[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1698 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1698

     To amend the Immigration and Nationality Act to create a new 
   nonimmigrant category for temporary agricultural workers admitted 
               pursuant to a labor condition attestation.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 3, 1998

 Mr. Coverdell 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 to create a new 
   nonimmigrant category for temporary agricultural workers admitted 
               pursuant to a labor condition attestation.

    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 ``Farmers' Temporary Employment 
Assistance Act''.

SEC. 2. NEW NONIMMIGRANT H-2C CATEGORY FOR TEMPORARY 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)(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) (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. ALTERNATIVE AGRICULTURAL TEMPORARY WORKER PROCESS USING 
              ATTESTATIONS.

    (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 the Employment of H-2C Aliens.--
            ``(1) In general.--No alien may be admitted or provided 
        status as an H-2C 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 H-2C aliens pursuant to subsection (h); and
                    ``(C) the employer has not, during the past 2 
                years, been found by the Attorney General to have 
                employed any aliens in violation of section 274A(a), 
                including aliens admitted pursuant to this section.
            ``(2) Contents of labor condition attestation.--Each labor 
        condition attestation filed by, or on behalf of, an employer 
        shall include the following:
                    ``(A) Wage rate.--The employer will pay H-2C 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 H-2C 
                aliens will not adversely affect the working conditions 
                of similarly employed workers in the area of 
                employment.
                    ``(C) Limitation on employment.--An H-2C 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 H-2C 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 workers employed in the occupation in which H-2C 
                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 H-2C 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.
            ``(3) General accounting office reports.--Beginning 1 year 
        after the effective date of this section, and annually 
        thereafter, 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 the 
        preceding 12-month period, for the purpose of determining if--
                    ``(A) such provisions have been carried out 
                satisfactorily;
                    ``(B) the program has ensured an adequate and 
                timely supply of qualified, eligible workers at the 
                time and place needed for employers;
                    ``(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 
                H-2C 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 H-2C aliens 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 H-2C program is 
                unaffected by withdrawal of a labor condition 
                attestation.
    ``(c) Employer Responsibilities and Requirements for Employing H-2C 
Nonimmigrants.--
            ``(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 H-2C 
                workers--
                            ``(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 
                H-2C 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 H-2C 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 H-2C 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 H-2C 
                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 
                        H-2C 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 H-2C 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 
                H-2C 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 H-2C 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 H-2C 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, whichever occurs earlier, regardless of 
                whether any of the job opportunities may already be 
                occupied by H-2C 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 an H-2C alien prematurely abandons the alien's 
        employment.
            ``(2) Out-of-status.--An H-2C 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 deportation 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 State Employment Security Agencies.--
            ``(1) Dissemination of labor market information.--The 
        Secretary shall direct State employment security agencies to 
        disseminate nonemployer-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 H-2C 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 two 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 H-2C 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 
                H-2C 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.--
                            ``(i) 3-years for second violation.--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 the employment of H-2C aliens for a period 
                        of 3 years.
                            ``(ii) Permanent for third violation.--Upon 
                        a third 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 H-2C aliens.
            ``(3) Role of associations.--
                    ``(A) Violation by a member of 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 an H-2C 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 H-2C 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 H-2C 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 
                H-2C aliens is correctly filled out, and the employer 
                is not ineligible to employ H-2C 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 an H-2C 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).
                    ``(F) Issuance of identification and employment 
                eligibility document.--
                            ``(i) In general.--The Attorney General 
                        shall cause to be issued to each H-2C 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 an H-2C 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 an H-2C 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 a date which is 2 years 
                from the date of the alien's last admission to the 
                United States as a H-2C alien, 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 H-2C 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 h-
                2c aliens without valid identification and employment 
                eligibility document.--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 h-2c status.--
        An alien having status as an H-2C 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 an H-2C visa is valid. 
        If the alien has resided in the United States 10 months or 
        less, an absence breaks the continuity of the period if it 
        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.--There is established in the Treasury 
        of the United States a trust fund (in this section referred to 
        as the `Trust Fund') for the purpose of providing a monetary 
        incentive for H-2C 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 H-2C aliens shall--
                            ``(i) withhold from the wages of their H-2C 
                        alien workers an amount equivalent to 25 
                        percent of the wages of each H-2C 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 H-2C 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 H-2C 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 H-2C 
        aliens.
            ``(2) Limitation of written disclosure imposed upon 
        recruiters.--Any disclosure required of recruiters under 
        section 201(a) of the Migrant and Seasonal Agricultural Worker 
        Protection Act (29 U.S.C. 1821(a)) need not be given to H-2C 
        aliens prior to the time their visa is issued permitting entry 
        into the United States.
            ``(3) Exemption from fica and futa taxes.--The wages paid 
        to H-2C aliens shall be excluded from wages subject to taxation 
        under the Federal Unemployment Tax Act and under the Federal 
        Insurance Contributions Act.
            ``(4) Ineligibility for certain public benefits programs.--
                    ``(A) In general.--Notwithstanding any other 
                provision of law and except as provided in subparagraph 
                (B), any alien provided status as an H-2C alien shall 
                not be eligible for any Federal or State or local 
                means-tested public benefit program.
                    ``(B) Exceptions.--Subparagraph (A) shall not apply 
                to the following:
                            ``(i) Emergency medical services.--The 
                        provision of emergency medical services (as 
                        defined by the Attorney General in consultation 
                        with the Secretary of Health and Human 
                        Services).
                            ``(ii) Public health immunizations.--Public 
                        health assistance for immunizations with 
                        respect to immunizable diseases and for testing 
                        and treatment for communicable diseases.
                            ``(iii) Short-term emergency disaster 
                        relief.--The provision of non-cash, in-kind, 
                        short-term emergency disaster relief.
    ``(m) Regulations.--
            ``(1) 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 H-2C aliens and 
        enforcement of the requirements for employing H-2C aliens under 
        an approved attestation. The Secretary shall promulgate, and 
        the Attorney General shall approve, such regulations not later 
than 180 days after the date of the enactment of the Farmers' Temporary 
Employment Assistance Act.
            ``(2) 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 H-2C aliens and the 
        requirements for employing H-2C aliens and the enforcement of 
        such requirements. The Attorney General shall promulgate such 
        regulations not later than 180 days after the date of the 
        enactment of the Farmers' Temporary Employment Assistance Act.
    ``(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) H-2C alien.--The term `H-2C 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 worker program.''.
                                 <all>