[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3410 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 3410

 To amend the Immigration and Nationality Act to establish a 24-month 
pilot program permitting certain aliens to be admitted into the United 
States to provide temporary or seasonal agricultural services pursuant 
 to a labor condition attestation and to offset those admissions with 
  temporary reductions in diversity and unskilled workers' immigrant 
                                 visas.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 10, 1998

 Mr. Smith of Oregon introduced the following bill; which was referred 
to the Committee on the Judiciary, and in addition to the Committee on 
Education and the Workforce, for a period to be subsequently determined 
 by the Speaker, in each case for consideration of such provisions as 
        fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Immigration and Nationality Act to establish a 24-month 
pilot program permitting certain aliens to be admitted into the United 
States to provide temporary or seasonal agricultural services pursuant 
 to a labor condition attestation and to offset those admissions with 
  temporary reductions in diversity and unskilled workers' immigrant 
                                 visas.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Temporary Agricultural Worker Act of 
1998''.

SEC. 2. NEW NONIMMIGRANT CATEGORY FOR PILOT PROGRAM TEMPORARY AND 
              SEASONAL AGRICULTURAL WORKERS.

    (a) Establishment of New Classification.--Section 101(a)(15)(H)(ii) 
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(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 temporarily 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) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by 
striking ``specified in this paragraph'' and inserting ``specified in 
this subparagraph (other than in clause (ii)(c))''.

SEC. 3. PILOT PROGRAM FOR ALTERNATIVE AGRICULTURAL TEMPORARY WORKER 
              PROCESS USING ATTESTATION.

    (a) In General.--The Immigration and Nationality Act is amended by 
inserting after section 218 the following:

          ``alternative agricultural temporary worker program

    ``Sec. 218A. (a) Condition for Employment of Pilot Program 
Aliens.--
            ``(1) Establishment of pilot program; restriction of 
        admissions to pilot program period.--
                    ``(A) In general.--The Attorney General shall 
                establish a pilot program for the admission of aliens 
                classified as a nonimmigrant under section 
                101(a)(15)(H)(ii)(c) to perform temporary or seasonal 
                agricultural services pursuant to a labor condition 
                attestation filed by an employer or an association for 
                the occupation in which the alien will be employed. No 
                alien may be admitted or provided status as a pilot 
                program alien under this section after the last day of 
                the pilot program period specified in subparagraph (B).
                    ``(B) Pilot program period.--The pilot program 
                period under this subparagraph is the 24-month period 
                beginning on the first day of the first fiscal year 
                beginning 6 months or more after the date of the 
                enactment of the Temporary Agricultural Worker Act of 
                1998.
            ``(2) Admission of aliens.--No alien may be admitted to the 
        United States or provided status as a pilot program alien (as 
        defined in subsection (n)(4)) unless--
                    ``(A) the employment of the alien is covered by a 
                currently valid labor condition attestation 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 jurisdiction 
                        over the area of intended employment; and
                            ``(iii) states each of the items described 
                        in paragraph (2) and includes information 
                        identifying the employer or association and 
                        agricultural job opportunities involved;
                    ``(B) the employer is not disqualified from 
                employing pilot program aliens pursuant to subsection 
                (h); and
                    ``(C) the employer has not, during the pilot 
                program period, been found by the Attorney General to 
have employed any aliens in violation of section 274A(a) or this 
section.
            ``(3) Contents of labor condition attestation.--Each labor 
        condition attestation filed by or on behalf of, an employer 
        shall state the following:
                    ``(A) Wage rate.--The employer will pay pilot 
                program aliens and all other workers in the occupation 
                not less than the prevailing wage for similarly 
                employed workers in the area of employment, and not 
                less than the applicable Federal, State or local 
                statutory minimum wage.
                    ``(B) Working conditions.--The employment of pilot 
                program aliens will not adversely affect the working 
                conditions of similarly employed workers in the area of 
                employment.
                    ``(C) Limitation on employment.--A pilot program 
                alien will not be employed in any job opportunity which 
                is not temporary or seasonal, 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 pilot program 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 its workers employed in the occupation in which, and 
                at the place of employment where, pilot program 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 pilot program aliens in the 
                occupation.
                    ``(G) Preference to domestic workers.--The employer 
                will give preference to able, willing and qualified 
                United States workers 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 
                occupation or until 5 days before the date employment 
                of workers in the occupation begins, whichever occurs 
                later.
            ``(4) Limitation on number of visas.--In no case may the 
        number of aliens who are admitted or provided status as a pilot 
        program alien in a fiscal year exceed 20,000.
            ``(5) Operation of program in not less than 5 areas.--Alien 
        admissions under this section shall be allocated equally to 
        employers in not less than 5 geographically and agriculturally 
        diverse areas designated by the Secretary of Agriculture. The 
        entire United States shall be encompassed within such areas.
