428 
‘‘(2) JOB
OPPORTUNITIES
NOT
COVERED
BY 
COLLECTIVE BARGAINING AGREEMENTS.—With re-
spect to a job opportunity that is not covered under 
a collective bargaining agreement: 
‘‘(A) STRIKE OR LOCKOUT.—The specific 
job opportunity for which the employer has ap-
plied for an H–2A worker is not vacant because 
the former occupant is on strike or being locked 
out in the course of a labor dispute. 
‘‘(B) TEMPORARY OR SEASONAL JOB OP-
PORTUNITIES.—The job opportunity is tem-
porary or seasonal. 
‘‘(C) BENEFIT, WAGE, AND WORKING CON-
DITIONS.—The employer will provide, at a min-
imum, the benefits, wages, and working condi-
tions required by section 218A to all workers 
employed in the job opportunities for which the 
employer has applied for an H–2A worker 
under subsection (a) and to all other workers in 
the same occupation at the place of employ-
ment. 
‘‘(D) 
NONDISPLACEMENT
OF
UNITED 
STATES WORKERS.—The employer did not dis-
place and will not displace a United States 
worker employed by the employer during the 
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429 
period of employment and for a period of 30 
days preceding the period of employment in the 
occupation at the place of employment for 
which the employer has applied for an H–2A 
worker. 
‘‘(E) REQUIREMENTS FOR PLACEMENT OF 
THE
NONIMMIGRANT
WITH
OTHER
EMPLOY-
ERS.—The employer will not place the non-
immigrant with another employer unless— 
‘‘(i) the nonimmigrant performs du-
ties in whole or in part at 1 or more work-
sites owned, operated, or controlled by 
such other employer; 
‘‘(ii) there are indicia of an employ-
ment 
relationship 
between 
the 
non-
immigrant and such other employer; and 
‘‘(iii) the employer has inquired of the 
other employer as to whether, and has no 
actual knowledge or notice that, during the 
period of employment and for a period of 
30 days preceding the period of employ-
ment, the other employer has displaced or 
intends to displace a United States worker 
employed by the other employer in the oc-
cupation at the place of employment for 
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430 
which the employer seeks approval to em-
ploy H–2A workers. 
‘‘(F) STATEMENT OF LIABILITY.—The ap-
plication form shall include a clear statement 
explaining the liability under subparagraph (E) 
of an employer if the other employer described 
in such subparagraph displaces a United States 
worker as described in such subparagraph. 
‘‘(G) PROVISION
OF
INSURANCE.—If the 
job opportunity is not covered by the State 
workers’ compensation law, the employer will 
provide, at no cost to the worker, insurance cov-
ering injury and disease arising out of and in 
the course of the worker’s employment which 
will provide benefits at least equal to those pro-
vided under the State’s workers’ compensation 
law for comparable employment. 
‘‘(H) EMPLOYMENT
OF
UNITED
STATES 
WORKERS.— 
‘‘(i) RECRUITMENT.—The employer 
has taken or will take the following steps 
to recruit United States workers for the 
job opportunities for which the H–2A non-
immigrant is, or H–2A nonimmigrants are, 
sought: 
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431 
‘‘(I) 
CONTACTING
FORMER 
WORKERS.—The employer shall make 
reasonable efforts through the sending 
of a letter by United States Postal 
Service mail, or otherwise, to contact 
any United States worker the em-
ployer employed during the previous 
season in the occupation at the place 
of intended employment for which the 
employer is applying for workers and 
has made the availability of the em-
ployer’s job opportunities in the occu-
pation at the place of intended em-
ployment known to such previous 
workers, unless the worker was termi-
nated from employment by the em-
ployer for a lawful job-related reason 
or abandoned the job before the work-
er completed the period of employ-
ment of the job opportunity for which 
the worker was hired. 
‘‘(II) FILING A JOB OFFER WITH 
THE
LOCAL
OFFICE
OF
THE
STATE 
EMPLOYMENT
SECURITY
AGENCY.— 
Not later than 28 days before the 
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432 
date on which the employer desires to 
employ an H–2A worker in a tem-
porary or seasonal agricultural job op-
portunity, the employer shall submit a 
copy of the job offer described in sub-
section (a)(2) to the local office of the 
State employment security agency 
which serves the area of intended em-
ployment and authorize the posting of 
the job opportunity on ‘America’s Job 
Bank’ or other electronic job registry, 
except that nothing in this subclause 
shall require the employer to file an 
interstate job order under section 653 
of title 20, Code of Federal Regula-
tions. 
‘‘(III) ADVERTISING OF JOB OP-
PORTUNITIES.—Not later than 14 
days before the date on which the em-
ployer desires to employ an H–2A 
worker in a temporary or seasonal ag-
ricultural job opportunity, the em-
ployer shall advertise the availability 
of the job opportunities for which the 
employer is seeking workers in a pub-
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433 
lication in the local labor market that 
is likely to be patronized by potential 
farm workers. 
‘‘(IV) 
EMERGENCY
PROCE-
DURES.—The 
Secretary 
of 
Labor 
shall, by regulation, provide a proce-
dure for acceptance and approval of 
applications in which the employer 
has not complied with the provisions 
of this subparagraph because the em-
ployer’s need for H–2A workers could 
not reasonably have been foreseen. 
‘‘(ii) JOB OFFERS.—The employer has 
offered or will offer the job to any eligible 
United States worker who applies and is 
equally or better qualified for the job for 
which the nonimmigrant is, or non-
immigrants are, sought and who will be 
available at the time and place of need. 
