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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‘‘(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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‘‘(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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‘‘(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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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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‘‘(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 2007, 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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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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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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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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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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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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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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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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‘‘(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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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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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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‘‘(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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‘‘(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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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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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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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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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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100 
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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101 
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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102 
‘‘(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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103 
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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104 
‘‘(12) SECRETARY.—Except as otherwise pro-
vided, the term ‘Secretary’ means the Secretary of 
Homeland Security. 
‘‘(13) TEMPORARY.—A worker is employed on a 
‘temporary’ basis where the employment is intended 
not to exceed 10 months. 
‘‘(14) UNITED
STATES
WORKER.—The term 
‘United States worker’ means any worker, whether 
a national of the United States, an alien lawfully ad-
mitted for permanent residence, 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. DETERMINATION AND USE OF USER FEES. 
(a) SCHEDULE OF FEES.—The Secretary shall estab-
lish and periodically adjust a schedule of fees for the em-
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105 
ployment of aliens pursuant to the amendment made by 
section 201(a) of this Act and a collection process for such 
fees from employers. Such fees shall be the only fees 
chargeable to employers for services provided under such 
amendment. 
(b) DETERMINATION OF SCHEDULE.— 
(1) IN
GENERAL.—The schedule under sub-
section (a) shall reflect a fee rate based on the num-
ber of job opportunities indicated in the employer’s 
application under section 218 of the Immigration 
and Nationality Act, as amended by section 201 of 
this Act, and sufficient to provide for the direct 
costs of providing services related to an employer’s 
authorization to employ aliens pursuant to the 
amendment made by section 201(a) of this Act, to 
include the certification of eligible employers, the 
issuance of documentation, and the admission of eli-
gible aliens. 
(2) PROCEDURE.— 
(A) IN GENERAL.—In establishing and ad-
justing such a schedule, the Secretary shall 
comply with Federal cost accounting and fee 
setting standards. 
(B) PUBLICATION
AND
COMMENT.—The 
Secretary shall publish in the Federal Register 
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an initial fee schedule and associated collection 
process and the cost data or estimates upon 
which such fee schedule is based, and any sub-
sequent amendments thereto, pursuant to which 
public comment shall be sought and a final rule 
issued. 
(c) USE OF PROCEEDS.—Notwithstanding any other 
provision of law, all proceeds resulting from the payment 
of the fees pursuant to the amendment made by section 
201(a) of this Act shall be available without further appro-
priation and shall remain available without fiscal year lim-
itation to reimburse the Secretary, the Secretary of State, 
and the Secretary of Labor for the costs of carrying out 
sections 218 and 218B of the Immigration and Nation-
ality Act, as amended and added, respectively, by section 
201 of this Act, and the provisions of this Act. 
SEC. 302. REGULATIONS. 
(a) REQUIREMENT FOR THE SECRETARY TO CON-
SULT.—The Secretary shall consult with the Secretary of 
Labor and the Secretary of Agriculture during the promul-
gation of all regulations to implement the duties of the 
Secretary under this Act and the amendments made by 
this Act. 
(b) REQUIREMENT FOR THE SECRETARY OF STATE 
TO CONSULT.—The Secretary of State shall consult with 
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