I 
108TH CONGRESS 
1ST SESSION H. R. 3142
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, to provide a stable, legal agricultural 
workforce, to extend basic legal protections and better working conditions 
to more workers, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 23, 2003
Mr. CANNON (for himself and Mr. BERMAN) introduced the following bill; 
which was referred to the Committee on the Judiciary 
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, to provide a stable, legal agricultural workforce, 
to extend basic legal protections and better working con-
ditions to more workers, 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 
‘‘Agricultural Job Opportunity, Benefits, and Security Act 
of 2003’’.
(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. Determination and use of user fees. 
Sec. 302. Regulations. 
Sec. 303. 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) 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. 
(3) JOB OPPORTUNITY.—The term ‘‘job oppor-
tunity’’ means a job opening for temporary full-time 
employment at a place in the United States to which 
United States workers can be referred. 
(4) SECRETARY.—The term ‘‘Secretary’’ means 
the Secretary of Homeland Security. 
(5) TEMPORARY.—A worker is employed on a 
‘‘temporary’’ basis where the employment is in-
tended not to exceed 10 months. 
(6) 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)). 
(7) WORK DAY.—The term ‘‘work day’’ means 
any day in which the individual is employed 1 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 Secretary shall confer upon an 
alien who qualifies under this subsection the status 
of an alien lawfully admitted for temporary residence 
if the Secretary determines that the following re-
quirements are satisfied with respect to the alien: 
(A) PERFORMANCE OF AGRICULTURAL EM-
PLOYMENT IN THE UNITED STATES.—The alien 
must establish that the alien has performed ag-
ricultural employment in the United States for 
at least 575 hours or 100 work days, whichever 
is less, during any 12 consecutive months dur-
ing the 18-month period ending on August 31, 
2003. 
(B) APPLICATION
PERIOD.—The alien 
must apply for such status during the 18-month 
application period beginning on the 1st day of
the 7th month that begins after the date of en-
actment 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 
Secretary may terminate such status only upon a de-
termination under this Act that the alien is deport-
able. 
(5) RECORD OF EMPLOYMENT.—
(A) IN
GENERAL.—Each employer of a 
worker granted status under this subsection 
shall annually—
(i) provide a written record of employ-
ment to the alien; and 
(ii) provide a copy of such record to 
the Secretary. 
(B) SUNSET.—The obligation under sub-
paragraph (A) terminates on August 31, 2009. 
(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 granted sta-
tus under subsection (a) may be terminated 
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 Secretary shall establish a process for 
the receipt, initial review, and disposition 
in accordance with this subparagraph of 
complaints by aliens granted temporary 
resident status under subsection (a) who 
allege that they have been terminated with-
out just cause. No proceeding shall be con-
ducted under this subparagraph with re-
spect to a termination unless the Secretary 
determines that the complaint was filed 
not later than 6 months after the date of 
the termination. 
(ii) INITIATION OF ARBITRATION.—If 
the Secretary finds that a complaint has 
been filed in accordance with clause (i) and 
there is reasonable cause to believe that 
the complainant was terminated without 
just cause, the Secretary shall initiate 
binding arbitration proceedings by request-
ing the Federal Mediation and Conciliation 
Service to appoint a mutually agreeable ar-
bitrator from the roster of arbitrators 
maintained by such Service for the geo-
graphical area in which the employer is lo-
cated. The procedures and rules of such 
Service shall be applicable to the selection 
of such arbitrator and to such arbitration 
proceedings. The Secretary shall pay the 
fee and expenses of the arbitrator. 
(iii) ARBITRATION
PROCEEDINGS.—
The arbitrator shall conduct the pro-
ceeding in accordance with the policies and 
procedures promulgated by the American 
Arbitration Association applicable to pri-
vate arbitration of employment disputes. 
The arbitrator shall make findings respect-
ing whether the termination was for just 
cause. The arbitrator may not find that 
the termination was for just cause unless 
the employer so demonstrates by a prepon-
derance of the evidence. If the arbitrator 
finds that the termination was not for just 
cause, the arbitrator shall make a specific 
finding of the number of days or hours of 
work lost by the employee as a result of 
the termination. The arbitrator shall have
no authority to order any other remedy, in-
cluding, but not limited to, reinstatement, 
back pay, or front pay to the affected em-
ployee. Within 30 days from the conclusion 
of the arbitration proceeding, the arbi-
trator shall transmit the findings in the 
form of a written opinion to the parties to 
the arbitration and the Secretary. Such 
findings shall be final and conclusive, and 
no official or court of the United States 
shall have the power or jurisdiction to re-
view any such findings. 
(iv) EFFECT OF ARBITRATION FIND-
INGS.—If the Secretary receives a finding 
of an arbitrator that an employer has ter-
minated an alien granted temporary resi-
dent status under subsection (a) without 
just cause, the Secretary shall credit the 
alien for the number of days or hours of 
work lost for purposes of the requirement 
of subsection (c)(1).
(v) 
TREATMENT
OF
ATTORNEY’S 
FEES.—The parties shall bear the cost of 
their own attorney’s 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 Secretary shall not be conclusive 
or binding in any separate or subsequent 
action or proceeding between the employee 
and the employee’s current or prior em-
ployer brought before an arbitrator, admin-
istrative 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 involved the 
same facts, except that the arbitrator’s 
specific finding of the number of days or 
hours of work lost by the employee as a re-
sult of the employment termination may be 
referred to the Secretary 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 an alien 
granted temporary resident status under 
subsection (a) has failed to provide the 
record of employment required under sub-
section (a)(5) or has provided a false state-
ment of material fact in such a record, the 
employer 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 Secretary shall adjust 
the status of an alien granted lawful temporary 
resident status under subsection (a) to that of 
an alien lawfully admitted for permanent resi-
dence if the Secretary determines that the fol-
lowing requirements are satisfied: 
(i) QUALIFYING
EMPLOYMENT.—The 
alien has performed at least 2,060 hours 
or 360 work days, whichever is less, of ag-
ricultural 
employment 
in 
the 
United 
States, during the period beginning on 
September 1, 2003, and ending on August 
31, 2009. 