‘‘(iii) PERIOD OF EMPLOYMENT.—The 
employer will provide employment to any 
qualified United States worker who applies 
to the employer during the period begin-
ning on the date on which the H–2A work-
er departs for the employer’s place of em-
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434 
ployment and ending on the date on which 
50 percent of the period of employment for 
which the H–2A worker who is in the job 
was hired has elapsed, subject to the fol-
lowing requirements: 
‘‘(I) PROHIBITION.—No person 
or entity shall willfully and knowingly 
withhold United States workers before 
the arrival of H–2A workers in order 
to force the hiring of United States 
workers under this clause. 
‘‘(II) COMPLAINTS.—Upon re-
ceipt of a complaint by an employer 
that a violation of subclause (I) has 
occurred, the Secretary of Labor shall 
immediately investigate. The Sec-
retary of Labor shall, within 36 hours 
of the receipt of the complaint, issue 
findings concerning the alleged viola-
tion. If the Secretary of Labor finds 
that a violation has occurred, the Sec-
retary of Labor shall immediately sus-
pend the application of this clause 
with respect to that certification for 
that date of need. 
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435 
‘‘(III) PLACEMENT
OF
UNITED 
STATES
WORKERS.—Before referring 
a United States worker to an em-
ployer during the period described in 
the matter preceding subclause (I), 
the Secretary of Labor shall make all 
reasonable efforts to place the United 
States worker in an open job accept-
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 
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436 
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 
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 
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437 
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. 
‘‘(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). 
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438 
‘‘(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-
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-
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439 
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, 
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 
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441 
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.— 
‘‘(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 
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442 
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.— 
‘‘(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 
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443 
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 
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 
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444 
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. 
‘‘(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.— 
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445 
‘‘(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 
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.— 
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446 
‘‘(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 
‘‘(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-
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447 
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-
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 
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448 
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 2013 
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, 2013, as established by 
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, 2013, had been annually adjusted, be-
ginning on March 1, 2016, by the lesser 
of— 
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449 
‘‘(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 
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 
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450 
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. 
‘‘(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 
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‘‘(vi) if piece rates of pay are used, 
the units produced daily. 
‘‘(G) REPORT ON WAGE PROTECTIONS.— 
Not later than December 31, 2014, 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, 
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; 
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‘‘(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; 
‘‘(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, 
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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. 
‘‘(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; 
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‘‘(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 
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, 2014, 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.— 
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‘‘(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 
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 
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456 
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-
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 
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457 
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 
provide the return transportation required in 
paragraph (2)(D). 
‘‘(5) MOTOR VEHICLE SAFETY.— 
‘‘(A) MODE OF TRANSPORTATION SUBJECT 
TO COVERAGE.— 
‘‘(i) IN
GENERAL.—Except as pro-
vided in clauses (iii) and (iv), this sub-
section applies to any H–2A employer that 
uses or causes to be used any vehicle to 
transport an H–2A worker within the 
United States. 
‘‘(ii) DEFINED TERM.—In this para-
graph, the term ‘uses or causes to be 
used’— 
‘‘(I) applies only to transpor-
tation provided by an H–2A employer 
to an H–2A worker, or by a farm 
labor contractor to an H–2A worker 
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458 
at the request or direction of an H– 
2A employer; and 
‘‘(II) does not apply to— 
‘‘(aa) 
transportation 
pro-
vided, or transportation arrange-
ments made, by an H–2A work-
er, unless the employer specifi-
cally requested or arranged such 
transportation; or 
‘‘(bb) car pooling arrange-
ments made by H–2A workers 
themselves, using 1 of the work-
ers’ own vehicles, unless specifi-
cally requested by the employer 
directly or through a farm labor 
contractor. 
‘‘(iii) CLARIFICATION.—Providing a 
job offer to an H–2A worker that causes 
the worker to travel to or from the place 
of employment, or the payment or reim-
bursement of the transportation costs of 
an H–2A worker by an H–2A employer, 
shall not constitute an arrangement of, or 
participation in, such transportation. 
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459 
‘‘(iv) AGRICULTURAL MACHINERY AND 
EQUIPMENT
EXCLUDED.—This subsection 
does not apply to the transportation of an 
H–2A worker on a tractor, combine, har-
vester, picker, or other similar machinery 
or equipment while such worker is actually 
engaged in the planting, cultivating, or 
harvesting of agricultural commodities or 
the care of livestock or poultry or engaged 
in transportation incidental thereto. 
‘‘(v) 
COMMON
CARRIERS
EX-
CLUDED.—This subsection does not apply 
to common carrier motor vehicle transpor-
tation in which the provider holds itself out 
to the general public as engaging in the 
transportation of passengers for hire and 
holds a valid certification of authorization 
for such purposes from an appropriate 
Federal, State, or local agency. 
‘‘(B) APPLICABILITY OF STANDARDS, LI-
CENSING, AND INSURANCE REQUIREMENTS.— 
‘‘(i) IN
GENERAL.—When using, or 
causing to be used, any vehicle for the pur-
pose of providing transportation to which 
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460 
this subparagraph applies, each employer 
shall— 
‘‘(I) ensure that each such vehi-
cle conforms to the standards pre-
scribed by the Secretary of Labor 
under section 401(b) of the Migrant 
and Seasonal Agricultural Worker 
Protection Act (29 U.S.C. 1841(b)) 
and other applicable Federal and 
State safety standards; 
‘‘(II) ensure that each driver has 
a valid and appropriate license, as 
provided by State law, to operate the 
vehicle; and 
‘‘(III) have an insurance policy 
or a liability bond that is in effect 
which insures the employer against li-
ability for damage to persons or prop-
erty arising from the ownership, oper-
ation, or causing to be operated, of 
any vehicle used to transport any H– 
2A worker. 
