Topic: Labor — Migrant and Seasonal
Subject: Immigration
Date: 2013-04-26 00:00:00

Agricultural Guestworker Act or the AG Act - (Sec. 2) Amends the Immigration and Nationality Act to establish an H-2C nonimmigrant visa for an alien having a residence in a foreign country which he or she has no intention of abandoning and who is coming temporarily to the United States to perform agricultural labor or services, including those related to fish or shellfish industries.

(Sec. 3) Requires an employer, or an association acting as an agent or joint employer for its members, to file an H-2C petition with the Department of Agriculture which shall include specified attestations concerning the temporary work or services, benefits, wages, working conditions, and the nondisplacement of U.S. workers.

Requires the employer as a prerequisite to: (1) have conducted adequate recruitment in the area of intended employment before filing the attestations, (2) been unsuccessful in locating a qualified U.S. worker for the job opportunity for which the H-2C worker is sought, but (3) agree to offer the job to any eligible qualified U.S. worker who applies and will be available before the first day the work begins for the H-2C worker.

Prescribes requirements for consideration of petitions and the treatment of associations acting as employers. Requires each individual employer and each employer-member of a joint employer association to pay, for each approved petition, a fee of $100 plus $10 for each approved H-2C worker (not to exceed $1,000). Prohibits the charging of a separate fee to a joint employer association. Sets forth further requirements regarding: (1) investigations, random audits, and penalties; (2) failure to pay wages and benefits or provide attested working conditions; (3) maximum periods of admission (18 months for temporary or seasonal employment or in certain other cases 36 months) and extensions of stay; and (4) abandonment of employment and worker replacement.

Requires an employer to guarantee to offer either a U.S. worker or an H-2C worker employment for the hourly equivalent of at least 50% of the work hours during the total anticipated period of employment.

Makes an alien who is unlawfully present in the United States on April 25, 2013, eligible to adjust to H-2C status.

 Establishes in the Treasury a trust fund to provide a monetary incentive for H-2C workers to return to their country of origin upon expiration of their visas.

Permits an H-2C worker to perform agricultural labor or services as at-will employment for any "registered agricultural employer" if such worker: (1) is already lawfully present in the United States as an H-2C worker; and (2) has completed the period of employment specified in the job offer the worker accepted, or the employer has terminated the worker's employment. Subjects such workers to the same limitations on period of admission and stay in status, as well as the requirement to remain outside the United States for a specified period after employment, as apply to other H-2C workers.

Limits the number of annual fiscal year H-2C admissions to 500,000, subject to decrease in certain circumstances or increase on an emergency basis for severe shortages of agricultural labor or services.

Prohibits the admission of spouses and children of H-2C workers.

Transfers from the Attorney General to the Secretary of Homeland Security (DHS) authority to waive bars to admissibility for aliens unlawfully present in the United States for certain periods of time. Requires the Secretary to waive such bars for a former H-2C worker solely if necessary to allow that alien to come temporarily to the United States to perform agricultural labor or services, except to the extent that the alien's unlawful presence followed after the alien's having H-2C status.

(Sec. 4) Prohibits any civil action for damages by or on behalf of an H-2C nonimmigrant against the nonimmigrant's employer unless at least 90 days before the action is brought: (1) the Federal Mediation and Conciliation Service has been requested to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute, and (2) mediation has been attempted.

(Sec. 5) Excludes H-2C workers from coverage by the Migrant and Seasonal Agricultural Worker Protection Act.

(Sec. 6) Allows an H-2C worker, as a condition of employment but with proper notice, to be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship.

(Sec. 7) Requires the DHS Secretary to waive the grounds of inadmissibility or deportability for certain aliens solely to allow them to perform agricultural labor or services.

Limits such a waiver to aliens physically present in the United States on April 25, 2013, who performed agricultural labor or services in the United States for at least 575 hours, or 100 days in which the alien was employed 5.75 or more hours per day, during the 2-year period ending on the date of the enactment of this Act.

(Sec. 8) Denies H-2C workers and aliens performing agricultural labor or services: (1) specified benefits under the Patient Protection and Affordable Care Act, and (2) the child and earned income tax credits under the Internal Revenue Code.

(Sec. 9) Terminates authority to petition for H-2A temporary agricultural workers two years after enactment of this Act.