Labor Certainty for Food Security Act of 2020

To create a nonimmigrant H–2C work visa program for agricultural workers, to make mandatory and permanent requirements relating to use of an electronic employment eligibility verification system, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Labor Certainty for Food Security Act of 2020 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—AGRICULTURAL GUESTWORKER PROGRAM Sec. 101. Short title. Sec. 102. H–2C temporary agricultural work visa program. Sec. 103. Admission of temporary H–2C workers. Sec. 104. Mediation. Sec. 105. Migrant and seasonal agricultural worker protection. Sec. 106. Binding arbitration. Sec. 107. Coverage through health exchanges; required health insurance coverage. Sec. 108. Establishment of an agricultural worker employment pool. Sec. 109. Prevailing wage. Sec. 110. Portability of H–2C status. Sec. 111. Collection of taxes. Sec. 112. Effective dates; regulations; defined terms. Sec. 113. Report on compliance and violations. Sec. 114. Electronic filing system. TITLE II—LEGAL WORKFORCE ACT Sec. 201. Short title. Sec. 202. Employment eligibility verification process. Sec. 203. Employment eligibility verification system. Sec. 204. Recruitment, referral, and continuation of employment. Sec. 205. Good faith defense. Sec. 206. Preemption and States’ rights. Sec. 207. Repeal. Sec. 208. Penalties. Sec. 209. Fraud and misuse of documents. Sec. 210. Protection of Social Security Administration programs. Sec. 211. Fraud prevention. Sec. 212. Use of employment eligibility verification photo tool. Sec. 213. Identity Authentication Employment Eligibility Verification pilot programs. Sec. 214. Inspector General audits. TITLE III—H–2A PROGRAM Sec. 301. Administration by Department of Agriculture. Sec. 302. Defining agricultural labor. Sec. 303. Wage structure and other amendments to H–2A program. Sec. 304. Biometric identification card. Sec. 305. Effective date. I Agricultural guestworker program 101. Short title This title may be cited as the Agricultural Guestworker Reform Act 102. 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) who is coming temporarily to the United States to perform agricultural labor or services as an at-will employee; or (iii) (b) Definition Section 101(a) of such Act ( 8 U.S.C. 1101(a) (53) The term agricultural labor or services (A) agricultural labor as defined in section 3121(g) (B) agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(f) (C) the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state up to the point it is to be sold to a warehouse for wholesale distribution; (D) all activities required for the preparation, processing or manufacturing of a product of agriculture (as such term is defined in such section 3(f)), or fish or shellfish, for further distribution; (E) forestry-related activities up to the point of wholesale to a distribution facility; (F) aquaculture activities up to the point of wholesale distribution; and (G) activities related to the breeding, management, training, and racing of equines. For purposes of labor involving meat or poultry processing, the term only includes the killing of animals and the breakdown of their carcasses up to the point of wholesale distribution, and the collection, cleaning, grading, and packaging of eggs up to the point of wholesale distribution. . 103. 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 218A. Admission of temporary H–2C workers (a) Definitions In this section: (1) Displace The term displace (2) Job The term job (A) involve essentially the same responsibilities; (B) are held by workers with substantially equivalent qualifications and experience; and (C) are located in the same place or places of employment. (3) Employer The term employer (A) an association acting as a joint employer with its members, who hires workers to perform agricultural labor or services; and (B) any association of farmers, producers or harvesters of aquatic products, or any federation of such associations, which is operated on a cooperative basis, and has the powers for processing, preparing for market, handling, or marketing farm or aquatic products. (4) Forestry-related activities The term forestry-related activities (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 (4) 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 position with the same employer at equivalent or higher wages 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) 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, or is granted asylum under section 208. (b) Petition An employer that seeks to employ aliens as H–2C workers under this section shall file with the Secretary of Homeland Security a petition attesting to the following: (1) Offer of employment The employer will offer employment to the aliens on an at-will basis. (2) Temporary labor or services (A) In general The employer is seeking to employ a specific number of H–2C workers on a temporary basis and will provide compensation to such workers at a wage rate no less than that set forth in subsection (j)(2). (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 the time period set forth in subsection (m)(1) (subject to the exceptions in subsection (m)(3)). (3) Benefits, wages, and working conditions The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (j) to all workers employed in the job for which the H–2C workers are sought. (4) Nondisplacement of United States workers The employer did not displace and will not displace United States workers employed by the employer during the period of employment of the H–2C workers and during the 30-day period immediately preceding such period of employment in the job for which the employer seeks approval to employ H–2C workers. (5) Recruitment (A) In general The employer— (i) conducted adequate recruitment before filing the petition; and (ii) was unsuccessful in locating sufficient numbers of willing and qualified United States workers for the job for which the H–2C workers are 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 each place of employment, except that nothing in this subparagraph shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations. The State workforce agency shall post the job order on its official agency website for a minimum of 30 days and not later than 3 days after receipt using the employment statistics system authorized under section 15 of the Wagner-Peyser Act ( 29 U.S.C. 49l–2 (C) End of recruitment requirement The requirement to recruit United States workers for a job shall terminate on the first day that work begins for any H–2C worker for whom the petition was filed. (6) Offers to United States workers The employer has offered or will offer the job for which the H–2C workers are sought to any eligible United States workers who— (A) apply; (B) are qualified for the job; and (C) will be available at the time, at each place, and for the duration, of need. This requirement shall not apply to United States workers who apply for the job on or after the first day that work begins for the H–2C workers. (7) Strike or lockout The job that is the subject of the petition is not vacant because the former workers in that job are on strike or locked out in the course of a labor dispute. (c) List (1) In general The Secretary of Homeland Security shall maintain a list of the petitions filed under this subsection, which shall— (A) be sorted by employer; and (B) include the number of H–2C workers sought, the wage rate, the period of employment, each place of employment, and the date of need for each alien. (2) Availability The Secretary of Homeland Security shall make the list available for public examination. (d) Petitioning for admission (1) Consideration of petitions For petitions filed and considered under this subsection— (A) the Secretary of Homeland Security may not require such petition to be filed more than 28 days before the first date the employer requires the labor or services of H–2C workers; (B) within the appropriate time period under subparagraph (C) or (D), the Secretary of Homeland Security shall— (i) approve the petition; (ii) reject the petition; or (iii) determine that the petition is incomplete or obviously inaccurate or that the employer has not complied with the requirements of subsection (b)(5)(A)(i) (which the Secretary can ascertain by verifying whether the employer has placed a local job order as provided for in subsection (b)(5)(B)); (C) if the Secretary determines that the petition is incomplete or obviously inaccurate, or that the employer has not complied with the requirements of subsection (b)(5)(A)(i) (which the Secretary can ascertain by verifying whether the employer has placed a local job order as provided for in subsection (b)(5)(B)), 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 5 business days of receipt of the corrected petition, approve or reject the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery; and (D) if the Secretary does not determine that the petition is incomplete or obviously inaccurate, the Secretary shall not later than 10 business days after the date on which such petition was filed, either approve or reject the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery. (2) Access By filing an H–2C petition, the petitioner and each employer (if the petitioner is an association that is a joint employer of workers who perform agricultural labor or services) consent to allow access to each place of employment to the Department of Agriculture and the Department of Homeland Security for the purpose of investigations and audits to determine compliance with the immigration laws (as defined in section 101(a)(17)). (3) Confidentiality of information No information contained in a non-fraudulent petition filed by an employer pursuant to subsection (b) which is not otherwise available to the Secretary of Homeland Security may be used— (A) in a civil or criminal prosecution or investigation of the petitioning employer under section 274A or the Internal Revenue Code of 1986 for unlawful employment of an alien who is the beneficiary