(ii) QUALIFYING
YEARS.—The alien 
has performed at least 430 hours or 75 
work days, whichever is less, of agricul-
tural employment in the United States in 
at least 3 nonoverlapping periods of 12 
consecutive months during the period be-
ginning on September 1, 2003, and ending 
on August 31, 2009. Qualifying periods 
under this clause may include nonconsecu-
tive 12-month periods. 
(iii) QUALIFYING
WORK
IN
FIRST
YEARS.—The alien has performed at least 
1,380 hours or 240 work days, whichever 
is less, of agricultural employment during 
the period beginning on September 1, 
2003, and ending on August 31, 2006.
(iv) APPLICATION PERIOD.—The alien 
applies for adjustment of status not later 
than August 31, 2010. 
(v) PROOF.—In meeting the require-
ments of clauses (i), (ii), and (iii), an alien 
may submit the record of employment de-
scribed in subsection (a)(5) or such docu-
mentation as may be submitted under sub-
section (d)(3). 
(vi) 
DISABILITY.—In 
determining 
whether an alien has met the requirements 
of clauses (i), (ii), and (iii), the Secretary 
shall credit the alien with any work days 
lost because the alien was unable to work 
in agricultural employment due to injury 
or disease arising out of and in the course 
of the alien’s agricultural employment, if 
the alien can establish such disabling in-
jury or disease through medical records. 
(B) GROUNDS
FOR
DENIAL
OF
ADJUST-
MENT OF STATUS.—The Secretary may deny an 
alien adjustment to permanent resident status, 
and provide for termination of the temporary 
resident status granted such alien under sub-
section (a), if—
(i) the Secretary finds by a prepon-
derance of the evidence that the adjust-
ment to temporary resident status was the 
result of fraud or willful misrepresentation, 
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)(iv), 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). 
The Secretary shall issue regulations estab-
lishing grounds to waive subparagraph (A)(iii) 
with respect to an alien who has completed at 
least 200 days of the work requirement speci-
fied in such subparagraph in the event of a nat-
ural disaster which substantially limits the 
availability of agricultural employment or a per-
sonal emergency that prevents compliance with 
such subparagraph. 
(2) SPOUSES AND MINOR CHILDREN.—
(A) IN
GENERAL.—Notwithstanding any 
other provision of law, the Secretary shall con-
fer the status of lawful permanent resident on 
the spouse and minor child of an alien granted 
status under paragraph (1), including any indi-
vidual who was a minor child on the date such 
alien was granted temporary resident status, if 
the spouse or minor child applies for such sta-
tus, or if the principal alien includes the spouse 
or minor child in an application for adjustment 
of status to that of a lawful permanent resi-
dent.
(B) TREATMENT OF SPOUSES AND MINOR 
CHILDREN
PRIOR
TO
ADJUSTMENT
OF
STA-
TUS.—A spouse and 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.—
(1) TO WHOM MAY BE MADE.—
(A) WITHIN
THE
UNITED
STATES.—The 
Secretary shall provide that—
(i) applications for temporary resident 
status under subsection (a) may be filed—
(I) with the Secretary, but only if 
the applicant is represented by an at-
torney; 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 Secretary; and 
(ii) applications for adjustment of sta-
tus under subsection (c) shall be filed di-
rectly with the Secretary. 
(B) OUTSIDE THE UNITED STATES.—The 
Secretary, in cooperation with the Secretary of 
State, shall establish a procedure whereby an 
alien may apply for temporary resident 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 Secretary may grant admis-
sion to the United States as a temporary 
resident and provide an ‘‘employment au-
thorized’’ endorsement or other appro-
priate work permit to any alien who pre-
sents a preliminary application for such 
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 temporary resident status is 
credible. 
(D) TRAVEL DOCUMENTATION.—The Sec-
retary shall provide each alien granted status
under this section with a counterfeit-resistant 
document of authorization to enter or reenter
the United States that meets the requirements 
established by the Secretary. 
(2) DESIGNATION OF ENTITIES TO RECEIVE AP-
PLICATIONS.—
(A) IN GENERAL.—For purposes of receiv-
ing applications under subsection (a), the Sec-
retary—
(i) shall designate qualified farm labor 
organizations and associations of employ-
ers; and 
(ii) may designate such other persons 
as the Secretary determines are qualified 
and have substantial experience, dem-
onstrate competence, and have traditional 
long-term involvement in the preparation 
and submittal of applications for adjust-
ment 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 Sec-
retary 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 status under 
subsection (a)(1) or subsection (c)(1) has the 
burden of proving by a preponderance of the 
evidence that the alien has worked the requisite 
number of hours or days (as required under 
subsection (a)(1)(A) or subsection (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 Secretary.
(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 Sec-
retary applications filed with it in accordance with 
paragraph (1)(A)(i)(II) but not to forward to the 
Secretary applications filed with it unless the appli-
cant has consented to such forwarding. No such en-
tity may make a determination required by this sec-
tion to be made by the Secretary. 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 
Secretary 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 Sec-
retary, nor any other official or employee of the 
Department of Homeland Security, 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 Homeland Security, or bureau 
or agency thereof, or, with respect to appli-
cations filed with a qualified designated en-
tity, that qualified designated entity, to ex-
amine 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 status 
under subsection (a) or (c) and knowingly 
and willfully falsifies, conceals, or covers 
up a material fact or makes any false, fic-
titious, or fraudulent statements or rep-
resentations, 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 Secretary shall 
provide for a schedule of fees that—
(i) shall be charged for the filing of 
applications for status under subsections 
(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 Secretary until expended for 
processing applications for status 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 eli-
gibility for status under subsection (a)(1)(C) or an 
alien’s eligibility for adjustment of status under sub-
section (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 Secretary may waive any 
other provision of such section 212(a) in 
the case of individual aliens for humani-
tarian 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 
Secretary 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). 
(iii) CONSTRUCTION.—Nothing in this 
subparagraph shall be construed as affect-
ing the authority of the Secretary 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 status under this section by reason of a 
ground 
of 
inadmissibility 
under 
section 
212(a)(4) of the Immigration and Nationality 
Act (8 U.S.C. 1182(a)(4)) if the alien dem-
onstrates a history of employment in the United 
States evidencing self-support without reliance 
on public cash assistance.
