575 
able to the worker, if there are other 
job offers pending with the job service 
that offer similar job opportunities in 
the area of intended employment. 
‘‘(iv) STATUTORY
CONSTRUCTION.— 
Nothing in this subparagraph shall be con-
strued to prohibit an employer from using 
such legitimate selection criteria relevant 
to the type of job that are normal or cus-
tomary to the type of job involved so long 
as such criteria are not applied in a dis-
criminatory manner. 
‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF 
OF EMPLOYER MEMBERS.— 
‘‘(1) IN GENERAL.—An agricultural association 
may file an application under subsection (a) on be-
half of 1 or more of its employer members that the 
association certifies in its application has or have 
agreed in writing to comply with the requirements of 
this section and sections 218A, 218B, and 218C. 
‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS 
EMPLOYERS.—If an association filing an application 
under paragraph (1) is a joint or sole employer of 
the temporary or seasonal agricultural workers re-
quested on the application, the certifications granted 
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under subsection (e)(2)(B) to the association may be 
used for the certified job opportunities of any of its 
producer members named on the application, and 
such workers may be transferred among such pro-
ducer members to perform the agricultural services 
of a temporary or seasonal nature for which the cer-
tifications were granted. 
‘‘(d) WITHDRAWAL OF APPLICATIONS.— 
‘‘(1) IN GENERAL.—An employer may withdraw 
an application filed pursuant to subsection (a), ex-
cept that if the employer is an agricultural associa-
tion, the association may withdraw an application 
filed pursuant to subsection (a) with respect to 1 or 
more of its members. To withdraw an application, 
the employer or association shall notify the Sec-
retary of Labor in writing, and the Secretary of 
Labor shall acknowledge in writing the receipt of 
such withdrawal notice. An employer who withdraws 
an application under subsection (a), or on whose be-
half an application is withdrawn, is relieved of the 
obligations undertaken in the application. 
‘‘(2) LIMITATION.—An application may not be 
withdrawn while any alien provided status under sec-
tion 101(a)(15)(H)(ii)(a) pursuant to such applica-
tion is employed by the employer. 
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‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.— 
Any obligation incurred by an employer under any 
other law or regulation as a result of the recruit-
ment of United States workers or H–2A workers 
under an offer of terms and conditions of employ-
ment required as a result of making an application 
under subsection (a) is unaffected by withdrawal of 
such application. 
‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.— 
‘‘(1) RESPONSIBILITY
OF
EMPLOYERS.—The 
employer shall make available for public examina-
tion, within 1 working day after the date on which 
an application under subsection (a) is filed, at the 
employer’s principal place of business or worksite, a 
copy of each such application (and such accom-
panying documents as are necessary). 
‘‘(2) RESPONSIBILITY OF THE SECRETARY OF 
LABOR.— 
‘‘(A) COMPILATION
OF
LIST.—The Sec-
retary of Labor shall compile, on a current 
basis, a list (by employer and by occupational 
classification) of the applications filed under 
subsection (a). Such list shall include the wage 
rate, number of workers sought, period of in-
tended employment, and date of need. The Sec-
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retary of Labor shall make such list available 
for examination in the District of Columbia. 
‘‘(B) REVIEW
OF
APPLICATIONS.—The 
Secretary of Labor shall review such an applica-
tion only for completeness and obvious inac-
curacies. Unless the Secretary of Labor finds 
that the application is incomplete or obviously 
inaccurate, the Secretary of Labor shall certify 
that the intending employer has filed with the 
Secretary of Labor an application as described 
in subsection (a). Such certification shall be 
provided within 7 days of the filing of the appli-
cation.’’ 
‘‘SEC. 218A. H–2A EMPLOYMENT REQUIREMENTS. 
‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO-
HIBITED.—Employers seeking to hire United States work-
ers shall offer the United States workers no less than the 
same benefits, wages, and working conditions that the em-
ployer is offering, intends to offer, or will provide to H– 
2A workers. Conversely, no job offer may impose on 
United States workers any restrictions or obligations 
which will not be imposed on the employer’s H–2A work-
ers. 
‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING 
CONDITIONS.—Except in cases where higher benefits, 
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wages, or working conditions are required by the provi-
sions of subsection (a), in order to protect similarly em-
ployed United States workers from adverse effects with 
respect to benefits, wages, and working conditions, every 
job offer which shall accompany an application under sec-
tion 218(b)(2) shall include each of the following benefit, 
wage, and working condition provisions: 
‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A 
HOUSING ALLOWANCE.— 
‘‘(A) IN GENERAL.—An employer applying 
under section 218(a) for H–2A workers shall 
offer to provide housing at no cost to all work-
ers in job opportunities for which the employer 
has applied under that section and to all other 
workers in the same occupation at the place of 
employment, whose place of residence is beyond 
normal commuting distance. 
‘‘(B) TYPE
OF
HOUSING.—In complying 
with subparagraph (A), an employer may, at 
the employer’s election, provide housing that 
meets applicable Federal standards for tem-
porary labor camps or secure housing that 
meets applicable local standards for rental or 
public accommodation housing or other sub-
stantially similar class of habitation, or in the 
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absence of applicable local standards, State 
standards for rental or public accommodation 
housing or other substantially similar class of 
habitation. In the absence of applicable local or 
State standards, Federal temporary labor camp 
standards shall apply. 
‘‘(C) FAMILY HOUSING.—If it is the pre-
vailing practice in the occupation and area of 
intended employment to provide family housing, 
family housing shall be provided to workers 
with families who request it. 
‘‘(D) WORKERS ENGAGED IN THE RANGE 
PRODUCTION OF LIVESTOCK.—The Secretary of 
Labor shall issue regulations that address the 
specific requirements for the provision of hous-
ing to workers engaged in the range production 
of livestock. 
‘‘(E) LIMITATION.—Nothing in this para-
graph shall be construed to require an employer 
to provide or secure housing for persons who 
were not entitled to such housing under the 
temporary labor certification regulations in ef-
fect on June 1, 1986. 
‘‘(F) CHARGES FOR HOUSING.— 
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‘‘(i) CHARGES
FOR
PUBLIC
HOUS-
ING.—If public housing provided for mi-
grant agricultural workers under the aus-
pices of a local, county, or State govern-
ment is secured by an employer, and use of 
the public housing unit normally requires 
charges 
from 
migrant 
workers, 
such 
charges shall be paid by the employer di-
rectly to the appropriate individual or enti-
ty affiliated with the housing’s manage-
ment. 
‘‘(ii) DEPOSIT CHARGES.—Charges in 
the form of deposits for bedding or other 
similar incidentals related to housing shall 
not be levied upon workers by employers 
who provide housing for their workers. An 
employer may require a worker found to 
have been responsible for damage to such 
housing which is not the result of normal 
wear and tear related to habitation to re-
imburse the employer for the reasonable 
cost of repair of such damage. 
‘‘(G) HOUSING
ALLOWANCE
AS
ALTER-
NATIVE.— 
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‘‘(i) IN GENERAL.—If the requirement 
set out in clause (ii) is satisfied, the em-
ployer may provide a reasonable housing 
allowance instead of offering housing 
under subparagraph (A). Upon the request 
of a worker seeking assistance in locating 
housing, the employer shall make a good 
faith effort to assist the worker in identi-
fying and locating housing in the area of 
intended employment. An employer who of-
fers a housing allowance to a worker, or 
assists a worker in locating housing which 
the worker occupies, pursuant to this 
clause shall not be deemed a housing pro-
vider under section 203 of the Migrant and 
Seasonal Agricultural Worker Protection 
Act (29 U.S.C. 1823) solely by virtue of 
providing such housing allowance. No 
housing allowance may be used for housing 
which is owned or controlled by the em-
ployer. 
‘‘(ii) CERTIFICATION.—The require-
ment of this clause is satisfied if the Gov-
ernor of the State certifies to the Secretary 
of Labor that there is adequate housing 
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available in the area of intended employ-
ment for migrant farm workers and H–2A 
workers who are seeking temporary hous-
ing while employed in agricultural work. 
Such certification shall expire after 3 years 
unless renewed by the Governor of the 
State. 