of such petition; or (B) for the purpose of initiating or proceeding with removal proceedings with respect to an alien who is the beneficiary of such petition, except in the case of an alien with respect to whom a petition is denied. (e) Roles of agricultural associations (1) Treatment of associations acting as employers If an association is a joint employer of workers who perform agricultural labor or services, H–2C workers may be transferred among its members to perform the agricultural labor or services on a temporary basis for which the petition was approved. (2) Treatment of violations (A) Individual member If an individual member of an association that is a joint employer commits a violation described in paragraph (2) or (3) of subsection (h) or subsection (i)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (h) and (i) against only that member of the association unless the Secretary of Agriculture determines that the association participated in, had knowledge of, or had reason to know of the violation. (B) Association of agricultural employers If an association that is a joint employer commits a violation described in subsections (h) (2) and (3) or (i)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (h) and (i) against only the association and not any individual members of the association, unless the Secretary determines that the member participated in the violation. (f) Expedited administrative appeals The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure for the review of a denial of a petition under this section by the Secretary. At the petitioner’s request, the review shall include a de novo administrative hearing at which new evidence may be introduced. (g) Fees The Secretary of Homeland Security shall require, as a condition of approving the petition, the payment of a fee of $2,500 to recover the reasonable cost of processing the petition. (h) Enforcement (1) Investigations and audits The Secretary of Agriculture shall be responsible for conducting investigations and audits, including random audits, of employers to ensure compliance with the requirements of the H–2C program. All monetary fines levied against employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigative and auditing abilities to ensure compliance by employers with their obligations under this section. (2) Violations If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a failure to fulfill an attestation required by this subsection, or a material misrepresentation of a material fact in a petition under this subsection, the Secretary— (A) may impose such 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) Willful violations If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, the Secretary— (A) may impose such administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation, or not to exceed $15,000 per violation if in the course of such failure or misrepresentation the employer displaced one or more United States workers employed by the employer during the period of employment of H–2C workers or during the 30-day period immediately preceding such period of employment) in the job the H–2C workers are performing 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 failure to fulfill an attestation required by this subsection, or a misrepresentation of a material fact in a petition under this subsection, disqualify the employer from the employment of H–2C workers for a period of 5 years; and (D) may, for a subsequent willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, permanently disqualify the employer from the employment of H–2C workers. (i) Failure To pay wages or required benefits (1) In general 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 that the employer has attested that it would provide under this subsection, the Secretary shall require payment of back wages, or such other required benefits, due any United States workers or H–2C workers employed by the employer. (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 workers; and (B) shall be distributed to the workers to whom such wages or benefits are due. (j) Minimum wages, benefits, and working conditions (1) Preferential treatment of H–2C workers prohibited (A) In general Each employer seeking to hire United States workers for the job the H–2C workers will perform shall offer such United States workers not less than the same benefits, wages, and working conditions that the employer will provide to the H–2C workers, except that if an employer chooses to provide H–2C workers with housing or a housing allowance, the employer need not offer housing or a housing allowance to such United States workers. No job offer may impose on United States workers any restrictions or obligations which will not be imposed on 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 H–2C workers under this subsection shall offer the H–2C workers, during the period of authorized employment as H–2C workers, wages that are at least the greatest of— (i) the applicable State or local minimum wage; (ii) 115 percent of the Federal minimum wage; or (iii) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. (B) Alternate wage payment systems An employer can utilize a piece rate or other alternative wage payment system so long as the employer guarantees each worker a wage rate that equals or exceeds the amount required under subparagraph (A) for the total hours worked in each pay period. (k) Nondelegation The Department of Agriculture and the Department of Homeland Security shall not delegate their investigatory, enforcement, or administrative functions relating to this section to other agencies or departments of the Federal Government. (l) Compliance with bio-Security protocols Except in the case of an imminent threat to health or safety, any personnel from a Federal agency or Federal grantee seeking to determine the compliance of an employer with the requirements of this section shall, when visiting such employer’s place of employment, make their presence known to the employer and sign-in in accordance with reasonable bio-security protocols before proceeding to any other area of the place of employment. (m) Limitation on H–2C workers’ stay in status (1) Maximum period The maximum continuous period of authorized stay as an H–2C worker is 36 months. The employer shall file any petition to extend the period of authorized stay for such H–2C worker not later than 6 months before the expiration of the period of authorized stay. In addition to the maximum continuous period of authorized stay, an H–2C worker may also be present for a period of not more than 7 days prior to the beginning of authorized employment as an H–2C worker for the purpose of travel to the place of employment. Notwithstanding the duration of the employment requested by the employer petitioning for the admission of an H–2C worker, if the alien is granted a visa, at the request of the alien, the term of the visa shall be for the maximum period described in this subsection, except that subsection (n) shall apply to such alien. (2) Exception There is no maximum continuous period of authorized status as set forth in paragraph (1) for H–2C workers who return to the workers’ permanent residence outside the United States each day. (n) Alternate employment after termination If an H–2C worker’s employment with a registered agricultural employer is terminated that alien may seek employment with any other registered agricultural employer. If the alien does not obtain such employment by not later than 14 days after the termination of that alien’s employment, the period of authorized stay shall terminate 28 days after the date of termination and the alien shall be required to depart the United States unless the alien is otherwise lawfully present. (o) Change to H–2C status (1) Waiver Until the date that is 12 months after the issuance of final rules carrying out this Act, in the case of an alien described in paragraph (2), the Secretary of Homeland Security shall waive the grounds of inadmissibility under paragraphs (5)(A), (6)(A), (6)(C), (7), (9)(B), and (9)(C) of section 212(a), and the grounds of deportability under paragraphs (1)(A) (with respect to the grounds of inadmissibility waived under this paragraph), (1)(B), (1)(C), (3)(A), and (3)(C) of section 237(a), with respect to conduct that occurred prior to the alien first receiving status as an H–2C worker, solely in order to provide the alien with such status. (2) Alien described An alien described in this paragraph is an alien who— (A) was unlawfully present in the United States on March 4, 2020; and (B) performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 225 days during the 2-year period ending on March 4, 2020. (3) Special approval procedures The Secretary shall grant parole to any alien described in paragraph (2) who makes an application therefore, for a period beginning on the date of enactment of this Act and ending on the date that is 12 months after the issuance of final rules carrying out this Act. Such a parolee may be authorized for employment only to perform agricultural labor or services during the term of such parole. In the case of any alien who applies for parole under this paragraph the Secretary shall make a determination as to the admissibility of such alien except with regard to the grounds of inadmissibility waived under paragraph (1). Such parole may not extend past the final disposition of any application under this subsection. (4) Fine Before an alien described in paragraph (2) can be provided with nonimmigrant status under section 101(a)(15)(H)(ii)(c), the alien shall pay a fine of $2,500, which shall be deposited into a trust fund that shall be available to the Secretary of Agriculture for purposes of administering this section. (5) Immediate relatives (A) Parole and nonimmigrant status The spouse or child of an alien described under paragraph (2) and who are cohabitating with that alien at the time of application— (i) shall be granted parole under this subsection when such alien receives parole, under the same terms and conditions, except