            ``(6) General accounting office report.--Not later than 90 
        days after the termination of the pilot program period 
        specified in paragraph (1)(B), the Comptroller General shall 
        prepare and transmit to the Congress a report describing the 
        results of a review of the implementation and enforcement of 
        this section during such period, for the purpose of determining 
        if--
                    ``(A) the program has ensured an adequate and 
                timely supply of qualified, eligible workers at the 
                time and place needed for employers;
                    ``(B) the program has ensured that pilot program 
                aliens are employed only in authorized employment and 
                that they timely depart the United States when their 
                authorized stay ends;
                    ``(C) the program has ensured that implementation 
                of the program is not displacing United States 
                agricultural workers or diminishing 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.--
            ``(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 employer members of the association that the association 
        certifies to the State employment security agency 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 accepted 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 attestation shall 
        be filed with the State employment security agency having 
        jurisdiction over the area of intended employment of the 
        workers covered by the attestation. If an employer, or the 
        members of an association of employers, will be employing 
        workers in 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 condition attestation 
        may be filed at any time up to 12 months prior to the date of 
        the employer's anticipated need for workers in the occupation 
        (or occupations) 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 documentation.--
                    ``(A) By employers.--Each employer covered by an 
                accepted labor condition attestation must maintain a 
                file of the documentation required in subsection (c) 
                for each occupation included 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 
                representatives of the Secretary during normal business 
                hours.
                    ``(B) By associations.--In complying with 
                subparagraph (A), documentation maintained 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 obligations.--An 
                employer covered by an accepted labor condition 
                attestation for an occupation shall comply with the 
                terms and conditions of the attestation from the date 
                the attestation is accepted and continuing throughout 
                the period any persons are employed in an occupation 
                covered by such an accepted attestation, whether or not 
                pilot program aliens are employed in the occupation, 
                unless the attestation is withdrawn.
                    ``(B) Termination of obligations.--An employer may 
                withdraw a labor condition attestation in total, or 
                with respect to a particular occupation covered by the 
                attestation. An association may withdraw such an 
                attestation with respect to one or more of its members. 
                To withdraw an attestation the employer or association 
                must notify in writing the State employment security 
                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 undertaken in the attestation with 
                respect to the occupation (or occupations) with respect 
                to which the attestation was withdrawn, upon 
                acknowledgement by the appropriate State employment 
                security agency of receipt of the withdrawal notice. An 
                attestation may not be withdrawn with respect to any 
                occupation while any pilot program alien covered by 
                that attestation is employed in the occupation.
                    ``(C) Obligations under other statutes.--Any 
                obligation incurred by the employer under any other law 
                or regulation as a result of recruitment of United 
                States workers under an offer of terms and conditions 
                of employment required by the pilot program under this 
                section is unaffected by withdrawal of a labor 
                condition attestation.
    ``(c) Employer Responsibilities and Requirements for Employing 
Pilot Program Aliens.--
            ``(1) Requirement to pay the prevailing wage.--
                    ``(A) Effect of the attestation.--Employers shall 
                pay each worker in an occupation covered by an accepted 
                labor condition attestation at least the prevailing 
                wage in the occupation in the area of intended 
                employment. The preceding sentence does not require 
                employers to pay all workers in the occupation the same 
                wage. The employer may, in the sole discretion of the 
                employer, maintain pay differentials based on 
                experience, tenure with the employer, 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 receive at least the prevailing wage.
                    ``(B) Payment of state employment security agency 
                determined wage sufficient.--The employer may request 
                and obtain a prevailing wage determination from the 
                State employment security agency. If the employer 
                requests such a determination, and pays the wage 
                determined, such payment shall be considered sufficient 
                to meet the requirement of this paragraph if the pilot 
                program aliens--
                            ``(i) are employed in the occupation for 
                        which the employer possesses an accepted labor 
                        condition attestation, and for which the 
                        employer or association possesses a prevailing 
                        wage determination by the State employment 
                        security agency, and
                            ``(ii) are being paid at least the 
                        prevailing 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 survey 
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 piece rate, a 
                        task rate (described in clause (ii)), or other 
                        incentive pay system, including a group rate 
                        (described in clause (iii)). The requirement to 
                        pay at least the prevailing 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 demonstrate that 
                        the employer's method of pay is designed to 
                        produce earnings equivalent to the earnings 
                        that would result from payment of the 
                        prevailing rate.
                            ``(ii) Task rate.--For purposes of this 
                        subparagraph, a task rate is an incentive 
                        payment based on a unit of work performed 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 incentive 
                        payment system in which the payment is shared 
                        among a group of workers working together to 
                        perform the task.
                    ``(E) Required documentation.--The employer or 
                association shall document compliance with this 
                paragraph by retaining on file the employer or 
                association's request for a determination 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 
                requirement.