(f) TEMPORARY STAY OF REMOVAL AND WORK AU-
THORIZATION FOR CERTAIN APPLICANTS.—
(1) BEFORE
APPLICATION
PERIOD.—Effective 
on the date of enactment of this Act, the Secretary 
shall provide that, in the case of an alien who is ap-
prehended before the beginning of the application 
period described in subsection (a)(1)(B) and who 
can establish a nonfrivolous case of eligibility for 
temporary resident status under subsection (a) (but 
for the fact that the alien may not apply for such 
status 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 temporary resident status, 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 Sec-
retary shall provide that, in the case of an alien who 
presents a nonfrivolous application for temporary 
resident status under subsection (a) during the ap-
plication 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 status under subsection (a) or 
(c) except in accordance with this subsection. 
(2) ADMINISTRATIVE REVIEW.—
(A) SINGLE
LEVEL
OF
ADMINISTRATIVE 
APPELLATE REVIEW.—The Secretary shall es-
tablish an appellate authority to provide for a 
single level of administrative appellate review 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 determination only in the judicial review of an 
order of removal under section 242 of the Im-
migration 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 Secretary, in cooperation with qualified designated en-
tities, shall broadly disseminate information respecting the
benefits that aliens may receive under this section and the 
requirements to be satisfied to obtain such benefits. 
(i) REGULATIONS.—The Secretary shall issue regula-
tions to implement this section not later than the 1st day 
of the 7th month that begins after the date of 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 2004 through 2007 
to the Secretary 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)(ii), by striking ‘‘or’’ at 
the end; 
(2) in subparagraph (C), by inserting ‘‘or’’ at 
the end; 
(3) by inserting after subparagraph (C) the fol-
lowing: 
‘‘(D) who is granted status as a lawful tem-
porary resident under the Agricultural Job Oppor-
tunity, Benefits, and Security Act of 2003,’’; 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 was granted lawful 
temporary resident status.’’. 
(b) EFFECTIVE DATE.—The amendments made by 
subsection (a) shall take effect on the 1st day of the 7th 
month that begins after the date of 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 SECRETARY 
OF LABOR.—
‘‘(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 of Labor 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 the work-
ers will be needed; and 
‘‘(D) the number of job opportunities in 
which the employer seeks to employ the work-
ers. 
‘‘(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) STRIKE OR LOCKOUT.—The specific 
job opportunity for which the employer is re-
questing an H–2A worker is not vacant because 
the former occupant is on strike or being locked 
out in the course of a labor dispute. 
‘‘(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) STRIKE OR LOCKOUT.—The specific 
job opportunity for which the employer is re-
questing an H–2A worker is not vacant because 
the former occupant is on strike or being locked 
out in the course of a labor dispute. 
‘‘(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 1 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 
of 
Labor 
shall, by regulation, provide a proce-
dure for acceptance and approval of 
applications in which the employer 
has not complied with the provisions 
of this subparagraph because the em-
ployer’s need for H–2A workers could 
not reasonably 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 of Labor shall 
immediately investigate. The Sec-
retary of Labor shall, within 36 hours 
of the receipt of the complaint, issue 
findings concerning the alleged viola-
tion. If the Secretary of Labor finds 
that a violation has occurred, the Sec-
retary of Labor shall immediately sus-
pend the application of this clause 
with respect to that certification 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 of Labor shall make all 
reasonable efforts to place the United 
States worker in an open job accept-
able to the worker, if there are other 
job offers 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 1 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 filed pursuant to subsection (a), ex-
cept that if the employer is an agricultural associa-
tion, the association may withdraw an application 
filed pursuant to subsection (a) with respect to 1 or 
more of its members. To withdraw an application, 
the employer or association shall notify the Sec-
retary of Labor in writing, and the Secretary of 
Labor shall acknowledge in writing the receipt of 
such withdrawal notice. An employer who withdraws 
an application under subsection (a), or on whose be-
half 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-
curacies. Unless the Secretary of Labor finds 
that the application is incomplete or obviously 
inaccurate, the Secretary of Labor shall certify 
that the intending employer has filed with the 
Secretary of Labor an application as described 
in subsection (a). Such certification shall be 
provided within 7 days of the filing of the appli-
cation. 
‘‘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 occupation and area 
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 Secretary of 
Labor shall issue regulations that address the 
specific requirements for the provision of hous-
ing 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 
of Labor that there is adequate housing 
available in the area of intended employ-
ment for migrant farm workers, and H–2A 
workers, who are seeking temporary hous-
ing while employed at farm work. Such 
certification shall expire after 3 years un-
less 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
the place of employment to the place from 
which the worker, disregarding intervening em-
ployment, came to work for the employer, or to 
the place of next employment, if the worker has 
contracted with a subsequent employer who has 
not agreed to provide or pay for the worker’s 
transportation and subsistence to such subse-
quent employer’s place of employment. 
‘‘(C) LIMITATION.—
‘‘(i) AMOUNT OF REIMBURSEMENT.—
Except as provided in clause (ii), the 
amount of reimbursement provided under 
subparagraph (A) or (B) to a worker or 
alien shall not exceed the lesser of—
‘‘(I) the actual cost to the worker 
or alien of the transportation and sub-
sistence involved; or 
‘‘(II) the most economical and 
reasonable common carrier transpor-
tation charges and subsistence costs 
for the distance involved. 
‘‘(ii) DISTANCE TRAVELED.—No reim-
bursement under subparagraph (A) or (B) 
shall be required if the distance traveled is 
100 miles or less, or the worker is not re-
siding in employer-provided housing or 
housing secured through an allowance as 
provided in paragraph (1)(G). 
‘‘(D) EARLY TERMINATION.—If the worker 
is laid off or employment is terminated for con-
tract impossibility (as described in paragraph 
(4)(D)) before the anticipated ending date of 
employment, the employer shall provide the 
transportation and subsistence required by sub-
paragraph (B) and, notwithstanding whether 
the worker has completed 50 percent of the pe-
riod of employment, shall provide the transpor-
tation reimbursement required by subparagraph 
(A). 
‘‘(E) TRANSPORTATION BETWEEN LIVING 
QUARTERS
AND
WORK
SITE.—The employer 
shall provide transportation between the work-
er’s living quarters (i.e., housing provided by 
the employer pursuant to paragraph (1), includ-
ing housing provided through a housing allow-
ance) and the employer’s work site without cost 
to the worker, and such transportation will be 
in accordance with applicable laws and regula-
tions.
