I
105TH CONGRESS
2D SESSION
H. R. 3410
To amend the Immigration and Nationality Act to establish a 24-month
pilot program permitting certain aliens to be admitted into the United
States to provide temporary or seasonal agricultural services pursuant
to a labor condition attestation and to offset those admissions with
temporary reductions in diversity and unskilled workers’ immigrant visas.
IN THE HOUSE OF REPRESENTATIVES
MARCH 10, 1998
Mr. SMITH of Oregon introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on Edu-
cation and the Workforce, for a period to be subsequently determined by
the Speaker, in each case for consideration of such provisions as fall with-
in the jurisdiction of the committee concerned
A BILL
To amend the Immigration and Nationality Act to establish
a 24-month pilot program permitting certain aliens to
be admitted into the United States to provide temporary
or seasonal agricultural services pursuant to a labor con-
dition attestation and to offset those admissions with
temporary reductions in diversity and unskilled workers’
immigrant visas.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Temporary Agricul-
tural Worker Act of 1998’’.
SEC. 2. NEW NONIMMIGRANT CATEGORY FOR PILOT PRO-
GRAM TEMPORARY AND SEASONAL AGRICUL-
TURAL WORKERS.
(a) ESTABLISHMENT
OF NEW CLASSIFICATION.—
Section 101(a)(15)(H)(ii) of the Immigration and Nation-
ality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended—
(1) by striking ‘‘or (b)’’ and inserting ‘‘(b)’’;
and
(2) by adding at the end the following:
‘‘ or (c) having a residence in a foreign country
which he has no intention of abandoning who is
coming temporarily to the United States pursuant to
section 218A to perform such agricultural labor or
services of a temporary or seasonal nature;’’.
(b) NO FAMILY MEMBERS PERMITTED.—Section
101(a)(15)(H) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)) is amended by striking ‘‘specified
in this paragraph’’ and inserting ‘‘specified in this sub-
paragraph (other than in clause (ii)(c))’’.
SEC. 3. PILOT PROGRAM FOR ALTERNATIVE AGRICUL-
TURAL 
TEMPORARY 
WORKER 
PROCESS
USING ATTESTATION.
(a) IN GENERAL.—The Immigration and Nationality
Act is amended by inserting after section 218 the follow-
ing:
‘‘ALTERNATIVE AGRICULTURAL TEMPORARY WORKER
PROGRAM
‘‘SEC. 218A. (a) CONDITION FOR EMPLOYMENT OF
PILOT PROGRAM ALIENS.—
‘‘(1) ESTABLISHMENT OF PILOT PROGRAM; RE-
STRICTION OF ADMISSIONS TO PILOT PROGRAM PE-
RIOD.—
‘‘(A) IN GENERAL.—The Attorney General
shall establish a pilot program for the admis-
sion of aliens classified as a nonimmigrant
under section 101(a)(15)(H)(ii)(c) to perform
temporary or seasonal agricultural services pur-
suant to a labor condition attestation filed by
an employer or an association for the occupa-
tion in which the alien will be employed. No
alien may be admitted or provided status as a
pilot program alien under this section after the
last day of the pilot program period specified in
subparagraph (B).
‘‘(B) PILOT PROGRAM PERIOD.—The pilot
program period under this subparagraph is the
24-month period beginning on the first day of
the first fiscal year beginning 6 months or more
after the date of the enactment of the Tem-
porary Agricultural Worker Act of 1998.
‘‘(2) ADMISSION OF ALIENS.—No alien may be
admitted to the United States or provided status as
a pilot program alien (as defined in subsection
(n)(4)) unless—
‘‘(A) the employment of the alien is cov-
ered by a currently valid labor condition attes-
tation which—
‘‘(i) is filed by the employer, or by an
association on behalf of the employer, for
the occupation in which the alien will be
employed;
‘‘(ii) has been accepted by the State
employment security agency having juris-
diction over the area of intended employ-
ment; and
‘‘(iii) states each of the items de-
scribed in paragraph (2) and includes in-
formation identifying the employer or asso-
ciation and agricultural job opportunities
involved;
‘‘(B) the employer is not disqualified from
employing pilot program aliens pursuant to sub-
section (h); and
‘‘(C) the employer has not, during the pilot
program period, been found by the Attorney
General to have employed any aliens in violation
of section 274A(a) or this section.
‘‘(3) CONTENTS OF LABOR CONDITION ATTES-
TATION.—Each labor condition attestation filed by
or on behalf of, an employer shall state the follow-
ing:
‘‘(A) WAGE RATE.—The employer will pay
pilot program aliens and all other workers in
the occupation not less than the prevailing wage
for similarly employed workers in the area of
employment, and not less than the applicable
Federal, State or local statutory minimum
wage.
‘‘(B) WORKING
CONDITIONS.—The em-
ployment of pilot program aliens will not ad-
versely affect the working conditions of simi-
larly employed workers in the area of employ-
ment.
‘‘(C) LIMITATION
ON
EMPLOYMENT.—A
pilot program alien will not be employed in any
job opportunity which is not temporary or sea-
sonal, and will not be employed by the employer
in any job opportunity for more than 10
months in any 12-consecutive-month period.
‘‘(D) NO LABOR DISPUTE.—No pilot pro-
gram alien will be employed in any job oppor-
tunity which is vacant because its former occu-
pant is involved in a strike, lockout or work
stoppage in the course of a labor dispute in the
occupation at the place of employment.
