[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1161 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 1161
To amend the Immigration and Nationality Act to streamline procedures
for the admission and extension of stay of nonimmigrant agricultural
workers; to provide a stable, legal, agricultural workforce; to extend
basic legal protections and better working conditions to more workers;
to provide for a system of one-time, earned adjustment to legal status
for certain agricultural workers; and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 10, 2001
Mr. Craig (for himself, Mr. McConnell, Mr. Cochran, Mr. Enzi, Mr.
Burns, Mr. Frist, and Mr. Hutchinson) 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 streamline procedures
for the admission and extension of stay of nonimmigrant agricultural
workers; to provide a stable, legal, agricultural workforce; to extend
basic legal protections and better working conditions to more workers;
to provide for a system of one-time, earned adjustment to legal status
for certain agricultural workers; and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Agricultural Job
Opportunity Benefits and Security Act of 2001''.
(b) Table of Contents.--The table of contents for this division is
as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--ADJUSTMENT TO LAWFUL STATUS
Sec. 101. Agricultural workers.
Sec. 102. Correction of Social Security records.
TITLE II--REFORM OF H-2A WORKER PROGRAM
Sec. 201. Amendment to the Immigration and Nationality Act.
TITLE III--MISCELLANEOUS PROVISIONS
Sec. 301. Determination and use of user fees.
Sec. 302. Regulations.
Sec. 303. Effective date.
SEC. 2. DEFINITIONS.
In this division:
(1) Agricultural employment.--The term ``agricultural
employment'' means any service or activity that is considered
to be agricultural under section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor
under section 3121(g) of the Internal Revenue Code of 1986 (26
U.S.C. 3121(g)). For purposes of this paragraph, agricultural
employment includes employment under section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(ii)(a)).
(2) Displace.--In the case of an application with respect
to one or more H-2A workers by an employer, the employer is
considered to ``displace'' a United States worker from a job if
the employer lays off the worker from a job for which the H-2A
worker or workers is or are sought.
(3) Eligible.--The term ``eligible'', when used with
respect to an individual, means an individual who is not an
unauthorized alien (as defined in section 274A(h)(3) of the
Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
(4) Employer.--The term ``employer'' means any person or
entity, including any farm labor contractor and any
agricultural association, that employs workers in agricultural
employment.
(5) H-2A worker.--The term ``H-2A worker'' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(6) Job opportunity.--The term ``job opportunity'' means a
job opening for temporary full-time employment at a place in
the United States to which United States workers can be
referred.
(7) Lays off.--
(A) In general.--The term ``lays off'', with
respect to a worker--
(i) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, contract impossibility (as
described in section 218A(b)(4)(D) of the
Immigration and Nationality Act, as added by
section 201 of this division), temporary
layoffs due to weather, markets, or other
temporary conditions; but
(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under section
218(b)(2)(E) of the Immigration and Nationality
Act, as added by section 201 of this division,
with either employer described in such section
218(b)(2)(E)) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
(B) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
(8) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(9) Temporary.--A worker is employed on a ``temporary''
basis where the employment is intended not to exceed 10 months.
(10) United states worker.--The term ``United States
worker'' means any worker, whether a United States citizen or
national, a lawfully admitted permanent resident alien, or any
other alien, who is authorized to work in the job opportunity
within the United States, except an alien admitted or otherwise
provided status under section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(11) Work day.--The term ``work day'' means any day in
which the individual is employed one or more hours in
agriculture.
TITLE I--ADJUSTMENT TO LAWFUL STATUS
SEC. 101. AGRICULTURAL WORKERS.
(a) Temporary Resident Status.--
(1) In general.--Notwithstanding any other provision of
law, the Attorney General shall adjust the status of an alien
who qualifies under this subsection to that of an alien
lawfully admitted for temporary residence if the Attorney
General determines that the following requirements are
satisfied with respect to the alien:
(A) Performance of agricultural employment in the
united states.--The alien must establish that the alien
has performed agricultural employment in the United
States for at least 900 hours or 150 work days,
whichever is less, during any 12 consecutive months
during the 18-month period ending on July 4, 2001.
(B) Application period.--The alien must apply for
such adjustment during the 18-month application period
beginning on the 1st day of the 7th month that begins
after the date of the enactment of this Act.
