AG Act

To create a nonimmigrant H–2C work visa program for agricultural workers, and for other purposes. 1. Short title This Act may be cited as— (1) the Agricultural Guestworker Act (2) the AG Act 2. H–2C temporary agricultural work visa program (a) In general Section 101(a)(15)(H) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H) ; or (iii) , or (c) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services; or (iii) (b) Definition Section 101(a) of such Act ( 8 U.S.C. 1101(a) (53) The term agricultural labor or services section 3121(g) 29 U.S.C. 203(f) . 3. Admission of temporary H–2C workers (a) Procedure for admission Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1181 et seq. 218A. Admission of temporary H–2C workers (a) Definitions In this section and section 218B: (1) Area of employment The term area of employment (2) Displace The term displace essentially equivalent (A) involves essentially the same responsibilities as such other job; (B) was held by a United States worker with substantially equivalent qualifications and experience; and (C) is located in the same area of employment as the other job. (3) Eligible individual The term eligible individual (4) Employer The term employer (5) H–2C worker The term H–2C worker (6) Lay off (A) In general The term lay off (i) means to cause a worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in paragraph (3) of subsection (b)); and (ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under subsection (b)(7), with either employer described in such subsection) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer. (B) Construction Nothing in this paragraph is intended to limit an employee’s rights under a collective bargaining agreement or other employment contract. (7) Prevailing wage The term prevailing wage (8) United States worker The term United States worker (A) a citizen or national of the United States; or (B) an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized, by this Act or by the Secretary of Homeland Security, to be employed. (b) Petition An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H–2C worker shall file with the Secretary of Agriculture a petition attesting to the following: (1) Temporary work or services (A) In general The employer is seeking to employ a specific number of agricultural workers on a temporary basis and will provide compensation to such workers at a specified wage rate. (B) Definition For purposes of this paragraph, a worker is employed on a temporary basis if the employer intends to employ the worker for no longer than 18 months (except for sheepherders) during any contract period. (2) Benefits, wages, and working conditions The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (k) to all workers employed in the jobs for which the H–2C worker is sought and to all other temporary workers in the same occupation at the place of employment. (3) Nondisplacement of united states workers The employer did not displace and will not displace a United States worker employed by the employer during the period of employment of the H–2C worker and during the 30-day period immediately preceding such period of employment in the occupation at the place of employment for which the employer seeks approval to employ H–2C workers. (4) Recruitment (A) In general The employer— (i) conducted adequate recruitment in the area of intended employment before filing the attestation; and (ii) was unsuccessful in locating a qualified United States worker for the job opportunity for which the H–2C worker is sought. (B) Other requirements The recruitment requirement under subparagraph (A) is satisfied if the employer places a local job order with the State workforce agency serving the local area where the work will be performed, except that nothing in this subparagraph shall require the employer to file an interstate job order under section 653 29 U.S.C. 49l–2 (C) End of recruitment requirement The requirement to recruit United States workers shall terminate on the first day that work begins for the H–2C worker. (5) Offers to United States workers The employer has offered or will offer the job for which the H–2C worker is sought to any eligible United States worker who— (A) applies; (B) is qualified for the job; and (C) will be available at the time and place of need. This requirement shall not apply to a United States worker who applies for the job on or after the first day that work begins for the H–2C worker. (6) Provision of insurance If the job for which the H–2C worker is sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the worker unless State law provides otherwise, insurance covering injury and disease arising out of, and in the course of, the worker’s employment, which will provide benefits at least equal to those provided under the State workers compensation law for comparable employment. (7) Requirements for placement of H–2C workers with other employers A nonimmigrant who is admitted into the United States as an H–2C worker may be transferred to another employer that has filed a petition under this subsection and is in compliance with this section. (8) Strike or lockout There is not a strike or lockout in the course of a labor dispute which, under regulations promulgated by the Secretary of Agriculture, precludes the hiring of H–2C workers. (9) Previous violations The employer has not, during the previous two-year period, employed H–2C workers and knowingly violated a material term or condition of approval with respect to the employment of domestic or nonimmigrant workers, as determined by the Secretary of Agriculture after notice and opportunity for a hearing. (c) Public examination Not later than 1 working day after the date on which a petition under this section is filed, the employer shall make a copy of each such petition available for public examination, at the employer’s principal place of business or worksite. (d) List (1) In general The Secretary of Agriculture