‘‘(E) NOTICE.—The employer, at the time
of filing the attestation, has provided notice of
the attestation to its workers employed in the
occupation in which, and at the place of em-
ployment where, pilot program aliens will be
employed.
‘‘(F) JOB ORDERS.—The employer will file
one or more job orders for the occupation (or
occupations) covered by the attestation with the
State employment security agency no later than
the day on which the employer first employs
any pilot program aliens in the occupation.
‘‘(G) PREFERENCE TO DOMESTIC WORK-
ERS.—The employer will give preference to
able, willing and qualified United States work-
ers who apply to the employer and are available
at the time and place needed, for the first 25
days after the filing of the job order in an occu-
pation or until 5 days before the date employ-
ment of workers in the occupation begins,
whichever occurs later.
‘‘(4) LIMITATION ON NUMBER OF VISAS.—In no
case may the number of aliens who are admitted or
provided status as a pilot program alien in a fiscal
year exceed 20,000.
‘‘(5) OPERATION
OF
PROGRAM
IN
NOT
LESS
THAN 5 AREAS.—Alien admissions under this section
shall be allocated equally to employers in not less
than 5 geographically and agriculturally diverse
areas designated by the Secretary of Agriculture.
The entire United States shall be encompassed with-
in such areas.
‘‘(6) GENERAL ACCOUNTING OFFICE REPORT.—
Not later than 90 days after the termination of the
pilot program period specified in paragraph (1)(B),
the Comptroller General shall prepare and transmit
to the Congress a report describing the results of a
review of the implementation and enforcement of
this section during such period, for the purpose of
determining if—
‘‘(A) the program has ensured an adequate
and timely supply of qualified, eligible workers
at the time and place needed for employers;
‘‘(B) the program has ensured that pilot
program aliens are employed only in authorized
employment and that they timely depart the
United States when their authorized stay ends;
‘‘(C) the program has ensured that imple-
mentation of the program is not displacing
United States agricultural workers or diminish-
ing the terms and conditions of employment of
United States agricultural workers; and
‘‘(D) an unnecessary regulatory burden
has been created for employers hiring workers
admitted under this section.
‘‘(b) FILING A LABOR CONDITION ATTESTATION.—
‘‘(1) FILING BY EMPLOYERS.—Any employer in
the United States is eligible to file a labor condition
attestation.
‘‘(2) FILING BY ASSOCIATIONS ON BEHALF OF
EMPLOYER MEMBERS.—An agricultural association
may file a labor condition attestation as an agent on
behalf of its members. Such an attestation filed by
an agricultural association acting as an agent for its
members, when accepted, shall apply to those em-
ployer members of the association that the associa-
tion certifies to the State employment security agen-
cy are members of the association and have agreed
in writing to comply with the requirements of this
section.
‘‘(3) PERIOD OF VALIDITY.—A labor condition
attestation is valid from the date on which it is ac-
cepted by the State employment security agency for
the period of time requested by the employer, but
not to exceed 12 months.
‘‘(4) WHERE TO FILE.—A labor condition attes-
tation shall be filed with the State employment secu-
rity agency having jurisdiction over the area of in-
tended employment of the workers covered by the at-
testation. If an employer, or the members of an as-
sociation of employers, will be employing workers in
an area or areas covered by more than one such
agency, the attestation shall be filed with each such
agency having jurisdiction over an area where the
workers will be employed.
‘‘(5) DEADLINE FOR FILING.—A labor condi-
tion attestation may be filed at any time up to 12
months prior to the date of the employer’s antici-
pated need for workers in the occupation (or occupa-
tions) covered by the attestation.
‘‘(6) FILING FOR MULTIPLE OCCUPATIONS.—A
labor condition attestation may be filed for one or
more occupations and cover one or more periods of
employment.
‘‘(7) MAINTAINING
REQUIRED
DOCUMENTA-
TION.—
‘‘(A) BY EMPLOYERS.—Each employer cov-
ered by an accepted labor condition attestation
must maintain a file of the documentation re-
quired in subsection (c) for each occupation in-
cluded in an accepted attestation covering the
employer. The documentation shall be retained
for a period of one year following the expiration
of an accepted attestation. The employer shall
make the documentation available to represent-
atives of the Secretary during normal business
hours.
‘‘(B) BY
ASSOCIATIONS.—In complying
with subparagraph (A), documentation main-
tained by an association filing a labor condition
attestation on behalf of an employer shall be
deemed to be maintained by the employer.
‘‘(8) WITHDRAWAL.—
‘‘(A) COMPLIANCE WITH ATTESTATION OB-
LIGATIONS.—An employer covered by an ac-
cepted labor condition attestation for an occu-
pation shall comply with the terms and condi-
tions of the attestation from the date the attes-
tation is accepted and continuing throughout
the period any persons are employed in an occu-
pation covered by such an accepted attestation,
whether or not pilot program aliens are em-
ployed in the occupation, unless the attestation
is withdrawn.
‘‘(B) TERMINATION OF OBLIGATIONS.—An
employer may withdraw a labor condition attes-
tation in total, or with respect to a particular
occupation covered by the attestation. An asso-
ciation may withdraw such an attestation with
respect to one or more of its members. To with-
draw an attestation the employer or association
must notify in writing the State employment se-
curity agency office with which the attestation
was filed of the withdrawal of the attestation.