‘‘(ii) AMOUNT
OF
INSURANCE
RE-
QUIRED.—The level of insurance required 
shall be determined by the Secretary of 
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461 
Labor pursuant to regulations to be issued 
under this subsection. 
‘‘(iii) EFFECT
OF
WORKERS’ COM-
PENSATION
COVERAGE.—If the employer 
of any H–2A worker provides workers’ 
compensation coverage for such worker in 
the case of bodily injury or death as pro-
vided by State law, the following adjust-
ments in the requirements of subparagraph 
(B)(i)(III) relating to having an insurance 
policy or liability bond apply: 
‘‘(I) No insurance policy or liabil-
ity bond shall be required of the em-
ployer, if such workers are trans-
ported only under circumstances for 
which there is coverage under such 
State law. 
‘‘(II) An insurance policy or li-
ability bond shall be required of the 
employer for circumstances under 
which coverage for the transportation 
of such workers is not provided under 
such State law. 
‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em-
ployer shall assure that, except as otherwise provided in 
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462 
this section, the employer will comply with all applicable 
Federal, State, and local labor laws, including laws affect-
ing migrant and seasonal agricultural workers, with re-
spect to all United States workers and alien workers em-
ployed by the employer, except that a violation of this as-
surance shall not constitute a violation of the Migrant and 
Seasonal Agricultural Worker Protection Act (29 U.S.C. 
1801 et seq.). 
‘‘(d) COPY OF JOB OFFER.—The employer shall pro-
vide to the worker, not later than the day the work com-
mences, a copy of the employer’s application and job offer 
described in section 218(a), or, if the employer will require 
the worker to enter into a separate employment contract 
covering the employment in question, such separate em-
ployment contract. 
‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing 
in this section, section 218, or section 218B shall preclude 
the Secretary of Labor and the Secretary from continuing 
to apply special procedures and requirements to the ad-
mission and employment of aliens in occupations involving 
the range production of livestock. 
‘‘SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION 
OF STAY OF H–2A WORKERS. 
‘‘(a) PETITIONING FOR ADMISSION.—An employer, 
or an association acting as an agent or joint employer for 
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463 
its members, that seeks the admission into the United 
States of an H–2A worker may file a petition with the 
Secretary. The petition shall be accompanied by an accept-
ed and currently valid certification provided by the Sec-
retary of Labor under section 218(e)(2)(B) covering the 
petitioner. 
‘‘(b) EXPEDITED
ADJUDICATION
BY
THE
SEC-
RETARY.—The Secretary shall establish a procedure for 
expedited adjudication of petitions filed under subsection 
(a) and within 7 working days shall, by fax, cable, or other 
means assuring expedited delivery, transmit a copy of no-
tice of action on the petition to the petitioner and, in the 
case of approved petitions, to the appropriate immigration 
officer at the port of entry or United States consulate (as 
the case may be) where the petitioner has indicated that 
the alien beneficiary (or beneficiaries) will apply for a visa 
or admission to the United States. 
‘‘(c) CRITERIA FOR ADMISSIBILITY.— 
‘‘(1) IN GENERAL.—An H–2A worker shall be 
considered admissible to the United States if the 
alien is otherwise admissible under this section, sec-
tion 218, and section 218A, and the alien is not in-
eligible under paragraph (2). 
‘‘(2) DISQUALIFICATION.—An alien shall be 
considered inadmissible to the United States and in-
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eligible for nonimmigrant status under section 
101(a)(15)(H)(ii)(a) if the alien has, at any time 
during the past 5 years— 
‘‘(A) violated a material provision of this 
section, including the requirement to promptly 
depart the United States when the alien’s au-
thorized period of admission under this section 
has expired; or 
‘‘(B) otherwise violated a term or condition 
of admission into the United States as a non-
immigrant, including overstaying the period of 
authorized admission as such a nonimmigrant. 
‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW-
FUL PRESENCE.— 
‘‘(A) IN GENERAL.—An alien who has not 
previously been admitted into the United States 
pursuant to this section, and who is otherwise 
eligible for admission in accordance with para-
graphs (1) and (2), shall not be deemed inad-
missible by virtue of section 212(a)(9)(B). If an 
alien described in the preceding sentence is 
present in the United States, the alien may 
apply from abroad for H–2A status, but may 
not be granted that status in the United States. 
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465 
‘‘(B) 
MAINTENANCE
OF
WAIVER.—An 
alien provided an initial waiver of ineligibility 
pursuant to subparagraph (A) shall remain eli-
gible for such waiver unless the alien violates 
the terms of this section or again becomes ineli-
gible under section 212(a)(9)(B) by virtue of 
unlawful presence in the United States after 
the date of the initial waiver of ineligibility pur-
suant to subparagraph (A). 
‘‘(d) PERIOD OF ADMISSION.— 
‘‘(1) IN GENERAL.—The alien shall be admitted 
for the period of employment in the application cer-
tified by the Secretary of Labor pursuant to section 
218(e)(2)(B), not to exceed 10 months, supple-
mented by a period of not more than 1 week before 
the beginning of the period of employment for the 
purpose of travel to the worksite and a period of 14 
days following the period of employment for the pur-
pose of departure or extension based on a subse-
quent offer of employment, except that— 
‘‘(A) the alien is not authorized to be em-
ployed during such 14-day period except in the 
employment for which the alien was previously 
authorized; and 
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466 
‘‘(B) the total period of employment, in-
cluding such 14-day period, may not exceed 10 
months. 
‘‘(2) CONSTRUCTION.—Nothing in this sub-
section shall limit the authority of the Secretary to 
extend the stay of the alien under any other provi-
sion of this Act. 