‘‘(3) REQUIRED WAGES.—
‘‘(A) IN GENERAL.—An employer applying 
for workers under section 218(a) shall offer to 
pay, and shall pay, all workers in the occupa-
tion for which the employer has applied for 
workers, not less (and is not required to pay 
more) than the greater of the prevailing wage 
in the occupation in the area of intended em-
ployment or the adverse effect wage rate. No 
worker shall be paid less than the greater of the 
hourly wage prescribed under section 6(a)(1) of 
the Fair Labor Standards Act of 1938 (29 
U.S.C. 206(a)(1)) or the applicable State min-
imum wage. 
‘‘(B) LIMITATION.—Effective on the date 
of enactment of the Agricultural Job Oppor-
tunity, Benefits, and Security Act of 2003 and 
continuing for 3 years thereafter, no adverse ef-
fect wage rate for a State may be more than 
the adverse effect wage rate for that State in 
effect on January 1, 2003, as established by 
section 655.107 of title 20, Code of Federal 
Regulations. 
‘‘(C) REQUIRED
WAGES
AFTER
3-YEAR 
FREEZE.—
‘‘(i) 
FIRST
ADJUSTMENT.—Unless 
Congress acts to set a new wage standard 
applicable to this section, effective on De-
cember 1, 2006, the adverse effect wage 
rate then in effect shall be adjusted by the 
12 month percentage change in the Con-
sumer Price Index for All Urban Con-
sumers between December of the preceding 
year and December of the second pre-
ceding year, except that such adjustment 
shall not exceed 4 percent. 
‘‘(ii) SUBSEQUENT ANNUAL ADJUST-
MENTS.—Effective on March 1, 2007, and 
each March 1 thereafter, the adverse effect 
wage rate then in effect shall be adjusted 
in accordance with the requirements of 
clause (i). 
‘‘(D) DEDUCTIONS.—The employer shall 
make only those deductions from the worker’s 
wages that are authorized by law or are reason-
able and customary in the occupation and area 
of employment. The job offer shall specify all
deductions not required by law which the em-
ployer will make from the worker’s wages.
‘‘(E) FREQUENCY OF PAY.—The employer 
shall pay the worker not less frequently than 
twice monthly, or in accordance with the pre-
vailing practice in the area of employment, 
whichever is more frequent. 
‘‘(F) 
HOURS
AND
EARNINGS
STATE-
MENTS.—The employer shall furnish to the 
worker, on or before each payday, in one or 
more written statements the following informa-
tion: 
‘‘(i) The worker’s total earnings for 
the pay period. 
‘‘(ii) The worker’s hourly rate of pay, 
piece rate of pay, or both. 
‘‘(iii) The hours of employment which 
have been offered to the worker (broken 
out by hours offered in accordance with 
and over and above the three-quarters 
guarantee described in paragraph (4)). 
‘‘(iv) The hours actually worked by 
the worker. 
‘‘(v) An itemization of the deductions 
made from the worker’s wages. 
‘‘(vi) If piece rates of pay are used, 
the units produced daily.
‘‘(G) REPORT ON WAGE PROTECTIONS.—
Not later than June 1, 2007, the Resources, 
Community and Economic Development Divi-
sion, and the Health, Education and Human 
Services Division, of the General Accounting 
Office shall jointly prepare and transmit to the 
Secretary of Labor and to the Committees on 
the Judiciary of the House of Representatives 
and the Senate a report which shall address—
‘‘(i) whether the employment of H–2A 
or unauthorized aliens in the United States 
agricultural work force has depressed 
United States farm worker wages below 
the levels that would otherwise have pre-
vailed if alien farm workers had not been 
employed in the United States; 
‘‘(ii) whether an adverse effect wage 
rate is necessary to prevent wages of 
United States farm workers in occupations 
in which H–2A workers are employed from 
falling below the wage levels that would 
have prevailed in the absence of the em-
ployment of H–2A workers in those occu-
pations;
‘‘(iii) whether alternative wage stand-
ards, such as a prevailing wage standard, 
would be sufficient to prevent wages in oc-
cupations in which H–2A workers are em-
ployed from falling below the wage level 
that would have prevailed in the absence of 
H–2A employment; 
‘‘(iv) whether any changes are war-
ranted in the current methodologies for 
calculating the adverse effect wage rate 
and the prevailing wage; and 
‘‘(v) recommendations for future wage 
protection under this section. 
‘‘(H) COMMISSION
ON
WAGE
STAND-
ARDS.—
‘‘(i) ESTABLISHMENT.—There is es-
tablished the Commission on Agricultural 
Wage Standards under the H–2A program 
(in this subparagraph referred to as the 
‘Commission’). 
‘‘(ii) COMPOSITION.—The Commission 
shall consist of 10 members as follows: 
‘‘(I) 4 representatives of agricul-
tural employers and 1 representative 
of the Department of Agriculture,
each appointed by the Secretary of 
Agriculture. 
‘‘(II) 4 representatives of agricul-
tural workers and 1 representative of 
the Department of Labor, each ap-
pointed by the Secretary of Labor. 
‘‘(iii) FUNCTIONS.—The Commission 
shall conduct a study that shall address—
‘‘(I) whether the employment of 
H–2A or unauthorized aliens in the 
United States agricultural workforce 
has depressed United States farm 
worker wages below the levels that 
would otherwise have prevailed if alien 
farm workers had not been employed 
in the United States; 
‘‘(II) whether an adverse effect 
wage rate is necessary to prevent 
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 
June 1, 2007, the Commission shall sub-
mit a report to the Congress setting 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 three-
fourths of the work days of the total period of 
employment, beginning with the first work day 
after the arrival of the worker at the place of 
employment and ending on the expiration date 
specified in the job offer. For purposes of this 
subparagraph, 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 
employment than that required under this para-
graph, the employer shall pay such worker the 
amount which the worker would have earned 
had the worker, in fact, worked for the guaran-
teed number of hours. 
‘‘(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 ‘three-
fourths 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 but not lim-
ited to a flood, hurricane, freeze, earthquake, 
fire, drought, plant or animal disease or pest in-
festation, or regulatory drought, before the 
guarantee in subparagraph (A) is fulfilled, the 
employer may terminate the worker’s employ-
ment. In the event of such termination, the em-
ployer shall fulfill the employment guarantee in
subparagraph (A) for the work days that have 
elapsed from the first work day after the arrival 
of the worker to the termination of employ-
ment. In such cases, the employer will make ef-
forts to transfer the United States worker to 
other comparable employment acceptable to the 
worker. If such transfer is not effected, the em-
ployer 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. 
