HR 2595 IH1S
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Farmers’ Temporary
Employment Assistance Act’’.
SEC. 2. NEW NONIMMIGRANT H–2C CATEGORY FOR TEM-
PORARY AGRICULTURAL WORKERS.
(a) ESTABLISHMENT
OF NEW CLASSIFICATION.—
Section 101(a)(15)(H)(ii) of the Immigration and Nation-
ality Act (8 U.S.C. 1101(a)(15)(ii)) is amended—
(1) by striking ‘‘or (b)’’ and inserting ‘‘(b)’’;
and
(2) by adding at the end the following: ‘‘or (c)
having a residence in a foreign country which he has
no intention of abandoning who is coming tempo-
rarily to the United States pursuant to section 218A
to perform such agricultural labor or services of a
temporary or seasonal nature;’’.
(b) NO FAMILY MEMBERS PERMITTED.—Section
101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended by
striking ‘‘specified in this paragraph’’ and inserting ‘‘spec-
ified in this subparagraph (other than in clause (ii)(c))’’.
SEC. 3. ALTERATIVE AGRICULTURAL TEMPORARY WORKER
PROCESS USING ATTESTATIONS.
(a) IN GENERAL.—The Immigration and Nationality
Act is amended by inserting after section 218 the follow-
ing:
HR 2595 IH1S
‘‘ALTERNATIVE AGRICULTURAL TEMPORARY WORKER
PROGRAM
‘‘SEC. 218A. (a) CONDITION FOR THE EMPLOYMENT
OF H–2C ALIENS.—
‘‘(1) IN GENERAL.—No alien may be admitted
or provided status as an H–2C alien (as defined in
subsection (n)(4)) unless—
‘‘(A) the employment of the alien is cov-
ered by a currently valid labor condition attes-
tation which—
‘‘(i) is filed by the employer, or by an
association on behalf of the employer, for
the occupation in which the alien will be
employed;
‘‘(ii) has been accepted by the State
employment security agency having juris-
diction over the area of intended employ-
ment; and
‘‘(iii) states each of the items de-
scribed in paragraph (2) and includes in-
formation identifying the employer or asso-
ciation and agricultural job opportunities
involved;
HR 2595 IH1S
‘‘(B) the employer is not disqualified from
employing H–2C aliens pursuant to subsection
(h); and
‘‘(C) the employer has not, during the past
2 years, been found by the Attorney General to
have employed any aliens in violation of section
274A(a), including aliens admitted pursuant to
this section.’’.
‘‘(2) CONTENTS OF LABOR CONDITION ATTES-
TATION.—Each labor condition attestation filed by,
or on behalf of, an employer shall include the follow-
ing:
‘‘(A) WAGE RATE.—The employer will pay
H–2C aliens and all other workers in the occu-
pation not less than the prevailing wage for
similarly employed workers in the area of em-
ployment, and not less than the applicable Fed-
eral, State or local statutory minimum wage.
‘‘(B) WORKING
CONDITIONS.—The em-
ployment of H–2C aliens will not adversely af-
fect the working conditions of similarly em-
ployed workers in the area of employment.
‘‘(C) LIMITATION
ON
EMPLOYMENT.—An
H–2C alien will not be employed in any job op-
portunity which is not temporary or seasonal,
HR 2595 IH1S
and will not be employed by the employer in
any job opportunity for more than 10 months
in any 12-consecutive-month period.
‘‘(D) NO
LABOR
DISPUTE.—No H–2C
alien will be employed in any job opportunity
which is vacant because its former occupant is
involved in a strike, lockout or work stoppage in
the course of a labor dispute in the occupation
at the place of employment.
‘‘(E) NOTICE.—The employer, at the time
of filing the attestation, has provided notice of
the attestation to workers employed in the occu-
pation in which H–2C aliens will be employed.
‘‘(F) JOB ORDERS.—The employer will file
one or more job orders for the occupation (or
occupations) covered by the attestation with the
State employment security agency no later than
the day on which the employer first employs
any H–2C aliens in the occupation.
‘‘(G) PREFERENCE TO DOMESTIC WORK-
ERS.—The employer will give preference to
able, willing, and qualified United States work-
ers who apply to the employer and are available
at the time and place needed, for the first 25
days after the filing of the job order in an occu-
HR 2595 IH1S
pation or until 5 days before the date employ-
ment of workers in the occupation begins,
whichever occurs later.