An employer who withdraws an attestation, or
on whose behalf an attestation is withdrawn by
an association, is relieved of the obligations un-
dertaken in the attestation with respect to the
occupation (or occupations) with respect to
which the attestation was withdrawn, upon ac-
knowledgement by the appropriate State em-
ployment security agency of receipt of the with-
drawal notice. An attestation may not be with-
drawn with respect to any occupation while any
pilot program alien covered by that attestation
is employed in the occupation.
‘‘(C) OBLIGATIONS UNDER OTHER STAT-
UTES.—Any obligation incurred by the em-
ployer under any other law or regulation as a
result of recruitment of United States workers
under an offer of terms and conditions of em-
ployment required by the pilot program under
this section is unaffected by withdrawal of a
labor condition attestation.
‘‘(c) EMPLOYER RESPONSIBILITIES AND REQUIRE-
MENTS FOR EMPLOYING PILOT PROGRAM ALIENS.—
‘‘(1) REQUIREMENT TO PAY THE PREVAILING
WAGE.—
‘‘(A) EFFECT
OF
THE
ATTESTATION.—
Employers shall pay each worker in an occupa-
tion covered by an accepted labor condition at-
testation at least the prevailing wage in the oc-
cupation in the area of intended employment.
The preceding sentence does not require em-
ployers to pay all workers in the occupation the
same wage. The employer may, in the sole dis-
cretion of the employer, maintain pay differen-
tials based on experience, tenure with the em-
ployer, skill, or any other work-related factor, if
the differential is not based on a criterion for
which discrimination is prohibited by the law
and all workers in the covered occupation re-
ceive at least the prevailing wage.
‘‘(B) PAYMENT
OF
STATE
EMPLOYMENT
SECURITY AGENCY DETERMINED WAGE SUFFI-
CIENT.—The employer may request and obtain
a prevailing wage determination from the State
employment security agency. If the employer re-
quests such a determination, and pays the wage
determined, such payment shall be considered
sufficient to meet the requirement of this para-
graph if the pilot program aliens—
‘‘(i) are employed in the occupation
for which the employer possesses an ac-
cepted labor condition attestation, and for
which the employer or association pos-
sesses a prevailing wage determination by
the State employment security agency, and
‘‘(ii) are being paid at least the pre-
vailing wage so determined.
‘‘(C) RELIANCE
ON
WAGE
SURVEY.—In
lieu of the procedures of subparagraph (B), an
employer may rely on other information, such
as an employer generated prevailing wage sur-
vey and determination, which meets criteria
specified by the Secretary by regulation. In the
event of a complaint that the employer has
failed to pay the required wage, the Secretary
shall investigate to determine if the information
upon which the employer relied complied with
the criteria for prevailing wage determinations.
‘‘(D) ALTERNATE METHODS OF PAYMENT
PERMITTED.—
‘‘(i) IN GENERAL.—A prevailing wage
may be expressed as an hourly wage, a
piece rate, a task rate (described in clause
(ii)), or other incentive pay system, includ-
ing a group rate (described in clause (iii)).
The requirement to pay at least the pre-
vailing wage in the occupation and area of
intended employment does not require an
employer to pay by the method of pay in
which the prevailing rate is expressed.
However, if the employer adopts a method
of pay other than the prevailing rate, the
burden of proof is on the employer to dem-
onstrate that the employer’s method of pay
is designed to produce earnings equivalent
to the earnings that would result from pay-
ment of the prevailing rate.
‘‘(ii) TASK
RATE.—For purposes of
this subparagraph, a task rate is an incen-
tive payment based on a unit of work per-
formed such that the incentive rate varies
with the level of effort required to perform
individual units of work.
‘‘(iii) GROUP RATE.—For purposes of
this subparagraph, a group rate is an in-
centive payment system in which the pay-
ment is shared among a group of workers
working together to perform the task.
‘‘(E) REQUIRED
DOCUMENTATION.—The
employer or association shall document compli-
ance with this paragraph by retaining on file
the employer or association’s request for a de-
termination by a State employment security
agency and the prevailing wage determination
received from such agency or other information
upon which the employer or association relied to
assure compliance with the prevailing wage re-
quirement.
‘‘(2) REQUIREMENT TO PROVIDE HOUSING AND
TRANSPORTATION.—
‘‘(A) EFFECT OF THE ATTESTATION.—The
employment of pilot program aliens shall not
adversely affect the working conditions of
United States workers similarly employed in the
area of intended employment. The employer’s
obligation not to adversely affect working condi-
tions shall continue for the duration of the pe-
riod of employment by the employer of any pilot
program aliens in the occupation and area of
intended employment. An employer will be
deemed to be in compliance with this attesta-
tion if the employer offers at least the benefits
required by subparagraphs (B) through (D).
The previous sentence does not require an em-
ployer to offer more than such benefits.
‘‘(B) HOUSING REQUIRED.—
‘‘(i) HOUSING OFFER.—The employer
must offer to pilot program aliens and
United States workers recruited from be-
yond normal recruiting distance housing,
or a housing allowance, if it is prevailing
practice in the occupation and area of in-
tended employment to offer housing or a
housing allowance to workers who are re-
cruited from beyond normal commuting
distance.
‘‘(ii) HOUSING
STANDARDS.—If the
employer offers housing to such workers,
the housing shall meet (at the option of
the employer) applicable Federal farm
labor housing standards or applicable local
or State standards for rental, public ac-
commodation, or other substantially simi-
lar class of habitation.
