I
107TH CONGRESS
1ST SESSION
H. R. 2736
To provide for the adjustment of status of certain foreign agricultural work-
ers, to amend the Immigration and Nationality Act to reform the H–
2A worker program under that Act, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 2, 2001
Mr. BERMAN introduced the following bill; which was referred to the Com-
mittee on the Judiciary, and in addition to the Committees on Ways and
Means, and Education and the Workforce, for a period to be subsequently
determined by the Speaker, in each case for consideration of such provi-
sions as fall within the jurisdiction of the committee concerned
A BILL
To provide for the adjustment of status of certain foreign
agricultural workers, to amend the Immigration and Na-
tionality Act to reform the H–2A worker program under
that Act, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘H–2A Reform and Agricultural Worker Adjustment Act
of 2001’’.
(b) TABLE OF CONTENTS.—The table of contents for
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I—ADJUSTMENT TO LAWFUL STATUS
Sec. 101. Agricultural workers.
Sec. 102. Correction of Social Security records.
TITLE II—REFORM OF H–2A WORKER PROGRAM
Sec. 201. Amendment to the Immigration and Nationality Act.
TITLE III—MISCELLANEOUS PROVISIONS
Sec. 301. Coverage of H–2A agricultural workers under the Migrant and Sea-
sonal Agricultural Worker Protection Act.
Sec. 302. Right to organize.
Sec. 303. Tax equity and workforce improvement fund.
Sec. 304. Regulations.
Sec. 305. Effective date.
SEC. 2. DEFINITIONS.
In this Act:
(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
(26 U.S.C. 3121(g)). For purposes of this para-
graph, agricultural employment includes employment
under section 101(a)(15)(H)(ii)(a) of the Immigra-
tion 
and 
Nationality 
Act 
(8 
U.S.C.
1101(a)(15)(H)(ii)(a)).
(2) DISPLACE.—In the case of an application
with respect to one or more H–2A workers by an
(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) of the Immigration and
Nationality Act, as added by section 201 of
this Act), temporary layoffs due to weath-
er, 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) of the Immigration and
Nationality Act, as added by section 201 of
this Act, with either employer described in
such section 218(b)(2)(E)) 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.—Nothing
in this paragraph is intended to limit an em-
ployee’s rights under a collective bargaining
agreement or other employment contract.
(8) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Labor.
(9) TEMPORARY.—A worker is employed on a
‘‘temporary’’ basis where the employment is in-
tended not to exceed 10 months.
(10) 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) of the Immigration and Nation-
ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).
(11) WORK DAY.—The term ‘‘work day’’ means
any day in which the individual is employed one or
more hours in agriculture.
TITLE I—ADJUSTMENT TO
LAWFUL STATUS
SEC. 101. AGRICULTURAL WORKERS.
(a) TEMPORARY RESIDENT STATUS.—
(1) IN GENERAL.—Notwithstanding any other
provision of law, the Attorney General shall adjust
the status of an alien who qualifies under this sub-
section to that of an alien lawfully admitted for tem-
porary residence if the Attorney General determines
that the following requirements are satisfied with re-
spect to the alien:
(A) PERFORMANCE OF AGRICULTURAL EM-
PLOYMENT IN THE UNITED STATES.—The alien
must establish that the alien has—
(i) performed agricultural employment
in the United States for at least 540 hours
or 90 work days, whichever is less, during
any 12 consecutive months during the 18-
month period ending on June 30, 2001; or
(ii) applied for lawful residence as a
special agricultural worker under section
210 of the Immigration and Nationality
Act or section 210A of that Act (as in ef-
fect prior to October 25, 1994), was other-
wise eligible, but was denied relief because
the alien’s employment in sugar cane was
determined to fall outside of the section’s
definition of ‘‘seasonal agricultural serv-
ices’’.
(B) APPLICATION
PERIOD.—The alien
must apply for such adjustment during the 18-
month application period beginning on the 1st
day of the 7th month that begins after the date
of the enactment of this Act.
(C) ADMISSIBLE
AS
IMMIGRANT.—The
alien must establish that the alien is otherwise
admissible to the United States under section
212 of the Immigration and Nationality Act (8
U.S.C. 1182), except as otherwise provided
under subsection (e)(2).
(2) AUTHORIZED TRAVEL.—During the period
an alien is in lawful temporary resident status
granted under this subsection, the alien has the
right to travel abroad (including commutation from
a residence abroad) in the same manner as an alien
lawfully admitted for permanent residence.
(3) AUTHORIZED
EMPLOYMENT.—During the
period an alien is in lawful temporary resident sta-
tus granted under this subsection, the alien shall be
provided an ‘‘employment’’ authorized endorsement
or other appropriate work permit, in the same man-
ner as an alien lawfully admitted for permanent resi-
dence.
(4) TERMINATION
OF
TEMPORARY
RESIDENT
STATUS.—During the period of temporary resident
status granted an alien under this subsection, the
Attorney General may terminate such status only
upon a determination under this Act that the alien
is deportable.
(5) RECORD OF EMPLOYMENT.—
(A) IN
GENERAL.—Each employer of a
worker whose status is adjusted under this sub-
section annually shall—
(i) provide a written record of employ-
ment to the alien; and
(ii) provide a copy of such record to
the Immigration and Naturalization Serv-
ice.
(B) SUNSET.—The obligation under sub-
paragraph (A) terminates on the date that is 6
years after the date of enactment of this Act.
(b) RIGHTS OF ALIENS GRANTED TEMPORARY RESI-
DENT STATUS.—
(1) IN
GENERAL.—Except as otherwise pro-
vided in this subsection, an alien who acquires the
status of an alien lawfully admitted for temporary
residence under subsection (a), such status not hav-
ing changed, shall be considered to be an alien law-
fully admitted for permanent residence for purposes
of any law other than any provision of the Immigra-
tion and Nationality Act (8 U.S.C. 1101 et seq.).