(C) Admissible as immigrant.--The alien must
establish that the alien is otherwise admissible to the
United States under section 212 of the Immigration and
Nationality Act (8 U.S.C. 1182), except as otherwise
provided under subsection (e)(2).
(2) Authorized travel.--During the period an alien is in
lawful temporary resident status granted under this subsection,
the alien has the right to travel abroad (including commutation
from a residence abroad) in the same manner as an alien
lawfully admitted for permanent residence.
(3) Authorized employment.--During the period an alien is
in lawful temporary resident status granted under this
subsection, the alien shall be provided an ``employment''
authorized endorsement or other appropriate work permit, in the
same manner as an alien lawfully admitted for permanent
residence.
(4) Termination of temporary resident status.--During the
period of temporary resident status granted an alien under this
subsection, the Attorney General may terminate such status only
upon a determination under this division that the alien is
deportable.
(5) Record of employment.--
(A) In general.--Each employer of a worker whose
status is adjusted under this subsection annually
shall--
(i) provide a written record of employment
to the alien; and
(ii) provide a copy of such record to the
Immigration and Naturalization Service.
(B) Sunset.--The obligation under subparagraph (A)
terminates on October 31, 2008.
(b) Rights of Aliens Granted Temporary Resident Status.--
(1) In general.--Except as otherwise provided in this
subsection, an alien who acquires the status of an alien
lawfully admitted for temporary residence under subsection (a),
such status not having changed, shall be considered to be an
alien lawfully admitted for permanent residence for purposes of
any law other than any provision of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
(2) Terms of employment respecting aliens admitted under
this section.--
(A) Prohibition.--No alien whose status is adjusted
under subsection (a) may be terminated from employment
by any employer during the period of temporary resident
status except for just cause.
(B) Treatment of complaints.--
(i) Establishment of process.--The Attorney
General shall establish a process for the
receipt, initial review, and disposition in
accordance with this subparagraph of complaints
by aliens granted temporary resident status
under subsection (a) who allege that they have
been terminated without just cause. No
proceeding shall be conducted under this
subparagraph with respect to a termination
unless the Attorney General determines that the
complaint was filed not later than 6 months
after the date of the termination.
(ii) Initiation of arbitration.--If the
Attorney General finds that a complaint has
been filed in accordance with clause (i) and
there is reasonable cause to believe that the
complainant was terminated without just cause,
the Attorney General shall initiate binding
arbitration proceedings by requesting the
Federal Mediation and Conciliation Service to
appoint a mutual arbitrator from the roster of
arbitrators maintained by such Service for the
geographical area in which the employer is
located. The procedure and rules of such
Service shall be applicable to the selection of
such arbitrator and to such arbitration
proceedings. The Attorney General shall pay the
fee and expenses of the arbitrator.
(iii) Arbitration proceedings.--The
arbitrator shall conduct the proceeding in
accordance with the policies and procedures
promulgated by the American Arbitration
Association applicable to private arbitration
of employment disputes. The arbitrator shall
make findings respecting whether the
termination was for just cause. The arbitrator
may not find that the termination was for just
cause unless the employer so demonstrates by a
preponderance of the evidence. If the
arbitrator finds that the termination was not
for just cause, the arbitrator shall make a
specific finding of the number of days or hours
of work lost by the employee as a result of the
termination. The arbitrator shall have no
authority to order any other remedy, including,
but not limited to, reinstatement, back pay, or
front pay to the affected employee. Within 30
days from the conclusion of the arbitration
proceeding, the arbitrator shall transmit the
findings in the form of a written opinion to
the parties to the arbitration and the Attorney
General. Such findings shall be final and
conclusive, and no official or court of the
United States shall have the power or
jurisdiction to review any such findings.
(iv) Effect of arbitration findings.--If
the Attorney General receives a finding of an
arbitrator that an employer has terminated an
alien granted temporary resident status under
subsection (a) without just cause, the Attorney
General shall credit the alien for the number
of days or hours of work lost for purposes of
the requirement of subsection (c)(1).
(v) Treatment of attorneys' fees.--The
parties shall bear the cost of their own
attorneys' fees involved in the litigation of
the complaint.
(vi) Nonexclusive remedy.--The complaint
process provided for in this subparagraph is in
addition to any other rights an employee may
have in accordance with applicable law.