that the spouse or child may not be authorized for employment; and (ii) for the term that such alien is provided with status as an H–2C worker, shall be provided nonimmigrant status equivalent to the status of the status accorded a spouse or child if accompanying or following to join an alien who had status under section 101(a)(15)(H). (B) Waivers For purposes of this paragraph, the Secretary shall apply paragraph (1) to such spouse or child as though the spouse or child was the alien described in paragraph (2). (C) Documentation The Secretary of Homeland Security shall provide the spouse or child with documentation of such status. (p) Flexibility with respect to start dates Upon approval of a petition with regard to jobs that are of a temporary or seasonal nature, the employer may begin the employment of petitioned-for H–2C workers up to ten months after the first date the employer requires the labor or services of H–2C workers. An employer may file a petition involving employment in the same occupational classification and same area of intended employment with multiple start dates. (q) Transportation An employer may, but is not required to, offer transportation to an H–2C worker, and may also charge a reasonable fee for the same. Any transportation offered shall comply with all applicable requirements of Federal and State law. (r) Adjustment of status In applying section 245 to an alien who is an H–2C worker who was the beneficiary of a waiver under subsection (o)(1)— (1) such alien shall be deemed to have been inspected and admitted into the United States; and (2) in determining the alien’s admissibility as an immigrant, paragraphs (5)(A), (6)(A), (6)(C), (7), (9)(B), and (9)(C)(i)(I) of section 212(a) shall not apply with respect to conduct that occurred prior to the alien first receiving status as an H–2C worker. (s) Biometric identification card An H–2C worker shall be issued, upon being approved for status as an H–2C worker, an encrypted, machine-readable electronic identification card to be known as a guestworker identification card (1) have an electronic identification strip to be used for all H–2C workers; (2) have a 15-digit numerical identification code that may be used for tax withholdings and for verifying an H–2C worker’s employment approval for agriculture specifically; (3) include a photograph on the front, and such other information as the Secretary determines necessary stored on a card containing microprocessors for data storage including, fingerprints, retinal scans, DNA, blood type, and facial recognition; (4) be eligible for replacement not more than once in a 3-year period; (5) include the start and end date of the period of approved stay of the H–2C worker and a statement that the H–2C worker is a year-round worker; (6) have physical and electronic security features to prevent fraudulent uses or any misuse as determined by the Secretary; and (7) have the H–2C worker’s program identification number clearly visible. (t) Card reader (1) In general The Secretary of Homeland Security shall develop or otherwise designate a card reader for H–2C workers to check in and verify their place of employment for purposes of verification under section 274A using the guestworker identification card, and acquire a sufficient number of such readers. (2) Placement Each U.S. Postal Service office shall reserve a space to place such a card reader. After the card reader has been developed or selected, the Secretary of Homeland Security shall place the card readers at each USPS office. Employers may also reserve a space at the jobsite to place a card reader. The Secretary of Homeland Security, in coordination with the Secretary of Agriculture, shall develop a process by which employers may request the card readers. The Secretary of Homeland Security may, in order to recover the cost of the card reader, charge an employer a fee to place the card reader at the jobsite. (3) Check in required An H–2C worker shall be required to check in at a guestworker identification card reader at the closest, or most convenient, Post Office or at his place of employment within the first 72 hours of entering the United States to verify employment. The H–2C worker shall check in at the beginning of each quarter of the calendar year, and the H–2C worker shall check in within 7 days of each quarter. If an H–2C worker fails to check in, the employer will be notified in writing and electronically, and the H–2C worker will be required to contact the Secretary of Agriculture within 7 days to explain the occurrence. If an H–2C worker fails to check in for 2 consecutive quarters, the H–2C worker will be removed from the program, ineligible to reapply to the program for 3 years, and will be required to return to his home country. The information collected by the Department of Homeland Security, or the Department of Agriculture, by the guestworker identification card reader may only be used to verify compliance with this section or other reporting requirements under this section, section 214(s), and section 113 of the Labor Certainty for Food Security Act of 2020. (4) Rule of construction Nothing in this subsection may be construed to require an H–2A worker to check in under this subsection. (u) Social security numbers An H–2C worker may not be issued a social security account number. In any case where such number would be necessary, the guestworker identification number issued by the Secretary of Agriculture shall be used. (v) Expedited approval for certain H–2C workers The Secretary of Homeland Security shall establish a process for expediting consideration of any petition for a worker who has previously been the subject of two consecutive petitions that were approved. (w) Establishment and expansion of consulates The Secretary of State is authorized to take such steps as may be necessary in order to expand and establish consulates in foreign countries in which aliens are likely to apply to become seasonal agricultural workers under the program. (x) Eligibility for financial assistance An H–2C worker is not eligible for any financial assistance program under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need. . (b) 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) (except as otherwise provided under section 218A(o)(5)); (c) Secretary of Agriculture review of agricultural work needs Section 214 of the Immigration and Nationality Act ( 8 U.S.C. 1184 (s) Secretary of Agriculture review of agricultural work needs (1) In general The Secretary of Agriculture shall conduct a review, on a continual basis, of— (A) whether there are indicators of a shortage or surplus of workers performing agricultural labor or services; (B) the growth or contraction in the United States agricultural industry and whether such growth or contraction has increased or decreased the demand for workers to perform agricultural labor or services; (C) the level of unemployment and underemployment of United States workers (as defined in section 218A(a)) in agricultural labor or services; (D) the number of H–2C workers (as defined in section 218A(a)) 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 employment; (E) the number of H–2C workers who in the preceding calendar year received a final order of removal for violations under the immigration laws; and (F) the estimated number of nonimmigrant agricultural workers issued a visa or otherwise provided nonimmigrant status pursuant to section 101(a)(15)(H)(ii) (a) or (c) during preceding fiscal years who remain in the United States out of compliance with the terms of their status. (2) Annual report Each employer of H–2C workers shall report to the Secretary the number of H–2C workers that are anticipated to be needed for the following calendar year. . (d) Intent Section 214(b) of the Immigration and Nationality Act ( 8 U.S.C. 1184(b) section 101(a)(15)(H)(i) except subclause (b1) of such section clause (i), except subclause (b1), or (ii)(c) of section 101(a)(15)(H) (e) Clerical amendment The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 Sec. 218A. Admission of temporary H–2C workers. . 104. Mediation Nonimmigrants 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) 105. 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. 106. Binding arbitration (a) Applicability H–2C workers 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 workers with notice of such condition of employment at the time it makes job offers. (b) Allocation of costs Any cost associated with such arbitration and mediation process shall be equally divided between the employer and the H–2C workers, 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 107. Coverage through health exchanges; required health insurance coverage (a) Coverage through health exchanges In applying section 1312(f)(3) of the Patient Protection and Affordable Care Act ( 42 U.S.C. 18032(f)(3) (b) Requirement regarding health insurance coverage (1) In general Notwithstanding the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 8 U.S.C. 1101(a)(15)(H)(ii)(c) (2) Qualifying health coverage For purposes of paragraph (1), the term qualifying health coverage means (A) At a minimum, catastrophic health insurance coverage that provides coverage of such individual with respect to at least the State of employment and State of residence of the alien. (B) In the case of an alien whose State of residence or State of employment requires such an alien to maintain coverage under health insurance, such health insurance. (3) Additional health coverage H–2C workers or employers thereof may pay for additional health insurance, which must be a reasonable and fair price, subject to State and Federal requirements under law. 108. Establishment of an agricultural worker employment pool The Secretary of Agriculture shall establish an agricultural worker employment pool and an electronic internet-based portal to assist H–2C workers (as such term is defined in section 218A of the Immigration and Nationality Act), prospective H–2C workers, and employers to identify job opportunities in the H–2C program and willing, able, and available workers for the program, respectively, and may charge a fee for the use of such portal. 