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.—
‘‘(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-
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
WORK
SITE.—The employer
shall provide transportation between the work-
er’s living quarters (i.e., housing provided by
the employer pursuant to paragraph (1), includ-
ing housing provided through a housing allow-
ance) and the employer’s work site without cost
to the worker, and such transportation will be
in accordance with applicable laws and regula-
tions.
‘‘(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) DEDUCTIONS.—The employer shall
make only those deductions from the worker’s
paycheck which are authorized by law or are
reasonable and customary in the occupation and
area of employment. The job offer shall specify
all deductions not required by law which the
employer will make from the worker’s paycheck.
‘‘(C) REPORT ON WAGE PROTECTIONS.—
Not later than January 1, 2004, the Resources,
Community and Economic Development Divi-
sion, and the Health, Education and Human
Services Division, of the General Accounting
Office shall jointly prepare and transmit to the
Secretary of Labor and to the Committee on
the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Sen-
ate a report which shall address—
‘‘(i) whether the adverse effect wage
rate is effective in preventing the wages of
United States farm workers from being de-
pressed in occupations in which H–2A
workers are employed;
‘‘(ii) whether alternative wage protec-
tions, such as a prevailing wage standard,
are sufficient to prevent such wage depres-
sion;
‘‘(iii) whether any changes are war-
ranted in the current methodologies for
calculating the adverse effect wage rate
and the prevailing wage; and
‘‘(iv) 
recommendations 
for 
future
wage protections under the this section.
‘‘(D) 
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) 4 representatives of agricul-
tural employers and 1 representative
of the Department of Agriculture,
each appointed by the Secretary of
Agriculture.
‘‘(II) 4 representatives of agricul-
tural workers and 1 representative of
the Department of Labor, each ap-
pointed by the Secretary of Labor.
‘‘(iii) FUNCTIONS.—The Commission
shall conduct a study that shall address—
‘‘(I) whether the adverse effect
wage rate is effective in preventing
the wages of United States farm
workers from being depressed in occu-
pations in which H–2A workers are
employed;
‘‘(II) whether alternative wage
protections, such as a prevailing wage
standard, are sufficient to prevent
such wage depression;
‘‘(III) whether any changes are
warranted in the current methodolo-
gies for calculating the adverse effect
wage rate and the prevailing wage;
and
‘‘(IV) recommendations to raise
farm workers earnings and to reduce
farm worker poverty while ensuring a
profitable, efficient, labor-intensive ag-
ricultural sector with a minimum of
governmental intervention.
‘‘(iv) FINAL REPORT.—Not later than
January 1, 2004, 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 three-
fourths of the work days of the total period of
employment, beginning with the first work day
after the arrival of the worker at the place of
employment and ending on the expiration date
specified in the job offer. For purposes of this
subparagraph, the hourly equivalent means
eight hours times the number of 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 employment 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 eight hours on a work day, when the
worker has been offered an opportunity to do
so, and all hours of work actually performed
(including voluntary work in excess of eight
hours on 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 ‘three-
fourths 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 but not lim-
ited to a flood, hurricane, freeze, earthquake,
fire, drought, plant or animal disease or pest in-
festation, or regulatory drought, before the
guarantee in subparagraph (A) is fulfilled, the
employer may terminate the worker’s employ-
ment. In the event of such termination, the em-
ployer shall fulfill the employment guarantee in
subparagraph (A) for the work days that have
elapsed from the first work day after the arrival
of the worker to the termination of employ-
ment. In such cases, the employer will make ef-
forts to transfer the United States worker to
other comparable employment acceptable to the
worker. If such transfer is not effected, the em-
ployer shall provide the return transportation
required in paragraph (2)(D).
‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em-
ployer shall assure that, except as otherwise provided in
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 sub-
section shall not constitute a violation of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C.
1801 et seq.).