(2) TERMS
OF
EMPLOYMENT
RESPECTING
ALIENS ADMITTED UNDER THIS SECTION.—
(A) PROHIBITION.—No alien whose status
is adjusted under subsection (a) may be termi-
nated from employment by any employer during
the period of temporary resident status except
for just cause.
(B) TREATMENT OF COMPLAINTS.—
(i) ESTABLISHMENT
OF
PROCESS.—
The Attorney General shall establish a
process for the receipt, initial review, and
disposition in accordance with this sub-
paragraph of complaints by aliens granted
temporary resident status under subsection
(a) who allege that they have been termi-
nated without just cause. No proceeding
shall be conducted under this subpara-
graph with respect to a termination unless
the Attorney General determines that the
complaint was filed not later than 6
months after the date of the termination.
has terminated an alien granted temporary
resident status under subsection (a) with-
out just cause, the Attorney General shall
credit the alien for the number of days or
hours of work lost for purposes of the re-
quirement of subsection (c)(1).
(v) 
TREATMENT
OF
ATTORNEYS’
FEES.—The parties shall bear the cost of
their own attorneys’ fees involved in the
litigation of the complaint.
(vi) NONEXCLUSIVE
REMEDY.—The
complaint process provided for in this sub-
paragraph is in addition to any other
rights an employee may have in accordance
with applicable law.
(vii) EFFECT ON OTHER ACTIONS OR
PROCEEDINGS.—Any finding of fact or
law, judgment, conclusion, or final order
made by an arbitrator in the proceeding
before the Attorney General shall not be
conclusive or binding in any separate or
subsequent action or proceeding between
the employee and the employee’s current or
prior employer brought before an arbi-
trator, administrative agency, court, or
judge of any State or the United States,
regardless of whether the prior action was
between the same or related parties or in-
volved the same facts, except that the arbi-
trator’s specific finding of the number of
days or hours of work lost by the employee
as a result of the employment termination
may be referred to the Attorney General
pursuant to clause (iv).
(C) CIVIL PENALTIES.—
(i) IN
GENERAL.—If the Secretary
finds, after notice and opportunity for a
hearing, that an employer of a worker
whose status has been adjusted under sub-
section (a) has failed to provide the record
of employment required under subsection
(a)(5) or has provided a false statement of
material fact in such a record, the em-
ployer shall be subject to a civil money
penalty in an amount not to exceed $1,000
per violation.
(ii) LIMITATION.—The penalty appli-
cable under clause (i) for failure to provide
records shall not apply unless the alien has
provided the employer with evidence of em-
ployment authorization granted under this
section.
(c) ADJUSTMENT TO PERMANENT RESIDENCE.—
(1) AGRICULTURAL WORKERS.—
(A) IN GENERAL.—Except as provided in
subparagraph (B), the Attorney General shall
adjust the status of any alien granted lawful
temporary resident status under subsection (a)
to that of an alien lawfully admitted for perma-
nent residence if the Attorney General deter-
mines that the following requirements are satis-
fied:
(i) QUALIFYING
EMPLOYMENT.—The
alien has performed at least 540 hours or
90 work days, whichever is less, of agricul-
tural employment in the United States, in
each of 3 years during the 4-year period
beginning on the date that the alien first
obtains employment authorization.
(ii) APPLICATION PERIOD.—The alien
applies for adjustment of status not later
than the date that is 7 years after the date
of enactment of this Act.
(iii) PROOF.—In meeting the require-
ments of clause (i), an alien may submit
the record of employment described in sub-
section (a)(5) or such documentation as
may be submitted under subsection (d)(3).
(iv) 
DISABILITY.—In 
determining
whether an alien has met the requirements
of clause (i) the Attorney General shall
credit the alien with any work days lost be-
cause the alien is unable to work in agri-
cultural employment due to injury or dis-
ease arising out of and in the course of the
alien’s agricultural employment, if the
alien can establish such disabling injury or
disease through medical records.
(B) GROUNDS
FOR
DENIAL
OF
ADJUST-
MENT OF STATUS.—The Attorney General may
deny an alien adjustment to permanent resident
status, and provide for termination of the tem-
porary resident status granted such alien under
subsection (a), if—
(i) the Attorney General finds by a
preponderance of the evidence that the ad-
justment to temporary resident status was
the result of fraud or willful misrepresenta-
tion, 
as 
described 
in 
section
212(a)(6)(C)(i) of the Immigration and
Nationality 
Act 
(8 
U.S.C.
1182(a)(6)(C)(i)); or
(ii) the alien—
(I) commits an act that makes
the alien inadmissible to the United
States under section 212 of the Immi-
gration and Nationality Act (8 U.S.C.
1182), except as provided under sub-
section (e)(2); or
(II) is convicted of a felony or 3
or more misdemeanors committed in
the United States.
(C) GROUNDS FOR REMOVAL.—Any alien
granted temporary resident status under sub-
section (a) who does not apply for adjustment
of status under this subsection before the expi-
ration of the application period described in
subparagraph (A)(ii), or who fails to meet the
other requirements of subparagraph (A) by the
end of the applicable period, is deportable and
may be removed under section 240 of the Immi-
gration and Nationality Act (8 U.S.C. 1229a).
(2) SPOUSES AND MINOR CHILDREN.—
(A) IN
GENERAL.—Notwithstanding any
other provision of law, the Attorney General
shall adjust the status of any spouse or minor
child of an alien granted status under para-
graph (1), including any individual who was a
minor child on the date such alien was granted
temporary resident status, if the spouse or
minor child applies for such adjustment, or if
the principal alien includes the spouse or minor
child in an application for such adjustment.