shall maintain a list of the petitions filed under subsection (b), which shall— (A) be sorted by employer; and (B) include the number of H–2C workers sought, the wage rate, the period of intended employment, and the date of need for each alien. (2) Availability The Secretary of Agriculture shall make the list available for public examination. (e) Petitioning for admission (1) Consideration of petitions For petitions filed and considered under subsection (b)— (A) the Secretary of Agriculture may not require such petition to be filed more than 28 calendar days before the first date the employer requires the labor or services of the H–2C worker; (B) unless the Secretary of Agriculture determines that the petition is incomplete or obviously inaccurate, the Secretary, not later than 10 business days after the date on which such petition was filed, shall either approve or reject the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery; and (C) if the Secretary determines that the petition is incomplete or obviously inaccurate, the Secretary shall— (i) within 5 business days of receipt of the petition, notify the petitioner of the deficiencies to be corrected by means ensuring same or next day delivery; and (ii) within 10 business days of receipt of the corrected petition, approve or deny the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery. (2) Petition agreements By filing an H–2C petition, a petitioner and each employer consents to allow access to the site where the labor is being performed to the Department of Agriculture and the Department of Homeland Security for the purpose of investigations to determine compliance with H–2C requirements and the immigration laws. Notwithstanding any other provision of law, the Departments of Agriculture and Homeland Security cannot delegate their compliance functions to other agencies or Departments. (f) Roles of agricultural associations (1) Permitting filing by agricultural associations A petition under subsection (b) to hire an alien as a temporary agricultural worker may be filed by an association of agricultural employers which use agricultural services. (2) Treatment of associations acting as employers If an association is a joint employer of temporary agricultural workers, such workers may be transferred among its members to perform agricultural services of a temporary nature for which the petition was approved. (3) Treatment of violations (A) Individual member If an individual member of a joint employer association violates any condition for approval with respect to the member’s petition, the Secretary of Agriculture shall consider as an employer for purposes of subsection (b)(9) and invoke penalties pursuant to subsection (i) against only that member of the association unless the Secretary of Agriculture determines that the association or other member participated in, had knowledge of, or had reason to know of the violation. (B) Association of agricultural employers If an association representing agricultural employers as a joint employer violates any condition for approval with respect to the association’s petition, the Secretary of Agriculture shall consider as an employer for purposes of subsection (b)(9) and invoke penalties pursuant to subsection (i) against only the association and not any individual member of the association, unless the Secretary determines that the member participated in, had knowledge of, or had reason to know of the violation. (g) Expedited administrative appeals The Secretary of Agriculture shall promulgate regulations to provide for an expedited procedure— (1) for the review of a denial of a petition under this section by the Secretary; or (2) at the petitioner’s request, for a de novo administrative hearing at which new evidence may be introduced. (h) Miscellaneous provisions (1) Endorsement of documents The Secretary of Homeland Security shall provide for the endorsement of entry and exit documents of H–2C workers as may be necessary to carry out this section and to provide notice for purposes of section 274A. (2) Fees (A) In general The Secretary of Agriculture shall require, as a condition of approving the petition, the payment of a fee, in accordance with subparagraph (B), to recover the reasonable cost of processing petitions filed by employers or associations of employers seeking H–2C workers for jobs of a temporary or seasonal nature, but may not require the payment of such fees to recover the costs of processing petitions filed by employers or associations of employers seeking H–2C workers for jobs not of a temporary or seasonal nature. (B) Fee by type of employee (i) Single employer An employer whose petition for temporary alien agricultural workers is approved shall, for each approved petition, pay a fee that— (I) subject to subclause (II), is equal to $100 plus $10 for each approved H–2C worker; and (II) does not exceed $1,000. (ii) Association Each employer-member of a joint employer association whose petition for H–2C workers is approved shall, for each such approved petition, pay a fee that— (I) subject to subclause (II), is equal to $100 plus $10 for each approved H–2C worker; and (II) does not exceed $1,000. (iii) Limitation on association fees A joint employer association under clause (ii) shall not be charged a separate fee. (C) Method of payment The fees collected under this paragraph shall be paid by check or money order to the Department of Agriculture. In the case of employers of H–2C workers that are members of a joint employer association petitioning on their behalf, the aggregate fees for all employers of H–2C workers under the petition may be paid by 1 check or money order. (i) Enforcement (1) Investigations and audits The Secretary of Agriculture shall be responsible for conducting investigations and random audits of employers to ensure compliance with the requirements of the H–2C program. All monetary fines levied against violating employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigatory and auditing power. (2) Failure to meet conditions If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a failure to meet a condition of subsection (b), or a material misrepresentation of fact in a petition under subsection (b), the Secretary— (A) may impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate; and (B) may disqualify the employer from the employment of H–2C workers for a period of 1 year. (3) Penalties for willful failure If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (b), or a willful misrepresentation of a material fact in a petition under subsection (b), the Secretary— (A) may impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary determines to be appropriate; (B) may disqualify the employer from the employment of H–2C workers for a period of 2 years; (C) may, for a subsequent violation not arising out of the prior incident, disqualify the employer from the employment of H–2C workers for a period of 5 years; and (D) may, for a subsequent violation not arising out of the prior incident, permanently disqualify the employer from the employment of H–2C workers. (4) Penalties for displacement of United States workers If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (b) or a willful misrepresentation of a material fact in a petition under subsection (b), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment of the H–2C worker or during the 30-day period preceding such period of employment, the Secretary— (A) may impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary determines to be appropriate; (B) may disqualify the employer from the employment of H–2C workers for a period of 5 years; and (C) may, for a second violation, permanently disqualify the employer from the employment of H–2C workers. (j) Failure To pay wages or required benefits (1) Assessment If the Secretary of Agriculture finds, after notice and opportunity for a hearing, that the employer has failed to provide the benefits, wages, and working conditions attested by the employer under subsection (b), the Secretary shall assess payment of back wages, or such other required benefits, due any United States worker or H–2C worker employed by the employer in the specific employment in question. (2) Amount The back wages or other required benefits described in paragraph (1)— (A) shall be equal to the difference between the amount that should have been paid and the amount that was paid to such worker; and (B) shall be distributed to the worker to whom such wages or benefits are due. (k) Minimum wages, benefits, and working conditions (1) Preferential treatment of aliens prohibited (A) In general Each employer seeking to hire United States workers shall offer such workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H–2C workers. No job offer may impose on United States workers any restrictions or obligations which will not be imposed on the employer’s H–2C workers. (B) Interpretation Every interpretation and determination made under this section or under any other law, regulation, or interpretative provision regarding the nature, scope, and timing of the provision of these and any other benefits, wages, and other terms and conditions of employment shall be made so that— (i) the services of workers to their employers and the employment opportunities afforded to workers by the employers, including those employment opportunities that require United States workers or H–2C workers to travel or relocate in order to accept or perform employment— (I) mutually benefit such workers, as well as their families, and employers; and (II) principally benefit neither employer nor employee; and (ii) employment opportunities within the United States benefit the United States economy. (2) Required wages (A) In general Each employer petitioning for workers under subsection (b) shall pay not less than the greater of— (i) the prevailing wage level for the occupational classification in the area of employment; or (ii) the applicable Federal, State, or local minimum wage, whichever is greatest. (B) Special rule An employer can utilize a piece rate or other alternative wage payment system as long as the employer guarantees each worker a wage rate that equals or exceeds the amount required under subparagraph (A). (3) Employment guarantee (A) In general (i) Requirement Each employer petitioning for workers under subsection (b) shall guarantee to offer the worker employment for the hourly equivalent of not less than 50 percent of the work hours during the total anticipated period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. (ii) Failure to meet guarantee If the employer affords the United States worker or the H–2C worker less employment than that required under this subparagraph, the employer shall pay such worker the amount which the worker would have earned if the worker had worked for the guaranteed number of hours. (iii) Period of employment For purposes of this subparagraph, the term period of employment (B) Calculation of hours Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker’s Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met. (C) Limitation If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the worker is not entitled to the 50 percent guarantee described in subparagraph (A). (D) Termination of employment (i) In general If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required due to any form of natural disaster, including flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease, pest infestation, regulatory action, or any other reason beyond the control of the employer before the employment guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker’s employment. (ii) Requirements If a worker’s employment is terminated under clause (i), the employer shall— (I) fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed during the period beginning on the first work day after the arrival of the worker and ending on the date