‘‘(ii) USES OR CAUSES TO BE USED.—
(I) In this subsection, the term ‘uses or 
causes to be used’ applies only to transpor-
tation provided by an H–2A employer to 
an H–2A worker, or by a farm labor con-
tractor to an H–2A worker at the request 
or direction of an H–2A employer.
‘‘(II) The term ‘uses or causes to be 
used’ does not apply to—
‘‘(aa) transportation provided, or 
transportation arrangements made, by 
an H–2A worker himself or herself, 
unless the employer specifically re-
quested or arranged such transpor-
tation; or 
‘‘(bb) carpooling arrangements 
made by H–2A workers themselves, 
using one of the workers’ own vehi-
cles, unless specifically requested by 
the employer directly or through a 
farm labor contractor. 
‘‘(III) The mere providing of a job 
offer by an employer to an H–2A worker 
that causes the worker to travel to or from 
the place of employment, or the payment 
or reimbursement of the transportation 
costs of an H–2A worker by an H–2A em-
ployer, shall not constitute an arrangement 
of, or participation in, such transportation. 
‘‘(iii) 
AGRICULTURAL
MACHINERY 
AND
EQUIPMENT
EXCLUDED.—This sub-
section does not apply to the transpor-
tation of an H–2A worker on a tractor, 
combine, harvester, picker, or other similar 
machinery or equipment while such worker 
is actually engaged in the planting, culti-
vating, or harvesting of agricultural com-
modities or the care of livestock or poultry 
or engaged in transportation incidental 
thereto. 
‘‘(iv) 
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. 
‘‘(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 
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 
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 or sections 218 or 218B shall preclude the 
Secretary of Labor and the Secretary from continuing to 
apply special procedures and requirements to the admis-
sion and employment of aliens in occupations involving the 
range production of livestock. 
‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF STAY 
OF H–2A WORKERS 
‘‘SEC. 218B. (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 accepted and currently valid certification provided by 
the Secretary of Labor under section 218(e)(2)(B) cov-
ering 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.—
‘‘(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-
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 up to 1 week before the begin-
ning of the period of employment (to be granted for 
the purpose of travel to the work site) and a period 
of 14 days following the period of employment (to be 
granted for the purpose of departure or extension 
based on a subsequent 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 within 7 days of an H–2A 
worker’s having prematurely abandoned employ-
ment. 
‘‘(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. 
‘‘(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 such person’s proper iden-
tity. 
‘‘(2) REQUIREMENTS.—No identification and 
employment eligibility document may be issued 
which does not meet the following requirements: 
‘‘(A) The document shall be capable of re-
liably determining whether—
‘‘(i) the individual with the identifica-
tion and employment eligibility document 
whose eligibility is being verified is in fact 
eligible for employment; 
‘‘(ii) the individual whose eligibility is 
being verified is claiming the identity of 
another person; and 
‘‘(iii) the individual whose eligibility is 
being verified is authorized to be admitted 
into, and employed in, the United States 
as an H–2A worker. 
‘‘(B) The document shall be in a form that 
is resistant to counterfeiting and to tampering. 
‘‘(C) The document shall—
‘‘(i) be compatible with other data-
bases of the Secretary for the purpose of
excluding aliens from benefits for which 
they are not eligible and determining 
whether the alien is unlawfully present in 
the United States; and 
‘‘(ii) be compatible with law enforce-
ment databases to determine if the alien 
has been convicted of criminal offenses.
‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE 
UNITED STATES.—
‘‘(1) EXTENSION
OF
STAY.—If an employer 
seeks approval to employ an H–2A alien who is law-
fully present in the United States, the petition filed 
by the employer or an association pursuant to sub-
section (a), shall request an extension of the alien’s 
stay and a change in the alien’s employment. 
‘‘(2) LIMITATION ON FILING A PETITION FOR 
EXTENSION OF STAY.—A petition may not be filed 
for an extension of an alien’s stay—
‘‘(A) for a period of more than 10 months; 
or 
‘‘(B) to a date that is more than 3 years 
after the date of the alien’s last admission to 
the United States under this section. 
‘‘(3) WORK
AUTHORIZATION
UPON
FILING
A 
PETITION FOR EXTENSION OF STAY.—In the case of
an alien who is lawfully present in the United 
States, the alien is authorized to commence the em-
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 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 employ-
ment eligibility document as evidence that the peti-
tion has been filed and that the alien is authorized 
to work in the United States. Upon approval 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 doc-
ument to the alien indicating the new validity date, 
after which the alien is not required 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 a petition for exten-
sion of stay or change in the alien’s authorized em-
ployment that complies with the requirements of 
paragraph (1), shall constitute a valid work author-
ization document for a period of not more than 60 
days beginning on the date on which such petition 
is filed, after which time only a currently valid iden-
tification and employment eligibility document shall 
be acceptable. 
‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN 
STATUS.—
‘‘(A) MAXIMUM
PERIOD.—The maximum 
continuous period of authorized status as an 
H–2A worker (including any extensions) is 3 
years. 
‘‘(B) REQUIREMENT TO REMAIN OUTSIDE 
THE UNITED STATES.—
‘‘(i) IN GENERAL.—Subject to clause 
(ii), in the case of an alien outside the 
United States whose period of authorized 
status as an H–2A worker (including any 
extensions) has expired, the alien may not 
again apply for admission to the United 
States as an H–2A worker unless the alien
has remained outside the United States for 
a continuous period equal to at least 1⁄5 
the duration of the alien’s previous period 
of authorized status as an H–2A worker 
(including any extensions). 
‘‘(ii) EXCEPTION.—Clause (i) shall 
not apply in the case of an alien if the 
alien’s period of authorized status as an 
H–2A worker (including any extensions) 
was for a period of not more than 10 
months and such alien has been outside 
the United States for at least 2 months 
during the 12 months preceding the date 
the alien again is applying for admission to 
the United States as an H–2A worker. 