‘‘(e) ABANDONMENT OF EMPLOYMENT.— 
‘‘(1) IN GENERAL.—An alien admitted or pro-
vided status under section 101(a)(15)(H)(ii)(a) who 
abandons the employment which was the basis for 
such admission or status shall be considered to have 
failed to maintain nonimmigrant status as an H–2A 
worker and shall depart the United States or be sub-
ject to removal under section 237(a)(1)(C)(i). 
‘‘(2) REPORT BY EMPLOYER.—The employer, or 
association acting as agent for the employer, shall 
notify the Secretary not later than 7 days after an 
H–2A worker prematurely abandons employment. 
‘‘(3) REMOVAL BY THE SECRETARY.—The Sec-
retary shall promptly remove from the United States 
any H–2A worker who violates any term or condi-
tion of the worker’s nonimmigrant status. 
‘‘(4) 
VOLUNTARY
TERMINATION.—Notwith-
standing paragraph (1), an alien may voluntarily 
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467 
terminate his or her employment if the alien prompt-
ly departs the United States upon termination of 
such employment. 
‘‘(f) REPLACEMENT OF ALIEN.— 
‘‘(1) IN GENERAL.—Upon presentation of the 
notice to the Secretary required by subsection (e)(2), 
the Secretary of State shall promptly issue a visa to, 
and the Secretary shall admit into the United 
States, an eligible alien designated by the employer 
to replace an H–2A worker— 
‘‘(A) who abandons or prematurely termi-
nates employment; or 
‘‘(B) whose employment is terminated 
after a United States worker is employed pur-
suant to section 218(b)(2)(H)(iii), if the United 
States worker voluntarily departs before the 
end of the period of intended employment or if 
the employment termination is for a lawful job- 
related reason. 
‘‘(2) CONSTRUCTION.—Nothing in this sub-
section is intended to limit any preference required 
to be accorded United States workers under any 
other provision of this Act. 
‘‘(g) IDENTIFICATION DOCUMENT.— 
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468 
‘‘(1) IN GENERAL.—Each alien authorized to be 
admitted under section 101(a)(15)(H)(ii)(a) shall be 
provided an identification and employment eligibility 
document to verify eligibility for employment in the 
United States and verify the alien’s identity. 
‘‘(2) REQUIREMENTS.—No identification and 
employment eligibility document may be issued 
which does not meet the following requirements: 
‘‘(A) The document shall be capable of re-
liably determining whether— 
‘‘(i) the individual with the identifica-
tion and employment eligibility document 
whose eligibility is being verified is in fact 
eligible for employment; 
‘‘(ii) the individual whose eligibility is 
being verified is claiming the identity of 
another person; and 
‘‘(iii) the individual whose eligibility is 
being verified is authorized to be admitted 
into, and employed in, the United States 
as an H–2A worker. 
‘‘(B) The document shall be in a form that 
is resistant to counterfeiting and to tampering. 
‘‘(C) The document shall— 
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469 
‘‘(i) be compatible with other data-
bases of the Secretary for the purpose of 
excluding aliens from benefits for which 
they are not eligible and determining 
whether the alien is unlawfully present in 
the United States; and 
‘‘(ii) be compatible with law enforce-
ment databases to determine if the alien 
has been convicted of criminal offenses. 
‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE 
UNITED STATES.— 
‘‘(1) EXTENSION
OF
STAY.—If an employer 
seeks approval to employ an H–2A alien who is law-
fully present in the United States, the petition filed 
by the employer or an association pursuant to sub-
section (a), shall request an extension of the alien’s 
stay and a change in the alien’s employment. 
‘‘(2) LIMITATION ON FILING A PETITION FOR 
EXTENSION OF STAY.—A petition may not be filed 
for an extension of an alien’s stay— 
‘‘(A) for a period of more than 10 months; 
or 
‘‘(B) to a date that is more than 3 years 
after the date of the alien’s last admission to 
the United States under this section. 
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470 
‘‘(3) WORK
AUTHORIZATION
UPON
FILING
A 
PETITION FOR EXTENSION OF STAY.— 
‘‘(A) IN GENERAL.—An alien who is law-
fully present in the United States may com-
mence the employment described in a petition 
under paragraph (1) on the date on which the 
petition is filed. 
‘‘(B) DEFINITION.—For purposes of sub-
paragraph (A), the term ‘file’ means sending 
the petition by certified mail via the United 
States Postal Service, return receipt requested, 
or delivered by guaranteed commercial delivery 
which will provide the employer with a docu-
mented acknowledgment of the date of receipt 
of the petition. 
‘‘(C) HANDLING OF PETITION.—The em-
ployer shall provide a copy of the employer’s pe-
tition to the alien, who shall keep the petition 
with the alien’s identification and employment 
eligibility document as evidence that the peti-
tion has been filed and that the alien is author-
ized to work in the United States. 
‘‘(D) APPROVAL OF PETITION.—Upon ap-
proval of a petition for an extension of stay or 
change in the alien’s authorized employment, 
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471 
the Secretary shall provide a new or updated 
employment eligibility document to the alien in-
dicating the new validity date, after which the 
alien is not required to retain a copy of the pe-
tition. 
‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA-
TION OF ALIENS WITHOUT VALID IDENTIFICATION 
AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex-
pired identification and employment eligibility docu-
ment, together with a copy of a petition for exten-
sion of stay or change in the alien’s authorized em-
ployment that complies with the requirements of 
paragraph (1), shall constitute a valid work author-
ization document for a period of not more than 60 
days beginning on the date on which such petition 
is filed, after which time only a currently valid iden-
tification and employment eligibility document shall 
be acceptable. 
‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN 
STATUS.— 
‘‘(A) MAXIMUM
PERIOD.—The maximum 
continuous period of authorized status as an 
H–2A worker (including any extensions) is 3 
years. 