‘‘(iii) AMOUNT OF ALLOWANCE.— 
‘‘(I) NONMETROPOLITAN
COUN-
TIES.—If the place of employment of 
the workers provided an allowance 
under this subparagraph is a non-
metropolitan county, the amount of 
the housing allowance under this sub-
paragraph shall be equal to the state-
wide average fair market rental for 
existing housing for nonmetropolitan 
counties for the State, as established 
by the Secretary of Housing and 
Urban Development pursuant to sec-
tion 8(c) of the United States Hous-
ing Act of 1937 (42 U.S.C. 1437f(c)), 
based on a 2-bedroom dwelling unit 
and an assumption of 2 persons per 
bedroom. 
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‘‘(II) 
METROPOLITAN
COUN-
TIES.—If the place of employment of 
the workers provided an allowance 
under this paragraph is in a metro-
politan county, the amount of the 
housing allowance under this subpara-
graph shall be equal to the statewide 
average fair market rental for existing 
housing for metropolitan counties for 
the State, as established by the Sec-
retary of Housing and Urban Devel-
opment pursuant to section 8(c) of 
the United States Housing Act of 
1937 (42 U.S.C. 1437f(c)), based on 
a 2-bedroom dwelling unit and an as-
sumption of 2 persons per bedroom. 
‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 
‘‘(A) TO
PLACE
OF
EMPLOYMENT.—A 
worker who completes 50 percent of the period 
of employment of the job opportunity for which 
the worker was hired shall be reimbursed by the 
employer for the cost of the worker’s transpor-
tation and subsistence from the place from 
which the worker came to work for the em-
ployer (or place of last employment, if the 
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worker traveled from such place) to the place of 
employment. 
‘‘(B) FROM PLACE OF EMPLOYMENT.—A 
worker who completes the period of employment 
for the job opportunity involved shall be reim-
bursed by the employer for the cost of the 
worker’s transportation and subsistence from 
the place of employment to the place from 
which the worker, disregarding intervening em-
ployment, came to work for the employer, or to 
the place of next employment, if the worker has 
contracted with a subsequent employer who has 
not agreed to provide or pay for the worker’s 
transportation and subsistence to such subse-
quent employer’s place of employment. 
‘‘(C) LIMITATION.— 
‘‘(i) AMOUNT OF REIMBURSEMENT.— 
Except as provided in clause (ii), the 
amount of reimbursement provided under 
subparagraph (A) or (B) to a worker or 
alien shall not exceed the lesser of— 
‘‘(I) the actual cost to the worker 
or alien of the transportation and sub-
sistence involved; or 
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‘‘(II) the most economical and 
reasonable common carrier transpor-
tation charges and subsistence costs 
for the distance involved. 
‘‘(ii) DISTANCE TRAVELED.—No reim-
bursement under subparagraph (A) or (B) 
shall be required if the distance traveled is 
100 miles or less, or the worker is not re-
siding in employer-provided housing or 
housing secured through an allowance as 
provided in paragraph (1)(G). 
‘‘(D) EARLY TERMINATION.—If the worker 
is laid off or employment is terminated for con-
tract impossibility (as described in paragraph 
(4)(D)) before the anticipated ending date of 
employment, the employer shall provide the 
transportation and subsistence required by sub-
paragraph (B) and, notwithstanding whether 
the worker has completed 50 percent of the pe-
riod of employment, shall provide the transpor-
tation reimbursement required by subparagraph 
(A). 
‘‘(E) TRANSPORTATION BETWEEN LIVING 
QUARTERS
AND
WORKSITE.—The employer 
shall provide transportation between the work-
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er’s living quarters and the employer’s worksite 
without cost to the worker, and such transpor-
tation will be in accordance with applicable laws 
and regulations. 
‘‘(3) REQUIRED WAGES.— 
‘‘(A) IN GENERAL.—An employer applying 
for workers under section 218(a) shall offer to 
pay, and shall pay, all workers in the occupa-
tion for which the employer has applied for 
workers, not less (and is not required to pay 
more) than the greater of the prevailing wage 
in the occupation in the area of intended em-
ployment or the adverse effect wage rate. No 
worker shall be paid less than the greater of the 
hourly wage prescribed under section 6(a)(1) of 
the Fair Labor Standards Act of 1938 (29 
U.S.C. 206(a)(1)) or the applicable State min-
imum wage. 
‘‘(B) LIMITATION.—Effective on the date 
of the enactment of the Agricultural Job Op-
portunities, Benefits, and Security Act of 2007 
and continuing for 3 years thereafter, no ad-
verse effect wage rate for a State may be more 
than the adverse effect wage rate for that State 
in effect on January 1, 2003, as established by 
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section 655.107 of title 20, Code of Federal 
Regulations. 