(B) TREATMENT OF SPOUSES AND MINOR
CHILDREN
PRIOR
TO
ADJUSTMENT
OF
STA-
TUS.—A spouse or minor child of an alien
granted temporary resident status under sub-
section (a) may not be—
(i) removed while such alien maintains
such status; and
(ii) granted authorization to engage in
employment in the United States or be
provided an ‘‘employment authorized’’ en-
dorsement or other work permit, unless
such employment authorization is granted
under another provision of law.
(d) APPLICATIONS FOR ADJUSTMENT OF STATUS.—
(1) TO WHOM MAY BE MADE.—
(A) WITHIN
THE
UNITED
STATES.—The
Attorney General shall provide that—
(i) applications for adjustment of sta-
tus under subsection (a) may be filed—
(I) with the Attorney General,
but only if the applicant is rep-
resented by an attorney; or
(II) with a qualified designated
entity (designated under paragraph
(2)), but only if the applicant consents
to the forwarding of the application to
the Attorney General; and
(ii) applications for adjustment of sta-
tus under subsection (c) shall be filed di-
rectly with the Attorney General.
(B) OUTSIDE THE UNITED STATES.—The
Attorney General, in cooperation with the Sec-
retary of State, shall establish a procedure
whereby an alien may apply for adjustment of
status under subsection (a) at an appropriate
consular office outside the United States.
(C) PRELIMINARY APPLICATIONS.—
(i) IN GENERAL.—During the applica-
tion 
period 
described 
in 
subsection
(a)(1)(B), the Attorney General may grant
admission to the United States as a tem-
porary resident and provide an ‘‘employ-
ment authorized’’ endorsement or other ap-
propriate work permit to any alien who
presents a preliminary application for ad-
justment of status under subsection (a) at
a designated port of entry on the southern
land border of the United States. An alien
who does not enter through a port of entry
is subject to deportation and removal as
otherwise provided in this Act.
(ii) DEFINITION.—For purposes of
clause (i), the term ‘‘preliminary applica-
tion’’ means a fully completed and signed
application which contains specific infor-
mation concerning the performance of
qualifying employment in the United
States, together with the payment of the
appropriate fee and the submission of pho-
tographs and the documentary evidence
which the applicant intends to submit as
proof of such employment.
(iii) 
ELIGIBILITY.—An 
applicant
under clause (i) must be otherwise admis-
sible to the United States under subsection
(e)(2) and must establish to the satisfac-
tion of the examining officer during an
interview that the applicant’s claim to eli-
gibility for agricultural worker status is
credible.
(D) TRAVEL
DOCUMENTATION.—The At-
torney General shall provide each alien whose
status is adjusted under this section with a
counterfeit-resistant document of authorization
to enter or reenter the United States.
(2) DESIGNATION OF ENTITIES TO RECEIVE AP-
PLICATIONS.—
(A) IN GENERAL.—For purposes of receiv-
ing applications under subsection (a), the Attor-
ney General—
(i) shall designate qualified farm labor
organizations and associations of employ-
ers; and
(ii) may designate such other persons
as the Attorney General determines are
qualified and have substantial experience,
demonstrate competence, and have tradi-
tional long-term involvement in the prepa-
ration and submittal of applications for ad-
justment of status under section 209, 210,
or 245 of the Immigration and Nationality
Act, Public Law 89–732, Public Law 95–
145, or the Immigration Reform and Con-
trol Act of 1986.
(B) REFERENCES.—Organizations, asso-
ciations, and persons designated under subpara-
graph (A) are referred to in this Act as ‘‘quali-
fied designated entities’’.
(3) PROOF OF ELIGIBILITY.—
(A) IN GENERAL.—An alien may establish
that the alien meets the requirement of sub-
section 
(a)(1)(A) 
or 
subsection 
(c)(1)(A)
through government employment records or
records supplied by employers or collective bar-
gaining organizations, and other reliable docu-
mentation as the alien may provide. The Attor-
ney General shall establish special procedures to
properly credit work in cases in which an alien
was employed under an assumed name.
(B) DOCUMENTATION
OF
WORK
HIS-
TORY.—(i) An alien applying for adjustment of
status under subsection (a)(1) or subsection
(c)(1) has the burden of proving by a prepon-
derance of the evidence that the alien has
worked the requisite number of hours or days
(as required under subsection (a)(1)(A) or sub-
section (c)(1)(A)).
(ii) If an employer or farm labor con-
tractor employing such an alien has kept proper
and adequate records respecting such employ-
ment, the alien’s burden of proof under clause
(i) may be met by securing timely production of
those records under regulations to be promul-
gated by the Attorney General.
(iii) An alien can meet such burden of
proof if the alien establishes that the alien has
in fact performed the work described in sub-
section (a)(1)(A) or subsection (c)(1)(A) by
producing sufficient evidence to show the extent
of that employment as a matter of just and rea-
sonable inference.
(4) TREATMENT OF APPLICATIONS BY QUALI-
FIED DESIGNATED ENTITIES.—Each qualified des-
ignated entity must agree to forward to the Attorney
General applications filed with it in accordance with
paragraph (1)(A)(ii) but not to forward to the Attor-
ney General applications filed with it unless the ap-
plicant has consented to such forwarding. No such
entity may make a determination required by this
section to be made by the Attorney General. Upon
the request of the alien, a qualified designated entity
shall assist the alien in obtaining documentation of
the work history of the alien.
(5) LIMITATION
ON
ACCESS
TO
INFORMA-
TION.—Files and records prepared for purposes of
this subsection by qualified designated entities oper-
ating under this subsection are confidential and the
Attorney General and the Immigration and Natu-
ralization Service shall not have access to such files
or records relating to an alien without the consent
of the alien, except as allowed by a court order
issued pursuant to paragraph (6).
