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 no-
tice to the parties, the parties shall attempt medi-
ation within the period specified in subparagraph 
(B). 
‘‘(A) MEDIATION SERVICES.—The Federal 
Mediation and Conciliation Service shall be
available to assist in resolving disputes arising 
under subsection (b) between H–2A workers 
and agricultural employers without charge to 
the parties. 
‘‘(B) 90-DAY LIMIT.—The Federal Medi-
ation and Conciliation Service may conduct me-
diation or other 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.— 
‘‘(i) IN GENERAL.—Subject to clause 
(ii), there are authorized to be appro-
priated to the Federal Mediation and Con-
ciliation Service $500,000 for each fiscal 
year to carry out this section. 
‘‘(ii) 
MEDIATION.—Notwithstanding 
any other provision of law, the Director of 
the Federal Mediation and Conciliation 
Service is authorized to conduct the medi-
ation or other dispute resolution activities 
from any other appropriated funds avail-
able to the Director and to reimburse such
appropriated funds when the funds are ap-
propriated pursuant to this authorization, 
such reimbursement to be credited to ap-
propriations currently available at the time 
of receipt. 
‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS-
TRICT COURT BY AGGRIEVED PERSON.—An H–2A 
worker aggrieved by a violation of rights enforceable 
under subsection (b) by an agricultural employer or 
other person may file suit in any district court of the 
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 before the filing of 
such action, in which case the rights and remedies 
available under this subsection shall be exclusive.
‘‘(4) 
PREEMPTION
OF
STATE
CONTRACT 
RIGHTS.—Nothing in this Act shall be construed to 
diminish the rights and remedies of an H–2A worker 
under any other Federal or State law or regulation 
or under any collective bargaining agreement, except 
that no court or administrative action shall be avail-
able under any State contract law to enforce the 
rights created by this Act. 
‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree-
ments by employees purporting to waive or modify 
their rights under this Act shall be void as contrary 
to public policy, except that a waiver or modification 
of the rights or obligations in favor of the Secretary 
of Labor shall be valid for purposes of the enforce-
ment of this Act. The preceding sentence may not 
be construed to prohibit agreements to settle private 
disputes or litigation. 
‘‘(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 APPROPRIATE 
EMPLOYMENT.—The Secretary of Labor and the Sec-
retary 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.
100 
‘‘(3) DISPLACE.—The term ‘displace’, in the 
case of an application with respect to 1 or more H– 
2A workers by an employer, means laying off a 
United States worker from a job for which the H– 
2A worker or workers is or are sought. 
‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 
with respect to an individual, means an individual 
who is not an unauthorized alien (as defined in sec-
tion 274A(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.—
101 
‘‘(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
102 
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-
103 
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: 
‘‘218. H–2A employer applications. 
‘‘218A. H–2A employment requirements. 
‘‘218B. Procedure for admission and extension of stay of H–2A workers. 
‘‘218C. Worker protections and labor standards enforcement. 
‘‘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.— 
(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
104 
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. 
(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-
105 
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. 
(d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 
All regulations to implement the duties of the Secretary, 
the Secretary of State, and the Secretary of Labor created 
under sections 218, 218A, 218B, and 218C of the Immi-
gration and Nationality Act, as added by section 201, shall
106 
take effect on the effective date of section 201 and shall 
be issued not later than 1 year after the date of enactment 
of this Act. 
SEC. 303. EFFECTIVE DATE. 
(a) IN GENERAL.—Except as otherwise provided, sec-
tions 201 and 301 shall take effect 1 year after the date 
of enactment of this Act. 
(b) REPORT.—Not later than 180 days after the date 
of enactment of this Act, the Secretary shall prepare and 
submit to the appropriate committees of Congress a report 
that describes the measures being taken and the progress 
made in implementing this Act. 
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