‘‘(iii) CHARGES
FOR
HOUSING.—An
employer who offers housing to such work-
ers may charge an amount equal to the
fair market value (but not greater than the
employer’s actual cost) for utilities and
maintenance, or such lesser amount as per-
mitted by law.
‘‘(iv) HOUSING
ALLOWANCE
AS
AL-
TERNATIVE.—In lieu of offering housing to
such workers, at the employer’s sole discre-
tion on an individual basis, the employer
may provide a reasonable housing allow-
ance. An employer who offers a housing al-
lowance to such a worker under this sub-
paragraph shall not be deemed to be a
housing provider under section 203 of the
Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1823) merely by
virtue of providing such housing allowance.
‘‘(v) SECURITY
DEPOSIT.—The re-
quirement, if any, to offer housing to such
a worker under this subparagraph shall
not preclude an employer from requiring a
reasonable deposit to protect against gross
negligence or willful destruction of prop-
erty, as a condition for providing such
housing.
‘‘(vi) DAMAGES.—An employer who
offers housing to such a worker shall not
be precluded from requiring 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 reimburse the employer for the reason-
able cost of repair of such damage.
‘‘(C) TRANSPORTATION.—If the employer
provides transportation arrangements or assist-
ance to pilot program aliens, the employer must
offer to provide the same transportation ar-
rangements or assistance (generally comparable
in expense and scope) for other individuals em-
ployed by the employer in the occupation at the
place of employment who were recruited from
beyond normal commuting distance.
‘‘(D) WORKERS’ COMPENSATION.—If the
employment covered by a labor condition attes-
tation is not covered by the State workers’ com-
pensation law, the employer must provide, at no
cost to the worker, insurance covering injury
and disease arising out of and in the course of
the workers’ employment which will provide
benefits at least equal to those provided under
the State workers’ compensation law for com-
parable employment.
‘‘(E) REQUIRED DOCUMENTATION.—
‘‘(i) 
HOUSING
AND
TRANSPOR-
TATION.—No specific documentation is re-
quired to be maintained to evidence com-
pliance with the requirements of subpara-
graphs (B) and (C). In the event of a com-
plaint alleging a failure to comply with
such a requirement, the burden of proof
shall be on the employer to show that the
employer offered the required benefit to
the complainant, or that the employer was
not required by the terms of this para-
graph to offer such benefit to the com-
plainant.
‘‘(ii) 
WORKERS’ 
COMPENSATION.—
The employer shall maintain copies of cer-
tificates of insurance evidencing compli-
ance with subparagraph (D) throughout
the period of validity of the labor condition
attestation.
‘‘(3) REQUIREMENT
TO
EMPLOY
ALIENS
IN
TEMPORARY OR SEASONAL AGRICULTURAL JOB OP-
PORTUNITIES.—
‘‘(A) LIMITATIONS.—
‘‘(i) IN GENERAL.—The employer may
employ pilot program aliens only in agri-
cultural employment which is temporary or
seasonal.
‘‘(ii) SEASONAL BASIS.—For purposes
of this section, labor is performed on a sea-
sonal basis where, ordinarily, the employ-
ment pertains to or is of the kind exclu-
sively performed at certain seasons or peri-
ods of the year and which, from its nature,
may not be continuous or carried on
throughout the year.
‘‘(iii) TEMPORARY
BASIS.—For pur-
poses of this section, a worker is employed
on a temporary basis where the employ-
ment is intended not to exceed 10 months.
‘‘(B) REQUIRED
DOCUMENTATION.—No
specific documentation is required to dem-
onstrate compliance with the requirement of
subparagraph (A). In the event of a complaint,
the burden of proof shall fall on the employer
to show that the employment meets such re-
quirement.
‘‘(4) REQUIREMENT NOT TO EMPLOY ALIENS IN
JOB OPPORTUNITIES VACANT BECAUSE OF A LABOR
DISPUTE.—
‘‘(A) IN
GENERAL.—No pilot program
alien may be employed in any job opportunity
which is vacant because its former occupant is
involved in a strike, lockout, or work stoppage
in the course of a labor dispute in the occupa-
tion at the place of employment.
‘‘(B) REQUIRED
DOCUMENTATION.—No
specific documentation is required to dem-
onstrate compliance with the requirement of
subparagraph (A). In the event of a complaint,
the burden of proof shall fall on the employer
to show that the job opportunity in which the
pilot program alien was employed was not va-
cant because the former occupant was on strike,
locked out, or participating in a work stoppage
in the course of a labor dispute in the occupa-
tion at the place of employment.
‘‘(5) NOTICE OF FILING OF LABOR CONDITION
ATTESTATION AND SUPPORTING DOCUMENTATION.—
‘‘(A) IN GENERAL.—The employer shall—
‘‘(i) provide notice of the filing of a
labor condition attestation to the appro-
priate certified bargaining agent (if any)
which represents workers of the employer
in the occupation (or occupations) at the
place of employment covered by the attes-
tation; or
‘‘(ii) in the case where no such bar-
gaining agent exists, post notice of the fil-
ing of such an attestation in at least two
conspicuous locations where applications
for employment are accepted.
‘‘(B) PERIOD FOR POSTING.—The require-
ment for a posting under subparagraph (A)(ii)
begins on the day the attestation is filed, and
continues through the period during which the
employer’s job order is required to remain ac-
tive pursuant to paragraph (6)(A).