on which such employment is terminated; (II) make efforts to transfer the United States worker to other comparable employment acceptable to the worker; and (III) not later than 24 hours after termination, notify (or have an association acting as an agent for the employer notify) the Secretary of Homeland Security of such termination. (l) Period of Admission (1) In general An H–2C worker shall be admitted for a period of employment, not to exceed 18 months (or 36 months as provided in subsection (o)(3)(A) for a worker employed in a job that is not of a temporary or seasonal nature), and except for sheepherders, that includes— (A) a period of not more than 7 days prior to the beginning of the period of employment for the purpose of travel to the work site; and (B) a period of not more than 14 days following the period of employment for the purpose of departure or a period of not more than 30 days following the period of employment for the purpose of seeking a subsequent offer of employment by an employer pursuant to a petition under this section (or pursuant to at-will employment pursuant to section 218B during such time as that section is in effect). An H–2C worker who does not depart within these periods will be considered to have failed to maintain nonimmigrant status as an H–2C worker and shall be subject to removal under section 237(a)(1)(C)(i). Such alien shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the alien considered to have been unlawfully present for 180 days as of the 15th day following the period of employment for the purpose of departure or as of the 31st day following the period of employment for the purpose of seeking a subsequent offer of employment where the alien has not found at-will employment with a registered agricultural employer pursuant to section 218B or employment pursuant to this section. (2) Employment limitation An alien may not be employed during the 14-day period described in paragraph (1)(B) except in the employment for which the alien is otherwise authorized. (m) Abandonment of employment (1) In general An alien admitted or provided status under section 101(a)(15)(H)(ii)(c) who abandons the employment which was the basis for such admission or status— (A) shall have failed to maintain nonimmigrant status as an H–2C worker; (B) shall depart the United States or be subject to removal under section 237(a)(1)(C)(i); and (C) shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the alien considered to have been unlawfully present for 180 days as of the 15th day following the date of the abandonment of employment. (2) Report by employer Not later than 24 hours after an employer learns of the abandonment of employment by an H–2C worker, the employer or association acting as an agent for the employer, shall notify the Secretary of Homeland Security of such abandonment. (3) Removal The Secretary of Homeland Security shall promptly remove from the United States any H–2C worker who violates any term or condition of the worker’s nonimmigrant status. (4) Voluntary termination Notwithstanding paragraph (1), an alien may voluntarily terminate the alien’s employment if the alien promptly departs the United States upon termination of such employment. An alien who voluntarily terminates the alien’s employment and who does not depart within 14 days shall be considered to have failed to maintain nonimmigrant status as an H–2C worker and shall be subject to removal under section 237(a)(1)(C)(i). Such alien shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the alien considered to have been unlawfully present for 180 days as of the 15th day following the voluntary termination of employment. (n) Replacement of alien An employer may designate an eligible alien to replace an H–2C worker who abandons employment notwithstanding the numerical limitation found in section 214(g)(1)(C). (o) Extension of stay of H–2C workers in the United States (1) Extension of stay If an employer seeks approval to employ an H–2C worker who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (b) shall request an extension of the alien’s stay and, if applicable, a change in the alien’s employment. (2) Work authorization upon filing petition for extension of stay (A) In general An alien who is lawfully present in the United States on the date of the filing of a petition to extend the stay of the alien may commence or continue the employment described in a petition under paragraph (1) until and unless the petition is denied. The employer shall provide a copy of the employer’s petition for extension of stay to the alien. The alien shall keep the petition with the alien’s identification and employment eligibility document, as evidence that the petition has been filed and that the alien is authorized to work in the United States. (B) Employment eligibility document Upon approval of a petition for an extension of stay or change in the alien’s authorized employment, the Secretary of Homeland Security shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition. (C) File defined In this paragraph, the term file (3) Limitation on an individual’s stay in status (A) Maximum period The maximum continuous period of authorized status as an H–2C worker (including any extensions) is 18 months for a worker employed in a job that is of a temporary or seasonal nature. For an H–2C worker employed in a job that is not of a temporary or seasonal nature, the initial maximum continuous period of authorized status is 36 months and subsequent maximum continuous periods of authorized status are 18 months. There is no maximum continuous period of authorized status for a sheepherder or for an H–2C worker who returns to the worker’s permanent residence outside the United States each day. (B) Requirement to remain outside the united states In the case of an alien outside the United States who was employed in a job of a temporary or seasonal nature pursuant to section 101(a)(15)(H)(ii)(c) whose period