(vii) Effect on other actions or
proceedings.--Any finding of fact or law,
judgment, conclusion, or final order made by an
arbitrator in the proceeding before the
Attorney General shall not be conclusive or
binding in any separate or subsequent action or
proceeding between the employee and the
employee's current or prior employer brought
before an arbitrator, administrative agency,
court, or judge of any State or the United
States, regardless of whether the prior action
was between the same or related parties or
involved the same facts, except that the
arbitrator's specific finding of the number of
days or hours of work lost by the employee as a
result of the employment termination may be
referred to the Attorney General pursuant to
clause (iv).
(C) Civil penalties.--
(i) In general.--If the Secretary finds,
after notice and opportunity for a hearing,
that an employer of a worker whose status has
been adjusted under subsection (a) has failed
to provide the record of employment required
under subsection (a)(5) or has provided a false
statement of material fact in such a record,
the employer shall be subject to a civil money
penalty in an amount not to exceed $1,000 per
violation.
(ii) Limitation.--The penalty applicable
under clause (i) for failure to provide records
shall not apply unless the alien has provided
the employer with evidence of employment
authorization granted under this section.
(c) Adjustment to Permanent Residence.--
(1) Agricultural workers.--
(A) In general.--Except as provided in subparagraph
(B), the Attorney General shall adjust the status of
any alien granted lawful temporary resident status
under subsection (a) to that of an alien lawfully
admitted for permanent residence if the Attorney
General determines that the following requirements are
satisfied:
(i) Qualifying agricultural employment.--
The alien has performed at least 900 hours or
150 work days, whichever is less, of
agricultural employment in the United States in
each of 4 years during the 6-year period
beginning on November 1, 2001.
(ii) Annual residency, in general.--The
alien may not be present in the United States
for more than an aggregate of 300 days in any
calendar year.
(iii) Exceptions.--The 300-day-per-year
limitation in clause (ii) shall not apply in
the case of any alien who, under regulations
established as necessary by the Attorney
General--
(I) has established a permanent
residence in the United States and has
a minor child who was born in the
United States prior to the date of
enactment of this Act who resides in
the alien's household; or
(II) remains in the United States
to perform full-time agricultural or
nonagricultural employment; or
(III) is actively seeking
employment; or
(IV) is prevented from leaving the
United States because of a serious
medical condition.
(iv) Application period.--The alien applies
for adjustment of status not later than October
31, 2008.
(v) Proof.--In meeting the requirements of
clauses (i), (ii), and (iii), an alien may
submit the record of employment described in
subsection (a)(5) or such documentation as may
be submitted under subsection (d)(3).
(vi) Disability.--In determining whether an
alien has met the requirements of clauses (i),
(ii), and (iii), the Attorney General shall
credit the alien with any work days lost
because the alien is unable to work due to
injury or disease arising out of and in the
course of the alien's employment during the
qualifying period, if the alien can establish
such disabling injury or disease through
medical records.
(B) Grounds for denial of adjustment of status.--
The Attorney General may deny an alien adjustment to
permanent resident status, and provide for termination
of the temporary resident status granted such alien
under subsection (a), if--
(i) the Attorney General finds by a
preponderance of the evidence that the
adjustment to temporary resident status was the
result of fraud or willful misrepresentation,
as described in section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the
alien inadmissible to the United States
under section 212 of the Immigration
and Nationality Act (8 U.S.C. 1182),
except as provided under subsection
(e)(2); or
(II) is convicted of a felony or 3
or more misdemeanors committed in the
United States.
(C) Grounds for removal.--Any alien granted
temporary resident status under subsection (a) who does
not apply for adjustment of status under this
subsection before the expiration of the application
period described in subparagraph (A)(iv), or who fails
to meet the other requirements of subparagraph (A) by
the end of the applicable period, is deportable and may
be removed under section 240 of the Immigration and
Nationality Act (8 U.S.C. 1229a).
(d) Applications for Adjustment of Status.--
(1) To whom may be made.--
(A) Within the united states.--The Attorney General
shall provide that--
(i) applications for adjustment of status
under subsection (a) may be filed--
(I) with the Attorney General, but
only if the applicant is represented by
an attorney; or
(II) with a qualified designated
entity (designated under paragraph
(2)), but only if the applicant
consents to the forwarding of the
application to the Attorney General;
and
(ii) applications for adjustment of status
under subsection (c) shall be filed directly
with the Attorney General.