‘‘(3) 
GENERAL
ACCOUNTING
OFFICE
RE-
PORTS.—Beginning 1 year after the effective date of
this section, and annually thereafter, the Comptrol-
ler General shall prepare and transmit to the Con-
gress a report describing the results of a review of
the implementation and enforcement of this section
during the preceding 12-month period, for the pur-
pose of determining if—
‘‘(A) such provisions have been carried out
satisfactorily;
‘‘(B) the program has ensured an adequate
and timely supply of qualified, eligible workers
at the time and place needed for employers;
‘‘(C) the program has ensured that imple-
mentation of the program is not displacing
United States agricultural workers or diminish-
ing the terms and conditions of employment of
United States agricultural workers; and
‘‘(D) an unnecessary regulatory burden
has been created for employers hiring workers
admitted under this section.
‘‘(b) FILING A LABOR CONDITION ATTESTATION.—
HR 2595 IH1S
‘‘(1) FILING BY EMPLOYERS.—Any employer in
the United States is eligible to file a labor condition
attestation.
‘‘(2) FILING BY ASSOCIATIONS ON BEHALF OF
EMPLOYER MEMBERS.—An agricultural association
may file a labor condition attestation as an agent on
behalf of its members. Such an attestation filed by
an agricultural association acting as an agent for its
members, when accepted, shall apply to those em-
ployer members of the association that the associa-
tion certifies to the State employment security agen-
cy are members of the association and have agreed
in writing to comply with the requirements of this
section.
‘‘(3) PERIOD OF VALIDITY.—A labor condition
attestation is valid from the date on which it is ac-
cepted by the State employment security agency for
the period of time requested by the employer, but
not to exceed 12 months.
‘‘(4) WHERE TO FILE.—A labor condition attes-
tation shall be filed with the State employment secu-
rity agency having jurisdiction over the area of in-
tended employment of the workers covered by the at-
testation. If an employer, or the members of an as-
sociation of employers, will be employing workers in
HR 2595 IH1S
an area or areas covered by more than one such
agency, the attestation shall be filed with each such
agency having jurisdiction over an area where the
workers will be employed.
‘‘(5) DEADLINE FOR FILING.—A labor condi-
tion attestation may be filed at any time up to 12
months prior to the date of the employer’s antici-
pated need for workers in the occupation (or occupa-
tions) covered by the attestation.
‘‘(6) FILING FOR MULTIPLE OCCUPATIONS.—A
labor condition attestation may be filed for one or
more occupations and cover one or more periods of
employment.
‘‘(7) MAINTAINING
REQUIRED
DOCUMENTA-
TION.—
‘‘(A) BY EMPLOYERS.—Each employer cov-
ered by an accepted labor condition attestation
must maintain a file of the documentation re-
quired in subsection (c) for each occupation in-
cluded in an accepted attestation covering the
employer. The documentation shall be retained
for a period of one year following the expiration
of an accepted attestation. The employer shall
make the documentation available to represent-
HR 2595 IH1S
atives of the Secretary during normal business
hours.
‘‘(B) BY
ASSOCIATIONS.—In complying
with subparagraph (A), documentation main-
tained by an association filing a labor condition
attestation on behalf of an employer shall be
deemed to be maintained by the employer.
‘‘(8) WITHDRAWAL.—
‘‘(A) COMPLIANCE WITH ATTESTATION OB-
LIGATIONS.—An employer covered by an ac-
cepted labor condition attestation for an occu-
pation shall comply with the terms and condi-
tions of the attestation from the date the attes-
tation is accepted and continuing throughout
the period any persons are employed in an occu-
pation covered by such an accepted attestation,
whether or not H–2C aliens are employed in the
occupation, unless the attestation is withdrawn.
‘‘(B) TERMINATION OF OBLIGATIONS.—An
employer may withdraw a labor condition attes-
tation in total, or with respect to a particular
occupation covered by the attestation. An asso-
ciation may withdraw such an attestation with
respect to one or more of its members. To with-
draw an attestation the employer or association
HR 2595 IH1S
must notify in writing the State employment se-
curity agency office with which the attestation
was filed of the withdrawal of the attestation.