‘‘(d) DISCLOSURE OF TERMS AND CONDITIONS OF
EMPLOYMENT.—With respect to H–2A aliens recruited
from outside the United States, the disclosure required
under section 201(c) of the Migrant and Seasonal Agricul-
tural Worker Protection Act (29 U.S.C. 1821(c)) may be
made at any time prior to the time the alien is issued a
visa permitting entry into the United States, except that
if a fee is paid by the alien to a person who has been
authorized by the employer or an association of employers
to recruit aliens on behalf of the employer for employment
as an H–2A worker, the disclosure shall be made not later
than the time such fee is paid to such person.
‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY
OF H–2A WORKERS
‘‘SEC. 218B. (a) PETITIONING FOR ADMISSION.—An
employer, or an association acting as an agent or joint
employer for its members, that seeks the admission into
the United States of an H–2A worker may file a petition
with the Attorney General. The petition shall be accom-
panied by an accepted and currently valid certification
provided by the Secretary under section 218(e)(2)(B) cov-
ering the petitioner.
‘‘(b) EXPEDITED ADJUDICATION BY THE ATTORNEY
GENERAL.—The Attorney General shall establish a proce-
dure for expedited adjudication of petitions filed under
subsection (a) and within 7 working days shall, by fax,
cable, or other means assuring expedited delivery, trans-
mit a copy of notice of action on the petition to the peti-
tioner and, in the case of approved petitions, to the appro-
priate 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-
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 worker status, but
may not be granted that status by adjustment
in the United States.
‘‘(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 
pursuant 
to 
section
218(e)(2)(B), not to exceed 10 months, supple-
mented by a period of up to 1 week before the begin-
ning of the period of employment (to be granted for
the purpose of travel to the work site) and a period
of 14 days following the period of employment (to be
granted for the purpose of departure or extension
based on a subsequent 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
‘‘(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 Attorney General’s authority
to extend the stay of the alien under any other pro-
vision 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 Attorney General within 7 days of an
H–2A worker’s having prematurely abandoned em-
ployment.
‘‘(3) REMOVAL BY THE ATTORNEY GENERAL.—
The Attorney General shall promptly remove from
the United States any H–2A worker who violates
any term or condition of the worker’s nonimmigrant
status.
‘‘(4) 
VOLUNTARY
TERMINATION.—Notwith-
standing paragraph (1), an alien may voluntarily
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 Attorney General required by sub-
section (e)(2), the Secretary of State shall promptly
issue a visa to, and the Attorney General 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.—
‘‘(1) IN GENERAL.—Each alien authorized to be
admitted under section 101(a)(15)(H)(ii)(a) shall,
upon receipt of a visa, be given an identification and
employment eligibility document to verify eligibility
for employment in the United States and verify such
person’s proper 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—
‘‘(i) be compatible with other data-
bases of the Attorney General for the pur-
pose 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.
‘‘(3) WORK
AUTHORIZATION
UPON
FILING
A
PETITION FOR EXTENSION OF STAY.—In the case of
an alien who is lawfully present in the United
States, the alien is authorized to commence the em-
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.
‘‘(B) REQUIREMENT TO REMAIN OUTSIDE
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.
‘‘(i) SPECIAL RULES
FOR ALIENS EMPLOYED
AS
SHEEPHERDERS.—Notwithstanding any other provision
of 
this 
section, 
aliens 
admitted 
under 
section
101(a)(15)(H)(ii)(a) for employment as sheepherders—
‘‘(1) may be admitted for a period of 12
months;
‘‘(2) may be extended for a continuous 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.
‘‘WORKER PROTECTIONS AND LABOR STANDARDS
ENFORCEMENT
‘‘SEC. 218C. (a) ENFORCEMENT AUTHORITY.—
‘‘(1) INVESTIGATION OF COMPLAINTS.—
‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY
COMPLAINTS.—The Secretary shall establish a
process for the receipt, investigation, and dis-
position of complaints respecting a petitioner’s
failure to meet a condition specified in section
218(b), or an employer’s misrepresentation of
material facts in an application under section
218(a). Complaints may be filed by any ag-
grieved 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
months after the date of the failure, or mis-
representation, respectively. The Secretary shall
conduct an investigation under this subpara-
graph if there is reasonable cause to believe
that such a failure or misrepresentation has oc-
curred.