(B) Outside the united states.--The Attorney
General, in cooperation with the Secretary of State,
shall establish a procedure whereby an alien may apply
for adjustment of status under subsection (a) at an
appropriate consular office outside the United States.
(C) Preliminary applications.--
(i) In general.--During the application
period described in subsection (a)(1)(B), the
Attorney General may grant admission to the
United States as a temporary resident and
provide an ``employment authorized''
endorsement or other appropriate work permit to
any alien who presents a preliminary
application for adjustment of status under
subsection (a) at a designated port of entry on
the southern land border of the United States.
An alien who does not enter through a port of
entry is subject to deportation and removal as
otherwise provided in this division.
(ii) Definition.--For purposes of clause
(i), the term ``preliminary application'' means
a fully completed and signed application which
contains specific information concerning the
performance of qualifying employment in the
United States, together with the payment of the
appropriate fee and the submission of
photographs and the documentary evidence which
the applicant intends to submit as proof of
such employment.
(iii) Eligibility.--An applicant under
clause (i) must be otherwise admissible to the
United States under subsection (e)(2) and must
establish to the satisfaction of the examining
officer during an interview that the
applicant's claim to eligibility for agricultural worker status is
credible.
(D) Travel documentation.--The Attorney General
shall provide each alien whose status is adjusted under
this section with a counterfeit-resistant document of
authorization to enter or reenter the United States.
(2) Designation of entities to receive applications.--
(A) In general.--For purposes of receiving
applications under subsection (a), the Attorney
General--
(i) shall designate qualified farm labor
organizations and associations of employers;
and
(ii) may designate such other persons as
the Attorney General determines are qualified
and have substantial experience, demonstrate
competence, and have traditional long-term
involvement in the preparation and submittal of
applications for adjustment of status under
section 209, 210, or 245 of the Immigration and
Nationality Act, Public Law 89-732, Public Law
95-145, or the Immigration Reform and Control
Act of 1986.
(B) References.--Organizations, associations, and
persons designated under subparagraph (A)0 are referred
to in this division as ``qualified designated
entities''.
(3) Proof of eligibility.--
(A) In general.--An alien may establish that the
alien meets the requirement of subsection (a)(1)(A) or
subsection (c)(1)(A) through government employment
records or records supplied by employers or collective
bargaining organizations, and other reliable
documentation as the alien may provide. The Attorney
General shall establish special procedures to properly
credit work in cases in which an alien was employed
under an assumed name.
(B) Documentation of work history.--(i) An alien
applying for adjustment of status under subsection
(a)(1) or subsection (c)(1) has the burden of proving
by a preponderance of the evidence that the alien has
worked the requisite number of hours or days (as
required under subsection (a)(1)(A) or subsection
(c)(1)(A)).
(ii) If an employer or farm labor contractor
employing such an alien has kept proper and adequate
records respecting such employment, the alien's burden
of proof under clause (i) may be met by securing timely
production of those records under regulations to be
promulgated by the Attorney General.
(iii) An alien can meet such burden of proof if the
alien establishes that the alien has in fact performed
the work described in subsection (a)(1)(A) or
subsection (c)(1)(A) by producing sufficient evidence
to show the extent of that employment as a matter of
just and reasonable inference.
(4) Treatment of applications by qualified designated
entities.--Each qualified designated entity must agree to
forward to the Attorney General applications filed with it in
accordance with paragraph (1)(A)(ii) but not to forward to the
Attorney General applications filed with it unless the
applicant has consented to such forwarding. No such entity may
make a determination required by this section to be made by the
Attorney General. Upon the request of the alien, a qualified
designated entity shall assist the alien in obtaining
documentation of the work history of the alien.
(5) Limitation on access to information.--Files and records
prepared for purposes of this subsection by qualified
designated entities operating under this subsection are
confidential and the Attorney General and the Immigration and
Naturalization Service shall not have access to such files or
records relating to an alien without the consent of the alien,
except as allowed by a court order issued pursuant to paragraph
(6).