‘‘(C) REQUIRED
WAGES
AFTER
3-YEAR 
FREEZE.— 
‘‘(i) FIRST
ADJUSTMENT.—If Con-
gress does not set a new wage standard 
applicable to this section before the first 
March 1 that is not less than 3 years after 
the date of enactment of this section, the 
adverse effect wage rate for each State be-
ginning on such March 1 shall be the wage 
rate that would have resulted if the ad-
verse effect wage rate in effect on January 
1, 2003, had been annually adjusted, be-
ginning on March 1, 2006, by the lesser 
of— 
‘‘(I) the 12-month percentage 
change in the Consumer Price Index 
for All Urban Consumers between De-
cember of the second preceding year 
and December of the preceding year; 
and 
‘‘(II) 4 percent. 
‘‘(ii) SUBSEQUENT ANNUAL ADJUST-
MENTS.—Beginning on the first March 1 
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that is not less than 4 years after the date 
of enactment of this section, and each 
March 1 thereafter, the adverse effect 
wage rate then in effect for each State 
shall be adjusted by the lesser of— 
‘‘(I) the 12-month percentage 
change in the Consumer Price Index 
for All Urban Consumers between De-
cember of the second preceding year 
and December of the preceding year; 
and 
‘‘(II) 4 percent. 
‘‘(D) DEDUCTIONS.—The employer shall 
make only those deductions from the worker’s 
wages that are authorized by law or are reason-
able and customary in the occupation and area 
of employment. The job offer shall specify all 
deductions not required by law which the em-
ployer will make from the worker’s wages. 
‘‘(E) FREQUENCY OF PAY.—The employer 
shall pay the worker not less frequently than 
twice monthly, or in accordance with the pre-
vailing practice in the area of employment, 
whichever is more frequent. 
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‘‘(F) 
HOURS
AND
EARNINGS
STATE-
MENTS.—The employer shall furnish to the 
worker, on or before each payday, in 1 or more 
written statements— 
‘‘(i) the worker’s total earnings for 
the pay period; 
‘‘(ii) the worker’s hourly rate of pay, 
piece rate of pay, or both; 
‘‘(iii) the hours of employment which 
have been offered to the worker (broken 
out by hours offered in accordance with 
and over and above the 3⁄4 guarantee de-
scribed in paragraph (4); 
‘‘(iv) the hours actually worked by the 
worker; 
‘‘(v) an itemization of the deductions 
made from the worker’s wages; and 
‘‘(vi) if piece rates of pay are used, 
the units produced daily. 
‘‘(G) REPORT ON WAGE PROTECTIONS.— 
Not later than December 31, 2009, the Comp-
troller General of the United States shall pre-
pare and transmit to the Secretary of Labor, 
the Committee on the Judiciary of the Senate, 
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591 
and Committee on the Judiciary of the House 
of Representatives, a report that addresses— 
‘‘(i) whether the employment of H–2A 
or unauthorized aliens in the United States 
agricultural 
workforce 
has 
depressed 
United States farm worker wages below 
the levels that would otherwise have pre-
vailed if alien farm workers had not been 
employed in the United States; 
‘‘(ii) whether an adverse effect wage 
rate is necessary to prevent wages of 
United States farm workers in occupations 
in which H–2A workers are employed from 
falling below the wage levels that would 
have prevailed in the absence of the em-
ployment of H–2A workers in those occu-
pations; 
‘‘(iii) whether alternative wage stand-
ards, such as a prevailing wage standard, 
would be sufficient to prevent wages in oc-
cupations in which H–2A workers are em-
ployed from falling below the wage level 
that would have prevailed in the absence of 
H–2A employment; 
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‘‘(iv) whether any changes are war-
ranted in the current methodologies for 
calculating the adverse effect wage rate 
and the prevailing wage; and 
‘‘(v) recommendations for future wage 
protection under this section. 
‘‘(H) COMMISSION
ON
WAGE
STAND-
ARDS.— 
‘‘(i) ESTABLISHMENT.—There is es-
tablished the Commission on Agricultural 
Wage Standards under the H–2A program 
(in this subparagraph referred to as the 
‘Commission’). 