‘‘(C) REQUIRED
DOCUMENTATION.—The
employer shall maintain a copy of the notice
provided to the bargaining agent (if any), to-
gether with evidence that the notice was pro-
vided (such as a signed receipt of evidence of
attempt to send the notice by certified or reg-
istered mail). In the case where no certified
bargaining agent described in subparagraph
(A)(i) exists, the employer shall retain a copy of
the posted notice, together with information as
to the dates and locations where the notice was
displayed.
‘‘(6) REQUIREMENT TO FILE A JOB ORDER.—
‘‘(A) EFFECT OF THE ATTESTATION.—The
employer, or an association acting as agent for
its members, shall file the information nec-
essary to complete a local job order for each oc-
cupation covered by an accepted labor condition
attestation with the appropriate local office of
the State employment security agency having
jurisdiction over the area of intended employ-
ment, or with the State office of such an agency
if workers will be employed in an area within
the jurisdiction of more than one local office of
such an agency. The job orders shall remain on
file for 25 calendar days or until 5 calendar
days before the anticipated date of need for
workers in the occupation covered by the job
order, whichever occurs later. The job order
shall provide at least the minimum terms and
conditions of employment required for partici-
pation in the pilot program.
‘‘(B) DEADLINE FOR FILING.—A job order
shall be filed under subparagraph (A) no later
than the date on which the employer files a pe-
tition with the Attorney General for admission
or extension of stay for aliens to be employed
in the occupation for which the order is filed.
‘‘(C) REQUIRED
DOCUMENTATION.—The
office of the State employment security agency
which the employer or association provides with
information necessary to file a local job order
shall provide the employer with evidence that
the information was provided in a timely man-
ner as required by this paragraph, and the em-
ployer or association shall retain such evidence
for each occupation in which pilot program
aliens are employed.
‘‘(7) REQUIREMENT TO GIVE PREFERENCE TO
QUALIFIED UNITED STATES WORKERS.—
‘‘(A) FILING 30 DAYS OR MORE BEFORE
DATE OF NEED.—If a job order is filed 30 days
or more before the anticipated date of need for
workers in an occupation covered by a labor
condition attestation and for which the job
order has been filed, the employer shall offer to
employ able, willing, and qualified United
States workers who apply to the employer and
who will be available at the time and place
needed for the job opportunities covered by the
attestation until 5 calendar days before the an-
ticipated date of need for workers in the occu-
pation, or until the employer’s job opportunities
‘‘(D) JOB-RELATED REQUIREMENTS.—No
employer shall be required to initially employ a
worker who fails to meet lawful job-related em-
ployment criteria, nor to continue the employ-
ment of a worker who fails to meet lawful job-
related standards of conduct and performance,
including failure to meet minimum productivity
standards after a 3-day break-in period.
‘‘(E) REQUIRED
DOCUMENTATION.—No
specific documentation is required to dem-
onstrate compliance with the requirements of
this paragraph. In the event of a complaint, the
burden of proof shall be on the complainant to
show that the complainant applied for the job
and was available at the time and place needed.
If the complainant makes such a showing, the
burden of proof shall be on the employer to
show that the complainant was not qualified or
that the preference period had expired.
‘‘(d) REQUIREMENTS
OF
NOTICE
OF
CERTAIN
BREAKS IN EMPLOYMENT.—
‘‘(1) IN GENERAL.—The employer (or the asso-
ciation acting as agent for the employer) shall notify
the Attorney General within 7 days if a pilot pro-
gram alien prematurely abandons the alien’s employ-
ment.
‘‘(2) OUT-OF-STATUS.—A pilot program alien
who abandons the alien’s employment shall be con-
sidered to have failed to maintain nonimmigrant sta-
tus 
as 
an 
alien 
described 
in 
section
101(a)(15)(H)(ii)(c) and shall leave the United
States or be subject to removal under section
237(a)(1)(C)(i).
‘‘(e) ACCEPTANCE BY STATE EMPLOYMENT SECU-
RITY AGENCY.—The State employment security agency
shall review labor condition attestations submitted by em-
ployers or associations pursuant to this section only for
completeness and obvious inaccuracies. Unless such an
agency finds that the application is incomplete or obvi-
ously inaccurate, the agency shall accept the attestation
within 7 days of the date of filing of the attestation, and
return a copy to the applicant marked ‘accepted’.
‘‘(f) PUBLIC REGISTRY.—The Secretary shall main-
tain a registry of all accepted labor condition attestations
and make such registry available for public inspection.
‘‘(g) RESPONSIBILITIES
OF
THE STATE EMPLOY-
MENT SECURITY AGENCIES.—
‘‘(1) DISSEMINATION
OF
LABOR
MARKET
IN-
FORMATION.—The Secretary shall direct State em-
ployment security agencies to disseminate non-em-
ployer-specific information about potential labor
needs based on accepted attestations filed by em-
ployers. Such dissemination shall be separate from
the clearance of job orders through the Interstate
and Intrastate Clearance Systems, and shall create
no obligations for employers except as provided in
this section.
‘‘(2) REFERRAL OF WORKERS ON STATE EM-
PLOYMENT SECURITY AGENCY JOB ORDERS.—Such
agencies holding job orders filed by employers cov-
ered by approved labor condition attestations shall
be authorized to refer any able, willing, and qualified
eligible job applicant who will be available at the
time and place needed and who is authorized to
work in the United States, including pilot program
aliens who are seeking additional work in the United
States and whose eligibility to remain in the United
States pursuant to subsection (i) has not expired, on
job orders filed by holders of accepted attestations.