‘‘(B) DETERMINATION
ON
COMPLAINT.—
Under such process, the Secretary 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
(F). If the Secretary determines that such a
reasonable basis exists, the Secretary shall pro-
vide for notice of such determination to the in-
terested parties and an opportunity for a hear-
ing on the complaint, 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 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 applicant, the Secretary may consolidate
the hearings under this subparagraph on such
complaints.
‘‘(C) FAILURES TO MEET CONDITIONS.—If
the Secretary finds, after notice and oppor-
tunity for a hearing, a failure to meet a condi-
tion 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) or (E), or paragraph
(2)(C), (2)(D), (2)(E), or (2)(H) of section
218(b), or a material misrepresentation of fact
in an application under section 218(a)—
‘‘(i) the Secretary shall notify the At-
torney General of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in
an amount not to exceed $1,000 per viola-
tion) as the Secretary determines to be ap-
propriate; and
‘‘(ii) the Attorney General may dis-
qualify 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 finds,
after notice and opportunity for hearing, a will-
ful 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 viola-
tion of subsection (b)—
‘‘(i) the Secretary shall notify the At-
torney General of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in
an amount not to exceed $5,000 per viola-
tion) as the Secretary determines to be ap-
propriate; and
‘‘(ii) the Attorney General may dis-
qualify the employer from the employment
of H–2A workers for a period of 2 years.
‘‘(E) DISPLACEMENT OF UNITED STATES
WORKERS.—If the Secretary finds, after notice
and opportunity for hearing, a willful failure to
meet a condition of section 218(b) or a willful
misrepresentation of a material fact in an appli-
cation under section 218(a), in the course of
which failure or misrepresentation the employer
displaced a United States worker employed by
the employer during the period of employment
on the employer’s application under section
218(a) or during the period of 30 days pre-
ceding such period of employment—
‘‘(i) the Secretary shall notify the At-
torney General of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in
an amount not to exceed $15,000 per vio-
lation) as the Secretary determines to be
appropriate; and
‘‘(ii) the Attorney General may dis-
qualify the employer from the employment
of H–2A workers for a period of 3 years.
‘‘(F) LIMITATIONS ON CIVIL MONEY PEN-
ALTIES.—The Secretary shall not impose total
civil money penalties with respect to an applica-
tion under section 218(a) in excess of $90,000.
‘‘(G) FAILURES
TO
PAY
WAGES
OR
RE-
QUIRED
BENEFITS.—If the Secretary finds,
after notice and opportunity for a hearing, that
the employer has failed to pay the wages, or
provide the housing allowance, transportation,
subsistence reimbursement, or guarantee of em-
ployment, required under section 218A(b), the
Secretary shall assess payment of back wages,
or other required benefits, due any United
States worker or H–2A worker employed by the
employer in the specific employment in ques-
tion. The back wages or other required benefits
under section 218A(b) shall be equal to the dif-
ference 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 to conduct any compliance
investigation under any other labor law, including
any law affecting migrant and seasonal agricultural
workers, or, in the absence of a complaint under this
section, under section 218 or 218A.
‘‘(b) DISCRIMINATION PROHIBITED.—It is a violation
of this subsection for an employer who has filed an appli-
cation under section 218(a), to intimidate, threaten, re-
strain, coerce, blacklist, discharge, or in any other manner
discriminate against an employee (which term, for pur-
poses of this subsection, includes a former employee and
an applicant for employment) because the employee has
disclosed information to the employer, or to any other per-
son, that the employee reasonably believes evidences a vio-
lation of section 218 or 218A or any rule or regulation
pertaining to section 218 or 218A, or because the em-
ployee cooperates or seeks to cooperate in an investigation
or other proceeding concerning the employer’s compliance
with the requirements of section 218 or 218A or any rule
or regulation pertaining to either of such sections.