of authorized status as an H–2C worker (including any extensions) has expired, the alien may not again be admitted to the United States as an H–2C worker unless the alien has remained outside the United States for a continuous period equal to at least 1/6 1/6 (p) Adjustment of status Notwithstanding any other provision of law, an alien who is unlawfully present in the United States on April 25, 2013, is eligible to adjust status to that of an H–2C worker. (q) Trust fund To assure worker return (1) Establishment There is established in the Treasury of the United States a trust fund (in this section referred to as the Trust Fund (2) Withholding of wages; payment into the trust fund (A) In general Notwithstanding the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. (B) Jobs that are not of a temporary or seasonal nature Employers of H–2C workers employed in jobs that are not of a temporary or seasonal nature shall pay into the Trust Fund an amount equivalent to the Federal tax on the wages paid to H–2C workers that the employer would be obligated to pay under chapters 21 and 23 of the Internal Revenue Code of 1986 had the H–2C workers been subject to such chapters. Amounts withheld under this paragraph shall be maintained in such interest bearing account with such a financial institution as the Secretary of Agriculture shall specify. (3) Distribution of funds Amounts paid into the Trust Fund on behalf of an H–2C worker, and held pursuant to paragraph (2)(A) and interest earned thereon, shall be paid by the Secretary of State to the worker if— (A) the worker applies to the Secretary of State (or the designee of such Secretary) for payment within 120 days of the expiration of the alien’s last authorized stay in the United States as an H–2C worker at a United States embassy or consulate in the worker’s home country; (B) in such application the worker establishes that the worker has complied with the terms and conditions of the H–2C program; and (C) in connection with the application, the H–2C worker confirms their identity. (4) Administrative expenses The amounts paid into the Trust Fund and held pursuant to paragraph (2)(B), and interest earned thereon, shall be paid to the Secretary of State, the Secretary of Agriculture, and the Secretary of Homeland Security in amounts equivalent to the expenses incurred by such officials in the administration of the H–2C program not reimbursed pursuant to subsection (h)(2) or section 218B(b). (5) Law enforcement Notwithstanding any other provision of law, amounts paid into the Trust Fund under paragraph (2), and interest earned thereon, that are not needed to carry out paragraphs (3) and (4) shall, to the extent provided in advance in appropriations Acts, be made available until expended without fiscal year limitation to the Secretary of Homeland Security to apprehend, detain, and remove aliens unlawfully present in the United States. (r) Investment of trust fund (1) In general It shall be the duty of the Secretary of the Treasury to invest such portion of the Trust Fund as is not, in the Secretary’s judgment, required to meet current withdrawals. Such investments may be made only in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. For such purpose, such obligations may be acquired— (A) on original issue at the price; or (B) by purchase of outstanding obligations at the market price. The purposes for which obligations of the United States may be issued under chapter 31 1/8 1/8 (2) Sale of obligation Any obligation acquired by the Trust Fund (except special obligations issued exclusively to the Trust Fund) may be sold by the Secretary of the Treasury at the market price, and such special obligations may be redeemed at par plus accrued interest. (3) Credits to trust fund The interest on, and the proceeds from the sale or redemption of, any obligations held in the Trust Fund shall be credited to and form a part of the Trust Fund. (4) Report to Congress It shall be the duty of the Secretary of the Treasury to hold the Trust Fund, and (after consultation with the Secretary of Agriculture) to report to the Congress each year on the financial condition and the results of the operations of the Trust Fund during the preceding fiscal year and on its expected condition and operations during the next fiscal year. Such report shall be printed as both a House and a Senate document of the session of the Congress to which the report is made. (s) Audit of Trust Fund The Secretary of Homeland Security annually shall audit the Trust Fund. . (b) At-Will employment Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1181 et seq. 218B. At-will employment of temporary H–2C workers (a) At-Will employment (1) In general An H–2C worker may perform agricultural labor or services for any employer that is designated as a registered agricultural employer (2) Period of stay An H–2C worker performing such labor or services for a registered agricultural employer is subject to the period of admission, limitation of stay in status, and requirement to remain outside the United States contained in subsections (l) and (o)(3) of section 218A. (3) Termination of employment At the conclusion of at-will employment with a registered agricultural employer or the conclusion of employment pursuant to section 218A qualifying an H–2C worker to perform at-will work pursuant to this section, an H–2C worker shall find at-will employment with a registered agricultural employer or employment pursuant to section 218A within 30 days or will be considered to have failed to maintain nonimmigrant status as an H–2C worker and shall depart from the United States or be subject to removal under section 237(a)(1)(C)(i). An H–2C worker who does not so depart shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the alien considered to have been unlawfully present for 180 days as of the 31st day after conclusion of employment where the alien has not found at-will employment with a registered