109. Prevailing wage Section 212(p) of the Immigration and Nationality Act ( 8 U.S.C. 1182(p) (1) in paragraph (1), by inserting after subsections (a)(5)(A) and (s)(1)(A)(i)(II) of this section and section 218A(j)(2)(B)(ii) (2) in paragraph (3), by inserting after subsections (a)(5)(A) and (s)(1)(A)(i)(II) of this section and section 218A(j)(2)(B)(ii) 110. Portability of H–2C status Section 214(n)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1184(n)(1) section 101(a)(15)(H)(i)(b) or 101(a)(15)(H)(ii)(c) 111. Collection of taxes For purposes of chapters 2, 3, 21 and 23 of the Internal Revenue Code of 1986, any remuneration paid by any person to an individual for services as an H–2C worker shall be treated in the same manner as wages with respect to employment of such individual. Notwithstanding any other provision of law, an H–2C worker shall be ineligible for any benefit payable under title XVIII of the Social Security Act. 112. Effective dates; regulations; defined terms (a) In general Sections 102 and sections 104 through 106 of this title, subsections (a) and (c) through (f) of section 103 of this title, and the amendments made by the sections, shall take effect on the date on which the Secretary issues the rules under paragraph (3), and the Secretary of Homeland Security shall accept petitions pursuant to section 218A of the Immigration and Nationality Act, as inserted by this title, beginning no later than that date. Sections 107 and 109 of this title shall take effect on the date of the enactment of this Act. (b) At-Will employment Section 103(b) of this Act and the amendments made by that subsection shall take effect when— (1) it becomes unlawful for all persons or other entities 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) (2) such verification system, in providing confirmation of an individual’s employment eligibility, indicates whether an individual is eligible to be employed only to perform agricultural labor or services as a nonimmigrant who has been issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act. (c) Regulations Notwithstanding any other provision of law, not later than the first day of the seventh month that begins after the date of the enactment of this Act, the Secretary of Homeland Security shall issue final rules, on an interim or other basis, to carry out this title. (d) Defined terms Terms used in this title have the meanings given such terms in section 101 and section 218A of the Immigration and Nationality Act. 113. Report on compliance and violations Not later than 1 year after the first day on which employers can file petitions pursuant to section 218A of the Immigration and Nationality Act, as added by section 103(a) of this Act, the Secretary of Homeland Security, in consultation with the Secretary of Agriculture, shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report on compliance by H–2C workers with the requirements of this Act and the Immigration and Nationality Act, as amended by this Act. In the case of a violation of a term or condition of the temporary agricultural work visa program established by this Act, the report shall identify the provision or provisions of law violated. 114. Electronic filing system The Secretary of Homeland Security, in coordination with the Secretary of Agriculture, shall establish an electronic filing system for petitions under section 218A of the Immigration and Nationality Act, as added by section 103(a) of this Act, and for applications and petitions for or relating to status under section 101(a)(15)(H)(ii)(a). An employer shall be able to file any administrative appeal of a determination on such a petition or application through the system. II Legal Workforce Act 201. Short title This title may be cited as the Legal Workforce Act 202. Employment eligibility verification process (a) In general Section 274A(b) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(b) (b) Employment eligibility verification process (1) New hires, recruitment, and referral The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the following: (A) Attestation after examination of documentation (i) Attestation During the verification period (as defined in subparagraph (E)), the person or entity shall attest, under penalty of perjury and on a form, including electronic and telephonic formats, designated or established by the Secretary by regulation not later than 6 months after the date of the enactment of the Legal Workforce Act, that it has verified that the individual is not an unauthorized alien by— (I) obtaining from the individual the individual’s social security account number, guestworker identification number, or United States passport number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under subparagraph (B), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify, and recording such number on the form; and (II) examining— (aa) a document relating to the individual presenting it described in clause (ii); or (bb) a document relating to the individual presenting it described in clause (iii) and a document relating to the individual presenting it described in clause (iv). (ii) Documents evidencing employment authorization and establishing identity A document described in this subparagraph is an individual’s— (I) unexpired United States passport or passport card; (II) unexpired permanent resident card that contains a photograph; (III) unexpired employment authorization card that contains a photograph; (IV) in the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I– 94 or Form I–94A, or other documentation as designated by the Secretary specifying the alien’s nonimmigrant status as long as the period of status has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified in the documentation; (V) passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I–94 or Form I–94A, or other documentation as designated by the Secretary, indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; or (VI) other document designated by the Secretary of Homeland Security, if the document— (aa) contains a photograph of the individual and biometric identification data from the individual and such other personal identifying information relating to the individual as the Secretary of Homeland Security finds, by regulation, sufficient for purposes of this clause; (bb) is evidence of authorization of employment in the United States; and (cc) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use. (iii) Documents evidencing employment authorization A document described in this subparagraph is an individual’s social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States). (iv) Documents establishing identity of individual A document described in this subparagraph is— (I) an individual’s unexpired driver’s license or identification card if it was issued by a State or American Samoa and contains a photograph and information such as name, date of birth, gender, height, eye color, and address; (II) an individual’s unexpired U.S. military identification card; or (III) an individual’s unexpired Native American tribal identification document issued by a tribal entity recognized by the Bureau of Indian Affairs. (v) Authority to prohibit use of certain documents If the Secretary of Homeland Security finds, by regulation, that any document described in clause (i), (ii), or (iii) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Secretary may prohibit or place conditions on its use for purposes of this paragraph. (vi) Signature Such attestation may be manifested by either a handwritten or electronic signature. (B) Individual attestation of employment authorization During the verification period (as defined in subparagraph (E)), the individual shall attest, under penalty of perjury on the form designated or established for purposes of subparagraph (A), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary of Homeland Security to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a handwritten or electronic signature. The individual shall also provide that individual’s social security account number or United States passport number (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under this subparagraph, such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify. (C) Retention of verification form and verification (i) In general After completion of such form in accordance with subparagraphs (A) and (B), the person or entity shall— (I) retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during a period beginning on the date of the recruiting or referral of the individual, or, in the case of the hiring of an individual, the date on which the verification is completed, and ending— (aa) in the case of the recruiting or referral of an individual, 3 years after the date of the recruiting or referral; and (bb) in the case of the hiring of an individual, the later of 3 years after the date the verification is completed or one year after the date the individual’s employment is terminated; and (II) during the verification period (as defined in subparagraph (E)), make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of an individual. (ii) Confirmation (I) Confirmation received If the person or other entity receives an appropriate confirmation of an individual’s identity and work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual. (II) Tentative nonconfirmation received If the person or other entity receives a tentative nonconfirmation of an individual’s identity or work eligibility under the verification system within the time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does not contest the nonconfirmation within the time period specified, the nonconfirmation shall be considered final. The person or entity shall then record on the form an appropriate code which has been provided under the system to indicate a final nonconfirmation. If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under subsection (d). The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the verification system within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure. In no case shall an employer rescind the offer of employment to an individual because of a failure of the individual to have identity and work eligibility confirmed under this subsection until a nonconfirmation becomes final. Nothing in this subclause shall apply to a rescission of the offer of employment for any reason other than because of such a failure. (III) Final confirmation or nonconfirmation received If a final confirmation or nonconfirmation is provided by the verification system regarding an individual, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual. (IV) Extension of time If the person or other entity in good faith attempts to make an inquiry during the time period specified and the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry. (V) Consequences of nonconfirmation (aa) Termination or notification of continued employment If the person or other entity has received a final nonconfirmation regarding an individual, the person or entity may terminate employment of the individual (or decline to recruit or refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the verification system or in such other manner as the Secretary may specify. (bb) Failure to notify If the person or entity fails to provide notice with respect to an individual as required under item (aa), the failure is deemed to constitute a violation of subsection (a)(1)(A) with respect to that individual. (VI) Continued employment after final nonconfirmation If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person or entity has violated subsection (a)(1)(A). (D) Effective dates of new procedures (i) Hiring Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity hiring an individual for employment in the United States as follows: (I) With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, on the date that is 6 months after the date of the enactment of such Act. (II) With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 12 months after the date of the enactment of such Act. (III) With respect to employers having 20 or more employees in the United States, but less than 500 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 18 months after the date of the enactment of such Act. (IV) With respect to employers having 1 or more employees in the United States, but less than 20 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 24 months after the date of the enactment of such Act. (ii) Recruiting and referring Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity recruiting or referring an individual for employment in the United States on the date that is 12 months after the date of the enactment of the Legal Workforce Act. (iii) Agricultural labor or services With respect to an employee performing agricultural labor or services, this paragraph shall not apply with respect to the verification of the employee until the date that is 24 months after the date of the enactment of the Legal Workforce Act. An employee described in this clause shall not be counted for purposes of clause (i). (iv) Transition rule Subject to paragraph (4), the following shall apply to a person or other entity hiring, recruiting, or referring an individual for employment in the United States until the effective date or dates applicable under clauses (i) through (iii): (I) This subsection, as in effect before the enactment of the Legal Workforce Act. (II) Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (III) Any other provision of Federal law requiring the person or entity to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a 8 U.S.C. 1324a (E) Verification period defined (i) In general For purposes of this paragraph: (I) In the case of recruitment or referral, the term verification period (II) In the case of hiring, the term verification period (ii) Job offer may be conditional A person or other entity may offer a prospective employee an employment position that is conditioned on final verification of the identity and employment eligibility of the employee using the procedures established under this paragraph. (iii) Special rule Notwithstanding clause (i)(II), in the case of an alien who is authorized for employment and who provides evidence from the Social Security Administration that the alien has applied for a social security account number, the verification period ends three business days after the alien receives the social security account number. (2) Reverification for individuals with limited work authorization (A) In general Except as provided in subparagraph (B), a person or entity shall make an inquiry, as provided in subsection (d), using the verification system to seek reverification of the identity and employment eligibility of all individuals with a limited period of work authorization employed by the person or entity during the three business days after the date on which the employee’s work authorization expires as follows: (i) With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, beginning on the date that is 6 months after the date of the enactment of such Act. (ii) With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 12 months after the date of the enactment of such Act. (iii) With respect to employers having 20 or more employees in the United States, but less than 500 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 12 months after the date of the enactment of such Act. (iv) With respect to employers having 1 or more employees in the United States, but less than 20 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 12 months after the date of the enactment of such Act. (B) Agricultural labor or services With respect to an employee performing agricultural labor or services, or an employee recruited or referred by a farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1801 agricultural labor or services section 3121(g) 29 U.S.C. 203(f) (C) Reverification Paragraph (1)(C)(ii) shall apply to reverifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall— (i) use a form designated or established by the Secretary by regulation for purposes of this paragraph; and (ii) retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the reverification commences and ending on the date that is the later of 3 years after the date of such reverification or 1 year after the date the individual’s employment is terminated. (3) Previously hired individuals (A) On a mandatory basis for multiple users of same social security account number In the case of an employer who is required by this subsection to use the verification system described in subsection (d), or has elected voluntarily to use such system, the employer shall make inquiries to the system in accordance with the following: (i) The Commissioner of Social Security shall notify annually employees (at the employee address listed on the Wage and Tax Statement) who submit a social security account number to which more than one employer reports income and for which there is a pattern of unusual multiple use. The notification letter shall identify the number of employers to which income is being reported as well as sufficient information notifying the employee of the process to contact the Social Security Administration Fraud Hotline if the employee believes the employee’s identity may have been stolen. The notice shall not share information protected as private, in order to avoid any recipient of the notice from being in the position to further commit or begin committing identity theft. (ii) If the person to whom the social security account number was issued by the Social Security Administration has been identified and confirmed by the Commissioner, and indicates that the social security account number was used without their knowledge, the Secretary and the Commissioner shall lock the social security account number for employment eligibility verification purposes and shall notify the employers of the individuals who wrongfully submitted the social security account number that the employee may not be work eligible. (iii) Each employer receiving such notification of an incorrect social security account number under clause (ii) shall use the verification system described in subsection (d) to check the work eligibility status of the applicable employee within 10 business days of receipt of the notification. (B) On a voluntary basis Subject to paragraph (2), and subparagraphs (A) through (C) of this paragraph, beginning on the date that is 30 days after the date of the enactment of the Legal Workforce Act, an employer may make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of any individual employed by the employer. If an employer chooses voluntarily to seek verification of any individual employed by the employer, the employer shall seek verification of all individuals employed at the same geographic location or, at the option of the employer, all individuals employed within the same job category, as the employee with respect to whom the employer seeks voluntarily to use the verification system. An employer’s decision about whether or not voluntarily to seek verification of its current workforce under this subparagraph may not be considered by any government agency in any proceeding, investigation, or review provided for in this Act. (C) Verification Paragraph (1)(C)(ii) shall apply to verifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall— (i) use a form designated or established by the Secretary by regulation for purposes of this paragraph; and (ii) retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the verification commences and ending on the date that is the later of 3 years after the date of such verification or 1 year after the date the individual’s employment is terminated. (4) Early compliance (A) Former E-Verify required users, including federal contractors Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary is authorized to commence requiring employers required to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (B) Former E-Verify