An employer who withdraws an attestation, or
on whose behalf an attestation is withdrawn by
an association, is relieved of the obligations un-
dertaken in the attestation with respect to the
occupation (or occupations) with respect to
which the attestation was withdrawn, upon ac-
knowledgement by the appropriate State em-
ployment security agency of receipt of the with-
drawal notice. An attestation may not be with-
drawn with respect to any occupation while any
H–2C aliens covered by that attestation is em-
ployed in the occupation.
‘‘(C) OBLIGATIONS UNDER OTHER STAT-
UTES.—Any obligation incurred by the em-
ployer under any other law or regulation as a
result of recruitment of United States workers
under an offer of terms and conditions of em-
ployment required by the H–2C program is un-
affected by withdrawal of a labor condition at-
testation.
‘‘(c) EMPLOYER RESPONSIBILITIES AND REQUIRE-
MENTS FOR EMPLOYING H–2C NONIMMIGRANTS.—
HR 2595 IH1S
‘‘(1) REQUIREMENT TO PAY THE PREVAILING
WAGE.—
‘‘(A) EFFECT
OF
THE
ATTESTATION.—
Employers shall pay each worker in an occupa-
tion covered by an accepted labor condition at-
testation at least the prevailing wage in the oc-
cupation in the area of intended employment.
The preceding sentence does not require em-
ployers to pay all workers in the occupation the
same wage. The employer may, in the sole dis-
cretion of the employer, maintain pay differen-
tials based on experience, tenure with the em-
ployer, skill, or any other work-related factor, if
the differential is not based on a criterion for
which discrimination is prohibited by the law
and all workers in the covered occupation re-
ceive at least the prevailing wage.
‘‘(B) PAYMENT
OF
STATE
EMPLOYMENT
SECURITY AGENCY DETERMINED WAGE SUFFI-
CIENT.—The employer may request and obtain
a prevailing wage determination from the State
employment security agency. If the employer re-
quests such a determination, and pays the wage
determined, such payment shall be considered
HR 2595 IH1S
sufficient to meet the requirement of this para-
graph if the H–2C workers—
‘‘(i) are employed in the occupation
for which the employer possesses an ac-
cepted labor condition attestation, and for
which the employer or association pos-
sesses a prevailing wage determination by
the State employment security agency, and
‘‘(ii) are being paid at least the pre-
vailing wage so determined.
‘‘(C) RELIANCE
ON
WAGE
SURVEY.—In
lieu of the procedures of subparagraph (B), an
employer may rely on other information, such
as an employer generated prevailing wage sur-
vey and determination, which meets criteria
specified by the Secretary by regulation. In the
event of a complaint that the employer has
failed to pay the required wage, the Secretary
shall investigate to determine if the information
upon which the employer relied complied with
the criteria for prevailing wage determinations.
‘‘(D) ALTERNATE METHODS OF PAYMENT
PERMITTED.—
‘‘(i) IN GENERAL.—A prevailing wage
may be expressed as an hourly wage, a
HR 2595 IH1S
piece rate, a task rate (described in clause
(ii)), or other incentive pay system, includ-
ing a group rate (described in clause (iii)).
The requirement to pay at least the pre-
vailing wage in the occupation and area of
intended employment does not require an
employer to pay by the method of pay in
which the prevailing rate is expressed.
However, if the employer adopts a method
of pay other than the prevailing rate, the
burden of proof is on the employer to dem-
onstrate that the employer’s method of pay
is designed to produce earnings equivalent
to the earnings that would result from pay-
ment of the prevailing rate.
‘‘(ii) TASK
RATE.—For purposes of
this subparagraph, a task rate is an incen-
tive payment based on a unit of work per-
formed such that the incentive rate varies
with the level of effort required to perform
individual units of work.
‘‘(iii) GROUP RATE.—For purposes of
this subparagraph, a group rate is an in-
centive payment system in which the pay-
HR 2595 IH1S
ment is shared among a group of workers
working together to perform the task.
‘‘(E) REQUIRED
DOCUMENTATION.—The
employer or association shall document compli-
ance with this paragraph by retaining on file
the employer or association’s request for a de-
termination by a State employment security
agency and the prevailing wage determination
received from such agency or other information
upon which the employer or association relied to
assure compliance with the prevailing wage re-
quirement.
