[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 2174 Introduced in Senate (IS)]







104th CONGRESS
  2d Session
                                S. 2174

   To amend the Immigration and Nationality Act with respect to the 
                  admission of temporary H-2A workers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 30, 1996

   Mr. Craig introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act with respect to the 
                  admission of temporary H-2A workers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. CONSIDERATIONS IN THE APPROVAL OF H-2A PETITIONS.

    Section 218(a) (8 U.S.C. 1188(a)) of the Immigration and 
Nationality Act is amended--
            (1) by redesignating paragraph (2) as paragraph (3); and
            (2) by inserting after paragraph (1) the following:
            ``(2) In considering an employer's petition for admission 
        of H-2A aliens, the Attorney General shall consider the 
        certification decision of the Secretary of Labor and shall 
        consider any countervailing evidence submitted by the employer 
        with respect to the nonavailability of United States workers 
        and the employer's compliance with the requirements of this 
        section, and may consult with the Secretary of Agriculture.''.

SEC. 2. CONDITION FOR DENIAL OF LABOR CERTIFICATION.

    Section 218(b)(4) (8 U.S.C. 1188(b)(4)) of the Immigration and 
Nationality Act is amended to read as follows:
            ``(4) Determination by the secretary.--The Secretary 
        determines that the employer has not filed a job offer for the 
        position to be filled by the alien with the appropriate local 
        office of the State employment security agency having 
        jurisdiction over the area of intended employment, or with the 
        State office of such an agency if the alien will be employed in 
        an area within the jurisdiction of more than one local office 
        of such an agency, which meets the criteria of paragraph (5).
            ``(5) Required terms and conditions of employment.--The 
        Secretary determines that the employer's job offer does not 
        meet one or more of the following criteria:
                    ``(A) Required rate of pay.--The employer has 
                offered to pay H-2A aliens and all other workers in the 
                occupation in the area of intended employment an 
                adverse effect wage rate of not less than the median 
                rate of pay for similarly employed workers in the area 
                of intended employment.
                    ``(B) Provision of housing.--
                            ``(i) In general.--The employer has offered 
                        to provide housing to H-2A aliens and those 
                        workers not reasonably able to return to their 
                        residence within the same day, without charge 
                        to the worker. The employer may, at the 
                        employer's option, provide housing meeting 
                        applicable Federal standards for temporary 
                        labor camps, or provide rental or public 
                        accommodation type housing which meets 
                        applicable local or state standards for such 
                        housing.
                            ``(ii) Housing allowance as alternative.--
                        In lieu of offering the housing required in 
                        clause (i), the employer may provide a 
                        reasonable housing allowance to workers not 
                        reasonably able to return to their place of 
                        residence within the same day, but only if the 
                        Secretary determines that housing is reasonably 
                        available within the approximate area of 
                        employment. An employer who offers a housing 
                        allowance pursuant to this subparagraph 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.
                            ``(iii) Special housing standards for short 
                        duration employment.-- The Secretary shall 
                        promulgate special regulations permitting the 
                        provision of short-term temporary housing for 
                        workers employed in occupations in which 
                        employment is expected to last 40 days or less.
                            ``(iv) Transitional period for provision of 
                        special housing standards in other 
                        employment.--For a period of five years after 
                        the date of enactment of this section, the 
                        Secretary shall approve the provision of 
                        housing meeting the standards described in 
clause (iii) in occupations expected to last longer than 40 days in 
areas where available housing meeting the criteria described in 
subparagraph (i) is found to be insufficient.
                            ``(v) Preemption of state and local 
                        standards.--The standards described in clauses 
                        (ii) and (iii) shall preempt any State and 
                        local standards governing the provision of 
                        temporary housing to agricultural workers.
                    ``(C) Reimbursement of transportation costs.--The 
                employer has offered to reimburse H-2A aliens and 
                workers recruited from beyond normal commuting distance 
                the most economical common carrier transportation 
                charge and reasonable subsistence from the place from 
                which the worker comes to work for the employer, (but 
                not more than the most economical common carrier 
                transportation charge from the worker's normal place of 
                residence) if the worker completes 50 percent of the 
                anticipated period of employment. If the worker 
                recruited from beyond normal commuting distance 
                completes the period of employment, the employer will 
                provide or pay for the worker's transportation and 
                reasonable subsistence to the worker's next place of 
                employment, or to the worker's normal place of 
                residence, whichever is less.
                    ``(D) Guarantee of employment.--The employer has 
                offered to guarantee the worker employment for at least 
                three-fourths of the workdays of the employer's actual 
                period of employment in the occupation. Workers who 
                abandon their employment or are terminated for cause 
                shall forfeit this guarantee.
            ``(6) Preference for united states workers.--The employer 
        has not assured on the application that the employer will 
        provide employment to all qualified United States workers who 
        apply to the employer and assure that they will be available at 
        the time and place needed until the time the employer's foreign 
        workers depart for the employer's place of employment (but not 
        sooner than 5 days before the date workers are needed), and 
        will give preference in employment to United States workers who 
        are immediately available to fill job opportunities that become 
        available after the date work in the occupation begins.''.

SEC. 3. SPECIAL RULES APPLICABLE TO THE ISSUANCE OF LABOR 
              CERTIFICATIONS.