voluntary users and others desiring early compliance Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary shall provide for the voluntary compliance with the requirements of this subsection by employers voluntarily electing to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (5) Copying of documentation permitted Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection. (6) Limitation on use of forms A form designated or established by the Secretary of Homeland Security under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this Act and any other provision of Federal criminal law. (7) Good faith compliance (A) In general Except as otherwise provided in this subsection, a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement. (B) Exception if failure to correct after notice Subparagraph (A) shall not apply if— (i) the failure is not de minimus; (ii) the Secretary of Homeland Security has explained to the person or entity the basis for the failure and why it is not de minimus; (iii) the person or entity has been provided a period of not less than 30 calendar days (beginning after the date of the explanation) within which to correct the failure; and (iv) the person or entity has not corrected the failure voluntarily within such period. (C) Exception for pattern or practice violators Subparagraph (A) shall not apply to a person or entity that has or is engaging in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2). (8) Single extension of deadlines upon certification In a case in which the Secretary of Homeland Security has certified to the Congress that the employment eligibility verification system required under subsection (d) will not be fully operational by the date that is 6 months after the date of the enactment of the Legal Workforce Act, each deadline established under this section for an employer to make an inquiry using such system shall be extended by 6 months. No other extension of such a deadline shall be made except as authorized under paragraph (1)(D)(iv). . (b) Date of hire Section 274A(h) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(h) (4) Definition of date of hire As used in this section, the term date of hire . 203. Employment eligibility verification system Section 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) (d) Employment eligibility verification system (1) In general Patterned on the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (A) responds to inquiries made by persons at any time through a toll-free telephone line and other toll-free electronic media concerning an individual’s identity and whether the individual is authorized to be employed; and (B) maintains records of the inquiries that were made, of verifications provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under this section. (2) Initial response The verification system shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment eligibility not later than 3 days prior to the date of employment per the initial inquiry. If providing confirmation or tentative nonconfirmation, the verification system shall provide an appropriate code indicating such confirmation or such nonconfirmation. (3) Secondary confirmation process in case of tentative nonconfirmation In cases of tentative nonconfirmation, the Secretary shall specify, in consultation with the Commissioner of Social Security, in the case of an individual with an existing social security number or passport number, an available secondary verification process to confirm the validity of information provided and to provide a final confirmation or nonconfirmation immediately. The Secretary, in consultation with the Commissioner, may extend this deadline once on a case-by-case basis for a period of 10 working days, and if the time is extended, shall document such extension within the verification system. The Secretary, in consultation with the Commissioner, shall notify the employee and employer of such extension. The Secretary, in consultation with the Commissioner, shall create a standard process of such extension and notification and shall make a description of such process available to the public. When final confirmation or nonconfirmation is provided, the verification system shall provide an appropriate code indicating such confirmation or nonconfirmation. (4) Design and operation of system The verification system shall be designed and operated— (A) to maximize its reliability and ease of use by persons and other entities consistent with insulating and protecting the privacy and security of the underlying information; (B) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received; (C) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; (D) to have reasonable safeguards against the system’s resulting in unlawful discriminatory practices based on national origin or citizenship status, including— (i) the selective or unauthorized use of the system to verify eligibility; or (ii) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants; (E) to maximize the prevention of identity theft use in the system; and (F) to limit the subjects of verification to the following individuals: (i) Individuals hired, referred, or recruited, in accordance with paragraph (1) or (4) of subsection (b). (ii) Employees and prospective employees, in accordance with paragraph (1), (2), (3), or (4) of subsection (b). (iii) Individuals seeking to confirm their own employment eligibility on a voluntary basis. (5) Responsibilities of Commissioner of Social Security As part of the verification system, the Commissioner of Social Security, in consultation with the Secretary of Homeland Security (and any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and social security account number or agricultural guestworker identification number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate) the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation) under the verification system except as provided for in this section or section 205(c)(2)(I) of the Social Security Act. (6) Responsibilities of Secretary of Homeland Security (A) In general As part of the verification system, the Secretary of Homeland Security (in consultation with any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and alien identification or authorization number (or any other information as determined relevant by the Secretary) which are provided in an inquiry against such information maintained or accessed by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, whether the alien is authorized to be employed in the United States, or to the extent that the Secretary determines to be feasible and appropriate, whether the records available to the Secretary verify the identity or status of a national of the United States. (B) Agricultural laborers The Secretary of Homeland Security shall ensure that, by the date that is 12 months after the date of the enactment of the Legal Workforce Act, whenever the verification system provides confirmation of an individual’s employment eligibility, it indicates whether the individual is eligible to be employed only to perform agricultural labor or services as a nonimmigrant who has been issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(c). (7) Updating information The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in paragraph (3). (8) Limitation on use of the verification system and any related systems (A) No national identification card Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card. (B) Critical infrastructure The Secretary may authorize or direct any person or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure Protection Act of 2001 ( 42 U.S.C. 5195c(e) (9) Remedies If an individual alleges that the individual would not have been dismissed from a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this paragraph. . 204. Recruitment, referral, and continuation of employment (a) Additional changes to rules for recruitment, referral, and continuation of employment Section 274A(a) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(a) (1) in paragraph (1)(A), by striking for a fee (2) in paragraph (1), by amending subparagraph (B) to read as follows: (B) to hire, continue to employ, or to recruit or refer for employment in the United States an individual without complying with the requirements of subsection (b). ; and (3) in paragraph (2), by striking after hiring an alien for employment in accordance with paragraph (1), after complying with paragraph (1), (b) Definition Section 274A(h) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(h) (5) Definition of recruit or refer As used in this section, the term refer recruit . (c) Effective date The amendments made by this section shall take effect on the date that is 1 year after the date of the enactment of this Act, except that the amendments made by subsection (a) shall take effect 6 months after the date of the enactment of this Act insofar as such amendments relate to continuation of employment. 