            ``(2) Requirement to provide housing and transportation.--
                    ``(A) Effect of the attestation.--The employment of 
                pilot program aliens shall not adversely affect the 
                working conditions of United States workers similarly 
                employed in the area of intended employment. The 
                employer's obligation not to adversely affect working 
                conditions shall continue for the duration of the 
                period of employment by the employer of any pilot 
                program aliens in the occupation and area of intended 
                employment. An employer will be deemed to be in 
                compliance with this attestation if the employer offers 
                at least the benefits required by subparagraphs (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 pilot program aliens and United States 
                        workers recruited from beyond normal recruiting 
                        distance housing, or a housing allowance, if it 
                        is prevailing practice in the occupation and 
                        area of intended employment to offer housing or 
                        a housing allowance 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 accommodation, or other 
                        substantially similar class of habitation.
                            ``(iii) Charges for housing.--An employer 
                        who offers housing to such workers may charge 
                        an amount equal to the fair market value (but 
                        not greater than the employer's actual cost) 
                        for utilities and maintenance, or such lesser 
                        amount as permitted by law.
                            ``(iv) Housing allowance as alternative.--
                        In lieu of offering housing to such workers, at 
                        the employer's sole discretion on an individual 
                        basis, the employer may provide a reasonable 
                        housing allowance. An employer who offers a 
                        housing allowance to such a worker under 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.
                            ``(v) Security deposit.--The requirement, 
                        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 property, as a condition for 
                        providing such housing.
                            ``(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 
                        reasonable cost of repair of such damage.
                    ``(C) Transportation.--If the employer provides 
                transportation arrangements or assistance to pilot 
                program aliens, the employer must offer to provide the 
                same transportation arrangements or assistance 
                (generally comparable in expense and scope) for other 
                individuals employed 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 attestation is not covered 
                by the State workers' compensation 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 the 
                State workers' compensation law for comparable 
                employment.
                    ``(E) Required documentation.--
                            ``(i) Housing and transportation.--No 
                        specific documentation is required to be 
                        maintained to evidence compliance with the 
                        requirements of subparagraphs (B) and (C). In 
                        the event of a complaint 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 paragraph to 
                        offer such benefit to the complainant.
                            ``(ii) Workers' compensation.--The employer 
                        shall maintain copies of certificates of 
                        insurance evidencing compliance with 
                        subparagraph (D) throughout the period of 
                        validity of the labor condition attestation.
            ``(3) Requirement to employ aliens in temporary or seasonal 
        agricultural job opportunities.--
                    ``(A) Limitations.--
                            ``(i) In general.--The employer may employ 
                        pilot program aliens only in agricultural 
                        employment which is temporary or seasonal.
                            ``(ii) Seasonal basis.--For purposes of 
                        this section, labor is performed on a seasonal 
                        basis where, ordinarily, the employment 
                        pertains to or is of the kind exclusively 
                        performed at certain seasons or periods of the 
                        year and which, from its nature, may not be 
continuous or carried on throughout the year.
                            ``(iii) Temporary basis.--For purposes of 
                        this section, a worker is employed on a 
                        temporary basis where the employment is 
                        intended not to exceed 10 months.
                    ``(B) Required documentation.--No specific 
                documentation is required to demonstrate 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 
                requirement.
            ``(4) Requirement not to employ aliens in job opportunities 
        vacant because of a labor dispute.--
                    ``(A) In general.--No pilot program alien may 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.
                    ``(B) Required documentation.--No specific 
                documentation is required to demonstrate 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 
                pilot program alien was employed was not vacant because 
                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 appropriate 
                        certified bargaining agent (if any) which 
                        represents workers of the employer in the 
                        occupation (or occupations) at the place of 
                        employment covered by the attestation; or
                            ``(ii) in the case where no such bargaining 
                        agent exists, post notice of the filing of such 
                        an attestation in at least two conspicuous 
                        locations where applications for employment are 
                        accepted.
                    ``(B) Period for posting.--The requirement 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 active pursuant to paragraph (6)(A).
                    ``(C) Required documentation.--The employer shall 
                maintain a copy of the notice provided to the 
                bargaining agent (if any), together with evidence that 
                the notice was provided (such as a signed receipt of 
                evidence of attempt to send the notice by certified or 
                registered mail). In the case where no certified 
                bargaining agent described in subparagraph (A)(i) 
                exists, the employer shall retain a copy of 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 necessary to complete a local job 
                order for each occupation 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 employment, 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 participation in the pilot program.
                    ``(B) Deadline for filing.--A job order shall be 
                filed under subparagraph (A) no later than the date on 
                which the employer files a petition with the Attorney 
                General for admission or extension of stay for aliens 
                to be employed in the occupation for which the order is 
                filed.
                    ``(C) Required documentation.--The office of the 
                State employment security agency which the employer or 
                association provides with information necessary to file 
                a local job order shall provide the employer with 
                evidence that the information was provided in a timely 
                manner as required by this paragraph, and the employer 
                or association shall retain such evidence for each 
occupation in which pilot program aliens are employed.
            ``(7) Requirement to give preference to qualified united 
        states workers.--
                    ``(A) Filing 30 days or more before date of need.--
                If a job order is filed 30 days or more before the 
                anticipated date of need for workers in an occupation 
                covered by a labor condition attestation and for which 
                the job order has been filed, the employer shall offer 
                to employ able, willing, and qualified United States 
                workers who apply to the employer and who will be 
                available at the time and place needed for the job 
                opportunities covered by the attestation until 5 
                calendar days before the anticipated date of need for 
                workers in the occupation, or until the employer's job 
                opportunities in the occupation are filled with 
                qualified United States workers, if that occurs more 
                than 5 days before the anticipated date of need for 
                workers in the occupation.