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‘‘(B) REQUIREMENT TO REMAIN OUTSIDE 
THE UNITED STATES.— 
‘‘(i) IN GENERAL.—Subject to clause 
(ii), in the case of an alien outside the 
United States whose period of authorized 
status as an H–2A worker (including any 
extensions) has expired, the alien may not 
again apply for admission to the United 
States as an H–2A worker unless the alien 
has remained outside the United States for 
a continuous period equal to at least 1⁄5 
the duration of the alien’s previous period 
of authorized status as an H–2A worker 
(including any extensions). 
‘‘(ii) EXCEPTION.—Clause (i) shall 
not apply in the case of an alien if the 
alien’s period of authorized status as an 
H–2A worker (including any extensions) 
was for a period of not more than 10 
months and such alien has been outside 
the United States for at least 2 months 
during the 12 months preceding the date 
the alien again is applying for admission to 
the United States as an H–2A worker. 
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473 
‘‘(i) SPECIAL RULES
FOR ALIENS EMPLOYED
AS 
SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK-
ERS.—Notwithstanding any provision of the Agricultural 
Job Opportunities, Benefits, and Security Act of 2013, an 
alien admitted under section 101(a)(15)(H)(ii)(a) for em-
ployment as a sheepherder, goat herder, or dairy worker— 
‘‘(1) may be admitted for an initial period of 12 
months; 
‘‘(2) subject to subsection (j)(5), may have such 
initial period of admission extended for a period of 
up to 3 years; and 
‘‘(3) shall not be subject to the requirements of 
subsection (h)(5) (relating to periods of absence 
from the United States). 
‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI-
DENT
STATUS
FOR
ALIENS
EMPLOYED
AS
SHEEP-
HERDERS, GOAT HERDERS, OR DAIRY WORKERS.— 
‘‘(1) ELIGIBLE ALIEN.—For purposes of this 
subsection, the term ‘eligible alien’ means an alien— 
‘‘(A) having nonimmigrant status under 
section 101(a)(15)(H)(ii)(a) based on employ-
ment as a sheepherder, goat herder, or dairy 
worker; 
‘‘(B) who has maintained such non-
immigrant status in the United States for a cu-
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474 
mulative total of 36 months (excluding any pe-
riod of absence from the United States); and 
‘‘(C) who is seeking to receive an immi-
grant visa under section 203(b)(3)(A)(iii). 
‘‘(2) CLASSIFICATION PETITION.—In the case 
of an eligible alien, the petition under section 204 
for classification under section 203(b)(3)(A)(iii) may 
be filed by— 
‘‘(A) the alien’s employer on behalf of the 
eligible alien; or 
‘‘(B) the eligible alien. 
‘‘(3) NO LABOR CERTIFICATION REQUIRED.— 
Notwithstanding section 203(b)(3)(C), no deter-
mination under section 212(a)(5)(A) is required with 
respect to an immigrant visa described in paragraph 
(1)(C) for an eligible alien. 
‘‘(4) EFFECT OF PETITION.—The filing of a pe-
tition described in paragraph (2) or an application 
for adjustment of status based on the approval of 
such a petition shall not constitute evidence of an 
alien’s ineligibility for nonimmigrant status under 
section 101(a)(15)(H)(ii)(a). 
‘‘(5) EXTENSION
OF
STAY.—The Secretary 
shall extend the stay of an eligible alien having a 
pending or approved classification petition described 
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475 
in paragraph (2) in 1-year increments until a final 
determination is made on the alien’s eligibility for 
adjustment of status to that of an alien lawfully ad-
mitted for permanent residence. 
‘‘(6) CONSTRUCTION.—Nothing in this sub-
section shall be construed to prevent an eligible alien 
from seeking adjustment of status in accordance 
with any other provision of law. 
‘‘SEC. 218C. WORKER PROTECTIONS AND LABOR STAND-
ARDS ENFORCEMENT. 
‘‘(a) ENFORCEMENT AUTHORITY.— 
‘‘(1) INVESTIGATION OF COMPLAINTS.— 
‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY 
COMPLAINTS.—The Secretary of Labor shall es-
tablish a process for the receipt, investigation, 
and disposition of complaints respecting a peti-
tioner’s failure to meet a condition specified in 
section 218(b), or an employer’s misrepresenta-
tion of material facts in an application under 
section 218(a). Complaints may be filed by any 
aggrieved person or organization (including bar-
gaining representatives). No investigation or 
hearing shall be conducted on a complaint con-
cerning such a failure or misrepresentation un-
less the complaint was filed not later than 12 
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476 
months after the date of the failure, or mis-
representation, respectively. The Secretary of 
Labor shall conduct an investigation under this 
subparagraph if there is reasonable cause to be-
lieve that such a failure or misrepresentation 
has occurred. 
‘‘(B) DETERMINATION
ON
COMPLAINT.— 
Under such process, the Secretary of Labor 
shall provide, within 30 days after the date 
such a complaint is filed, for a determination as 
to whether or not a reasonable basis exists to 
make a finding described in subparagraph (C), 
(D), (E), or (G). If the Secretary of Labor de-
termines that such a reasonable basis exists, 
the Secretary of Labor shall provide for notice 
of such determination to the interested parties 
and an opportunity for a hearing on the com-
plaint, in accordance with section 556 of title 5, 
United States Code, within 60 days after the 
date of the determination. If such a hearing is 
requested, the Secretary of Labor shall make a 
finding concerning the matter not later than 60 
days after the date of the hearing. In the case 
of similar complaints respecting the same appli-
cant, the Secretary of Labor may consolidate 
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477 
the hearings under this subparagraph on such 
complaints. 