‘‘(c) AUTHORIZATION TO SEEK OTHER APPRO-
PRIATE EMPLOYMENT.—The Secretary and the Attorney
General shall establish a process under which an H–2A
worker who files a complaint regarding a violation of sub-
section (b) 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.
‘‘(d) 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 deter-
mines that the association or other member partici-
pated 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-
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 determines that an as-
sociation member or members participated in or had
knowledge, or reason to know, of the violation, in
which case the penalty shall be invoked against the
association member or members as well.
‘‘DEFINITIONS
‘‘SEC. 218D. For purposes of sections 218 through
218C:
‘‘(1) ADVERSE AFFECT WAGE RATE.—The term
‘adverse effect wage rate’ means the annual weight-
ed average hourly wage rate of earnings for field and
livestock workers (combined) for the State (or region
that includes the State) as published annually by the
Department of Agriculture based on the Depart-
ment’s quarterly wage survey.
‘‘(2) 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
(26 U.S.C. 3121(g)). For purposes of this para-
graph, agricultural employment includes employment
under section 101(a)(15)(H)(ii)(a).
‘‘(3) 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
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.
‘‘(4) DISPLACE.—In the case of an application
with respect to one or more H–2A workers by an
employer, the employer is considered to ‘displace’ a
United States worker from a job if the employer lays
off the worker from a job for which the H–2A work-
er or workers is or are sought.
‘‘(5) 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(h)(3)).
‘‘(6) 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.
‘‘(7) H–2A EMPLOYER.—The term ‘H–2A em-
ployer’ means an employer who seeks to hire one or
more nonimmigrant aliens described in section
101(a)(15)(H)(ii)(a).
‘‘(8) H–2A WORKER.—The term ‘H–2A worker’
means 
a 
nonimmigrant 
described 
in 
section
101(a)(15)(H)(ii)(a).
‘‘(9) JOB OPPORTUNITY.—The term ‘job oppor-
tunity’ means a job opening for temporary full-time
employment at a place in the United States to which
United States workers can be referred.
‘‘(10) LAYS OFF.—
‘‘(A) IN GENERAL.—The term ‘lays 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 layoffs 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
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.
‘‘(11) PREVAILING
WAGE.—The term ‘pre-
vailing wage’ means, with respect to an agricultural
occupation in an area of intended employment, the
rate of wages that includes the 51st percentile of
employees in that agricultural activity in the area of
intended employment, expressed in terms of the pre-
vailing method of pay for the agricultural activity in
the area of intended employment.
‘‘(12) 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 product an agricultural
commodity, thereby reducing the need for labor.
‘‘(13) 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.
‘‘(14) 
SECRETARY.—The 
term 
‘Secretary’
means the Secretary of Labor.
‘‘(15) TEMPORARY.—A worker is employed on a
‘temporary’ basis where the employment is intended
not to exceed 10 months.
‘‘(16) UNITED
STATES
WORKER.—The term
‘United States worker’ means any worker, whether
a United States citizen or national, a lawfully admit-
ted permanent resident alien, or any other alien,
who is authorized to work in the job opportunity
within the United States, except an alien admitted
or 
otherwise 
provided 
status 
under 
section
101(a)(15)(H)(ii)(a).’’.
(b) TABLE OF CONTENTS.—The table of contents of
the Immigration and Nationality Act (8 U.S.C. 1101 et
seq.) is amended by striking the item relating to section
218 and inserting the following:
‘‘Sec. 218. H–2A employer applications.
‘‘Sec. 218A. H–2A employment requirements.
‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers.
‘‘Sec. 218C. Worker protections and labor standards enforcement.
‘‘Sec. 218D. Definitions.’’.