                    ``(B) Filing fewer than 30 days before date of 
                need.--If a job order is filed fewer than 30 days 
                before the anticipated date of need for workers in an 
                occupation covered by such an attestation and for which 
                a job order has been filed, the employer shall offer to 
                employ able, willing, and qualified United States 
                workers who are or will be available at the time and 
                place needed during the first 25 days after the job 
                order is filed or until the employer's job 
                opportunities in the occupation are filled with United 
                States workers, regardless of whether any of the job 
                opportunities may already be occupied by pilot program 
                aliens.
                    ``(C) Filing vacancies.--An employer may fill a job 
                opportunity in an occupation covered by an accepted 
                labor condition attestation which remains or becomes 
                vacant after expiration of the required preference 
                period specified in subparagraph (A) or (B) of 
                paragraph (6) without regard to such preference.
                    ``(D) Job-related requirements.--No employer shall 
                be required to initially employ a worker who fails to 
                meet lawful job-related employment criteria, nor to 
                continue the employment of a worker who fails to meet 
                lawful job-related standards of conduct and 
                performance, including failure to meet minimum 
                productivity standards after a 3-day break-in period.
                    ``(E) Required documentation.--No specific 
                documentation is required to demonstrate compliance 
                with the requirements of this paragraph. In the event 
                of a complaint, the burden of proof shall be on the 
                complainant to show that the complainant applied for 
                the job and was available at the time and place needed. 
                If the complainant makes such a showing, the burden of 
                proof shall be on the employer to show that the 
                complainant was not qualified or that the preference 
                period had expired.
    ``(d) Requirements of Notice of Certain Breaks in Employment.--
            ``(1) In general.--The employer (or the association acting 
        as agent for the employer) shall notify the Attorney General 
        within 7 days if a pilot program alien prematurely abandons the 
        alien's employment.
            ``(2) Out-of-status.--A pilot program alien who abandons 
        the alien's employment shall be considered to have failed to 
        maintain nonimmigrant status as an alien described in section 
        101(a)(15)(H)(ii)(c) and shall leave the United States or be 
        subject to removal under section 237(a)(1)(C)(i).
    ``(e) Acceptance by State Employment Security Agency.--The State 
employment security agency shall review labor condition attestations 
submitted by employers or associations pursuant to this section only 
for completeness and obvious inaccuracies. Unless such an agency finds 
that the application is incomplete or obviously inaccurate, the agency 
shall accept the attestation within 7 days of the date of filing of the 
attestation, and return a copy to the applicant marked `accepted'.
    ``(f) Public Registry.--The Secretary shall maintain a registry of 
all accepted labor condition attestations and make such registry 
available for public inspection.
    ``(g) Responsibilities of the State Employment Security Agencies.--
            ``(1) Dissemination of labor market information.--The 
        Secretary shall direct State employment security agencies to 
        disseminate non-employer-specific information about potential 
        labor needs based on accepted attestations filed by employers. 
        Such dissemination shall be separate from the clearance of job 
        orders through the Interstate and Intrastate Clearance Systems, 
        and shall create no obligations for employers except as 
        provided in this section.
            ``(2) Referral of workers on state employment security 
        agency job orders.--Such agencies holding job orders filed by 
        employers covered by approved labor condition attestations 
        shall be authorized to refer any able, willing, and qualified 
        eligible job applicant who will be available at the time and 
        place needed and who is authorized to work in the United 
        States, including pilot program aliens who are seeking 
        additional work in the United States and whose eligibility to 
        remain in the United States pursuant to subsection (i) has not 
        expired, on job orders filed by holders of accepted 
        attestations.
    ``(h) Enforcement and Penalties.--
            ``(1) Enforcement authority.--
                    ``(A) Investigation of complaints.--The Secretary 
                shall establish a process for the receipt, 
                investigation, and disposition of complaints respecting 
                an employer's failure to meet a condition specified in 
                subsection (a) or an employer's misrepresentation of 
                material facts in such an application. Complaints may 
                be filed by any aggrieved person or organizations 
                (including bargaining representatives). No 
                investigation or hearing shall be conducted on a 
                complaint concerning such a failure or 
                misrepresentation unless the complaint was filed not 
                later than 2 years after the date of the failure or 
                misrepresentation, respectively. The Secretary shall 
                conduct an investigation under this subparagraph if 
                there is reasonable cause to believe that such a 
                failure or misrepresentation has occurred.
                    ``(B) Written notice of findings and opportunity 
                for appeal.--After an investigation has been conducted, 
                the Secretary shall issue a written determination as to 
                whether or not any violation described in subparagraph 
                (A) has been committed. The Secretary's determination 
                shall be served on the complainant and the employer, 
                and shall provide an opportunity for an appeal of the 
                Secretary's decision to an administrative law judge, 
                who may conduct a de novo hearing.