‘‘(C) FAILURES TO MEET CONDITIONS.—If 
the Secretary of Labor finds, after notice and 
opportunity for a hearing, a failure to meet a 
condition of paragraph (1)(A), (1)(B), (1)(D), 
(1)(F), (2)(A), (2)(B), or (2)(G) of section 
218(b), a substantial failure to meet a condition 
of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 
(2)(E), or (2)(H) of section 218(b), or a mate-
rial misrepresentation of fact in an application 
under section 218(a)— 
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $1,000 
per violation) as the Secretary of Labor 
determines to be appropriate; and 
‘‘(ii) the Secretary may disqualify the 
employer from the employment of aliens 
described in section 101(a)(15)(H)(ii)(a) 
for a period of 1 year. 
‘‘(D) WILLFUL
FAILURES
AND
WILLFUL 
MISREPRESENTATIONS.—If the Secretary of 
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478 
Labor finds, after notice and opportunity for 
hearing, a willful failure to meet a condition of 
section 218(b), a willful misrepresentation of a 
material fact in an application under section 
218(a), or a violation of subsection (d)(1)— 
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $5,000 
per violation) as the Secretary of Labor 
determines to be appropriate; 
‘‘(ii) the Secretary of Labor may seek 
appropriate legal or equitable relief to ef-
fectuate the purposes of subsection (d)(1); 
and 
‘‘(iii) the Secretary may disqualify the 
employer from the employment of H–2A 
workers for a period of 2 years. 
‘‘(E) DISPLACEMENT OF UNITED STATES 
WORKERS.—If the Secretary of Labor finds, 
after notice and opportunity for hearing, a will-
ful failure to meet a condition of section 218(b) 
or a willful misrepresentation of a material fact 
in an application under section 218(a), in the 
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479 
course of which failure or misrepresentation the 
employer displaced a United States worker em-
ployed by the employer during the period of em-
ployment on the employer’s application under 
section 218(a) or during the period of 30 days 
preceding such period of employment— 
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $15,000 
per violation) as the Secretary of Labor 
determines to be appropriate; and 
‘‘(ii) the Secretary may disqualify the 
employer from the employment of H–2A 
workers for a period of 3 years. 
‘‘(F) LIMITATIONS ON CIVIL MONEY PEN-
ALTIES.—The Secretary of Labor shall not im-
pose total civil money penalties with respect to 
an application under section 218(a) in excess of 
$90,000. 
‘‘(G) FAILURES
TO
PAY
WAGES
OR
RE-
QUIRED BENEFITS.—If the Secretary of Labor 
finds, after notice and opportunity for a hear-
ing, that the employer has failed to pay the 
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480 
wages, or provide the housing allowance, trans-
portation, subsistence reimbursement, or guar-
antee of employment, required under section 
218A(b), the Secretary of Labor shall assess 
payment of back wages, or other required bene-
fits, due any United States worker or H–2A 
worker employed by the employer in the specific 
employment in question. The back wages or 
other required benefits under section 218A(b) 
shall be equal to the difference between the 
amount that should have been paid and the 
amount that actually was paid to such worker. 
‘‘(2) STATUTORY CONSTRUCTION.—Nothing in 
this section shall be construed as limiting the au-
thority of the Secretary of Labor to conduct any 
compliance investigation under any other labor law, 
including any law affecting migrant and seasonal ag-
ricultural workers, or, in the absence of a complaint 
under this section, under section 218 or 218A. 
‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF 
ACTION.—H–2A workers may enforce the following rights 
through the private right of action provided in subsection 
(c), and no other right of action shall exist under Federal 
or State law to enforce such rights: 
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481 
‘‘(1) The providing of housing or a housing al-
lowance as required under section 218A(b)(1). 
‘‘(2) The reimbursement of transportation as 
required under section 218A(b)(2). 
‘‘(3) The payment of wages required under sec-
tion 218A(b)(3) when due. 
‘‘(4) The benefits and material terms and con-
ditions of employment expressly provided in the job 
offer described in section 218(a)(2), not including 
the assurance to comply with other Federal, State, 
and local labor laws described in section 218A(c), 
compliance with which shall be governed by the pro-
visions of such laws. 
‘‘(5) The guarantee of employment required 
under section 218A(b)(4). 
‘‘(6) The motor vehicle safety requirements 
under section 218A(b)(5). 
‘‘(7) The prohibition of discrimination under 
subsection (d)(2). 
‘‘(c) PRIVATE RIGHT OF ACTION.— 
‘‘(1) MEDIATION.—Upon the filing of a com-
plaint by an H–2A worker aggrieved by a violation 
of rights enforceable under subsection (b), and with-
in 60 days of the filing of proof of service of the 
complaint, a party to the action may file a request 
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482 
with the Federal Mediation and Conciliation Service 
to assist the parties in reaching a satisfactory reso-
lution of all issues involving all parties to the dis-
pute. Upon a filing of such request and giving of no-
tice to the parties, the parties shall attempt medi-
ation within the period specified in subparagraph 
(B). 
‘‘(A) MEDIATION SERVICES.—The Federal 
Mediation and Conciliation Service shall be 
available to assist in resolving disputes arising 
under subsection (b) between H–2A workers 
and agricultural employers without charge to 
the parties. 
‘‘(B) 90-DAY LIMIT.—The Federal Medi-
ation and Conciliation Service may conduct me-
diation or other nonbinding dispute resolution 
activities for a period not to exceed 90 days be-
ginning on the date on which the Federal Medi-
ation and Conciliation Service receives the re-
quest for assistance unless the parties agree to 
an extension of this period of time. 