(6) CONFIDENTIALITY OF INFORMATION.—
(A) IN
GENERAL.—Except as otherwise
provided in this subsection, neither the Attor-
ney General, nor any other official or employee
of the Department of Justice, or bureau or
agency thereof, may—
(i) use the information furnished by
the applicant pursuant to an application
filed under this section, the information
provided to the applicant by a person des-
ignated under paragraph (2)(A), or any in-
formation provided by an employer or
former employer, for any purpose other
than to make a determination on the appli-
cation, or for enforcement of paragraph
(7);
(ii) make any publication whereby the
information furnished by any particular in-
dividual can be identified; or
(iii) permit anyone other than the
sworn officers and employees of the De-
partment of Justice, or bureau or agency
thereof, or, with respect to applications
filed with a qualified designated entity,
that qualified designated entity, to examine
individual applications.
(B) CRIME.—Whoever knowingly uses,
publishes, or permits information to be exam-
ined in violation of this paragraph shall be fined
not more than $10,000.
(7) PENALTIES FOR FALSE STATEMENTS IN AP-
PLICATIONS.—
(A) CRIMINAL PENALTY.—Whoever—
(i) files an application for adjustment
of status under subsection (a) or (c) and
knowingly and willfully falsifies, conceals,
or covers up a material fact or makes any
false, fictitious, or fraudulent statements
or representations, or makes or uses any
false writing or document knowing the
same to contain any false, fictitious, or
fraudulent statement or entry; or
(ii) creates or supplies a false writing
or document for use in making such an ap-
plication;
shall be fined in accordance with title 18,
United States Code, or imprisoned not more
than 5 years, or both.
(B) INADMISSIBILITY.—An alien who is
convicted of a crime under subparagraph (A)
shall be considered to be inadmissible to the
United States on the ground described in sec-
tion 212(a)(6)(C)(i) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(8) ELIGIBILITY FOR LEGAL SERVICES.—Sec-
tion 504(a)(11) of Public Law 104–134 (110 Stat.
1321–53 et seq.) shall not be construed to prevent
a recipient of funds under the Legal Services Cor-
poration Act (42 U.S.C. 2996 et seq.) from pro-
viding legal assistance directly related to an applica-
tion for adjustment of status under this section.
(9) APPLICATION FEES.—
(A) FEE SCHEDULE.—The Attorney Gen-
eral shall provide for a schedule of fees that—
(i) shall be charged for the filing of
applications for adjustment under sub-
sections (a) and (c); and
(ii) may be charged by qualified des-
ignated entities to help defray the costs of
services provided to such applicants.
(B) PROHIBITION
ON
EXCESS
FEES
BY
QUALIFIED
DESIGNATED
ENTITIES.—A quali-
fied designated entity may not charge any fee
in excess of, or in addition to, the fees author-
ized under subparagraph (A)(ii) for services
provided to applicants.
(C) DISPOSITION OF FEES.—
(i) IN GENERAL.—There is established
in the general fund of the Treasury a sepa-
rate account, which shall be known as the
‘‘Agricultural Worker Immigration Status
Adjustment 
Account’’. 
Notwithstanding
any other provision of law, there shall be
deposited as offsetting receipts into the ac-
count all fees collected under subparagraph
(A)(i).
(ii) USE OF FEES FOR APPLICATION
PROCESSING.—Amounts deposited in the
‘‘Agricultural Worker Immigration Status
Adjustment Account’’ shall remain avail-
able to the Attorney General until ex-
pended for processing applications for ad-
justment under subsections (a) and (c).
(e) WAIVER OF NUMERICAL LIMITATIONS AND CER-
TAIN GROUNDS FOR INADMISSIBILITY.—
(1) NUMERICAL LIMITATIONS DO NOT APPLY.—
The numerical limitations of sections 201 and 202
of the Immigration and Nationality Act (8 U.S.C.
1151 and 1152) shall not apply to the adjustment
of aliens to lawful permanent resident status under
this section.
(2) WAIVER OF CERTAIN GROUNDS OF INAD-
MISSIBILITY.—In the determination of an alien’s ad-
missibility under subsection (a)(1)(C) or an alien’s
eligibility for adjustment of status under subsection
(c)(1)(B)(ii)(I), the following rules shall apply:
(A) GROUNDS OF EXCLUSION NOT APPLI-
CABLE.—The provisions of paragraphs (5),
(6)(A), (7)(A), and (9)(B) of section 212(a) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)) shall not apply.
(B) WAIVER OF OTHER GROUNDS.—
(i) IN GENERAL.—Except as provided
in clause (ii), the Attorney General may
waive any other provision of such section
212(a) in the case of individual aliens for
humanitarian purposes, to ensure family
unity, or when it is otherwise in the public
interest.
(ii) GROUNDS
THAT
MAY
NOT
BE
WAIVED.—The following provisions of such
section 212(a) may not be waived by the
Attorney General under clause (i):
(I) Subparagraphs (A) and (B)
of paragraph (2) (relating to crimi-
nals).
(II) Paragraph (4) (relating to
aliens 
likely 
to 
become 
public
charges).
(III) Paragraph (2)(C) (relating
to drug offenses).
(IV) Paragraph (3) (relating to
security and related grounds), except
subparagraph (E).
(iii) CONSTRUCTION.—Nothing in this
subparagraph shall be construed as affect-
ing the authority of the Attorney General
other than under this subparagraph to
waive provisions of such section 212(a).
(C) SPECIAL RULE FOR DETERMINATION
OF PUBLIC CHARGE.—An alien is not ineligible
for adjustment of status under this section by
reason of a ground of inadmissibility under sec-
tion 212(a)(4) of the Immigration and Nation-
ality Act if the alien demonstrates a history of
employment in the United States evidencing
self-support without reliance on public cash as-
sistance.