TITLE III—MISCELLANEOUS
PROVISIONS
SEC. 301. COVERAGE OF H–2A AGRICULTURAL WORKERS
UNDER THE MIGRANT AND SEASONAL AGRI-
CULTURAL WORKER PROTECTION ACT.
(a) DEFINITIONS.—Section 3 of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C.
1802) is amended—
(1) in paragraph (8)(B)—
(A) by striking ‘‘does not’’ and all that fol-
lows through ‘‘(i) any’’ and inserting ‘‘does not
include any’’;
(B) by striking ‘‘; or’’ and inserting a pe-
riod; and
(C) by striking clause (ii); and
(2) in paragraph (10)(B)—
(A) by striking ‘‘; or’’ at the end of clause
(ii) and inserting a period; and
(B) by striking clause (iii).
(b) EFFECTIVE DATE.—The amendments made by
subsection (a) shall apply to the employment, recruitment,
referral, or utilization of the services of an individual oc-
curring on or after the date that is 1 year after the date
of the enactment of this Act.
SEC. 302. RIGHT TO ORGANIZE.
(a) IN GENERAL.—Title IV of the Migrant and Sea-
sonal Agricultural Worker Protection Act (29 U.S.C. 1841
et seq.) is amended by adding at the end the following
new section:
‘‘SEC. 405. RIGHT TO ORGANIZE.
‘‘(a) IN GENERAL.—Migrant and seasonal agricul-
tural workers shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
‘‘(b) PROHIBITION.—No person shall interfere with,
restrain, or coerce any migrant or seasonal agricultural
worker in the exercise of the rights guaranteed in sub-
section (a).’’.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall become effective on the date that is
1 year after the date of the enactment of this Act.
SEC. 303. TAX EQUITY AND WORKFORCE IMPROVEMENT
FUND.
(a) ESTABLISHMENT OF ACCOUNT.—There is estab-
lished in the general fund of the Treasury a separate ac-
count, which shall be known as the ‘‘Agricultural Worker
Account’’ for the purpose of improving labor management
practices in agriculture. Notwithstanding any other provi-
sion of law, there shall be deposited as offsetting receipts
into the account all fees collected under subsection (b)(1).
(b) PAYMENTS INTO ACCOUNT.—
(1) IN GENERAL.—Except as provided in para-
graph (2), the Secretary shall collect a fee from an
employer of an H–2A worker in an amount equiva-
lent to 13.85 percent of total wages paid to the H–
2A worker during the period of employment. Fees
collected under this paragraph shall be deposited in
the Treasury in accordance with subsection (a).
(2) EXCEPTION.—Paragraph (1) does not apply
to an employer in a case where the job opportunity
is covered by a union contract that was negotiated
at arm’s-length between a bona fide union and the
employer.
(c) DISTRIBUTION OF FUNDS.—The amounts paid
into the Agricultural Worker Account shall be used as fol-
lows:
(1) LABOR
MANAGEMENT
COMMITTEES.—40
percent of the amounts deposited into the Agricul-
tural Worker Account shall remain available to the
Federal Mediation and Conciliation Service until ex-
pended for assistance to labor management commit-
tees described in subsection (d).
(2) 
DEMONSTRATION
PROGRAMS
AND
PROJECTS.—40 percent of the amounts deposited in
the Agricultural Worker Account shall remain avail-
able to the Secretary of Labor until expended for
demonstration programs and projects described in
subsection (e).
(3) ADMINISTRATIVE
EXPENSES.—20 percent
of the amounts deposited into the Agricultural
Worker Account shall remain available to the Attor-
ney General, the Secretary of Labor, and the Sec-
retary of State until expended in amounts equivalent
to the expenses incurred by such officials in the ad-
ministration of the H–2A program.
(d) ASSISTANCE TO LABOR MANAGEMENT COMMIT-
TEES.—
(1) ESTABLISHMENT OF FARM, AREA, OR IN-
DUSTRYWIDE COMMITTEES.—
(A) The Federal Mediation and Concilia-
tion Service shall provide assistance in the es-