            ``(2) Remedies.--
                    ``(A) Back wages.--Upon a final determination that 
                the employer has failed to pay wages as required under 
                this section, the Secretary may assess payment of back 
                wages due to any United States worker or pilot program 
                alien employed by the employer in the specific 
                employment in question. The back wages shall be equal 
                to the difference between the amount that should have 
                been paid and the amount that actually was paid to such 
                worker.
                    ``(B) Failure to pay wages.--Upon a final 
                determination that the employer has failed to pay the 
                wages required under this section, the Secretary may 
                assess a civil money penalty up to $1,000 for each 
                failure, and may recommend to the Attorney General the 
                disqualification of the employer from the employment of 
                pilot program aliens for a period of time determined by 
                the Secretary not to exceed 1 year.
                    ``(C) Other violations.--If the Secretary, as a 
                result of an investigation pursuant to a complaint, 
                determines that an employer covered by an accepted 
                labor condition attestation has--
                            ``(i) filed an attestation which 
                        misrepresents a material fact; or
                            ``(ii) failed to meet a condition specified 
                        in subsection (a),
                the Secretary may assess a civil money penalty not to 
                exceed $1,000 for each violation. In determining the 
                amount of civil money penalty to be assessed, the 
                Secretary shall consider the seriousness of the 
                violation, the good faith of the employer, the size of 
                the business of the employer being charged, the history 
                of previous violations by the employer, whether the 
                employer obtained a financial gain from the violation, 
                whether the violation was willful, and other relevant 
                factors.
                    ``(D) Program disqualification.--Upon a second 
                final determination that an employer has failed to pay 
                the wages required under this section, the Secretary 
                shall report such determination to the Attorney General 
                and the Attorney General shall disqualify the employer 
                from any subsequent employment of pilot program aliens.
            ``(3) Role of associations.--
                    ``(A) Violation by an association.--An employer on 
                whose behalf a labor condition attestation is filed by 
                an association acting as its agent is fully responsible 
                for such attestation, and for complying with the terms 
                and conditions of this section, as though the employer 
                had filed the attestation itself. If such an employer 
                is determined to have violated a requirement of this 
                section, the penalty for such violation shall be 
                assessed against the employer who committed the 
                violation and not against the association or other 
                members of the association.
                    ``(B) Violation by an association acting as an 
                employer.--If an association filing a labor condition 
                attestation on its own behalf as an employer is 
                determined to have committed a violation under this 
                subsection which results in disqualification from the 
                program under paragraph (2)(D), no individual member of 
                such association may be the beneficiary of the services 
                of a pilot program alien in an occupation in which such 
                alien was employed by the association during the period 
                such disqualification is in effect, unless such member 
                files a labor condition attestation as an individual 
                employer or such an attestation is filed on the 
                employer's behalf by an association with which the 
                employer has an agreement that the employer will comply 
                with the requirements of this section.
    ``(i) Procedure for Admission or Extension of Pilot Program 
Aliens.--
            ``(1) Aliens who are outside the united states.--
                    ``(A) Petitioning for admission.--An employer or an 
                association acting as agent for its members who seeks 
                the admission into the United States of pilot program 
                aliens may file a petition with the District Director 
                of the Immigration and Naturalization Service having 
                jurisdiction over the location where the aliens will be 
                employed. The petition shall be accompanied by an 
                accepted and currently valid labor condition 
                attestation covering the petitioner. The petition may 
                be for named or unnamed individual or multiple 
                beneficiaries.
                    ``(B) Expedited adjudication by district 
                director.--If an employer's petition for admission of 
                pilot program aliens is correctly filled out, and the 
                employer is not ineligible to employ pilot program 
                aliens, the District Director (or the Director's 
                designee) shall approve the petition within 3 working 
                days of receipt of the petition and accepted labor 
                condition attestation and immediately (by fax, cable, 
                or other means assuring expedited delivery) transmit a 
                copy of the approved petition to the petitioner and to 
                the appropriate immigration officer at the port of 
                entry or United States consulate (as the case may be) 
                where the petitioner has indicated that the alien 
                beneficiary (or beneficiaries) will apply for a visa or 
                admission to the United States.
                    ``(C) Unnamed beneficiaries selected by 
                petitioner.--The petitioning employer or association or 
                its representative shall approve the issuance of visas 
                to beneficiaries who are unnamed on a petition for 
                admission granted to the employer or association.
                    ``(D) Criteria for admissibility.--
                            ``(i) In general.--An alien shall be 
                        admissible under this section if the alien is 
                        otherwise admissible under this Act and the 
                        alien is not debarred pursuant to the 
                        provisions of clause (ii).