‘‘(ii) COMPOSITION.—The Commission 
shall consist of 10 members as follows: 
‘‘(I) Four representatives of agri-
cultural employers and 1 representa-
tive of the Department of Agriculture, 
each appointed by the Secretary of 
Agriculture. 
‘‘(II) Four representatives of ag-
ricultural workers and 1 representa-
tive of the Department of Labor, each 
appointed by the Secretary of Labor. 
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‘‘(iii) FUNCTIONS.—The Commission 
shall conduct a study that shall address— 
‘‘(I) whether the employment of 
H–2A or unauthorized aliens in the 
United States agricultural workforce 
has depressed United States farm 
worker wages below the levels that 
would otherwise have prevailed if alien 
farm workers had not been employed 
in the United States; 
‘‘(II) whether an adverse effect 
wage rate is necessary to prevent 
wages of United States farm workers 
in occupations in which H–2A work-
ers are employed from falling below 
the wage levels that would have pre-
vailed in the absence of the employ-
ment of H–2A workers in those occu-
pations; 
‘‘(III) whether alternative wage 
standards, such as a prevailing wage 
standard, would be sufficient to pre-
vent wages in occupations in which 
H–2A workers are employed from fall-
ing below the wage level that would 
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have prevailed in the absence of H–2A 
employment; 
‘‘(IV) whether any changes are 
warranted in the current methodolo-
gies for calculating the adverse effect 
wage rate and the prevailing wage 
rate; and 
‘‘(V) recommendations for future 
wage protection under this section. 
‘‘(iv) FINAL REPORT.—Not later than 
December 31, 2009, the Commission shall 
submit a report to the Congress setting 
forth the findings of the study conducted 
under clause (iii). 
‘‘(v) TERMINATION DATE.—The Com-
mission shall terminate upon submitting 
its final report. 
‘‘(4) GUARANTEE OF EMPLOYMENT.— 
‘‘(A) OFFER TO WORKER.—The employer 
shall guarantee to offer the worker employment 
for the hourly equivalent of at least 3⁄4 of the 
work days of the total period of employment, 
beginning with the first work day after the ar-
rival of the worker at the place of employment 
and ending on the expiration date specified in 
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the job offer. For purposes of this subpara-
graph, the hourly equivalent means the number 
of hours in the work days as stated in the job 
offer and shall exclude the worker’s Sabbath 
and Federal holidays. If the employer affords 
the United States or H–2A worker less employ-
ment than that required under this paragraph, 
the employer shall pay such worker the amount 
which the worker would have earned had the 
worker, in fact, worked for the guaranteed 
number of hours. 
‘‘(B) FAILURE
TO
WORK.—Any hours 
which the worker fails to work, up to a max-
imum of the number of hours specified in the 
job offer for a work day, when the worker has 
been offered an opportunity to do so, and all 
hours of work actually performed (including vol-
untary work in excess of the number of hours 
specified in the job offer in a work day, on the 
worker’s Sabbath, or on Federal holidays) may 
be counted by the employer in calculating 
whether the period of guaranteed employment 
has been met. 
‘‘(C) ABANDONMENT
OF
EMPLOYMENT, 
TERMINATION FOR CAUSE.—If the worker vol-
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untarily abandons employment before the end 
of the contract period, or is terminated for 
cause, the worker is not entitled to the ‘3⁄4 
guarantee’ described in subparagraph (A). 
‘‘(D) CONTRACT
IMPOSSIBILITY.—If, be-
fore the expiration of the period of employment 
specified in the job offer, the services of the 
worker are no longer required for reasons be-
yond the control of the employer due to any 
form of natural disaster, including a flood, hur-
ricane, freeze, earthquake, fire, drought, plant 
or animal disease or pest infestation, or regu-
latory drought, before the guarantee in sub-
paragraph (A) is fulfilled, the employer may 
terminate the worker’s employment. In the 
event of such termination, the employer shall 
fulfill the employment guarantee in subpara-
graph (A) for the work days that have elapsed 
from the first work day after the arrival of the 
worker to the termination of employment. In 
such cases, the employer will make efforts to 
transfer the United States worker to other com-
parable employment acceptable to the worker. If 
such transfer is not effected, the employer shall 
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