wages of United States farm workers 
in occupations in which H–2A work-
ers are employed from falling below 
the wage levels that would have pre-
vailed in the absence of the employ-
ment of H–2A workers in those occu-
pations; 
‘‘(III) whether alternative wage 
standards, such as a prevailing wage 
standard, would be sufficient to pre-
vent wages in occupations in which 
H–2A workers are employed from fall-
ing below the wage level that would 
have prevailed in the absence of H–2A 
employment; 
‘‘(IV) whether any changes are 
warranted in the current methodolo-
gies for calculating the adverse effect 
wage rate and the prevailing wage 
rate; and 
‘‘(V) recommendations for future 
wage protection under this section. 
‘‘(iv) FINAL REPORT.—Not later than 
December 31, 2011, the Commission shall 
submit a report to the Congress setting 
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forth the findings of the study conducted 
under clause (iii). 
‘‘(v) TERMINATION DATE.—The Com-
mission shall terminate upon submitting 
its final report. 
‘‘(4) GUARANTEE OF EMPLOYMENT.— 
‘‘(A) OFFER TO WORKER.—The employer 
shall guarantee to offer the worker employment 
for the hourly equivalent of at least 3⁄4 of the 
work days of the total period of employment, 
beginning with the first work day after the ar-
rival of the worker at the place of employment 
and ending on the expiration date specified in 
the job offer. For purposes of this subpara-
graph, the hourly equivalent means the number 
of hours in the work days as stated in the job 
offer and shall exclude the worker’s Sabbath 
and Federal holidays. If the employer affords 
the United States or H–2A worker less employ-
ment than that required under this paragraph, 
the employer shall pay such worker the amount 
which the worker would have earned had the 
worker, in fact, worked for the guaranteed 
number of hours. 
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‘‘(B) FAILURE
TO
WORK.—Any hours 
which the worker fails to work, up to a max-
imum of the number of hours specified in the 
job offer for a work day, when the worker has 
been offered an opportunity to do so, and all 
hours of work actually performed (including vol-
untary work in excess of the number of hours 
specified in the job offer in a work day, on the 
worker’s Sabbath, or on Federal holidays) may 
be counted by the employer in calculating 
whether the period of guaranteed employment 
has been met. 
‘‘(C) ABANDONMENT
OF
EMPLOYMENT, 
TERMINATION FOR CAUSE.—If the worker vol-
untarily abandons employment before the end 
of the contract period, or is terminated for 
cause, the worker is not entitled to the ‘3⁄4 
guarantee’ described in subparagraph (A). 
‘‘(D) CONTRACT
IMPOSSIBILITY.—If, be-
fore the expiration of the period of employment 
specified in the job offer, the services of the 
worker are no longer required for reasons be-
yond the control of the employer due to any 
form of natural disaster, including a flood, hur-
ricane, freeze, earthquake, fire, drought, plant 
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or animal disease or pest infestation, or regu-
latory drought, before the guarantee in sub-
paragraph (A) is fulfilled, the employer may 
terminate the worker’s employment. In the 
event of such termination, the employer shall 
fulfill the employment guarantee in subpara-
graph (A) for the work days that have elapsed 
from the first work day after the arrival of the 
worker to the termination of employment. In 
such cases, the employer will make efforts to 
transfer the United States worker to other com-
parable employment acceptable to the worker. If 
such transfer is not effected, the employer shall 
provide the return transportation required in 
paragraph (2)(D). 
‘‘(5) MOTOR VEHICLE SAFETY.— 
‘‘(A) MODE OF TRANSPORTATION SUBJECT 
TO COVERAGE.— 
‘‘(i) IN
GENERAL.—Except as pro-
vided in clauses (iii) and (iv), this sub-
section applies to any H–2A employer that 
uses or causes to be used any vehicle to 
transport an H–2A worker within the 
United States. 