‘‘(2) REQUIREMENT TO PROVIDE HOUSING AND
TRANSPORTATION.—
‘‘(A) EFFECT OF THE ATTESTATION.—The
employment of H–2C aliens shall not adversely
affect the working conditions of United States
workers similarly employed in the area of in-
tended employment. The employer’s obligation
not to adversely affect working conditions shall
continue for the duration of the period of em-
ployment by the employer of any H–2C aliens
in the occupation and area of intended employ-
ment. An employer will be deemed to be in com-
pliance with this attestation if the employer of-
HR 2595 IH1S
fers at least the benefits required by subpara-
graphs (B) through (D). The previous sentence
does not require an employer to offer more than
such benefits.
‘‘(B) HOUSING REQUIRED.—
‘‘(i) HOUSING OFFER.—The employer
must offer to H–2C aliens and United
States workers recruited from beyond nor-
mal recruiting distance housing, or a hous-
ing allowance, if it is prevailing practice in
the occupation and area of intended em-
ployment to offer housing or a housing al-
lowance to workers who are recruited from
beyond normal commuting distance.
‘‘(ii) HOUSING
STANDARDS.—If the
employer offers housing to such workers,
the housing shall meet (at the option of
the employer) applicable Federal farm
labor housing standards or applicable local
or State standards for rental, public ac-
commodation, or other substantially simi-
lar class of habitation.
‘‘(iii) CHARGES
FOR
HOUSING.—An
employer who offers housing to such work-
ers may charge an amount equal to the
HR 2595 IH1S
fair market value (but not greater than the
employer’s actual cost) for utilities and
maintenance, or such lesser amount as per-
mitted by law.
‘‘(iv) HOUSING
ALLOWANCE
AS
AL-
TERNATIVE.—In lieu of offering housing to
such workers, at the employer’s sole discre-
tion on an individual basis, the employer
may provide a reasonable housing allow-
ance. An employer who offers a housing al-
lowance to such a worker under this sub-
paragraph shall not be deemed to be a
housing provider under section 203 of the
Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1823) merely by
virtue of providing such housing allowance.
‘‘(v) SECURITY
DEPOSIT.—The re-
quirement, if any, to offer housing to such
a worker under this subparagraph shall
not preclude an employer from requiring a
reasonable deposit to protect against gross
negligence or willful destruction of prop-
erty, as a condition for providing such
housing.
HR 2595 IH1S
‘‘(vi) DAMAGES.—An employer who
offers housing to such a worker shall not
be precluded from requiring a worker
found to have been responsible for damage
to such housing which is not the result of
normal wear and tear related to habitation
to reimburse the employer for the reason-
able cost of repair of such damage.
‘‘(C) TRANSPORTATION.—If the employer
provides transportation arrangements or assist-
ance to H–2C aliens, the employer must offer
to provide the same transportation arrange-
ments or assistance (generally comparable in
expense and scope) for other individuals em-
ployed by the employer in the occupation at the
place of employment who were recruited from
beyond normal commuting distance.
‘‘(D) WORKERS’ COMPENSATION.—If the
employment covered by a labor condition attes-
tation is not covered by the State workers’ com-
pensation law, the employer must provide, at no
cost to the worker, insurance covering injury
and disease arising out of and in the course of
the workers’ employment which will provide
benefits at least equal to those provided under
HR 2595 IH1S
the State workers’ compensation law for com-
parable employment.
‘‘(E) REQUIRED DOCUMENTATION.—
‘‘(i) 
HOUSING
AND
TRANSPOR-
TATION.—No specific documentation is re-
quired to be maintained to evidence com-
pliance with the requirements of subpara-
graphs (B) and (C). In the event of a com-
plaint alleging a failure to comply with
such a requirement, the burden of proof
shall be on the employer to show that the
employer offered the required benefit to
the complainant, or that the employer was
not required by the terms of this para-
graph to offer such benefit to the com-
plainant.
‘‘(ii) 
WORKERS’ 
COMPENSATION.—
The employer shall maintain copies of cer-
tificates of insurance evidencing compli-
ance with subparagraph (D) throughout
the period of validity of the labor condition
attestation.
