as provided in the job offer under 

19 which the nonimmigrant was admitted. The Legal Services 

20 Corporation may not provide legal assistance for or on be21 half of any such alien, and may not provide financial as22 sistance to any person or entity that provides legal assist23 ance for or on behalf of such alien, unless the alien is 

24 present in the United States at the time the legal assist25 ance is provided. 


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1 (b) MEDIATION.—An H–2C worker may not bring a 

2 civil action for damages against their employer, nor may 

3 the Legal Services Corporation or any other attorney or 

4 individual bring a civil action for damages on behalf of 

5 an H–2C worker, unless at least 90 days prior to bringing 

6 the action a request has been made to the Federal Medi7 ation and Conciliation Service to assist the parties in 

8 reaching a satisfactory resolution of all issues involving 

9 all parties to the dispute and mediation has been at10 tempted. 

11 (c) CONDITION FOR ENTRY ONTO PROPERTY FOR

12 LEGAL SERVICES CORPORATION REPRESENTATION.—No 

13 employer of a nonimmigrant having status under section 

14 101(a)(15)(H)(ii)(c) of the Immigration and Nationality 

15 Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) shall be required to 

16 permit any recipient of a grant or contract under section 

17 1007 of the Legal Services Corporation Act (42 U.S.C. 

18 2996f), or any employee of such a recipient, to enter upon 

19 the employer’s property, unless such recipient or employee 

20 has a pre-arranged appointment with a specific non21 immigrant having such status. 

22 SEC. 5. MIGRANT AND SEASONAL AGRICULTURAL WORKER 

23 PROTECTION. 

24 Section 3(8)(B)(ii) of the Migrant and Seasonal Agri25 cultural Worker Protection Act (29 U.S.C. 


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1 1802(8)(B)(ii)) is amended by striking ‘‘under sections 

2 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and 

3 Nationality Act.’’ and inserting ‘‘under subclauses (a) and 

4 (c) of section 101(a)(15)(H)(ii), and section 214(c), of the 

5 Immigration and Nationality Act.’’. 

6 SEC. 6. ARBITRATION AND MEDIATION. 

7 (a) APPLICABILITY.—Any H–2C worker may, as a 

8 condition of employment with an employer, be subject to 

9 mandatory binding arbitration and mediation of any griev10 ance relating to the employment relationship. An employer 

11 shall provide any such worker with notice of such condi12 tion of employment at the time the job offer is made. 

13 (b) ALLOCATION OF COSTS.—Any cost associated 

14 with such arbitration and mediation process shall be 

15 equally divided between the employer and the H–2C work16 er, except that each party shall be responsible for the cost 

17 of its own counsel, if any. 

18 (c) DEFINITIONS.—As used in this section: 

19 (1) The term ‘‘condition of employment’’ means 

20 a term, condition, obligation, or requirement that is 

21 part of the job offer, such as the term of employ22 ment, the job responsibilities, the employee conduct 

23 standards, and the grievance resolution process, and 

24 to which an applicant or prospective H–2C worker 


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1 must consent or accept in order to be hired for the 

2 position. 

3 (2) The term ‘‘H–2C worker’’ means a non4 immigrant described in section 101(a)(15)(H)(ii)(c) 

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

6 1101(a)(15)(ii)(c)). 

7 SEC. 7. EFFECTIVE DATE; SUNSET; REGULATIONS. 

8 (a) EFFECTIVE DATE.—The amendments made by 

9 this Act shall take effect on the date that is 2 years after 

10 the date of the enactment of this Act, and the Secretary 

11 of Agriculture shall accept petitions to import an alien 

12 under sections 101(a)(15)(H)(ii)(c) and 218A of the Im13 migration and Nationality Act (as added by sections 2 and 

14 3 of this Act) beginning on such date. 

15 (b) SUNSET.—Beginning on the date that is 2 years 

16 after the date of the enactment of this Act, no new petition 

17 to import an alien under sections 101(a)(15)(H)(ii)(a) and 

18 218 of the Immigration and Nationality Act (8 U.S.C. 

19 1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall be accepted. 

20 The Department of Labor H–2A program regulations 

21 published at 73 Fed. Reg. 77110 et seq. (2008) shall be 

22 in force for all petitions approved under such sections be23 ginning on the date of the enactment of this Act. 

24 (c) REGULATIONS.—Not later than 18 months after 

25 the date of the enactment of this Act, the Secretary of 


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1 Agriculture shall promulgate regulations, in accordance 

2 with the notice and comment provisions of section 553 of 

3 title 5, United States Code, to implement the Secretary’s 

4 duties under this Act. 

Æ 


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