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‘‘(ii) DEFINED TERM.—In this para-
graph, the term ‘uses or causes to be 
used’— 
‘‘(I) applies only to transpor-
tation provided by an H–2A employer 
to an H–2A worker, or by a farm 
labor contractor to an H–2A worker 
at the request or direction of an H– 
2A employer; and 
‘‘(II) does not apply to— 
‘‘(aa) 
transportation 
pro-
vided, or transportation arrange-
ments made, by an H–2A work-
er, unless the employer specifi-
cally requested or arranged such 
transportation; or 
‘‘(bb) car pooling arrange-
ments made by H–2A workers 
themselves, using 1 of the work-
ers’ own vehicles, unless specifi-
cally requested by the employer 
directly or through a farm labor 
contractor. 
‘‘(iii) CLARIFICATION.—Providing a 
job offer to an H–2A worker that causes 
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the worker to travel to or from the place 
of employment, or the payment or reim-
bursement of the transportation costs of 
an H–2A worker by an H–2A employer, 
shall not constitute an arrangement of, or 
participation in, such transportation. 
‘‘(iv) AGRICULTURAL MACHINERY AND 
EQUIPMENT
EXCLUDED.—This subsection 
does not apply to the transportation of an 
H–2A worker on a tractor, combine, har-
vester, picker, or other similar machinery 
or equipment while such worker is actually 
engaged in the planting, cultivating, or 
harvesting of agricultural commodities or 
the care of livestock or poultry or engaged 
in transportation incidental thereto. 
‘‘(v) 
COMMON
CARRIERS
EX-
CLUDED.—This subsection does not apply 
to common carrier motor vehicle transpor-
tation in which the provider holds itself out 
to the general public as engaging in the 
transportation of passengers for hire and 
holds a valid certification of authorization 
for such purposes from an appropriate 
Federal, State, or local agency. 
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‘‘(B) APPLICABILITY OF STANDARDS, LI-
CENSING, AND INSURANCE REQUIREMENTS.— 
‘‘(i) IN
GENERAL.—When using, or 
causing to be used, any vehicle for the pur-
pose of providing transportation to which 
this subparagraph applies, each employer 
shall— 
‘‘(I) ensure that each such vehi-
cle conforms to the standards pre-
scribed by the Secretary of Labor 
under section 401(b) of the Migrant 
and Seasonal Agricultural Worker 
Protection Act (29 U.S.C. 1841(b)) 
and other applicable Federal and 
State safety standards; 
‘‘(II) ensure that each driver has 
a valid and appropriate license, as 
provided by State law, to operate the 
vehicle; and 
‘‘(III) have an insurance policy 
or a liability bond that is in effect 
which insures the employer against li-
ability for damage to persons or prop-
erty arising from the ownership, oper-
ation, or causing to be operated, of 
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any vehicle used to transport any H– 
2A worker. 
‘‘(ii) AMOUNT
OF
INSURANCE
RE-
QUIRED.—The level of insurance required 
shall be determined by the Secretary of 
Labor pursuant to regulations to be issued 
under this subsection. 
‘‘(iii) EFFECT
OF
WORKERS’ COM-
PENSATION
COVERAGE.—If the employer 
of any H–2A worker provides workers’ 
compensation coverage for such worker in 
the case of bodily injury or death as pro-
vided by State law, the following adjust-
ments in the requirements of subparagraph 
(B)(i)(III) relating to having an insurance 
policy or liability bond apply: 
‘‘(I) No insurance policy or liabil-
ity bond shall be required of the em-
ployer, if such workers are trans-
ported only under circumstances for 
which there is coverage under such 
State law. 
‘‘(II) An insurance policy or li-
ability bond shall be required of the 
employer for circumstances under 
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which coverage for the transportation 
of such workers is not provided under 
such State law. 
‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em-
ployer shall assure that, except as otherwise provided in 
this section, the employer will comply with all applicable 
Federal, State, and local labor laws, including laws affect-
ing migrant and seasonal agricultural workers, with re-
spect to all United States workers and alien workers em-
ployed by the employer, except that a violation of this as-
surance shall not constitute a violation of the Migrant and 
Seasonal Agricultural Worker Protection Act (29 U.S.C. 
1801 et seq.). 