(f) TEMPORARY STAY OF REMOVAL AND WORK AU-
THORIZATION FOR CERTAIN APPLICANTS.—
(1) BEFORE
APPLICATION
PERIOD.—Effective
on the date of the enactment of this Act, the Attor-
ney General shall provide that, in the case of an
alien who is apprehended before the beginning of the
application period described in subsection (a)(1)(B)
and who can establish a nonfrivolous case of eligi-
bility to have the alien’s status adjusted under sub-
section (a) (but for the fact that the alien may not
apply for such adjustment until the beginning of
such period), until the alien has had the opportunity
during the first 30 days of the application period
to complete the filing of an application for adjust-
ment, the alien—
(A) may not be removed; and
(B) shall be granted authorization to en-
gage in employment in the United States and
be provided an ‘‘employment authorized’’ en-
dorsement or other appropriate work permit for
such purpose.
(2) DURING APPLICATION PERIOD.—The Attor-
ney General shall provide that, in the case of an
alien who presents a nonfrivolous application for ad-
justment of status under subsection (a) during the
application period described in subsection (a)(1)(B),
including an alien who files such an application
within 30 days of the alien’s apprehension, and until
a final determination on the application has been
made in accordance with this section, the alien—
(A) may not be removed; and
(B) shall be granted authorization to en-
gage in employment in the United States and
be provided an ‘‘employment authorized’’ en-
dorsement or other appropriate work permit for
such purpose.
(g) ADMINISTRATIVE AND JUDICIAL REVIEW.—
(1) IN GENERAL.—There shall be no adminis-
trative or judicial review of a determination respect-
ing an application for adjustment of status under
subsection (a) or (c) except in accordance with this
subsection.
(2) ADMINISTRATIVE REVIEW.—
(A) SINGLE
LEVEL
OF
ADMINISTRATIVE
APPELLATE
REVIEW.—The Attorney General
shall establish an appellate authority to provide
for a single level of administrative appellate re-
view of such a determination.
(B) STANDARD
FOR
REVIEW.—Such ad-
ministrative appellate review shall be based
solely upon the administrative record estab-
lished at the time of the determination on the
application and upon such additional or newly
discovered evidence as may not have been avail-
able at the time of the determination.
(3) JUDICIAL REVIEW.—
(A) LIMITATION
TO
REVIEW
OF
RE-
MOVAL.—There shall be judicial review of such
a denial only in the judicial review of an order
of removal under section 242 of the Immigra-
tion and Nationality Act (8 U.S.C. 1252).
(B) STANDARD FOR JUDICIAL REVIEW.—
Such judicial review shall be based solely upon
the administrative record established at the
time of the review by the appellate authority
and the findings of fact and determinations
contained in such record shall be conclusive un-
less the applicant can establish abuse of discre-
tion or that the findings are directly contrary to
clear and convincing facts contained in the
record considered as a whole.
(h) DISSEMINATION OF INFORMATION ON ADJUST-
MENT PROGRAM.—Beginning not later than the 1st day
of the application period described in subsection (a)(1)(B),
the Attorney General, in cooperation with qualified des-
ignated entities, shall broadly disseminate information re-
specting the benefits that aliens may receive under this
section and the requirements to be satisfied to obtain such
benefits.
(i) REGULATIONS.—The Attorney General shall issue
regulations to implement this section not later than the
1st day of the 7th month that begins after the date of
the enactment of this Act.
(j) EFFECTIVE DATE.—This section shall take effect
on the date that regulations are issued implementing this
section on an interim or other basis.
(k) FUNDING.—There are hereby appropriated, out
of any money in the Treasury not otherwise appropriated,
$40,000,000 for each of fiscal years 2002 through 2005
to the Attorney General to carry out this section.
SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) IN GENERAL.—Section 208(d)(1) of the Social
Security Act (42 U.S.C. 408(d)(1)) is amended—
(1) in subparagraph (B), by striking ‘‘or’’ at
the end of clause (ii);
(2) in subparagraph (C), by inserting ‘‘or’’ at
the end;
(3) by inserting after subparagraph (C) the fol-
lowing:
‘‘(D) whose status is adjusted to that of lawful
temporary resident under the H–2A Reform and Ag-
ricultural Worker Adjustment Act of 2001,’’; and
(4) by striking ‘‘1990.’’ and inserting ‘‘1990, or
in the case of an alien described in subparagraph
(D), if such conduct is alleged to have occurred prior
to the date on which the alien became lawfully ad-
mitted for temporary residence.’’.
(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall take effect on the 1st day of the 7th
month that begins after the date of the enactment of this
Act.
TITLE II—REFORM OF H–2A
WORKER PROGRAM
SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATION-
ALITY ACT.
(a) IN GENERAL.—The Immigration and Nationality
Act is amended by striking section 218 (8 U.S.C. 1188)
and inserting the following:
‘‘H–2A EMPLOYER APPLICATIONS
‘‘SEC. 218. (a) APPLICATIONS
TO
THE
SEC-
RETARY.—
‘‘(1) IN GENERAL.—No alien may be admitted
to the United States as an H–2A worker, or other-
wise provided status as an H–2A worker, unless the
employer has filed with the Secretary an application
containing—
‘‘(A) the assurances described in sub-
section (b);
‘‘(B) a description of the nature and loca-
tion of the work to be performed;
‘‘(C) the anticipated period (expected be-
ginning and ending dates) for which workers
will be needed; and
‘‘(D) the number of job opportunities in
which the employer seeks to employ workers.
‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap-
plication filed under paragraph (1) shall be accom-
panied by a copy of the job offer describing the
wages and other terms and conditions of employ-
ment and the bona fide occupational qualifications
that must be possessed by a worker to be employed
in the job opportunity in question.
‘‘(b) ASSURANCES
FOR INCLUSION
IN APPLICA-
TIONS.—The assurances referred to in subsection (a)(1)
are the following:
‘‘(1) JOB
OPPORTUNITIES
COVERED
BY
COL-
LECTIVE BARGAINING AGREEMENTS.—With respect
to a job opportunity that is covered under a collec-
tive bargaining agreement:
‘‘(A) UNION CONTRACT DESCRIBED.—The
job opportunity is covered by a union contract
which was negotiated at arm’s length between a
bona fide union and the employer.