                            ``(ii) Disqualification.--An alien shall be 
                        debarred from admission or being provided 
                        status as a pilot program alien under this 
                        section if the alien has, at any time during 
                        the past 5 years--
                                    ``(I) violated a material provision 
                                of this section, including the 
                                requirement to promptly depart the 
                                United States when the alien's 
                                authorized period of admission under 
                                this section has expired; or
                                    ``(II) otherwise violated a term or 
                                condition of admission to the United 
                                States as a nonimmigrant, including 
                                overstaying the period of authorized 
                                admission as such a nonimmigrant.
                    ``(E) Period of admission.--The alien shall be 
                admitted for the period requested by the petitioner not 
                to exceed 10 months, or the remaining validity period 
                of the petitioner's approved labor condition 
                attestation, whichever is less, plus an additional 
                period of 14 days, during which the alien shall seek 
                authorized employment in the United States. During the 
                14-day period following the expiration of the alien's 
                work authorization, the alien is not authorized to be 
                employed unless the original petitioner or a subsequent 
                petitioner has filed an extension of stay on behalf of 
                the alien pursuant to paragraph (2). In no case may the 
                period of admission extend beyond the last day of the 
                pilot program period specified in subsection (a)(1)(B).
                    ``(F) Issuance of identification and employment 
                eligibility document.--
                            ``(i) In general.--The Attorney General 
                        shall cause to be issued to each pilot program 
                        alien a card in a form which is resistant to 
                        counterfeiting and tampering for the purpose of 
                        providing proof of identity and employment 
                        eligibility under section 274A.
                            ``(ii) Design of card.--Each card issued 
                        pursuant to clause (i) shall be designed in 
                        such a manner and contain a photograph and 
                        other identifying information (such as date of 
                        birth, sex, and distinguishing marks) that 
                        would allow an employer to determine with 
                        reasonable certainty that the bearer is not 
                        claiming the identity of another individual, 
                        and shall--
                                    ``(I) contain a fingerprint or 
                                other biometric identifying data (or 
                                both);
                                    ``(II) specify the date of the 
                                alien's authorization as a pilot 
                                program alien;
                                    ``(III) specify the expiration date 
                                of the alien's work authorization; and
                                    ``(IV) specify the alien's 
                                admission number or alien file number.
            ``(2) Extension of stay.--
                    ``(A) Application for extension of stay.--If a 
                petitioner seeks to employ a pilot program alien 
                already in the United States, the petitioner shall file 
                with the Attorney General an application for an 
                extension of the alien's stay. The application for 
                extension of stay shall be accompanied by a currently 
                valid labor condition attestation.
                    ``(B) Limitation on filing an application for 
                extension of stay.--An application may not be filed for 
                an extension of an alien's stay for a period of more 
                than 10 months, or later than the last day of the pilot 
                program period specified in subsection (a)(1)(B), 
                whichever occurs first. An application for extension of 
                stay may not be filed during the pendency of an alien's 
                previous authorized period of employment, nor after the 
                alien's authorized stay in the United States has 
                expired.
                    ``(C) Work authorization upon filing an application 
                for extension of stay.--An employer may begin employing 
                an alien already in the United States in pilot program 
                alien status on the day the employer files its 
                application for extension of stay. For the purpose of 
                this requirement, the term `filing' means sending the 
                application by certified mail via the United States 
                Postal Service, return receipt requested, or delivered 
                by guaranteed commercial delivery which will provide 
                the employer with a documented acknowledgment of the 
                date of sending and receipt of the application. The 
                employer shall provide a copy of the employer's 
                application for extension of stay to the alien, who 
                shall keep the application with the alien's 
                identification and employment eligibility document as 
                evidence that the extension has been filed and that the 
                alien is authorized to work in the United States. Upon 
                approval of an application for extension of stay, the 
                Attorney General shall provide a new or updated 
                employment eligibility document to the alien indicating 
                the new validity date, after which the alien is not 
                required to retain a copy of the application for 
                extension of stay.
                    ``(D) Limitation on employment authorization of 
                pilot program aliens without valid identification and 
                employment eligibility card.--An expired identification 
                and employment eligibility document, together with a 
                copy of an application for extension of stay, shall 
                constitute a valid work authorization document for a 
                period of not more than 60 days from the date of 
                application for the extension of stay, after which time 
                only a currently valid identification and employment 
                eligibility document shall be acceptable.
            ``(3) Limitation on an individual's stay in pilot program 
        status.--An alien having status as a pilot program alien may 
        not have the status extended for a continuous period longer 
        than 2 years unless the alien remains outside the United States 
        for an uninterrupted period of 6 months. An absence from the 
        United States may break the continuity of the period for which 
        a nonimmigrant visa issued under section 101(a)(15)(H)(ii)(c) 
        is valid. If the alien has resided in the United States 10 
        months or less, an absence breaks the continuity of the period 
        if its lasts for at least 2 months. If the alien has resided in 
        the United States 10 months or more, an absence breaks the 
        continuity of the period if it lasts for at least one-fifth the 
        duration of the stay.
    ``(j) Trust Fund To Assure Worker Return.--
            ``(1) Establishment.--The Attorney General shall provide 
        for the establishment of an interest-bearing trust fund (in 
        this section referred to as the `Trust Fund') for the purpose 
        of providing a monetary incentive for pilot program aliens to 
        return to their country of origin upon expiration of their 
        visas under this section.