‘‘(C) AUTHORIZATION.— 
‘‘(i) IN GENERAL.—Subject to clause 
(ii), there are authorized to be appro-
priated to the Federal Mediation and Con-
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483 
ciliation Service $500,000 for each fiscal 
year to carry out this section. 
‘‘(ii) 
MEDIATION.—Notwithstanding 
any other provision of law, the Director of 
the Federal Mediation and Conciliation 
Service is authorized to conduct the medi-
ation or other dispute resolution activities 
from any other appropriated funds avail-
able to the Director and to reimburse such 
appropriated funds when the funds are ap-
propriated pursuant to this authorization, 
such reimbursement to be credited to ap-
propriations currently available at the time 
of receipt. 
‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS-
TRICT COURT BY AGGRIEVED PERSON.—An H–2A 
worker aggrieved by a violation of rights enforceable 
under subsection (b) by an agricultural employer or 
other person may file suit in any district court of the 
United States having jurisdiction over the parties, 
without regard to the amount in controversy, with-
out regard to the citizenship of the parties, and 
without regard to the exhaustion of any alternative 
administrative remedies under this Act, not later 
than 3 years after the date the violation occurs. 
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484 
‘‘(3) ELECTION.—An H–2A worker who has 
filed an administrative complaint with the Secretary 
of Labor may not maintain a civil action under 
paragraph (2) unless a complaint based on the same 
violation filed with the Secretary of Labor under 
subsection (a)(1) is withdrawn before the filing of 
such action, in which case the rights and remedies 
available under this subsection shall be exclusive. 
‘‘(4) 
PREEMPTION
OF
STATE
CONTRACT 
RIGHTS.—Nothing in this Act shall be construed to 
diminish the rights and remedies of an H–2A worker 
under any other Federal or State law or regulation 
or under any collective bargaining agreement, except 
that no court or administrative action shall be avail-
able under any State contract law to enforce the 
rights created by this Act. 
‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree-
ments by employees purporting to waive or modify 
their rights under this Act shall be void as contrary 
to public policy, except that a waiver or modification 
of the rights or obligations in favor of the Secretary 
of Labor shall be valid for purposes of the enforce-
ment of this Act. The preceding sentence may not 
be construed to prohibit agreements to settle private 
disputes or litigation. 
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485 
‘‘(6) AWARD
OF
DAMAGES
OR
OTHER
EQUI-
TABLE RELIEF.— 
‘‘(A) If the court finds that the respondent 
has intentionally violated any of the rights en-
forceable under subsection (b), it shall award 
actual damages, if any, or equitable relief. 
‘‘(B) Any civil action brought under this 
section shall be subject to appeal as provided in 
chapter 83 of title 28, United States Code. 
‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX-
CLUSIVE REMEDY.— 
‘‘(A) Notwithstanding any other provision 
of this section, where a State’s workers’ com-
pensation law is applicable and coverage is pro-
vided for an H–2A worker, the workers’ com-
pensation benefits shall be the exclusive remedy 
for the loss of such worker under this section 
in the case of bodily injury or death in accord-
ance with such State’s workers’ compensation 
law. 
‘‘(B) The exclusive remedy prescribed in 
subparagraph (A) precludes the recovery under 
paragraph (6) of actual damages for loss from 
an injury or death but does not preclude other 
equitable relief, except that such relief shall not 
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486 
include back or front pay or in any manner, di-
rectly or indirectly, expand or otherwise alter or 
affect— 
‘‘(i) a recovery under a State workers’ 
compensation law; or 
‘‘(ii) rights conferred under a State 
workers’ compensation law. 
‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.— 
If it is determined under a State workers’ compensa-
tion law that the workers’ compensation law is not 
applicable to a claim for bodily injury or death of an 
H–2A worker, the statute of limitations for bringing 
an action for actual damages for such injury or 
death under subsection (c) shall be tolled for the pe-
riod during which the claim for such injury or death 
under such State workers’ compensation law was 
pending. The statute of limitations for an action for 
actual damages or other equitable relief arising out 
of the same transaction or occurrence as the injury 
or death of the H–2A worker shall be tolled for the 
period during which the claim for such injury or 
death was pending under the State workers’ com-
pensation law. 
‘‘(9) PRECLUSIVE EFFECT.—Any settlement by 
an H–2A worker and an H–2A employer or any per-
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487 
son reached through the mediation process required 
under subsection (c)(1) shall preclude any right of 
action arising out of the same facts between the par-
ties in any Federal or State court or administrative 
proceeding, unless specifically provided otherwise in 
the settlement agreement. 
‘‘(10) SETTLEMENTS.—Any settlement by the 
Secretary of Labor with an H–2A employer on be-
half of an H–2A worker of a complaint filed with the 
Secretary of Labor under this section or any finding 
by the Secretary of Labor under subsection 
(a)(1)(B) shall preclude any right of action arising 
out of the same facts between the parties under any 
Federal or State court or administrative proceeding, 
unless specifically provided otherwise in the settle-
ment agreement. 
‘‘(d) DISCRIMINATION PROHIBITED.— 
‘‘(1) IN GENERAL.—It is a violation of this sub-
section for any person who has filed an application 
under section 218(a), to intimidate, threaten, re-
strain, coerce, blacklist, discharge, or in any other 
manner discriminate against an employee (which 
term, for purposes of this subsection, includes a 
former employee and an applicant for employment) 
because the employee has disclosed information to 
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488 
the employer, or to any other person, that the em-
ployee reasonably believes evidences a violation of 
section 218 or 218A or any rule or regulation per-
taining to section 218 or 218A, or because the em-
ployee cooperates or seeks to cooperate in an inves-
tigation or other proceeding concerning the employ-
er’s compliance with the requirements of section 218 
or 218A or any rule or regulation pertaining to ei-
ther of such sections. 