‘‘(B) NO STRIKE OR LOCKOUT.—There is
not a strike or lockout in the course of a labor
dispute in the occupational classification at the
place of employment.
‘‘(C) NOTIFICATION OF BARGAINING REP-
RESENTATIVES.—The employer, at the time of
filing the application, has provided notice of the
filing under this paragraph to the bargaining
representative of the employer’s employees in
the occupational classification at the place or
places of employment for which aliens are
sought.
‘‘(D) TEMPORARY OR SEASONAL JOB OP-
PORTUNITIES.—The job opportunity is tem-
porary or seasonal.
‘‘(E) OFFERS TO UNITED STATES WORK-
ERS.—The employer has offered or will offer
the job to any eligible United States worker
who applies and is equally or better qualified
for the job for which the nonimmigrant is, or
the nonimmigrants are, sought and who will be
available at the time and place of need.
‘‘(F) PROVISION
OF
INSURANCE.—If the
job opportunity is not covered by the State
workers’ compensation law, the employer will
provide, at no cost to the worker, insurance cov-
ering injury and disease arising out of, and in
the course of, the worker’s employment which
will provide benefits at least equal to those pro-
vided under the State’s workers’ compensation
law for comparable employment.
‘‘(2) JOB
OPPORTUNITIES
NOT
COVERED
BY
COLLECTIVE BARGAINING AGREEMENTS.—With re-
spect to a job opportunity that is not covered under
a collective bargaining agreement:
‘‘(A) NO STRIKE OR LOCKOUT.—There is
not a strike or lockout in the course of a labor
dispute in the occupational classification at the
place of employment.
‘‘(B) TEMPORARY OR SEASONAL JOB OP-
PORTUNITIES.—The job opportunity is tem-
porary or seasonal.
‘‘(C) BENEFIT, WAGE, AND WORKING CON-
DITIONS.—The employer will provide, at a min-
imum, the benefits, wages, and working condi-
tions required by section 218A to all workers
employed in the job opportunities for which the
employer has applied under subsection (a) and
to all other workers in the same occupation at
the place of employment.
‘‘(D) 
NONDISPLACEMENT
OF
UNITED
STATES WORKERS.—The employer did not dis-
place and will not displace a United States
worker employed by the employer during the
period of employment and for a period of 30
days preceding the period of employment in the
occupation at the place of employment for
which the employer seeks approval to employ
H–2A workers.
‘‘(E) REQUIREMENTS FOR PLACEMENT OF
NONIMMIGRANT
WITH
OTHER
EMPLOYERS.—
The employer will not place the nonimmigrant
with another employer unless—
‘‘(i) the nonimmigrant performs du-
ties in whole or in part at one or more
work sites owned, operated, or controlled
by such other employer;
‘‘(ii) there are indicia of an employ-
ment 
relationship 
between 
the 
non-
immigrant and such other employer; and
‘‘(iii) the employer has inquired of the
other employer as to whether, and has no
actual knowledge or notice that, during the
period of employment and for a period of
30 days preceding the period of employ-
ment, the other employer has displaced or
intends to displace a United States worker
employed by the other employer in the oc-
cupation at the place of employment for
which the employer seeks approval to em-
ploy H–2A workers.
‘‘(F) STATEMENT OF LIABILITY.—The ap-
plication form shall include a clear statement
explaining the liability under subparagraph (E)
of an employer if the other employer described
in such subparagraph displaces a United States
worker as described in such subparagraph.
‘‘(G) PROVISION
OF
INSURANCE.—If the
job opportunity is not covered by the State
workers’ compensation law, the employer will
provide, at no cost to the worker, insurance cov-
ering injury and disease arising out of and in
the course of the worker’s employment which
will provide benefits at least equal to those pro-
vided under the State’s workers’ compensation
law for comparable employment.
‘‘(H) EMPLOYMENT
OF
UNITED
STATES
WORKERS.—
‘‘(i) RECRUITMENT.—The employer
has taken or will take the following steps
to recruit United States workers for the
job opportunities for which the H–2A non-
immigrant is, or H–2A nonimmigrants are,
sought:
‘‘(I) 
CONTACTING
FORMER
WORKERS.—The employer shall make
reasonable efforts through the sending
of a letter by United States Postal
Service mail, or otherwise, to contact
any United States worker the em-
ployer employed during the previous
season in the occupation at the place
of intended employment for which the
employer is applying for workers and
has made the availability of the em-
ployer’s job opportunities in the occu-
pation at the place of intended em-
ployment known to such previous
workers, unless the worker was termi-
nated from employment by the em-
ployer for a lawful job-related reason
or abandoned the job before the work-
er completed the period of employ-
ment of the job opportunity for which
the worker was hired.
‘‘(II) FILING A JOB OFFER WITH
THE
LOCAL
OFFICE
OF
THE
STATE
EMPLOYMENT
SECURITY
AGENCY.—
Not later than 28 days prior to the
date on which the employer desires to
employ an H–2A worker in a tem-
porary or seasonal agricultural job op-
portunity, the employer shall submit a
copy of the job offer described in sub-
section (a)(2) to the local office of the
State employment security agency
which serves the area of intended em-
ployment and authorize the posting of
the job opportunity on ‘America’s Job
Bank’ or other electronic job registry,
except that nothing in this subclause
shall require the employer to file an
interstate job order under section 653
of title 20, Code of Federal Regula-
tions.
‘‘(III) ADVERTISING OF JOB OP-
PORTUNITIES.—Not later than 14
days prior to the date on which the
employer desires to employ an H–2A
worker in a temporary or seasonal ag-
ricultural job opportunity, the em-
ployer shall advertise the availability
of the job opportunities for which the
employer is seeking workers in a pub-
lication in the local labor market that
is likely to be patronized by potential
farm workers.