            ``(2) Withholding of wages; payment into the trust fund.--
                    ``(A) In general.--Employers of pilot program 
                aliens shall--
                            ``(i) withhold from the wages of their 
                        pilot program alien workers an amount 
                        equivalent to 25 percent of the wages of each 
                        pilot program alien worker and pay such 
                        withheld amount into the Trust Fund in 
                        accordance with paragraph (3); and
                            ``(ii) pay to the Trust Fund an amount 
                        equivalent to the Federal tax on the wages paid 
                        to pilot program aliens that the employer would 
be obligated to pay under the Federal Unemployment Tax Act and the 
Federal Insurance Contributions Act.
                Amounts withheld under clause (i) shall be maintained 
                in such interest bearing account with such a financial 
                institution as the Attorney General shall specify.
            ``(3) Distribution of funds.--Amounts paid into the Trust 
        Fund on behalf of a worker, and held pursuant to paragraph 
        (2)(A)(i) and interest earned thereon, shall be paid by the 
        Attorney General to the worker if--
                    ``(A) the worker applies to the Attorney General 
                (or the designee of the Attorney General) for payment 
                within 30 days of the expiration of the alien's last 
                authorized stay in the United States as a pilot program 
                alien;
                    ``(B) in such application the worker establishes 
                that the worker has complied with the terms and 
                conditions of this section; and
                    ``(C) in connection with the application, the 
                worker tenders the identification and employment 
                authorization card issued to the worker pursuant to 
                subsection (i)(1)(F) and establishes that the worker is 
                identified as the person to whom the card was issued 
                based on the biometric identification information 
                contained on the card.
            ``(4) Administrative expenses.--The amounts paid into the 
        Trust Fund and held pursuant to paragraph (2)(A)(ii), and 
        interest earned thereon, shall be paid to the Attorney General, 
        the Secretary of Labor, and the Secretary of State in amounts 
        equivalent to the expenses incurred by such officials in the 
        administration of section 101(a)(15)(H)(ii)(c) and this 
        section.
            ``(5) Regulations.--The Attorney General shall prescribe 
        regulations to carry out this subsection.
    ``(k) Investment of Trust Fund.--
            ``(1) In general.--It shall be the duty of the Secretary of 
        the Treasury to invest such portion of the Trust Fund as is 
        not, in the Secretary's judgment, required to meet current 
        withdrawals. Such investments may be made only in interest-
        bearing obligations of the United States or in obligations 
        guaranteed as to both principal and interest by the United 
        States. For such purpose, such obligations may be acquired--
                    ``(A) on original issue at the price; or
                    ``(B) by purchase of outstanding obligations at the 
                market price.
        The purposes for which obligations of the United States may be 
        issued under chapter 31 of title 31, United States Code, are 
        hereby extended to authorize the issuance at par of special 
        obligations exclusively to the Trust Fund. Such special 
        obligations shall bear interest at a rate equal to the average 
        rate of interest, computed as to the end of the calendar month 
        next preceding the date of such issue, borne by all marketable 
        interest-bearing obligations of the United States then forming 
        a part of the public debt, except that where such average rate 
        is not a multiple of one-eighth of 1 percent next lower than 
        such average rate. Such special obligations shall be issued 
        only if the Secretary of the Treasury determines that the 
        purchase of other interest-bearing obligations of the United 
        States, or of obligations guaranteed as to both principal and 
        interest by the United States on original issue or at the 
        market price, is not in the public interest.
            ``(2) Sale of obligation.--Any obligation acquired by the 
        Trust Fund (except special obligations issued exclusively to 
        the Trust Fund) may be sold by the Secretary of the Treasury at 
        the market price, and such special obligations may be redeemed 
        at par plus accrued interest.
            ``(3) Credits to trust fund.--The interest on, and the 
        proceeds from the sale or redemption of, any obligations held 
        in the Trust Fund shall be credited to and form a part of the 
        Trust Fund.
            ``(4) Report to congress.--It shall be the duty of the 
        Secretary of the Treasury to hold the Trust Fund, and (after 
        consultation with the Attorney General) to report to the 
        Congress each year on the financial condition and the results 
        of the operations of the Trust Fund during the preceding fiscal 
        year and on its expected condition and operations during the 
        next fiscal year. Such report shall be printed as both a House 
        and a Senate document of the session of the Congress to which 
        the report is made.
    ``(l) Miscellaneous Provisions.--
            ``(1) Applicability of labor laws.--Except as provided in 
        paragraphs (2), (3), and (4), all Federal, State, and local 
        labor laws (including laws affecting migrant farm workers) 
        applicable to United States workers shall also apply to pilot 
        program aliens.
            ``(2) Limitation of written disclosure imposed upon 
        recruiters.--Any disclosure required of recruiters under 
        section of 201(a) of the Migrant and Seasonal Agricultural 
        Worker Protection Act (29 U.S.C. 1821(a)) need not be given to 
        pilot program aliens prior to the time their visa is issued 
        permitting entry into the United States.