‘‘(h) ENFORCEMENT AND PENALTIES.—
‘‘(1) ENFORCEMENT AUTHORITY.—
‘‘(A) INVESTIGATION
OF
COMPLAINTS.—
The Secretary shall establish a process for the
receipt, investigation, and disposition of com-
plaints respecting an employer’s failure to meet
a condition specified in subsection (a) or an em-
ployer’s misrepresentation of material facts in
such an application. Complaints may be filed by
any aggrieved person or organizations (includ-
ing bargaining representatives). No investiga-
tion or hearing shall be conducted on a com-
plaint concerning such a failure or misrepresen-
tation unless the complaint was filed not later
than 2 years after the date of the failure or
misrepresentation, respectively. The Secretary
shall conduct an investigation under this sub-
paragraph if there is reasonable cause to believe
that such a failure or misrepresentation has oc-
curred.
‘‘(B) WRITTEN NOTICE OF FINDINGS AND
OPPORTUNITY
FOR
APPEAL.—After an inves-
tigation has been conducted, the Secretary shall
issue a written determination as to whether or
not any violation described in subparagraph (A)
has been committed. The Secretary’s deter-
mination shall be served on the complainant
and the employer, and shall provide an oppor-
tunity for an appeal of the Secretary’s decision
to an administrative law judge, who may con-
duct a de novo hearing.
‘‘(2) REMEDIES.—
‘‘(A) BACK WAGES.—Upon a final deter-
mination that the employer has failed to pay
wages as required under this section, the Sec-
retary may assess payment of back wages due
to any United States worker or pilot program
alien employed by the employer in the specific
employment in question. The back wages shall
be equal to the difference between the amount
that should have been paid and the amount
that actually was paid to such worker.
‘‘(B) FAILURE TO PAY WAGES.—Upon a
final determination that the employer has failed
to pay the wages required under this section,
the Secretary may assess a civil money penalty
up to $1,000 for each failure, and may rec-
ommend to the Attorney General the disquali-
fication of the employer from the employment
of pilot program aliens for a period of time de-
termined by the Secretary not to exceed 1 year.
‘‘(C) OTHER
VIOLATIONS.—If the Sec-
retary, as a result of an investigation pursuant
to a complaint, determines that an employer
covered by an accepted labor condition attesta-
tion has—
‘‘(i) filed an attestation which mis-
represents a material fact; or
‘‘(ii) failed to meet a condition speci-
fied in subsection (a),
the Secretary may assess a civil money penalty
not to exceed $1,000 for each violation. In de-
termining the amount of civil money penalty to
be assessed, the Secretary shall consider the se-
riousness of the violation, the good faith of the
employer, the size of the business of the em-
ployer being charged, the history of previous
violations by the employer, whether the em-
ployer obtained a financial gain from the viola-
tion, whether the violation was willful, and
other relevant factors.
‘‘(D) PROGRAM DISQUALIFICATION.—Upon
a second final determination that an employer
has failed to pay the wages required under this
section, the Secretary shall report such deter-
mination to the Attorney General and the At-
torney General shall disqualify the employer
from any subsequent employment of pilot pro-
gram aliens.
‘‘(3) ROLE OF ASSOCIATIONS.—
‘‘(A) VIOLATION BY AN ASSOCIATION.—An
employer on whose behalf a labor condition at-
testation is filed by an association acting as its
agent is fully responsible for such attestation,
and for complying with the terms and condi-
tions of this section, as though the employer
had filed the attestation itself. If such an em-
ployer is determined to have violated a require-
ment of this section, the penalty for such viola-
tion shall be assessed against the employer who
committed the violation and not against the as-
sociation or other members of the association.
‘‘(B) VIOLATION BY AN ASSOCIATION ACT-
ING AS AN EMPLOYER.—If an association filing
a labor condition attestation on its own behalf
as an employer is determined to have commit-
ted a violation under this subsection which re-
sults in disqualification from the program under
paragraph (2)(D), no individual member of
such association may be the beneficiary of the
services of a pilot program alien in an occupa-
tion in which such alien was employed by the
association during the period such disqualifica-
tion is in effect, unless such member files a
labor condition attestation as an individual em-
ployer or such an attestation is filed on the em-
ployer’s behalf by an association with which the
employer has an agreement that the employer
will comply with the requirements of this sec-
tion.
‘‘(i) PROCEDURE FOR ADMISSION OR EXTENSION OF
PILOT PROGRAM ALIENS.—
‘‘(1) ALIENS WHO ARE OUTSIDE THE UNITED
STATES.—
‘‘(A) PETITIONING
FOR
ADMISSION.—An
employer or an association acting as agent for
its members who seeks the admission into the
United States of pilot program aliens may file
a petition with the District Director of the Im-
migration and Naturalization Service having ju-
risdiction over the location where the aliens will
be employed. The petition shall be accompanied
by an accepted and currently valid labor condi-
tion attestation covering the petitioner. The pe-
tition may be for named or unnamed individual
or multiple beneficiaries.
‘‘(B) EXPEDITED ADJUDICATION BY DIS-
TRICT DIRECTOR.—If an employer’s petition for
admission of pilot program aliens is correctly
filled out, and the employer is not ineligible to
employ pilot program aliens, the District Direc-
tor (or the Director’s designee) shall approve
the petition within 3 working days of receipt of
the petition and accepted labor condition attes-
tation and immediately (by fax, cable, or other
means assuring expedited delivery) transmit a
copy of the approved petition to the petitioner
and to the appropriate immigration officer at
the port of entry or United States consulate (as
the case may be) where the petitioner has indi-
cated that the alien beneficiary (or bene-
ficiaries) will apply for a visa or admission to
the United States.