agricultural employer or employment pursuant to section 218A. However, an alien may voluntarily terminate the alien’s employment if the alien promptly departs the United States upon termination of such employment. Either a registered agricultural employer or an H–2C worker may voluntarily terminate the worker’s at-will employment at any time. The H–2C worker then shall find additional at-will employment with a registered agricultural employer or employment pursuant to section 218A within 30 days or will be considered to have failed to maintain nonimmigrant status as an H–2C worker and shall depart from the United States or be subject to removal under section 237(a)(1)(C)(i). An H–2C worker who does not so depart shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the alien considered to have been unlawfully present for 180 days as of the 31st day after conclusion of employment where the alien has not found at-will employment with a registered agricultural employer or employment pursuant to section 218A. (b) Registered agricultural employers The Secretary of Agriculture shall establish a process to accept and adjudicate applications by employers to be designated as registered agricultural employers. The Secretary shall require, as a condition of approving the petition, the payment of a fee to recover the reasonable cost of processing the application. The Secretary shall designate an employer as a registered agricultural employer if the Secretary determines that the employer— (1) employs individuals who perform agricultural labor or services; (2) has not been subject to debarment from receiving future temporary agricultural labor certifications pursuant to section 101(a)(15)(H)(ii)(a) within the last five years; (3) has not been subject to disqualification from the employment of H–2C workers within the last five years; (4) agrees to, if employing an H–2C worker pursuant to this section, abide by the terms of the attestations contained in section 218A(b) and the obligations contained in subsections (k) (excluding paragraph (3) of such subsection) and (q) of section 218A as if it had submitted a petition making those attestations and accepting those obligations; and (5) agrees to notify the Secretary of Agriculture and the Secretary of Homeland Security each time it employs an H–2C worker pursuant to this section within 24 hours of the commencement of employment and each time an H–2C worker ceases employment within 24 hours of the cessation of employment. (c) Length of designation An employer’s designation as a registered agricultural employer shall be valid for 3 years, and the designation can be extended upon reapplication for additional 3-year terms. The Secretary shall revoke a designation before the expiration of its three year term if the employer is subject to disqualification from the employment of H–2C workers subsequent to being designated as a registered agricultural employer. (d) Enforcement The Secretary of Agriculture shall be responsible for conducting investigations and random audits of employers to ensure compliance with the requirements of this section. All monetary fines levied against violating employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigatory and audit power. The Secretary of Agriculture’s enforcement powers and an employer’s liability described in subsections (i) through (j) of section 218A are applicable to employers employing H–2C workers pursuant to this section. (e) Removal of H–2C worker The Secretary of Homeland Security shall promptly remove from the United States any H–2C worker who is or had been employed pursuant to this section on an at-will basis who is who violates any term or condition of the worker’s nonimmigrant status. . (c) Prohibition on family members Section 101(a)(15)(H) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H) him; him, except that no spouse or child may be admitted under clause (ii)(c); (d) Numerical cap Section 214(g)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1184(g)(1) (1) in subparagraph (A), by striking or (2) in subparagraph (B), by striking the period at the end and inserting ; or (3) by adding at the end the following: (C) under section 101(a)(15)(H)(ii)(c) may not exceed 500,000, except that— (i) the Secretary of Agriculture may decrease such number based on— (I) a shortage or surplus of workers performing agricultural labor or services; (II) growth or contraction in the United States agricultural industry that has increased or decreased the demand for workers to perform agricultural labor or services; (III) the level of unemployment and underemployment of United States workers (as defined in section 218A(a)(8)) in agricultural labor or services; (IV) the number of nonimmigrant workers employers sought during the preceding fiscal year pursuant to clause (a) or (c) of section 101(a)(15)(H)(ii); (V) the number of H–2C workers (as defined in section 218A(a)(5)) who in the preceding fiscal year had to depart from the United States or be subject to removal under section 237(a)(1)(C)(i) because they could not find additional at-will employment within 30 days pursuant to section 218B; (VI) the estimated number of United States workers (as defined in section 218A(a)(8)) who worked in agriculture during the preceding fiscal year pursuant to clause (a) or (c) of section 101(a)(15)(H)(ii); and (VII) the number of nonimmigrant agricultural workers issued a visa or otherwise provided nonimmigrant status pursuant to clause (a) or (c) of section 101(a)(15)(H)(ii) during preceding fiscal years who remain in the United States out of compliance with the terms of their status; (ii) during any fiscal year, the Secretary of Agriculture may increase such number on an emergency basis for severe shortages of agricultural labor or services; and (iii) this numerical limitation shall not apply to any alien who performed agricultural labor or services in the United States for not fewer than 575 hours, or 