‘‘(3) REQUIREMENT
TO
EMPLOY
ALIENS
IN
TEMPORARY OR SEASONAL AGRICULTURAL JOB OP-
PORTUNITIES.—
HR 2595 IH1S
‘‘(A) LIMITATIONS.—
‘‘(i) IN GENERAL.—The employer may
employ H–2C aliens only in agricultural
employment which is temporary or sea-
sonal.
‘‘(ii) SEASONAL BASIS.—For purposes
of this section, labor is performed on a sea-
sonal basis where, ordinarily, the employ-
ment pertains to or is of the kind exclu-
sively performed at certain seasons or peri-
ods of the year and which, from its nature,
may not be continuous or carried on
throughout the year.
‘‘(iii) TEMPORARY
BASIS.—For pur-
poses of this section, a worker is employed
on a temporary basis where the employ-
ment is intended not to exceed 10 months.
‘‘(B) REQUIRED
DOCUMENTATION.—No
specific documentation is required to dem-
onstrate compliance with the requirement of
subparagraph (A). In the event of a complaint,
the burden of proof shall fall on the employer
to show that the employment meets such re-
quirement.
HR 2595 IH1S
‘‘(4) REQUIREMENT NOT TO EMPLOY ALIENS IN
JOB OPPORTUNITIES VACANT BECAUSE OF A LABOR
DISPUTE.—
‘‘(A) IN GENERAL.—No H–2C alien may
be employed in any job opportunity which is va-
cant because its former occupant is involved in
a strike, lockout, or work stoppage in the
course of a labor dispute in the occupation at
the place of employment.
‘‘(B) REQUIRED
DOCUMENTATION.—No
specific documentation is required to dem-
onstrate compliance with the requirement of
subparagraph (A). In the event of a complaint,
the burden of proof shall fall on the employer
to show that the job opportunity in which the
H–2C alien was employed was not vacant be-
cause the former occupant was on strike, locked
out, or participating in a work stoppage in the
course of a labor dispute in the occupation at
the place of employment.
‘‘(5) NOTICE OF FILING OF LABOR CONDITION
ATTESTATION AND SUPPORTING DOCUMENTATION.—
‘‘(A) IN GENERAL.—The employer shall—
‘‘(i) provide notice of the filing of a
labor condition attestation to the appro-
HR 2595 IH1S
priate certified bargaining agent (if any)
which represents workers of the employer
in the occupation (or occupations) at the
place of employment covered by the attes-
tation; or
‘‘(ii) in the case where no such bar-
gaining agent exists, post notice of the fil-
ing of such an attestation in at least two
conspicuous locations where applications
for employment are accepted.
‘‘(B) PERIOD FOR POSTING.—The require-
ment for a posting under subparagraph (A)(ii)
begins on the day the attestation is filed, and
continues through the period during which the
employer’s job order is required to remain ac-
tive pursuant to paragraph (6)(A).
‘‘(C) REQUIRED
DOCUMENTATION.—The
employer shall maintain a copy of the notice
provided to the bargaining agent (if any), to-
gether with evidence that the notice was pro-
vided (such as a signed receipt of evidence of
attempt to send the notice by certified or reg-
istered mail). In the case where no certified
bargaining agent described in subparagraph
(A)(i) exists, the employer shall retain a copy of
HR 2595 IH1S
the posted notice, together with information as
to the dates and locations where the notice was
displayed.
‘‘(6) REQUIREMENT TO FILE A JOB ORDER.—
‘‘(A) EFFECT OF THE ATTESTATION.—The
employer, or an association acting as agent for
its members, shall file the information nec-
essary to complete a local job order for each oc-
cupation covered by an accepted labor condition
attestation with the appropriate local office of
the State employment security agency having
jurisdiction over the area of intended employ-
ment, or with the State office of such an agency
if workers will be employed in an area within
the jurisdiction of more than one local office of
such an agency. The job orders shall remain on
file for 25 calendar days or until 5 calendar
days before the anticipated date of need for
workers in the occupation covered by the job
order, whichever occurs later. The job order
shall provide at least the minimum terms and
conditions of employment required for partici-
pation in the H–2C program.
‘‘(B) DEADLINE FOR FILING.—A job order
shall be filed under subparagraph (A) no later