‘‘(d) COPY OF JOB OFFER.—The employer shall pro-
vide to the worker, not later than the day the work com-
mences, a copy of the employer’s application and job offer 
described in section 218(a), or, if the employer will require 
the worker to enter into a separate employment contract 
covering the employment in question, such separate em-
ployment contract. 
‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing 
in this section, section 218, or section 218B shall preclude 
the Secretary of Labor and the Secretary from continuing 
to apply special procedures and requirements to the ad-
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mission and employment of aliens in occupations involving 
the range production of livestock. 
‘‘SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION 
OF STAY OF H–2A WORKERS. 
‘‘(a) PETITIONING FOR ADMISSION.—An employer, 
or an association acting as an agent or joint employer for 
its members, that seeks the admission into the United 
States of an H–2A worker may file a petition with the 
Secretary. The petition shall be accompanied by an accept-
ed and currently valid certification provided by the Sec-
retary of Labor under section 218(e)(2)(B) covering the 
petitioner. 
‘‘(b) EXPEDITED
ADJUDICATION
BY
THE
SEC-
RETARY.—The Secretary shall establish a procedure for 
expedited adjudication of petitions filed under subsection 
(a) and within 7 working days shall, by fax, cable, or other 
means assuring expedited delivery, transmit a copy of no-
tice of action on the petition to the petitioner and, in the 
case of approved petitions, to the appropriate immigration 
officer at the port of entry or United States consulate (as 
the case may be) where the petitioner has indicated that 
the alien beneficiary (or beneficiaries) will apply for a visa 
or admission to the United States. 
‘‘(c) CRITERIA FOR ADMISSIBILITY.— 
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‘‘(1) IN GENERAL.—An H–2A worker shall be 
considered admissible to the United States if the 
alien is otherwise admissible under this section, sec-
tion 218, and section 218A, and the alien is not in-
eligible under paragraph (2). 
‘‘(2) DISQUALIFICATION.—An alien shall be 
considered inadmissible to the United States and in-
eligible for nonimmigrant status under section 
101(a)(15)(H)(ii)(a) if the alien has, at any time 
during the past 5 years— 
‘‘(A) violated a material provision of this 
section, including the requirement to promptly 
depart the United States when the alien’s au-
thorized period of admission under this section 
has expired; or 
‘‘(B) otherwise violated a term or condition 
of admission into the United States as a non-
immigrant, including overstaying the period of 
authorized admission as such a nonimmigrant. 
‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW-
FUL PRESENCE.— 
‘‘(A) IN GENERAL.—An alien who has not 
previously been admitted into the United States 
pursuant to this section, and who is otherwise 
eligible for admission in accordance with para-
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graphs (1) and (2), shall not be deemed inad-
missible by virtue of section 212(a)(9)(B). If an 
alien described in the preceding sentence is 
present in the United States, the alien may 
apply from abroad for H–2A status, but may 
not be granted that status in the United States. 
‘‘(B) 
MAINTENANCE
OF
WAIVER.—An 
alien provided an initial waiver of ineligibility 
pursuant to subparagraph (A) shall remain eli-
gible for such waiver unless the alien violates 
the terms of this section or again becomes ineli-
gible under section 212(a)(9)(B) by virtue of 
unlawful presence in the United States after 
the date of the initial waiver of ineligibility pur-
suant to subparagraph (A). 
‘‘(d) PERIOD OF ADMISSION.— 
‘‘(1) IN GENERAL.—The alien shall be admitted 
for the period of employment in the application cer-
tified by the Secretary of Labor pursuant to section 
218(e)(2)(B), not to exceed 10 months, supple-
mented by a period of not more than 1 week before 
the beginning of the period of employment for the 
purpose of travel to the worksite and a period of 14 
days following the period of employment for the pur-
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pose of departure or extension based on a subse-
quent offer of employment, except that— 
‘‘(A) the alien is not authorized to be em-
ployed during such 14-day period except in the 
employment for which the alien was previously 
authorized; and 
‘‘(B) the total period of employment, in-
cluding such 14-day period, may not exceed 10 
months. 