205. Good faith defense Section 274A(a)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(a)(3) (3) Good faith defense (A) Defense An employer (or person or entity that hires, employs, recruits, or refers (as defined in subsection (h)(5)), or is otherwise obligated to comply with this section) who establishes that it has complied in good faith with the requirements of subsection (b)— (i) shall not be liable to a job applicant, an employee, the Federal Government, or a State or local government, under Federal, State, or local criminal or civil law for any employment-related action taken with respect to a job applicant or employee in good-faith reliance on information provided through the system established under subsection (d); and (ii) has established compliance with its obligations under subparagraphs (A) and (B) of paragraph (1) and subsection (b) absent a showing by the Secretary of Homeland Security, by clear and convincing evidence, that the employer had knowledge that an employee is an unauthorized alien. (B) Mitigation element For purposes of subparagraph (A)(i), if an employer proves by a preponderance of the evidence that the employer uses a reasonable, secure, and established technology to authenticate the identity of the new employee, that fact shall be taken into account for purposes of determining good faith use of the system established under subsection (d). (C) Failure to seek and obtain verification Subject to the effective dates and other deadlines applicable under subsection (b), in the case of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the following requirements apply: (i) Failure to seek verification (I) In general If the person or entity has not made an inquiry, under the mechanism established under subsection (d) and in accordance with the timeframes established under subsection (b), seeking verification of the identity and work eligibility of the individual, the defense under subparagraph (A) shall not be considered to apply with respect to any employment, except as provided in subclause (II). (II) Special rule for failure of verification mechanism If such a person or entity in good faith attempts to make an inquiry in order to qualify for the defense under subparagraph (A) and the verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or entity can make an inquiry until the end of the first subsequent working day in which the verification mechanism registers no nonresponses and qualify for such defense. (ii) Failure to obtain verification If the person or entity has made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such mechanism within the time period specified under subsection (d)(2) after the time the verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after the end of such time period. . 206. Preemption and States’ rights Section 274A(h)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(h)(2) (2) Preemption (A) Single, national policy The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, insofar as they may now or hereafter relate to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens. (B) State enforcement of Federal law (i) Business licensing A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system described in subsection (d) to verify employment eligibility when and as required under subsection (b). (ii) General rules A State, at its own cost, may enforce the provisions of this section, but only insofar as such State follows the Federal regulations implementing this section, applies the Federal penalty structure set out in this section, and complies with all Federal rules and guidance concerning implementation of this section. Such State may collect any fines assessed under this section. An employer may not be subject to enforcement, including audit, investigation, and fines, by both a Federal agency and a State for the same violation under this section. Whichever entity, the Federal agency or the State, is first to initiate the enforcement action, has the right of first refusal to proceed with the enforcement action. The Secretary must provide copies of all guidance, training, and field instructions provided to Federal officials implementing the provisions of this section to each State. . 207. Repeal (a) In general Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (b) References Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of, or pertaining to, the Department of Homeland Security, Department of Justice, or the Social Security Administration, to the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1324a (c) Effective date This section shall take effect on the date that is 12 months after the date of the enactment of this Act. (d) Clerical amendment The table of sections, in section 1(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, is amended by striking the items relating to subtitle A of title IV. 208. Penalties Section 274A of the Immigration and Nationality Act ( 8 U.S.C. 1324a (1) in subsection (e)(1)— (A) by striking Attorney General Secretary of Homeland Security (B) in subparagraph (D), by striking Service Department of Homeland Security (2) in subsection (e)(4)— (A) in subparagraph (A), in the matter before clause (i), by inserting , subject to paragraph (10), in an amount (B) in subparagraph (A)(i), by striking not less than $250 and not more than $2,000 not less than $2,500 and not more than $5,000 (C) in subparagraph (A)(ii), by striking not less than $2,000 and not more than $5,000 not less than $5,000 and not more than $10,000 (D) in subparagraph (A)(iii), by striking not less than $3,000 and not more than $10,000 not less than $10,000 and not more than $25,000 (E) by moving the margin of the continuation text following subparagraph (B) two ems to the left and by amending subparagraph (B) to read as follows: (B) may require the person or entity to take such other remedial action as is appropriate. ; (3) in subsection (e)(5)— (A) in the paragraph heading, strike paperwork (B) by inserting , subject to paragraphs (10) through (12), in an amount (C) by striking $100 $1,000 (D) by striking $1,000 $25,000 (E) by adding at the end the following: Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A). (4) by adding at the end of subsection (e) the following: (10) Exemption from penalty for good faith violation In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or referral by person or entity and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the violator establishes that the violator acted in good faith. (11) Mitigation element For purposes of paragraph (4), the size of the business shall be taken into account when assessing the level of civil money penalty. (12) Authority to debar employers for certain violations (A) In general If a person or entity is determined by the Secretary of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under this section, such person or entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation. (B) Does not have contract, grant, agreement If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or entity does not hold a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall refer the matter to the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope. (C) Has contract, grant, agreement If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or entity holds a Federal contract, grant or co-operative agreement, the Secretary or Attorney General shall advise all agencies or departments holding a contract, grant, or cooperative agreement with the person or entity of the Government’s interest in having the person or entity considered for debarment, and after soliciting and considering the views of all such agencies and departments, the Secretary or Attorney General may refer the matter to any appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope. (D) Review Any decision to debar a person or entity in accordance with this paragraph shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation. (13) Office for State and local government complaints The Secretary of Homeland Security shall establish an office— (A) to which State and local government agencies may submit information indicating potential violations of subsection (a), (b), or (g)(1) that were generated in the normal course of law enforcement or the normal course of other official activities in the State or locality; (B) that is required to indicate to the complaining State or local agency within five business days of the filing of such a complaint by identifying whether the Secretary will further investigate the information provided; (C) that is required to investigate those complaints filed by State or local government agencies that, on their face, have a substantial probability of validity; (D) that is required to notify the complaining State or local agency of the results of any such investigation conducted; and (E) that is required to report to the Congress annually the number of complaints received under this paragraph, the States and localities that filed such complaints, and the resolution of the complaints investigated by the Secretary. ; and (5) by amending paragraph (1) of subsection (f) to read as follows: (1) Criminal penalty Any person or entity which engages in a pattern or practice of violations of subsection (a) (1) or (2) shall be fined not more than $5,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not more than 18 months, or both, notwithstanding the provisions of any other Federal law relating to fine levels. . 209. Fraud and misuse of documents Section 1546(b) of title 18, United States Code, is amended— (1) in paragraph (1), by striking identification document, identification document or document meant to establish work authorization (including the documents described in section 274A(b) of the Immigration and Nationality Act), (2) in paragraph (2), by striking identification document identification document or document meant to establish work authorization (including the documents described in section 274A(b) of the Immigration and Nationality Act), 210. Protection of Social Security Administration programs (a) Funding under agreement Effective for fiscal years beginning on or after October 1, 2020, the Commissioner of Social Security and the Secretary of Homeland Security shall enter into and maintain an agreement which shall— (1) provide funds to the Commissioner for the full costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) (A) acquiring, installing, and maintaining technological equipment and systems necessary for the fulfillment of the responsibilities of the Commissioner under such section 274A(d), but only that portion of such costs that are attributable exclusively to such responsibilities; and (B) responding to individuals who contest a tentative nonconfirmation provided by the employment eligibility verification system established under such section; (2) provide such funds annually in advance of the applicable quarter based on estimating methodology agreed to by the Commissioner and the Secretary (except in such instances where the delayed enactment of an annual appropriation may preclude such quarterly payments); and (3) require an annual accounting and reconciliation of the actual