‘‘(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 (n) shall request an extension of the alien’s 
stay and, if applicable, a change in the alien’s em-
ployment. 
‘‘(2) LIMITATION ON FILING PETITION FOR EX-
TENSION OF STAY.—A petition may not be filed for 
an extension of an alien’s stay for a period of more 
than 10 months. 
‘‘(3) WORK AUTHORIZATION UPON FILING PE-
TITION FOR EXTENSION OF STAY.— 
‘‘(A) IN GENERAL.—An alien who is law-
fully present in the United States may com-
mence or continue the employment described in 
a petition under paragraph (1) on the date on 
which the petition is filed. The employer shall 
provide a copy of the employer’s petition to the 
alien, who shall keep the petition with the 
alien’s identification and employment eligibility 
document, as evidence that the petition has 
been filed and that the alien is authorized to 
work in the United States. 
VerDate Aug 31 2005 
19:07 Oct 26, 2005
Jkt 049200
PO 00000
Frm 00034
Fmt 6652
Sfmt 6201
E:\BILLS\H3857.IH
H3857
‘‘(B) APPROVAL.—Upon approval of a pe-
tition for an extension of stay or change in the 
alien’s authorized employment, the Secretary of 
Homeland Security shall provide a new or up-
dated employment eligibility document to the 
alien indicating the new validity date, after 
which the alien is not required to retain a copy 
of the petition. 
‘‘(C) DEFINITION.—In this paragraph, the 
term ‘file’ means sending the petition by cer-
tified mail via the United States Postal Service, 
return receipt requested, or delivered by guar-
anteed commercial delivery which will provide 
the employer with a documented acknowledg-
ment of the date of receipt of the petition. 
‘‘(4) 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 20 
months. 
‘‘(B) REQUIREMENT TO REMAIN OUTSIDE 
THE UNITED STATES.— 
‘‘(i) IN GENERAL.—Subject to clause 
(ii), in the case of an alien outside the 
VerDate Aug 31 2005 
19:07 Oct 26, 2005
Jkt 049200
PO 00000
Frm 00035
Fmt 6652
Sfmt 6201
E:\BILLS\H3857.IH
H3857
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. 
‘‘(v) SPECIAL RULE
FOR ALIENS EMPLOYED
AS 
SHEEPHERDERS, GOATHERDERS, OR DAIRY WORKERS.— 
Notwithstanding any other provision of this section, an 
alien admitted under section 101(a)(15)(H)(ii)(a) for em-
ployment as a sheepherder, goatherder, or dairy worker— 
VerDate Aug 31 2005 
19:07 Oct 26, 2005
Jkt 049200
PO 00000
Frm 00036
Fmt 6652
Sfmt 6201
E:\BILLS\H3857.IH
H3857
‘‘(1) may be admitted for a period of 12 
months; and 
‘‘(2) shall not be subject to the requirements of 
subsection (v)(4)(B). 
‘‘(w) DEFINITIONS.—For purposes of this section: 
‘‘(1) AREA OF EMPLOYMENT.—The term ‘area 
of employment’ means the area within normal com-
muting distance of the worksite or physical location 
where the work of the H–2A worker is or will be 
performed. If such worksite or location is within a 
Metropolitan Statistical Area, any place within such 
area is deemed to be within the area of employment. 
‘‘(2) ELIGIBLE INDIVIDUAL.—The term ‘eligible 
individual’ means, with respect to employment, an 
individual who is not an unauthorized alien (as de-
fined in section 274A(h)(3)) with respect to that em-
ployment. 
‘‘(3) DISPLACE.—In the case of a petition with 
respect to one 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 that is essentially the 
equivalent of the job for which the H–2A worker or 
workers is or are sought. A job shall not be consid-
ered to be essentially equivalent of another job un-
VerDate Aug 31 2005 
19:07 Oct 26, 2005
Jkt 049200
PO 00000
Frm 00037
Fmt 6652
Sfmt 6201
E:\BILLS\H3857.IH
H3857
less it involves essentially the same responsibilities, 
was held by a United States worker with substan-
tially equivalent qualifications and experience, and is 
located in the same area of employment as the other 
job. 
‘‘(4) H–2A WORKER.—The term ‘H–2A worker’ 
means 
a 
nonimmigrant 
described 
in 
section 
101(a)(15)(H)(ii)(a). 
‘‘(5) 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, or the ex-
piration of a grant or contract (other than 
a temporary employment contract entered 
into in order to evade a condition described 
in paragraph (3) or (7) of subsection (a); 
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 
VerDate Aug 31 2005 
19:07 Oct 26, 2005
Jkt 049200
PO 00000
Frm 00038
Fmt 6652
Sfmt 6201
E:\BILLS\H3857.IH
H3857