‘‘(IV) 
EMERGENCY
PROCE-
DURES.—The Secretary shall, by reg-
ulation, provide a procedure for ac-
ceptance and approval of applications
in which the employer has not com-
plied with the provisions of this sub-
paragraph because the employer’s
need for H–2A workers could not rea-
sonably have been foreseen.
‘‘(ii) JOB OFFERS.—The employer has
offered or will offer the job to any eligible
United States worker who applies and is
equally or better qualified for the job for
which the nonimmigrant is, or non-
immigrants are, sought and who will be
available at the time and place of need.
‘‘(iii) PERIOD OF EMPLOYMENT.—The
employer will provide employment to any
qualified United States worker who applies
to the employer during the period begin-
ning on the date on which the foreign
worker departs for the employer’s place of
employment and ending on the date on
which 50 percent of the period of employ-
ment for which the foreign worker who is
in the job was hired has elapsed, subject to
the following requirements:
‘‘(I) PROHIBITION.—No person
or entity shall willfully and knowingly
withhold United States workers prior
to the arrival of H–2A workers in
order to force the hiring of United
States workers under this clause.
‘‘(II) COMPLAINTS.—Upon re-
ceipt of a complaint by an employer
that a violation of subclause (I) has
occurred, the Secretary shall imme-
diately investigate. The Secretary
shall, within 36 hours of the receipt of
the complaint, issue findings con-
cerning the alleged violation. If the
Secretary finds that a violation has
occurred, the Secretary shall imme-
diately suspend the application of this
clause with respect to that certifi-
cation for that date of need.
‘‘(III) PLACEMENT
OF
UNITED
STATES WORKERS.—Prior to referring
a United States worker to an em-
ployer during the period described in
the matter preceding subclause (I),
the Secretary shall make all reason-
able efforts to place the United States
worker in an open job acceptable to
the worker, if there are other job of-
fers pending with the job service that
offer similar job opportunities in the
area of intended employment.
‘‘(iv) STATUTORY
CONSTRUCTION.—
Nothing in this subparagraph shall be con-
strued to prohibit an employer from using
such legitimate selection criteria relevant
to the type of job that are normal or cus-
tomary to the type of job involved so long
as such criteria are not applied in a dis-
criminatory manner.
‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF
OF EMPLOYER MEMBERS.—
‘‘(1) IN GENERAL.—An agricultural association
may file an application under subsection (a) on be-
half of one or more of its employer members that
the association certifies in its application has or have
agreed in writing to comply with the requirements of
this section and sections 218A through 218C.
‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS
EMPLOYERS.—If an association filing an application
under paragraph (1) is a joint or sole employer of
the temporary or seasonal agricultural workers re-
quested on the application, the certifications granted
under subsection (e)(2)(B) to the association may be
used for the certified job opportunities of any of its
producer members named on the application, and
such workers may be transferred among such pro-
ducer members to perform the agricultural services
of a temporary or seasonal nature for which the cer-
tifications were granted.
‘‘(d) WITHDRAWAL OF APPLICATIONS.—
‘‘(1) IN GENERAL.—An employer may withdraw
an application under subsection (a), except that if
the employer is an agricultural association, the asso-
ciation may withdraw an application under sub-
section (a) with respect to one or more of its mem-
bers. To withdraw an application, the employer or
association shall notify the Secretary in writing, and
the Secretary shall acknowledge in writing the re-
ceipt of such withdrawal notice. An employer who
withdraws an application under subsection (a), or on
whose behalf an application is withdrawn, is relieved
of the obligations undertaken in the application.
‘‘(2) LIMITATION.—An application may not be
withdrawn while any alien provided status under sec-
tion 101(a)(15)(H)(ii)(a) pursuant to such applica-
tion is employed by the employer.
‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.—
Any obligation incurred by an employer under any
other law or regulation as a result of the recruit-
ment of United States workers or H–2A workers
under an offer of terms and conditions of employ-
ment required as a result of making an application
under subsection (a) is unaffected by withdrawal of
such application.
‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.—
‘‘(1) RESPONSIBILITY
OF
EMPLOYERS.—The
employer shall make available for public examina-
tion, within 1 working day after the date on which
an application under subsection (a) is filed, at the
employer’s principal place of business or work site,
a copy of each such application (and such accom-
panying documents as are necessary).
‘‘(2) RESPONSIBILITY OF THE SECRETARY.—
‘‘(A) COMPILATION
OF
LIST.—The Sec-
retary shall compile, on a current basis, a list
(by employer and by occupational classification)
of the applications filed under this subsection.
Such list shall include the wage rate, number of
workers sought, period of intended employment,
and date of need. The Secretary shall make
such list available for examination in the Dis-
trict of Columbia.
‘‘(B) REVIEW
OF
APPLICATIONS.—The
Secretary shall review such an application only
for completeness and obvious inaccuracies. Un-
less the Secretary finds that the application is
incomplete or obviously inaccurate, the Sec-
retary shall certify that the intending employer
has filed with the Secretary an application as
described in subsection (a). Such certification
shall be provided within 7 days of the filing of
the application.
‘‘H–2A EMPLOYMENT REQUIREMENTS
‘‘SEC. 218A. (a) PREFERENTIAL TREATMENT
OF
ALIENS PROHIBITED.—Employers seeking to hire United
States workers shall offer the United States workers no
less than the same benefits, wages, and working conditions
that the employer is offering, intends to offer, or will pro-
vide to H–2A workers. Conversely, no job offer may im-
pose on United States workers any restrictions or obliga-
tions which will not be imposed on the employer’s H–2A
workers.
‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING
CONDITIONS.—Except in cases where higher benefits,
wages, or working conditions are required by the provi-
sions of subsection (a), in order to protect similarly em-
ployed United States workers from adverse effects with
respect to benefits, wages, and working conditions, every
job offer which must accompany an application under sec-
tion 218 shall include each of the following benefit, wage,
and working condition provisions:
‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A
HOUSING ALLOWANCE.—
‘‘(A) IN GENERAL.—An employer applying
under section 218(a) for H–2A workers shall
offer to provide housing at no cost to all work-
ers in job opportunities for which the employer
has applied under that section and to all other
workers in the same occupation at the place of
employment, whose place of residence is beyond
normal commuting distance.