    Section 218(c) (8 U.S.C. 1188(c)) of the Immigration and 
Nationality Act is amended to read as follows:
    ``(c) Special Rules Applicable to the Issuance of Labor 
Certifications.--The following rules shall apply to the issuance of 
labor certifications by the Secretary under this section:
            ``(1) Deadline for filing applications.--The Secretary may 
        not require that the application be filed more than 40 days 
        before the first date the employer requires the labor or 
        services of the H-2A worker.
            ``(2) Notice within seven days of deficiencies.--
                    ``(A) The employer shall be notified in writing 
                within seven calendar days of the date of filing, if 
                the application does not meet the criteria described in 
                subsection (b) for approval.
                    ``(B) If the application does not meet such 
                criteria, the notice shall specify the specific 
                deficiencies of the application and the Secretary shall 
                provide an opportunity for the prompt resubmission of a 
                modified application.
            ``(3) Issuance of certification.--
                    ``(A) The Secretary shall provide to the employer, 
                not later than 20 days before the date such labor or 
                services are first required to be performed, the 
                certification described in subsection (a)(1)--
                            ``(i) with respect to paragraph (a)(1)(A) 
                        if the employer's application meets the 
                        criteria described in subsection (b), or a 
                        statement of the specific reasons why such 
                        certification cannot be made, and
                            ``(ii) with respect to subsection 
                        (a)(1)(B), to the extent that the employer does 
                        not actually have, or has not been provided 
                        with the names, addresses and Social Security 
                        numbers of workers referred to the employer who 
                        are able, willing and qualified and have 
                        indicated they will be available at the time 
                        and place needed to perform such labor or 
                        services on the terms and conditions of the job 
                        offer approved by the Secretary. For each 
                        worker referred, the Secretary shall also 
                        provide the employer with information 
                        sufficient to permit the employer to 
contact the referred worker for the purpose of reconfirming the 
worker's availability for work at the time and place needed.
                    ``(B) If, at the time the Secretary determines that 
                the employer's job offer meets the criteria described 
                in subsection (b) there are already unfilled job 
                opportunities in the occupation and area of intended 
                employment for which the employer is seeking workers, 
                the Secretary shall provide the certification at the 
                same time the Secretary approves the employer's job 
                offer.''.

SEC. 4. EXPEDITED APPEALS OF CERTAIN DETERMINATIONS.

    Section 218(e) (8 U.S.C 1188(e)) of the Immigration and Nationality 
Act is amended to read as follows:
    ``(e) Expedited Appeals of Certain Determinations.--The Secretary 
shall provide by regulation for an expedited procedure for the review 
of the nonapproval of an employer's job offer pursuant to subsection 
(c)(2) and of the denial of certification in whole or in part pursuant 
to subsection (c)(3) or, at the applicant's request, a de novo 
administrative hearing respecting the nonapproval or denial.''.

SEC. 5. PROCEDURES FOR THE CONSIDERATION OF H-2A PETITIONS.

    Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) 
is amended--
            (1) by redesignating subsections (f) through (i) as 
        subsections (g) through (j), respectively; and
            (2) by adding the following after subsection (e):
    ``(f) Procedures for the Consideration of H-2A Petitions.--The 
following procedures shall apply to the consideration of petitions by 
the Attorney General under this section:
            ``(1) Expedited processing of petitions.--The Attorney 
        General shall provide an expedited procedure for the 
        adjudication of petitions filed under this section, and the 
        notification of visa-issuing consulates where aliens seeking 
        admission under this section will apply for visas and/or ports 
        of entry where aliens will seek admission under this section 
        within 15 calendar days from the date such petition is filed by 
        the employer.
            ``(2) Expedited amendments to petitions.--The Attorney 
        General shall provide an expedited procedure for the amendment 
        of petitions to increase the number of workers on or after five 
        days before the employers date of need for the labor or 
        services involved in the petition to replace referred workers 
        whose continued availability for work at the time and place 
        needed under the terms of the approved job offer can not be 
        confirmed and to replace referred workers who fail to report 
        for work on the date of need and replace referred workers who 
        abandon their employment or are terminated for cause, and for 
        which replacement workers are not immediately available 
        pursuant to subsection (b)(6).''.

SEC. 6. LIMITATION ON EMPLOYER LIABILITY.

    Section 218(g) (8 U.S.C. 1188(g)) of the Immigration and 
Nationality Act is amended--
            (1) by redesignating paragraph (2) as paragraph (2)(A); and
            (2) by inserting after paragraph (2)(A) the following:
            ``(B) No employer shall be subject to any liability or 
        punishment on the basis of an employment action or practice by 
        such employer that conforms with the terms and conditions of a 
        job offer approved by the Secretary pursuant to this section, 
        unless and until the employer has been notified that such 
        certification has been amended or invalidated by a final order 
        of the Secretary or of a court of competent jurisdiction.''.

SEC. 7. LIMITATION ON JUDICIAL REMEDIES.

    Section 218(h) of the Immigration and Nationality Act (8 U.S.C. 
1188(h)) is amended by adding at the end thereof the following:
            ``(3) No court of the United States shall have jurisdiction 
        to issue any restraining order or temporary or permanent 
        injunction preventing or delaying the issuance by the Secretary 
        of a certification pursuant to this section, or the approval by 
        the Attorney General of a petition to import an alien as an H-
        2A worker, or the actual importation of any such alien as an H-
        2A worker following such approval by the Attorney General.''.
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