‘‘(i) SPECIAL RULES
FOR ALIENS EMPLOYED
AS 
SHEEPHERDERS.—Notwithstanding any other provision 
of the Agricultural Job Opportunity, Benefits, and Secu-
rity Act of 2003, aliens admitted under section 
101(a)(15)(H)(ii)(a) for employment as sheepherders—
‘‘(1) may be admitted for a period of 12 
months; 
‘‘(2) may be extended for a continuous 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. 
‘‘WORKER PROTECTIONS AND LABOR STANDARDS 
ENFORCEMENT 
‘‘SEC. 218C. (a) ENFORCEMENT AUTHORITY.—
‘‘(1) INVESTIGATION OF COMPLAINTS.—
‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY 
COMPLAINTS.—The Secretary of Labor shall es-
tablish a process for the receipt, investigation, 
and disposition of complaints respecting a peti-
tioner’s failure to meet a condition specified in 
section 218(b), or an employer’s misrepresenta-
tion of material facts in an application under 
section 218(a). Complaints may be filed by any 
aggrieved person or organization (including bar-
gaining representatives). No investigation or 
hearing shall be conducted on a complaint con-
cerning such a failure or misrepresentation un-
less the complaint was filed not later than 12 
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 (H). If the Secretary of Labor de-
termines that such a reasonable basis exists, 
the Secretary of Labor shall provide for notice 
of such determination to the interested parties 
and an opportunity for a hearing on the com-
plaint, in accordance with section 556 of title 5, 
United States Code, within 60 days after the 
date of the determination. If such a hearing is 
requested, the Secretary of Labor shall make a 
finding concerning the matter not later than 60 
days after the date of the hearing. In the case 
of similar complaints respecting the same appli-
cant, the Secretary of Labor may consolidate
the hearings under this subparagraph on such 
complaints. 
‘‘(C) FAILURES TO MEET CONDITIONS.—If 
the Secretary of Labor finds, after notice and 
opportunity for a hearing, a failure to meet a 
condition of paragraph (1)(A), (1)(B), (1)(D),
(1)(F), (2)(A), (2)(B), or (2)(G) of section 
218(b), a substantial failure to meet a condition 
of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 
(2)(E), or (2)(H) of section 218(b), or a mate-
rial misrepresentation of fact in an application 
under section 218(a)—
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $1,000 
per violation) as the Secretary of Labor 
determines to be appropriate; and 
‘‘(ii) the Secretary may disqualify the 
employer from the employment of aliens 
described in section 101(a)(15)(H)(ii)(a) 
for a period of 1 year. 
‘‘(D) WILLFUL
FAILURES
AND
WILLFUL 
MISREPRESENTATIONS.—If the Secretary of 
Labor finds, after notice and opportunity for 
hearing, a willful failure to meet a condition of 
section 218(b), a willful misrepresentation of a 
material fact in an application under section 
218(a), or a violation of subsection (d)(1)—
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $5,000 
per violation) as the Secretary of Labor 
determines to be appropriate; 
‘‘(ii) the Secretary of Labor may seek 
appropriate legal or equitable relief to ef-
fectuate the purposes of subsection (d)(1); 
and 
‘‘(iii) the Secretary may disqualify the 
employer from the employment of H–2A 
workers for a period of 2 years. 
‘‘(E) DISPLACEMENT OF UNITED STATES 
WORKERS.—If the Secretary of Labor finds, 
after notice and opportunity for hearing, a will-
ful failure to meet a condition of section 218(b) 
or a willful misrepresentation of a material fact 
in an application under section 218(a), in the 
course of which failure or misrepresentation the 
employer displaced a United States worker em-
ployed by the employer during the period of em-
ployment on the employer’s application under
section 218(a) or during the period of 30 days 
preceding such period of employment—
‘‘(i) the Secretary of Labor shall no-
tify the Secretary of such finding and may, 
in addition, impose such other administra-
tive remedies (including civil money pen-
alties in an amount not to exceed $15,000 
per violation) as the Secretary of Labor 
determines to be appropriate; and 
‘‘(ii) the Secretary may disqualify the 
employer from the employment of H–2A 
workers for a period of 3 years. 
‘‘(F) LIMITATIONS ON CIVIL MONEY PEN-
ALTIES.—The Secretary of Labor shall not im-
pose total civil money penalties with respect to 
an application under section 218(a) in excess of 
$90,000. 
‘‘(G) FAILURES
TO
PAY
WAGES
OR
RE-
QUIRED BENEFITS.—If the Secretary of Labor 
finds, after notice and opportunity for a hear-
ing, that the employer has failed to pay the 
wages, or provide the housing allowance, trans-
portation, subsistence reimbursement, or guar-
antee of employment, required under section 
218A(b), the Secretary of Labor shall assess
payment of back wages, or other required bene-
fits, due any United States worker or H–2A 
worker employed by the employer in the specific 
employment in question. The back wages or 
other required benefits under section 218A(b) 
shall be equal to the difference between the 
amount that should have been paid and the 
amount that actually was paid to such worker. 
‘‘(2) STATUTORY CONSTRUCTION.—Nothing in 
this section shall be construed as limiting the au-
thority of the Secretary of Labor to conduct any 
compliance investigation under any other labor law, 
including any law affecting migrant and seasonal ag-
ricultural workers, or, in the absence of a complaint 
under this section, under section 218 or 218A. 
‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF 
ACTION.—H–2A workers may enforce the following rights 
through the private right of action provided in subsection 
(c), and no other right of action shall exist under Federal 
or State law to enforce such rights: 
‘‘(1) The providing of housing or a housing al-
lowance as required under section 218A(b)(1). 
‘‘(2) The reimbursement of transportation as 
required under section 218A(b)(2).
‘‘(3) The payment of wages required under sec-
tion 218A(b)(3) when due. 
‘‘(4) The benefits and material terms and con-
ditions of employment expressly provided in the job 
offer described in section 218(a)(2), not including 
the assurance to comply with other Federal, State, 
and local labor laws described in section 218A(c), 
compliance with which shall be governed by the pro-
visions of such laws. 
‘‘(5) The guarantee of employment required 
under section 218A(b)(4). 
‘‘(6) The motor vehicle safety requirements 
under section 218A(b)(5). 
‘‘(7) The prohibition of discrimination under 
subsection (d)(2). 