‘‘(B) TYPE
OF
HOUSING.—In complying
with subparagraph (A), an employer may, at
the employer’s election, provide housing that
meets applicable Federal standards for tem-
porary labor camps or secure housing that
meets applicable local standards for rental or
public accommodation housing or other sub-
stantially similar class of habitation, or in the
absence of applicable local standards, State
standards for rental or public accommodation
housing or other substantially similar class of
habitation. In the absence of applicable local or
State standards, Federal temporary labor camp
standards shall apply.
‘‘(C) FAMILY HOUSING.—When it is the
prevailing practice in the area and occupation
of intended employment to provide family hous-
ing, family housing shall be provided to workers
with families who request it.
‘‘(D) WORKERS ENGAGED IN THE RANGE
PRODUCTION
OF
LIVESTOCK.—The Occupa-
tional Safety and Health Administration shall
issue regulations that address the specific re-
quirements for the provision of housing to
workers engaged in the range production of
livestock.
‘‘(E) LIMITATION.—Nothing in this para-
graph shall be construed to require an employer
to provide or secure housing for persons who
were not entitled to such housing under the
temporary labor certification regulations in ef-
fect on June 1, 1986.
‘‘(F) CHARGES FOR HOUSING.—
‘‘(i) CHARGES
FOR
PUBLIC
HOUS-
ING.—If public housing provided for mi-
grant agricultural workers under the aus-
pices of a local, county, or State govern-
ment is secured by an employer, and use of
the public housing unit normally requires
charges 
from 
migrant 
workers, 
such
charges shall be paid by the employer di-
rectly to the appropriate individual or enti-
ty affiliated with the housing’s manage-
ment.
‘‘(ii) DEPOSIT CHARGES.—Charges in
the form of deposits for bedding or other
similar incidentals related to housing shall
not be levied upon workers by employers
who provide housing for their workers.
However, an employer may require a work-
er found to have been responsible for dam-
age to such housing which is not the result
of normal wear and tear related to habi-
tation to reimburse the employer for the
reasonable cost of repair of such damage.
‘‘(G) HOUSING
ALLOWANCE
AS
ALTER-
NATIVE.—
‘‘(i) IN GENERAL.—In lieu of offering
housing pursuant to subparagraph (A), the
employer may provide a reasonable housing
allowance, but only if the requirement of
clause (ii) is satisfied. Upon the request of
a worker seeking assistance in locating
housing, the employer shall make a good
faith effort to assist the worker in identi-
fying and locating housing in the area of
intended employment. An employer who of-
fers a housing allowance to a worker, or
assists a worker in locating housing which
the worker occupies, pursuant to this
clause shall not be deemed a housing pro-
vider under section 203 of the Migrant and
Seasonal Agricultural Worker Protection
Act (29 U.S.C. 1823) solely by virtue of
providing such housing allowance. How-
ever, no housing allowance may be used for
housing which is owned or controlled by
the employer.
‘‘(ii) CERTIFICATION.—The require-
ment of this clause is satisfied if the Gov-
ernor of the State certifies to the Secretary
that there is adequate housing available in
the area of intended employment for mi-
grant farm workers, and H–2A workers,
who are seeking temporary housing while
employed at farm work. Such certification
shall expire after 3 years unless renewed
by the Governor of the State.
‘‘(iii) AMOUNT OF ALLOWANCE.—
‘‘(I) NONMETROPOLITAN
COUN-
TIES.—If the place of employment of
the workers provided an allowance
under this subparagraph is a non-
metropolitan county, the amount of
the housing allowance under this sub-
paragraph shall be equal to the state-
wide average fair market rental for
existing housing for nonmetropolitan
counties for the State, as established
by the Secretary of Housing and
Urban Development pursuant to sec-
tion 8(c) of the United States Hous-
ing Act of 1937 (42 U.S.C. 1437f(c)),
based on a 2-bedroom dwelling unit
and an assumption of 2 persons per
bedroom.
‘‘(II) 
METROPOLITAN
COUN-
TIES.—If the place of employment of
the workers provided an allowance
under this paragraph is in a metro-
politan county, the amount of the
housing allowance under this subpara-
graph shall be equal to the statewide
average fair market rental for existing
housing for metropolitan counties for
the State, as established by the Sec-
retary of Housing and Urban Devel-
opment pursuant to section 8(c) of
the United States Housing Act of
1937 (42 U.S.C. 1437f(c)), based on
a 2-bedroom dwelling unit and an as-
sumption of 2 persons per bedroom.
‘‘(2) REIMBURSEMENT OF TRANSPORTATION.—
‘‘(A) TO
PLACE
OF
EMPLOYMENT.—A
worker who completes 50 percent of the period
of employment of the job opportunity for which
the worker was hired shall be reimbursed by the
employer for the cost of the worker’s transpor-
ployment described in a petition under paragraph
(1) on the date on which the petition is filed. For
purposes of the preceding sentence, the term ‘file’
means sending the petition by certified mail via the
United States Postal Service, return receipt re-
quested, or delivered by guaranteed commercial de-
livery which will provide the employer with a docu-
mented acknowledgment of the date of sending the
receipt of the petition. The employer shall provide a
copy of the employer’s petition to the alien, who
shall keep the petition with the alien’s identification
and employment eligibility document as evidence
that the petition has been filed and that the alien is
authorized to work in the United States. Upon ap-
proval of a petition for an extension of stay or
change in the alien’s authorized employment, the At-
torney General shall provide a new or updated em-
ployment eligibility document to the alien indicating
the new validity date, after which the alien is not re-
quired to retain a copy of the petition.
‘‘(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 an petition for exten-