costs incurred and the funds provided under the agreement, which shall be reviewed by the Inspectors General of the Social Security Administration and the Department of Homeland Security. (b) Continuation of employment verification in absence of timely agreement In any case in which the agreement required under subsection (a) for any fiscal year beginning on or after October 1, 2020, has not been reached as of October 1 of such fiscal year, the latest agreement between the Commissioner and the Secretary of Homeland Security providing for funding to cover the costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) 211. Fraud prevention (a) Blocking misused social security account numbers The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program in which social security account numbers that have been identified to be subject to unusual multiple use in the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) (b) Allowing suspension of use of certain social security account numbers The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which victims of identity fraud and other individuals may suspend or limit the use of their social security account number or other identifying information for purposes of the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) (c) Allowing parents To prevent theft of their child’s identity The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which parents or legal guardians may suspend or limit the use of the social security account number or other identifying information of a minor under their care for the purposes of the employment eligibility verification system established under 274A(d) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(d) 212. Use of employment eligibility verification photo tool An employer or entity who uses the photo matching tool, if required by the Secretary as part of the verification system, shall match, either visually, or using facial recognition or other verification technology approved or required by the Secretary, the photo matching tool photograph to the photograph on the identity or employment eligibility document provided by the individual or to the face of the employee submitting the document for employment verification purposes, or both, as determined by the Secretary. 213. Identity Authentication Employment Eligibility Verification pilot programs Not later than 12 months after the date of the enactment of this Act, the Secretary of Homeland Security, after consultation with the Commissioner of Social Security and the Director of the National Institute of Standards and Technology, shall establish by regulation not less than 2 Identity Authentication Employment Eligibility Verification pilot programs, each using a separate and distinct technology (the Authentication Pilots 214. Inspector General audits (a) In general Not later than 1 year after the date of the enactment of this Act, the Inspector General of the Social Security Administration shall complete audits of the following categories in order to uncover evidence of individuals who are not authorized to work in the United States: (1) Workers who dispute wages reported on their social security account number when they believe someone else has used such number and name to report wages. (2) Children’s social security account numbers used for work purposes. (3) Employers whose workers present significant numbers of mismatched social security account numbers or names for wage reporting. (b) Submission The Inspector General of the Social Security Administration shall submit the audits completed under subsection (a) to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate for review of the evidence of individuals who are not authorized to work in the United States. The Chairmen of those Committees shall then determine information to be shared with the Secretary of Homeland Security so that such Secretary can investigate the unauthorized employment demonstrated by such evidence. III H–2A program 301. Administration by Department of Agriculture (a) Admission of non-Immigrants Section 214(c)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1184(c)(1) means the Department of Labor and includes the Department of Agriculture means the Department of Agriculture (b) Administration of program Section 218 of the Immigration and Nationality Act ( 8 U.S.C. 1188 section 218 Secretary of Labor Secretary of Agriculture 302. Defining agricultural labor (a) In general Section 101(a)(15)(H) of the Immigration and Nationality Act is amended in clause (ii)(a) by striking agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121(g) 29 U.S.C. 203(f) agricultural labor or services of a temporary nature (as such term is defined in section 218) (b) Definition Section 218 is further amended in subsection (i) by adding at the end the following: (3) Agricultural labor or services of a temporary nature The term agricultural labor or services of a temporary or seasonal nature (A) has the meaning given such term by the Secretary of Agriculture in regulations; (B) includes non-seasonal employment; and (C) includes— (i) agricultural labor as defined in section 3121(g) (ii) agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(f) (iii) all activities required for the preparation, processing or manufacturing of a product of agriculture (as such term is defined in such section 3(f)), or fish or shellfish, for further distribution; (iv) the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state, but only if the operator of the facility where such activities are conducted, if not the farmer, produced or provides such services to a farmer or other entity of which farmers are the owners, partners or members who produced more than 50 percent of the commodity with respect to which such service is performed; (v) forestry-related activities up to the point of wholesale to a distribution facility; (vi) aquaculture activities up to the point of wholesale distribution; (vii) activities related to the breeding, management, training, and racing of equines; (viii) the pressing of apples for cider on a farm; (ix) logging employment; and (x) the transportation of any agricultural or horticultural product in its unmanufactured state by any person from the farm to a storage facility, to market, or to any place of handling, planting, drying, packing, packaging, processing, freezing, or grading, including at a packing house, a processing establishment, a gin, a seed conditioning facility, a mill, or a grain elevator. . 303. Wage structure and other amendments to H–2A program Section 218 is further amended by adding at the end the following: (j) Wage structure An H–2A worker shall be paid at a rate equal to the highest of— (1) 115 percent of the Federal minimum wage; (2) the State minimum wage rate; or (3) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. (k) Area of intended employment; no extension of period of authorized stay (1) Area of intended employment The Secretary of Agriculture may consider an increased area of employment for an H–2A petition that is not larger than the State in which the employer will employ the worker for the purposes of providing housing. (2) No extension of period of authorized stay The period of authorized stay for an H–2A worker may not exceed 10 months, and no extensions of such period may be made. (l) Application with staggered start dates In the case of any employer under this section who is applying for labor certifications for more than 1 H–2A worker, that employer may file a single consolidated application, subject to such terms and conditions as the Secretary of Homeland Security may prescribe, for all such workers, and may specify multiple dates on which the employer first requires the labor or services of H–2A workers covered by the application. (m) Expedited approval for certain workers The Secretary of Homeland Security shall establish a process for expediting consideration of any petition for an H–2A worker who has previously been the subject of two consecutive petitions that were approved. . 304. Biometric identification card Section 218 is further amended by adding at the end the following: (n) Biometric identification card An H–2A worker shall be issued, upon being approved for status as an H–2A worker, an encrypted, machine-readable electronic identification card to be known as a guestworker identification card (1) have an electronic identification strip to be used for all H–2A workers; (2) have a 15-digit numerical identification code that may be used for tax withholdings and for verifying an H–2A worker’s employment approval for agriculture specifically; (3) include a photograph on the front, and such other information as the Secretary determines necessary stored on a card containing microprocessors for data storage including, fingerprints, retinal scans, DNA, blood type, and facial recognition; (4) be eligible for replacement not more than once in a 5-year period; (5) include the start and end date of the period of approved stay of the H–2A worker and a statement that the H–2A worker is a seasonal worker; (6) have physical and electronic security features to prevent fraudulent uses or any misuse as determined by the Secretary; and (7) have the H–2A worker’s program identification number clearly visible. (o) Social security numbers An H–2A worker may not be issued a social security account number. In any case where such number would be necessary, the guestworker identification number issued by the Secretary of Agriculture shall be used. . 305. Effective date This title and the amendments made by this title shall take effect beginning on the date that is not more than 2 years after the date of enactment of this Act.

Summary: Labor Certainty for Food Security Act of 2020 This bill establishes a new H-2C nonimmigrant visa for aliens coming temporarily to the United States to perform agricultural labor, directs the Department of Homeland Security to create a mandatory electronic employment eligibility verification system, and modifies the H-2A visa program for temporary agricultural workers.