    ``(m) Regulations.--
            ``(1) Selection of areas.--The Secretary of Agriculture 
        shall select the areas under subsection (a)(4) not later than 
        60 days after the date of the enactment of the Temporary 
        Agricultural Worker Act of 1998.
            ``(2) Regulations of the secretary.--The Secretary shall 
        consult with the Secretary of Agriculture, and the Attorney 
        General shall approve, all regulations dealing with the 
        approval of labor condition attestations for pilot program 
        aliens and enforcement of the requirements for employing pilot 
        program aliens under an approved attestation. The Secretary 
        shall promulgate, and the Attorney General shall approve, such 
        regulations not later than 90 days after the date of the 
        enactment of the Temporary Agricultural Worker Act of 1998.
            ``(3) Regulations of the attorney general.--The Attorney 
        General shall consult with the Secretary of Agriculture on all 
        regulations dealing with the approval of petitions for 
        admission or extension of stay of pilot program aliens and the 
        requirements for employing pilot program aliens and the 
        enforcement of such requirements. The Attorney General shall 
        promulgate such regulations not later than 90 days after the 
        date of the enactment of the Temporary Agricultural Worker Act 
        of 1998.
    ``(n) Definitions.--For the purpose of this section:
            ``(1) Agricultural association.--The term `agricultural 
        association' means any nonprofit or cooperative association of 
        farmers, growers, or ranchers incorporated or qualified under 
        applicable State law, which recruits, solicits, hires, employs, 
        furnishes, or transports any agricultural workers.
            ``(2) Agricultural employment.--The term `agricultural 
        employment' means any service or activity included within the 
        provisions of section 3(f) of the Fair Labor Standards Act of 
        1938 (29 U.S.C. 203(f)) or section 3121(g) of the Internal 
        Revenue Code of 1986 and the handling, planting, drying, 
        packing, packaging, processing, freezing, or grading prior to 
        delivery for storage of any agricultural or horticultural 
        commodity in its unmanufactured state.
            ``(3) Employer.--The term `employer' means any person or 
        entity, including any independent contractor and any 
        agricultural association, that employs workers.
            ``(4) Pilot program alien.--The term `pilot program alien' 
        means an alien admitted to the United States or provided status 
        as a nonimmigrant under section 101(a)(15)(H)(ii)(c).
            ``(5) Secretary.--The term `Secretary' means the Secretary 
        of Labor.
            ``(6) United states worker.--The term `United States 
        worker' means any worker, whether a United States citizen, a 
        United States national, or an alien, who is legally permitted 
        to work in the job opportunity within the United States other 
        than an alien admitted pursuant to this section.''.
    (b) Clerical Amendment.--The table of contents of the Immigration 
and Nationality Act is amended by inserting after the item relating to 
section 218 the following new item:

``Sec. 218A. Alternative agricultural temporary worker program.''.

SEC. 4. TEMPORARY REDUCTIONS IN DIVERSITY AND UNSKILLED WORKERS' 
              IMMIGRANT VISAS.

    (a) Temporary Reduction in Diversity Visas.--
            (1) In general.--Beginning with the second fiscal year in 
        which the pilot program under sections 101(a)(15)(H)(ii)(c) and 
        218A of the Immigration and Nationality Act is implemented, 
        subject to paragraph (2), the number of visas available for a 
        fiscal year under section 201(e) of that Act shall be reduced 
        by 5,000 from the number of visas otherwise available under 
        such section 201(e) for such fiscal year.
            (2) Limitation.--In no case shall the reduction under 
        paragraph (1) for a fiscal year exceed one-half of the total 
        number of aliens who were admitted to the United States, or 
        provided status as a nonimmigrant, pursuant to the pilot 
        program during the previous fiscal year.
    (b) Temporary Reduction in Unskilled Workers' Visas.--
            (1) In general.--Beginning with the second fiscal year in 
        which the pilot program under sections 101(a)(15)(H)(ii)(c) and 
        218A of the Immigration and Nationality Act is implemented, 
        subject to paragraph (2), the number of visas available for a 
        fiscal year under section 203(b)(3)(A)(iii) of that Act shall 
        be reduced by 5,000 from the number of visas otherwise 
        available under such section 203(b)(3)(A)(iii) for such fiscal 
        year.
            (2) Limitation.--In no case shall the reduction under 
        paragraph (1) for a fiscal year exceed one-half of the total 
        number of aliens who were admitted to the United States, or 
        provided status as a nonimmigrant, pursuant to the pilot 
        program during the previous fiscal year.
    (c) Construction.--This section shall not be construed to supersede 
or affect the temporary reductions in visa availability made by 
subsections (d) and (e) of section 203 of the Nicaraguan Adjustment and 
Central American Relief Act (8 U.S.C. 1101 note; 8 U.S.C. 1153 note). 
The reductions required under this section are in addition to, and not 
in lieu of, the reductions required under that Act.
                                 <all>