‘‘(C) UNNAMED BENEFICIARIES SELECTED
BY PETITIONER.—The petitioning employer or
association or its representative shall approve
the issuance of visas to beneficiaries who are
unnamed on a petition for admission granted to
the employer or association.
‘‘(D) CRITERIA FOR ADMISSIBILITY.—
‘‘(i) IN GENERAL.—An alien shall be
admissible under this section if the alien is
otherwise admissible under this Act and
the alien is not debarred pursuant to the
provisions of clause (ii).
‘‘(ii) DISQUALIFICATION.—An alien
shall be debarred from admission or being
provided status as a pilot program alien
under this section if the alien has, at any
time during the past 5 years—
‘‘(I) violated a material provision
of this section, including the require-
ment to promptly depart the United
States when the alien’s authorized pe-
riod of admission under this section
has expired; or
‘‘(II) otherwise violated a term or
condition of admission to the United
States as a nonimmigrant, including
overstaying the period of authorized
admission as such a nonimmigrant.
‘‘(E) PERIOD
OF
ADMISSION.—The alien
shall be admitted for the period requested by
the petitioner not to exceed 10 months, or the
remaining validity period of the petitioner’s ap-
proved labor condition attestation, whichever is
less, plus an additional period of 14 days, dur-
ing which the alien shall seek authorized em-
ployment in the United States. During the 14-
day period following the expiration of the alien’s
work authorization, the alien is not authorized
to be employed unless the original petitioner or
a subsequent petitioner has filed an extension
of stay on behalf of the alien pursuant to para-
graph (2). In no case may the period of admis-
sion extend beyond the last day of the pilot pro-
gram period specified in subsection (a)(1)(B).
‘‘(F) ISSUANCE OF IDENTIFICATION AND
EMPLOYMENT ELIGIBILITY DOCUMENT.—
‘‘(i) 
IN
GENERAL.—The 
Attorney
General shall cause to be issued to each
pilot program alien a card in a form which
is resistant to counterfeiting and tamper-
ing for the purpose of providing proof of
identity and employment eligibility under
section 274A.
‘‘(ii) DESIGN
OF
CARD.—Each card
issued pursuant to clause (i) shall be de-
signed in such a manner and contain a
photograph and other identifying informa-
tion (such as date of birth, sex, and distin-
guishing marks) that would allow an em-
ployer to determine with reasonable cer-
tainty that the bearer is not claiming the
identity of another individual, and shall—
‘‘(I) contain a fingerprint or
other biometric identifying data (or
both);
‘‘(II) specify the date of the
alien’s authorization as a pilot pro-
gram alien;
‘‘(III) specify the expiration date
of the alien’s work authorization; and
‘‘(IV) specify the alien’s admis-
sion number or alien file number.
‘‘(2) EXTENSION OF STAY.—
‘‘(A) APPLICATION
FOR
EXTENSION
OF
STAY.—If a petitioner seeks to employ a pilot
program alien already in the United States, the
petitioner shall file with the Attorney General
an application for an extension of the alien’s
stay. The application for extension of stay shall
be accompanied by a currently valid labor con-
dition attestation.
‘‘(B) LIMITATION ON FILING AN APPLICA-
TION FOR EXTENSION OF STAY.—An applica-
tion may not be filed for an extension of an
alien’s stay for a period of more than 10
months, or later than the last day of the pilot
program 
period 
specified 
in 
subsection
(a)(1)(B), whichever occurs first. An applica-
tion for extension of stay may not be filed dur-
ing the pendency of an alien’s previous author-
ized period of employment, nor after the alien’s
authorized stay in the United States has ex-
pired.
‘‘(C) WORK AUTHORIZATION UPON FILING
AN APPLICATION FOR EXTENSION OF STAY.—
An employer may begin employing an alien al-
ready in the United States in pilot program
alien status on the day the employer files its
application for extension of stay. For the pur-
pose of this requirement, the term ‘filing’
means sending the application by certified mail
via the United States Postal Service, return re-
ceipt requested, or delivered by guaranteed
commercial delivery which will provide the em-
ployer with a documented acknowledgment of
the date of sending and receipt of the applica-
tion. The employer shall provide a copy of the
employer’s application for extension of stay to
the alien, who shall keep the application with
the alien’s identification and employment eligi-
bility document as evidence that the extension
has been filed and that the alien is authorized
to work in the United States. Upon approval of
an application for extension of stay, the Attor-
ney General shall provide a new or updated em-
ployment eligibility document to the alien indi-
cating the new validity date, after which the
alien is not required to retain a copy of the ap-
plication for extension of stay.
‘‘(D) LIMITATION
ON
EMPLOYMENT
AU-
THORIZATION
OF
PILOT
PROGRAM
ALIENS
WITHOUT VALID IDENTIFICATION AND EMPLOY-
MENT ELIGIBILITY CARD.—An expired identi-
fication and employment eligibility document,
together with a copy of an application for ex-
tension of stay, shall constitute a valid work au-
thorization document for a period of not more
than 60 days from the date of application for
the extension of stay, after which time only a
currently valid identification and employment
eligibility document shall be acceptable.