‘‘(c) PRIVATE RIGHT OF ACTION.—
‘‘(1) MEDIATION.—Upon the filing of a com-
plaint by an H–2A worker aggrieved by a violation 
of rights enforceable under subsection (b), and with-
in 60 days of the filing of proof of service of the 
complaint, a party to the action may file a request
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
notice 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 non-binding dispute resolution 
activities for a period not to exceed 90 days be-
ginning on the date on which the Federal Medi-
ation and Conciliation Service receives the re-
quest for assistance unless the parties agree to 
an extension of this period of time. 
‘‘(C) AUTHORIZATION.—There is hereby 
authorized to be appropriated annually not to 
exceed $500,000 to the Federal Mediation and 
Conciliation Service to carry out this section, 
provided that, any contrary provision of law 
notwithstanding, the Director of the Federal 
Mediation and Conciliation Service is author-
ized to conduct the mediation or other dispute
resolution activities from any other appro-
priated funds available to the Director and to 
reimburse such appropriated funds when the 
funds are appropriated pursuant to this author-
ization, such reimbursement to be credited to 
appropriations currently available at the time of 
receipt thereof. 
‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS-
TRICT COURT BY AGGRIEVED PERSON.—An H–2A 
worker aggrieved by a violation of rights enforceable 
under subsection (b) by an agricultural employer or 
other person may file suit in any district court of the 
United States having jurisdiction of 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 prior to the filing of
such action, in which case the rights and remedies 
available under this subsection shall be exclusive. 
‘‘(4) 
PREEMPTION
OF
STATE
CONTRACT 
RIGHTS.—Nothing in this Act shall be construed to 
diminish the rights and remedies of an H–2A worker 
under any other Federal or State law or regulation 
or under any collective bargaining agreement, except 
that no court or administrative action shall be avail-
able under any State contract law to enforce the 
rights created by this Act. 
‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree-
ments by employees purporting to waive or modify 
their rights under this Act shall be void as contrary 
to public policy, except that a waiver or modification 
of the rights or obligations in favor of the Secretary 
of Labor shall be valid for purposes of the enforce-
ment of this Act. The preceding sentence may not 
be construed to prohibit agreements to settle private 
disputes or litigation. 
‘‘(6) AWARD
OF
DAMAGES
OR
OTHER
EQUI-
TABLE RELIEF.—
‘‘(A) If the court finds that the respondent 
has intentionally violated any of the rights en-
forceable under subsection (b), it shall award 
actual damages, if any, or equitable relief.
‘‘(B) Any civil action brought under this 
section shall be subject to appeal as provided in 
chapter 83 of title 28, United States Code. 
‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX-
CLUSIVE REMEDY.—
‘‘(A) Notwithstanding any other provision 
of this section, where a State’s workers’ com-
pensation law is applicable and coverage is pro-
vided for an H–2A worker, the workers’ com-
pensation benefits shall be the exclusive remedy 
for the loss of such worker under this section 
in the case of bodily injury or death in accord-
ance with such State’s workers’ compensation 
law. 
‘‘(B) The exclusive remedy prescribed in 
subparagraph (A) precludes the recovery under 
paragraph (6) of actual damages for loss from 
an injury or death but does not preclude other 
equitable relief, except that such relief shall not 
include back or front pay or in any manner, di-
rectly or indirectly, expand or otherwise alter or 
affect—
‘‘(i) a recovery under a State workers’ 
compensation law; or
‘‘(ii) rights conferred under a State 
workers’ compensation law. 
‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.—
If it is determined under a State workers’ compensa-
tion law that the workers’ compensation law is not 
applicable to a claim for bodily injury or death of an 
H–2A worker, the statute of limitations for bringing 
an action for actual damages for such injury or 
death under subsection (c) shall be tolled for the pe-
riod during which the claim for such injury or death 
under such State workers’ compensation law was 
pending. The statute of limitations for an action for 
actual damages or other equitable relief arising out 
of the same transaction or occurrence as the injury 
or death of the H–2A worker shall be tolled for the 
period during which the claim for such injury or 
death was pending under the State workers’ com-
pensation law. 
‘‘(9) PRECLUSIVE EFFECT.—Any settlement by 
an H–2A worker and H–2A employer reached 
through the mediation process required under sub-
section (c)(1) shall preclude any right of action aris-
ing out of the same facts between the parties in any 
Federal or State court or administrative proceeding,
unless specifically provided otherwise in the settle-
ment agreement. 
‘‘(10) SETTLEMENTS.—Any settlement by the 
Secretary of Labor with an H–2A employer on be-
half of an H–2A worker of a complaint filed with the 
Secretary of Labor under this section or any finding 
by the Secretary of Labor under subsection 
(a)(1)(B) shall preclude any right of action arising 
out of the same facts between the parties under any 
Federal or State court or administrative proceeding, 
unless specifically provided otherwise in the settle-
ment agreement. 
‘‘(d) DISCRIMINATION PROHIBITED.—
‘‘(1) IN GENERAL.—It is a violation of this sub-
section for any person who has filed an application 
under section 218(a), to intimidate, threaten, re-
strain, coerce, blacklist, discharge, or in any other 
manner discriminate against an employee (which 
term, for purposes of this subsection, includes a 
former employee and an applicant for employment) 
because the employee has disclosed information to 
the employer, or to any other person, that the em-
ployee reasonably believes evidences a violation of 
section 218 or 218A or any rule or regulation per-
taining to section 218 or 218A, or because the em-
ployee cooperates or seeks to cooperate in an inves-
tigation or other proceeding concerning the employ-
er’s compliance with the requirements of section 218 
or 218A or any rule or regulation pertaining to ei-
ther of such sections. 
‘‘(2) DISCRIMINATION
AGAINST
H–2A
WORK-
ERS.—It is a violation of this subsection for any per-
son who has filed an application under section 
218(a), to intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate 
against an H–2A employee because such worker has, 
with just cause, filed a complaint with the Secretary 
of Labor regarding a denial of the rights enumer-
ated and enforceable under subsection (b) or insti-
tuted, or caused to be instituted, a private right of 
action under subsection (c) regarding the denial of 
the rights enumerated under subsection (b), or has 
testified or is about to testify in any court pro-
ceeding brought under subsection (c). 
‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO-
PRIATE EMPLOYMENT.—The Secretary of Labor and the 
Secretary shall establish a process under which an H–2A 
worker who files a complaint regarding a violation of sub-
section (d) and is otherwise eligible to remain and work 
in the United States may be allowed to seek other appro-
priate employment in the United States for a period not 
to exceed the maximum period of stay authorized for such 
nonimmigrant classification. 
‘‘(f) ROLE OF ASSOCIATIONS.—
‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA-
TION.—An employer on whose behalf an application 
is filed by an association acting as its agent is fully 
responsible for such application, and for complying 
with the terms and conditions of sections 218 and 
218A, as though the employer had filed the applica-
tion itself. If such an employer is determined, under 
this section, to have committed a violation, the pen-
alty for such violation shall apply only to that mem-
ber of the association unless the Secretary of Labor 
determines that the association or other member 
participated in, had knowledge, or reason to know, 
of the violation, in which case the penalty shall be 
invoked against the association or other association 
member as well. 
‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING 
AS AN EMPLOYER.—If an association filing an appli-
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. 
‘‘DEFINITIONS 
‘‘SEC. 218D. For purposes of sections 218 through 
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 
(26 U.S.C. 3121(g)). For purposes of this para-
graph, agricultural employment includes employment 
under 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.—In the case of an application 
with respect to 1 or more H–2A workers by an em-
ployer, the employer is considered to ‘displace’ a 
United States worker from a job if the employer lays 
off the worker from a job for which the H–2A work-
er 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(h)(3)). 
‘‘(5) EMPLOYER.—The term ‘employer’ means 
any person or entity, including any farm labor con-
tractor and any agricultural association, that em-
ploys workers in agricultural employment. 
‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em-
ployer’ means an employer who seeks to hire 1 or 
more nonimmigrant aliens described in section 
101(a)(15)(H)(ii)(a). 
‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 
means 
a 
nonimmigrant 
described 
in 
section 
101(a)(15)(H)(ii)(a). 
‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor-
tunity’ means a job opening for temporary full-time 
employment at a place in the United States to which 
United States workers can be referred.
‘‘(9) LAYS OFF.— 
‘‘(A) IN GENERAL.—The term ‘lays 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 layoffs due 
to weather, markets, or other temporary 
conditions; but 
‘‘(ii) does not include any situation in 
which the worker is offered, as an alter-
native to such loss of employment, a simi-
lar employment opportunity with the same 
employer (or, in the case of a placement of 
a worker with another employer under sec-
tion 218(b)(2)(E), with either employer de-
scribed in such section) at equivalent or 
higher compensation and benefits than the 
position from which the employee was dis-
charged, regardless of whether or not the 
employee accepts the offer.
‘‘(B) STATUTORY CONSTRUCTION.—Noth-
ing in this paragraph is intended to limit an 
employee’s rights under a collective bargaining 
agreement or other employment contract. 
‘‘(10) REGULATORY DROUGHT.—The term ‘reg-
ulatory drought’ means a decision subsequent to the 
filing of the application under section 218 by an en-
tity not under the control of the employer making 
such filing which restricts the employer’s access to 
water for irrigation purposes and reduces or limits 
the employer’s ability to produce an agricultural 
commodity, thereby reducing the need for labor. 
‘‘(11) SEASONAL.—Labor is performed on a 
‘seasonal’ basis if—
(A) ordinarily, it pertains to or is of the 
kind exclusively performed at certain seasons or 
periods of the year; and 
(B) from its nature, it may not be contin-
uous or carried on throughout the year. 
‘‘(12) 
SECRETARY.—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 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).’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
the Immigration and Nationality Act (8 U.S.C. 1101 et 
seq.) is amended by striking the item relating to section 
218 and inserting the following:
‘‘Sec. 218. H–2A employer applications. 
‘‘Sec. 218A. H–2A employment requirements. 
‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. 
‘‘Sec. 218C. Worker protections and labor standards enforcement. 
‘‘Sec. 218D. Definitions.’’.
TITLE III—MISCELLANEOUS 
PROVISIONS 
SEC. 301. DETERMINATION AND USE OF USER FEES. 
(a) SCHEDULE OF FEES.—The Secretary shall estab-
lish and periodically adjust a schedule of fees for the em-
ployment of aliens under this Act, and a collection process 
for such fees from employers participating in the program 
provided under this Act. Such fees shall be the only fees 
chargeable to employers for services provided under this 
Act. 
(b) DETERMINATION OF SCHEDULE.—
100
(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 added by section 201 of this 
Act, and sufficient to provide for the direct costs of 
providing services related to an employer’s author-
ization to employ eligible aliens pursuant to this Act, 
to include the certification of eligible employers, the 
issuance of documentation, and the admission of eli-
gible aliens. 
(2) PROCEDURE.— 
(A) IN GENERAL.—In establishing and ad-
justing such a schedule, the Secretary shall 
comply with Federal cost accounting and fee 
setting standards. 
(B) PUBLICATION
AND
COMMENT.—The 
Secretary shall publish in the Federal Register 
an initial fee schedule and associated collection 
process and the cost data or estimates upon 
which such fee schedule is based, and any sub-
sequent amendments thereto, pursuant to which 
public comment shall be sought and a final rule 
issued.
101
(c) USE OF PROCEEDS.—Notwithstanding any other 
provision of law, all proceeds resulting from the payment 
of the alien employment user fees shall be available with-
out further appropriation and shall remain available with-
out fiscal year limitation to reimburse the Secretary, the 
Secretary of State, and the Secretary of Labor for the 
costs of carrying out sections 218 and 218B of the Immi-
gration and Nationality Act, as added by section 201 of 
this Act, and the provisions of this Act. 
SEC. 302. REGULATIONS. 
(a) REGULATIONS OF THE SECRETARY.—The Sec-
retary shall consult with the Secretary of Labor and the 
Secretary of Agriculture on all regulations to implement 
the duties of the Secretary under this Act. 
(b) REGULATIONS OF THE SECRETARY OF STATE.—
The Secretary of State shall consult with the Secretary, 
the Secretary of Labor, and the Secretary of Agriculture 
on all regulations to implement the duties of the Secretary 
of State under this Act. 
(c) REGULATIONS OF THE SECRETARY OF LABOR.—
The Secretary of Labor shall consult with the Secretary 
of Agriculture and the Secretary on all regulations to im-
plement the duties of the Secretary of Labor under this 
Act.