100 days in which the alien was employed 5.75 or more hours per day, pursuant to section 7 of the AG Act during the 2-year period beginning on the date of the enactment of such Act and ending on the date that is 2 years after such date. . (e) Waiver of Bars to Admissibility Section 212(a)(9)(B)(v) of the Immigration and Nationality Act ( 8 U.S.C. 1182(a)(9)(B)(v) (1) by striking The Attorney General (I) In general The Secretary of Homeland Security . (2) by striking Attorney General Secretary of Homeland Security (3) by adding at the end the following: (II) H–2C workers The Secretary of Homeland Security shall waive clause (i) solely if necessary to allow an alien to come temporarily to the United States to perform agricultural labor or services as provided in section 101(a)(15)(H)(ii)(c), except to the extent that the alien’s unlawful presence followed after the alien’s having the status of a nonimmigrant under such section. . (f) Prevailing Wage Section 212(p) of the Immigration and Nationality Act ( 8 U.S.C. 1182(p) (1) in paragraph (1), by inserting and section 218A (t)(1)(A)(i)(II) (2) in paragraph (3), by inserting and section 218A (t)(1)(A)(i)(II) (g) Clerical amendment The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. Sec. 218A. Admission of temporary H–2C workers. Sec. 218B. At-will employment of temporary H–2C workers. . 4. Mediation A nonimmigrant having status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H)(ii)(c) 5. Migrant and seasonal agricultural worker protection Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1802(8)(B)(ii) under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act. under subclauses (a) and (c) of section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and Nationality Act. 6. Binding arbitration (a) Applicability Any H–2C worker may, as a condition of employment with an employer, be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. An employer shall provide any such worker with notice of such condition of employment at the time the job offer is made. (b) Allocation of costs Any cost associated with such arbitration and mediation process shall be equally divided between the employer and the H–2C worker, except that each party shall be responsible for the cost of its own counsel, if any. (c) Definitions As used in this section: (1) The term condition of employment (2) The term H–2C worker 8 U.S.C. 1101(a)(15)(ii)(c) 7. The performance of agricultural labor or services by aliens who are unlawfully present (a) In General The Secretary of Homeland Security shall waive the grounds of inadmissibility contained in paragraphs (5), (6), (7), and (9)(B) of section 212(a), and the grounds of deportability contained in subparagraphs (A) through (D) of paragraph (1), and paragraph (3), of section 237(a), of the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. 8 U.S.C. 1324a(h)(3) (b) Aliens Described An alien described in this subsection is an alien who— (1) was physically present in the United States on April 25, 2013; and (2) performed agricultural labor or services in the United States for not fewer than 575 hours, or 100 days in which the alien was employed 5.75 or more hours per day, during the 2-year period ending on the date of the enactment of this Act. 8. Eligibility for Federal public benefits and refundable tax credits (a) Federal public benefits H–2C workers (as defined in section 218A(a)(5) of the Immigration and Nationality Act, as inserted by section 3(a) of this Act) and aliens performing agricultural labor or services pursuant to section 7 of this Act— (1) are not entitled to the premium assistance tax credit authorized under section 36B (2) shall be subject to the rules applicable to individuals who are not lawfully present set forth in subsection (e) of such section; and (3) shall be subject to the rules applicable to individuals who are not lawfully present set forth in section 1402(e) of the Patient Protection and Affordable Care Act ( 42 U.S.C. 18071(e) (b) Refundable tax credits H–2C workers (as defined in section 218A(a)(5) of the Immigration and Nationality Act, as inserted by section 3(a) of this Act) and aliens performing agricultural labor or services pursuant to section 7 of this Act shall not be allowed any credit under section 24 or 32 of the Internal Revenue Code of 1986. In the case of a joint return, no credit shall be allowed under either such section if both spouses are such a worker or alien. 9. Effective dates; sunset; regulations (a) Effective dates (1) In general The amendments made by sections 2 and 4 through 6, and subsections (a) and (c) through (f) of section 3, of this Act shall take effect on the date that is 2 years after the date of the enactment of this Act, and the Secretary of Agriculture shall accept petitions to import an alien under sections 101(a)(15)(H)(ii)(c) and 218A of the Immigration and Nationality Act, as inserted by this Act, beginning on such date. (2) At-will employment The amendment made by section 3(b) of this Act shall take effect on the date that it becomes unlawful for any person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an individual (as provided in section 274A(a)(1) of the Immigration and Nationality Act) ( 8 U.S.C. 1324a(a)(1) 8 U.S.C. 1324a (3) Agricultural labor or services by aliens unlawfully present Section 7 of this Act shall take effect on the date of the enactment of this Act and shall cease to be in effect on the date that is 2 years after such date. (b) Operation and sunset of the H–2A program (1) Application of existing regulations The Department of Labor H–2A program regulations published at 73 Federal Register 77110 et seq. (2008) shall be in force for all petitions approved under sections 101(a)(15)(H)(ii)(c) and 218A of the Immigration and Nationality Act, as inserted by this Act, beginning on the date of the enactment of this Act. (2) Adjustment of status Notwithstanding any other provision of law, an alien who is unlawfully present in the United States on the date of the enactment of this Act is eligible to adjust status to that of an alien described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H)(ii)(a) (3) Sunset Beginning on the date that is 2 years after the date of the enactment of this Act, no new petition to import an alien under sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H)(ii)(a) 8 U.S.C. 1188 (c) Regulations Not later than 18 months after the date of the enactment of this Act, the Secretary of Agriculture shall promulgate regulations, in accordance with the notice and comment provisions of section 553 December 12, 2014 Reported from the Committee on the Judiciary December 12, 2014 The Committees on Education and the Workforce Ways and Means