‘‘(3) LIMITATION ON AN INDIVIDUAL’S STAY IN
PILOT PROGRAM STATUS.—An alien having status as
a pilot program alien may not have the status ex-
tended for a continuous period longer than 2 years
unless the alien remains outside the United States
for an uninterrupted period of 6 months. An absence
from the United States may break the continuity of
the period for which a nonimmigrant visa issued
under section 101(a)(15)(H)(ii)(c) is valid. If the
alien has resided in the United States 10 months or
less, an absence breaks the continuity of the period
if its lasts for at least 2 months. If the alien has re-
sided in the United States 10 months or more, an
absence breaks the continuity of the period if it lasts
for at least one-fifth the duration of the stay.
‘‘(j) TRUST FUND TO ASSURE WORKER RETURN.—
‘‘(1) ESTABLISHMENT.—The Attorney General
shall provide for the establishment of an interest-
bearing trust fund (in this section referred to as the
‘Trust Fund’) for the purpose of providing a mone-
tary incentive for pilot program aliens to return to
their country of origin upon expiration of their visas
under this section.
‘‘(2) WITHHOLDING OF WAGES; PAYMENT INTO
THE TRUST FUND.—
‘‘(A) IN
GENERAL.—Employers of pilot
program aliens shall—
‘‘(i) withhold from the wages of their
pilot program alien workers an amount
equivalent to 25 percent of the wages of
each pilot program alien worker and pay
such withheld amount into the Trust Fund
in accordance with paragraph (3); and
‘‘(ii) pay to the Trust Fund an
amount equivalent to the Federal tax on
the wages paid to pilot program aliens that
the employer would be obligated to pay
under the Federal Unemployment Tax Act
and the Federal Insurance Contributions
Act.
Amounts withheld under clause (i) shall be
maintained in such interest bearing account
with such a financial institution as the Attorney
General shall specify.
‘‘(3) DISTRIBUTION OF FUNDS.—Amounts paid
into the Trust Fund on behalf of a worker, and held
pursuant to paragraph (2)(A)(i) and interest earned
thereon, shall be paid by the Attorney General to the
worker if—
‘‘(A) the worker applies to the Attorney
General (or the designee of the Attorney Gen-
eral) for payment within 30 days of the expira-
tion of the alien’s last authorized stay in the
United States as a pilot program alien;
‘‘(B) in such application the worker estab-
lishes that the worker has complied with the
terms and conditions of this section; and
‘‘(C) in connection with the application,
the worker tenders the identification and em-
ployment authorization card issued to the work-
er pursuant to subsection (i)(1)(F) and estab-
lishes that the worker is identified as the per-
son to whom the card was issued based on the
biometric identification information contained
on the card.
‘‘(4) 
ADMINISTRATIVE
EXPENSES.—The
amounts paid into the Trust Fund and held pursu-
ant to paragraph (2)(A)(ii), and interest earned
thereon, shall be paid to the Attorney General, the
Secretary of Labor, and the Secretary of State in
amounts equivalent to the expenses incurred by such
officials 
in 
the 
administration 
of 
section
101(a)(15)(H)(ii)(c) and this section.
‘‘(5) REGULATIONS.—The Attorney General
shall prescribe regulations to carry out this sub-
section.
‘‘(k) INVESTMENT OF TRUST FUND.—
‘‘(1) IN GENERAL.—It shall be the duty of the
Secretary of the Treasury to invest such portion of
the Trust Fund as is not, in the Secretary’s judg-
ment, required to meet current withdrawals. Such
investments may be made only in interest-bearing
obligations of the United States or in obligations
guaranteed as to both principal and interest by the
United States. For such purpose, such obligations
may be acquired—
‘‘(A) on original issue at the price; or
‘‘(B) by purchase of outstanding obliga-
tions at the market price.
The purposes for which obligations of the United
States may be issued under chapter 31 of title 31,
United States Code, are hereby extended to author-
ize the issuance at par of special obligations exclu-
sively to the Trust Fund. Such special obligations
shall bear interest at a rate equal to the average
rate of interest, computed as to the end of the cal-
endar month next preceding the date of such issue,
borne by all marketable interest-bearing obligations
of the United States then forming a part of the pub-
lic debt, except that where such average rate is not
a multiple of one-eighth of 1 percent next lower than
such average rate. Such special obligations shall be
issued only if the Secretary of the Treasury deter-
mines that the purchase of other interest-bearing ob-
ligations of the United States, or of obligations
guaranteed as to both principal and interest by the
United States on original issue or at the market
price, is not in the public interest.
‘‘(2) SALE OF OBLIGATION.—Any obligation ac-
quired by the Trust Fund (except special obligations
issued exclusively to the Trust Fund) may be sold by
the Secretary of the Treasury at the market price,
and such special obligations may be redeemed at par
plus accrued interest.
‘‘(3) CREDITS TO TRUST FUND.—The interest
on, and the proceeds from the sale or redemption of,
any obligations held in the Trust Fund shall be
credited to and form a part of the Trust Fund.
‘‘(4) REPORT TO CONGRESS.—It shall be the
duty of the Secretary of the Treasury to hold the
Trust Fund, and (after consultation with the Attor-
ney General) to report to the Congress each year on
the financial condition and the results of the oper-
ations of the Trust Fund during the preceding fiscal
year and on its expected condition and operations
during the next fiscal year. Such report shall be
printed as both a House and a Senate document of
the session of the Congress to which the report is
made.