‘‘(2) DISCRIMINATION
AGAINST
H–2A
WORK-
ERS.—It is a violation of this subsection for any per-
son who has filed an application under section 
218(a), to intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate 
against an H–2A employee because such worker has, 
with just cause, filed a complaint with the Secretary 
of Labor regarding a denial of the rights enumer-
ated and enforceable under subsection (b) or insti-
tuted, or caused to be instituted, a private right of 
action under subsection (c) regarding the denial of 
the rights enumerated under subsection (b), or has 
testified or is about to testify in any court pro-
ceeding brought under subsection (c). 
‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO-
PRIATE EMPLOYMENT.—The Secretary of Labor and the 
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489 
Secretary shall establish a process under which an H–2A 
worker who files a complaint regarding a violation of sub-
section (d) and is otherwise eligible to remain and work 
in the United States may be allowed to seek other appro-
priate employment in the United States for a period not 
to exceed the maximum period of stay authorized for such 
nonimmigrant classification. 
‘‘(f) ROLE OF ASSOCIATIONS.— 
‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA-
TION.—An employer on whose behalf an application 
is filed by an association acting as its agent is fully 
responsible for such application, and for complying 
with the terms and conditions of sections 218 and 
218A, as though the employer had filed the applica-
tion itself. If such an employer is determined, under 
this section, to have committed a violation, the pen-
alty for such violation shall apply only to that mem-
ber of the association unless the Secretary of Labor 
determines that the association or other member 
participated in, had knowledge, or reason to know, 
of the violation, in which case the penalty shall be 
invoked against the association or other association 
member as well. 
‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING 
AS AN EMPLOYER.—If an association filing an appli-
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490 
cation as a sole or joint employer is determined to 
have committed a violation under this section, the 
penalty for such violation shall apply only to the as-
sociation unless the Secretary of Labor determines 
that an association member or members participated 
in or had knowledge, or reason to know of the viola-
tion, in which case the penalty shall be invoked 
against the association member or members as well. 
‘‘SEC. 218D. DEFINITIONS. 
‘‘For purposes of this section and section 218, 218A, 
218B, and 218C: 
‘‘(1) AGRICULTURAL EMPLOYMENT.—The term 
‘agricultural employment’ means any service or ac-
tivity that is considered to be agricultural under sec-
tion 3(f) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203(f)) or agricultural labor under sec-
tion 3121(g) of the Internal Revenue Code of 1986 
or the performance of agricultural labor or services 
described in section 101(a)(15)(H)(ii)(a). 
‘‘(2) BONA FIDE UNION.—The term ‘bona fide 
union’ means any organization in which employees 
participate and which exists for the purpose of deal-
ing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or 
other terms and conditions of work for agricultural 
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491 
employees. Such term does not include an organiza-
tion formed, created, administered, supported, domi-
nated, financed, or controlled by an employer or em-
ployer association or its agents or representatives. 
‘‘(3) DISPLACE.—The term ‘displace’, in the 
case of an application with respect to 1 or more H– 
2A workers by an employer, means laying off a 
United States worker from a job for which the H– 
2A worker or workers is or are sought. 
‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 
with respect to an individual, means an individual 
who is not an unauthorized alien (as defined in sec-
tion 274A). 
‘‘(5) EMPLOYER.—The term ‘employer’ means 
any person or entity, including any farm labor con-
tractor and any agricultural association, that em-
ploys workers in agricultural employment. 
‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em-
ployer’ means an employer who seeks to hire 1 or 
more nonimmigrant aliens described in section 
101(a)(15)(H)(ii)(a). 
‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 
means 
a 
nonimmigrant 
described 
in 
section 
101(a)(15)(H)(ii)(a). 
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492 
‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor-
tunity’ means a job opening for temporary or sea-
sonal full-time employment at a place in the United 
States to which United States workers can be re-
ferred. 
‘‘(9) LAYING OFF.— 
‘‘(A) IN GENERAL.—The term ‘laying off’, 
with respect to a worker— 
‘‘(i) means to cause the worker’s loss 
of employment, other than through a dis-
charge for inadequate performance, viola-
tion of workplace rules, cause, voluntary 
departure, voluntary retirement, contract 
impossibility 
(as 
described 
in 
section 
218A(b)(4)(D)), or temporary suspension 
of employment due to weather, markets, or 
other temporary conditions; but 
‘‘(ii) does not include any situation in 
which the worker is offered, as an alter-
native to such loss of employment, a simi-
lar employment opportunity with the same 
employer (or, in the case of a placement of 
a worker with another employer under sec-
tion 218(b)(2)(E), with either employer de-
scribed in such section) at equivalent or 
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higher compensation and benefits than the 
position from which the employee was dis-
charged, regardless of whether or not the 
employee accepts the offer. 
‘‘(B) STATUTORY CONSTRUCTION.—Noth-
ing in this paragraph is intended to limit an 
employee’s rights under a collective bargaining 
agreement or other employment contract. 
‘‘(10) REGULATORY DROUGHT.—The term ‘reg-
ulatory drought’ means a decision subsequent to the 
filing of the application under section 218 by an en-
tity not under the control of the employer making 
such filing which restricts the employer’s access to 
water for irrigation purposes and reduces or limits 
the employer’s ability to produce an agricultural 
commodity, thereby reducing the need for labor. 
‘‘(11) SEASONAL.—Labor is performed on a 
‘seasonal’ basis if— 
‘‘(A) ordinarily, it pertains to or is of the 
kind exclusively performed at certain seasons or 
periods of the year; and 
‘‘(B) from its nature, it may not be contin-
uous or carried on throughout the year. 
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