102 
rights under a collective bargaining agreement 
or other employment contract. 
‘‘(7) PREVAILING WAGE.—The term ‘prevailing 
wage’ means the wage rate that includes the 51st 
percentile of employees with similar experience and 
qualifications in the agricultural occupation in the 
area of intended employment, calculated using the 
same methodology used by the Department of Labor 
to determine prevailing wage for the purpose of the 
program described in section 101(a)(15)(H)(ii)(b) 
during 2007, and expressed in terms of the pre-
vailing method of pay for the occupation in the area 
of intended employment. 
‘‘(8) UNITED
STATES
WORKER.—The term 
‘United States worker’ means any worker who is— 
‘‘(A) a national of the United States; or 
‘‘(B) a person admitted for permanent 
resident status under section 245 of the Immi-
gration and Nationality Act (8 U.S.C. 1255). 
‘‘(b) PETITION.—An alien may not be admitted as 
an H–2A worker unless an employer has filed with the 
Secretary of Homeland Security a petition attesting to the 
following: 
‘‘(1) TEMPORARY WORK OR SERVICES.— 
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103 
‘‘(A) IN GENERAL.—The employer is seek-
ing to employ a specific number of agricultural 
workers on a temporary basis and will provide 
compensation to such workers at a specified 
wage rate and under specified conditions. 
‘‘(B) DEFINITION.—For purposes of this 
paragraph, a worker is employed on a tem-
porary basis if the employer intends to employ 
the worker for no longer than 10 months dur-
ing any contract period. 
‘‘(2) BENEFITS, WAGES, AND WORKING CONDI-
TIONS.—The employer will provide, at a minimum, 
the benefits, wages, and working conditions required 
by subsection (j) to all workers employed in the jobs 
for which the H–2A worker is sought and to all 
other temporary workers in the same occupation at 
the place of employment. 
‘‘(3) NONDISPLACEMENT
OF
UNITED
STATES 
WORKERS.—The employer did not displace and will 
not displace a United States worker employed by the 
employer during the period of employment of the H– 
2A worker and during the 30-day period imme-
diately preceding such period of employment in the 
occupation at the place of employment for which the 
employer seeks approval to employ H–2A workers. 
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104 
‘‘(4) RECRUITMENT.— 
‘‘(A) IN GENERAL.—The employer— 
‘‘(i) conducted adequate recruitment 
in the area of intended employment before 
filing the attestation; and 
‘‘(ii) was unsuccessful in locating a 
qualified United States worker for the job 
opportunity for which the H–2A worker is 
sought. 
‘‘(B) OTHER
REQUIREMENTS.—The re-
cruitment requirement under subparagraph (A) 
is satisfied if the employer places— 
‘‘(i) a local job order with the State 
workforce agency serving the local area 
where the work will be performed, except 
that nothing in this clause shall require the 
employer to file an interstate job order 
under section 653 of title 20, Code of Fed-
eral Regulations; and 
‘‘(ii) a Sunday advertisement in a 
newspaper of general circulation in the 
area of intended employment. 
‘‘(C) ADVERTISEMENT
REQUIREMENT.— 
The advertisement requirement under subpara-
graph (B)(ii) is satisfied if the advertisement— 
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105 
‘‘(i) names the employer; 
‘‘(ii) directs applicants to contact the 
employer; 
‘‘(iii) provides a description of the va-
cancy that is specific enough to apprise 
United States workers of the job oppor-
tunity for which certification is sought; 
‘‘(iv) describes the geographic area 
with enough specificity to apprise appli-
cants of any travel requirements and where 
applicants will likely have to reside to per-
form the job; and 
‘‘(v) states the rate of pay, which 
shall not be less than the wage paid for the 
occupation in the area of intended employ-
ment. 
‘‘(D) END
OF
RECRUITMENT
REQUIRE-
MENT.—The requirement to recruit United 
States workers shall terminate on the first day 
of the contract period that work begins. 
‘‘(5) OFFERS TO UNITED STATES WORKERS.— 
The employer has offered or will offer the job for 
which the H–2A worker is sought to any eligible 
United States worker who— 
‘‘(A) applies; 
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