Summary: Agricultural Guestworker Act or the AG Act - (Sec. 2) Amends the Immigration and Nationality Act to establish an H-2C nonimmigrant visa for an alien having a residence in a foreign country which he or she has no intention of abandoning and who is coming temporarily to the United States to perform agricultural labor or services, including those related to fish or shellfish industries. (Sec. 3) Requires an employer, or an association acting as an agent or joint employer for its members, to file an H-2C petition with the Department of Agriculture which shall include specified attestations concerning the temporary work or services, benefits, wages, working conditions, and the nondisplacement of U.S. workers. Requires the employer as a prerequisite to: (1) have conducted adequate recruitment in the area of intended employment before filing the attestations, (2) been unsuccessful in locating a qualified U.S. worker for the job opportunity for which the H-2C worker is sought, but (3) agree to offer the job to any eligible qualified U.S. worker who applies and will be available before the first day the work begins for the H-2C worker. Prescribes requirements for consideration of petitions and the treatment of associations acting as employers. Requires each individual employer and each employer-member of a joint employer association to pay, for each approved petition, a fee of $100 plus $10 for each approved H-2C worker (not to exceed $1,000). Prohibits the charging of a separate fee to a joint employer association. Sets forth further requirements regarding: (1) investigations, random audits, and penalties; (2) failure to pay wages and benefits or provide attested working conditions; (3) maximum periods of admission (18 months for temporary or seasonal employment or in certain other cases 36 months) and extensions of stay; and (4) abandonment of employment and worker replacement. Requires an employer to guarantee to offer either a U.S. worker or an H-2C worker employment for the hourly equivalent of at least 50% of the work hours during the total anticipated period of employment. Makes an alien who is unlawfully present in the United States on April 25, 2013, eligible to adjust to H-2C status. Establishes in the Treasury a trust fund to provide a monetary incentive for H-2C workers to return to their country of origin upon expiration of their visas. Permits an H-2C worker to perform agricultural labor or services as at-will employment for any "registered agricultural employer" if such worker: (1) is already lawfully present in the United States as an H-2C worker; and (2) has completed the period of employment specified in the job offer the worker accepted, or the employer has terminated the worker's employment. Subjects such workers to the same limitations on period of admission and stay in status, as well as the requirement to remain outside the United States for a specified period after employment, as apply to other H-2C workers. Limits the number of annual fiscal year H-2C admissions to 500,000, subject to decrease in certain circumstances or increase on an emergency basis for severe shortages of agricultural labor or services. Prohibits the admission of spouses and children of H-2C workers. Transfers from the Attorney General to the Secretary of Homeland Security (DHS) authority to waive bars to admissibility for aliens unlawfully present in the United States for certain periods of time. Requires the Secretary to waive such bars for a former H-2C worker solely if necessary to allow that alien to come temporarily to the United States to perform agricultural labor or services, except to the extent that the alien's unlawful presence followed after the alien's having H-2C status. (Sec. 4) Prohibits any civil action for damages by or on behalf of an H-2C nonimmigrant against the nonimmigrant's employer unless at least 90 days before the action is brought: (1) the Federal Mediation and Conciliation Service has been requested to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute, and (2) mediation has been attempted. (Sec. 5) Excludes H-2C workers from coverage by the Migrant and Seasonal Agricultural Worker Protection Act. (Sec. 6) Allows an H-2C worker, as a condition of employment but with proper notice, to be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. (Sec. 7) Requires the DHS Secretary to waive the grounds of inadmissibility or deportability for certain aliens solely to allow them to perform agricultural labor or services. Limits such a waiver to aliens physically present in the United States on April 25, 2013, who performed agricultural labor or services in the United States for at least 575 hours, or 100 days in which the alien was employed 5.75 or more hours per day, during the 2-year period ending on the date of the enactment of this Act. (Sec. 8) Denies H-2C workers and aliens performing agricultural labor or services: (1) specified benefits under the Patient Protection and Affordable Care Act, and (2) the child and earned income tax credits under the Internal Revenue Code. (Sec. 9) Terminates authority to petition for H-2A temporary agricultural workers two years after enactment of this Act.