‘‘(2) CONSTRUCTION.—Nothing in this sub-
section shall limit the authority of the Secretary to 
extend the stay of the alien under any other provi-
sion of this Act. 
‘‘(e) ABANDONMENT OF EMPLOYMENT.— 
‘‘(1) IN GENERAL.—An alien admitted or pro-
vided status under section 101(a)(15)(H)(ii)(a) who 
abandons the employment which was the basis for 
such admission or status shall be considered to have 
failed to maintain nonimmigrant status as an H–2A 
worker and shall depart the United States or be sub-
ject to removal under section 237(a)(1)(C)(i). 
‘‘(2) REPORT BY EMPLOYER.—The employer, or 
association acting as agent for the employer, shall 
notify the Secretary not later than 7 days after an 
H–2A worker prematurely abandons employment. 
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‘‘(3) REMOVAL BY THE SECRETARY.—The Sec-
retary shall promptly remove from the United States 
any H–2A worker who violates any term or condi-
tion of the worker’s nonimmigrant status. 
‘‘(4) 
VOLUNTARY
TERMINATION.—Notwith-
standing paragraph (1), an alien may voluntarily 
terminate his or her employment if the alien prompt-
ly departs the United States upon termination of 
such employment. 
‘‘(f) REPLACEMENT OF ALIEN.— 
‘‘(1) IN GENERAL.—Upon presentation of the 
notice to the 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. 
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‘‘(2) CONSTRUCTION.—Nothing in this sub-
section is intended to limit any preference required 
to be accorded United States workers under any 
other provision of this Act. 
‘‘(g) IDENTIFICATION DOCUMENT.— 
‘‘(1) IN GENERAL.—Each alien authorized to be 
admitted under section 101(a)(15)(H)(ii)(a) shall 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 
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into, and employed in, the United States 
as an H–2A worker. 
‘‘(B) The document shall be in a form that 
is resistant to counterfeiting and to tampering. 
‘‘(C) The document shall— 
‘‘(i) be compatible with other data-
bases of the 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— 
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‘‘(A) for a period of more than 10 months; 
or 
‘‘(B) to a date that is more than 3 years 
after the date of the alien’s last admission to 
the United States under this section. 
‘‘(3) WORK
AUTHORIZATION
UPON
FILING
A 
PETITION FOR EXTENSION OF STAY.— 
‘‘(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-
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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, 
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.— 
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during the 12 months preceding the date 
the alien again is applying for admission to 
the United States as an H–2A worker. 
‘‘(i) SPECIAL RULES
FOR ALIENS EMPLOYED
AS 
SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK-
ERS.—Notwithstanding any provision of the Agricultural 
Job Opportunities, Benefits, and Security Act of 2009, 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-
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ment as a sheepherder, goat herder, or dairy 
worker; 
‘‘(B) who has maintained such non-
immigrant status in the United States for a cu-
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 
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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 
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 
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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 
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 
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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 
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 
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‘‘(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 
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. 
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‘‘(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 
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 
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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 
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. 
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‘‘(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: 
‘‘(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.— 
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‘‘(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 
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-
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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-
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 
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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. 
‘‘(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 
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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. 
‘‘(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-
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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 
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 
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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-
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.— 
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‘‘(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 
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-
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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 
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-
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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-
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 
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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 
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. 
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‘‘(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). 
‘‘(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 
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100 
‘‘(ii) does not include any situation in 
which the worker is offered, as an alter-
native to such loss of employment, a simi-
lar employment opportunity with the same 
employer (or, in the case of a placement of 
a worker with another employer under sec-
tion 218(b)(2)(E), with either employer de-
scribed in such section) at equivalent or 
higher compensation and benefits than the 
position from which the employee was dis-
charged, regardless of whether or not the 
employee accepts the offer. 
‘‘(B) STATUTORY CONSTRUCTION.—Noth-
ing in this paragraph is intended to limit an 
employee’s rights under a collective bargaining 
agreement or other employment contract. 
‘‘(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. 
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101 
‘‘(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. 
‘‘(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. 
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102 
‘‘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-
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. 
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