(6) Confidentiality of information.--
(A) In general.--Except as otherwise provided in
this subsection, neither the Attorney General, nor any
other official or employee of the Department of
Justice, or bureau or agency thereof, may--
(i) use the information furnished by the
applicant pursuant to an application filed
under this section, the information provided to
the applicant by a person designated under
paragraph (2)(A), or any information provided
by an employer or former employer, for any
purpose other than to make a determination on
the application, or for enforcement of
paragraph (7);
(ii) make any publication whereby the
information furnished by any particular
individual can be identified; or
(iii) permit anyone other than the sworn
officers and employees of the Department of
Justice, or bureau or agency thereof, or, with
respect to applications filed with a qualified
designated entity, that qualified designated
entity, to examine individual applications.
(B) Crime.--Whoever knowingly uses, publishes, or
permits information to be examined in violation of this
paragraph shall be fined not more than $10,000.
(7) Penalties for false statements in applications.--
(A) Criminal penalty.--Whoever--
(i) files an application for adjustment of
status under subsection (a) or (c) and
knowingly and willfully falsifies, conceals, or
covers up a material fact or makes any false,
fictitious, or fraudulent statements or
representations, or makes or uses any false
writing or document knowing the same to contain
any false, fictitious, or fraudulent statement
or entry; or
(ii) creates or supplies a false writing or
document for use in making such an application;
shall be fined in accordance with title 18, United
States Code, or imprisoned not more than 5 years, or
both.
(B) Inadmissibility.--An alien who is convicted of
a crime under subparagraph (A) shall be considered to
be inadmissible to the United States on the ground
described in section 212(a)(6)(C)(i) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(8) Eligibility for legal services.--Section 504(a)(11) of
Public Law 104-134 (110 Stat. 1321-53 et seq.) shall not be
construed to prevent a recipient of funds under the Legal
Services Corporation Act (42 U.S.C. 2996 et seq.) from
providing legal assistance directly related to an application
for adjustment of status under this section.
(9) Application fees.--
(A) Fee schedule.--The Attorney General shall
provide for a schedule of fees that--
(i) shall be charged for the filing of
applications for adjustment under subsections
(a) and (c); and
(ii) may be charged by qualified designated
entities to help defray the costs of services
provided to such applicants.
(B) Prohibition on excess fees by qualified
designated entities.--A qualified designated entity may
not charge any fee in excess of, or in addition to, the
fees authorized under subparagraph (A)(ii) for services
provided to applicants.
(C) Disposition of fees.--
(i) In general.--There is established in
the general fund of the Treasury a separate
account, which shall be known as the
``Agricultural Worker Immigration Status
Adjustment Account''. Notwithstanding any other
provision of law, there shall be deposited as
offsetting receipts into the account all fees
collected under subparagraph (A)(i).
(ii) Use of fees for application
processing.--Amounts deposited in the
``Agricultural Worker Immigration Status
Adjustment Account'' shall remain available to
the Attorney General until expended for
processing applications for adjustment under
subsections (a) and (c).
(e) Waiver of Numerical Limitations and Certain Grounds for
Inadmissibility.--
(1) Numerical limitations do not apply.--The numerical
limitations of sections 201 and 202 of the Immigration and
Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the
adjustment of aliens to lawful permanent resident status under
this section.
(2) Waiver of certain grounds of inadmissibility.--In the
determination of an alien's admissibility under subsection
(a)(1)(C) or an alien's eligibility for adjustment of status
under subsection (c)(1)(B)(ii)(I), the following rules shall
apply:
(A) Grounds of exclusion not applicable.--The
provisions of paragraphs (5), (6)(A), (7)(A), and
(9)(B) of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)) shall not apply.
(B) Waiver of other grounds.--
(i) In general.--Except as provided in
clause (ii), the Attorney General may waive any
other provision of such section 212(a) in the
case of individual aliens for humanitarian
purposes, to ensure family unity, or when it is
otherwise in the public interest.
(ii) Grounds that may not be waived.--The
following provisions of such section 212(a) may
not be waived by the Attorney General under
clause (i):
(I) Subparagraphs (A) and (B) of
paragraph (2) (relating to criminals).
(II) Paragraph (4) (relating to
aliens likely to become public
charges).
(III) Paragraph (2)(C) (relating to
drug offenses).
(IV) Paragraph (3) (relating to
security and related grounds), except
subparagraph (E).
``(iii) Construction.--Nothing in this
subparagraph shall be construed as affecting
the authority of the Attorney General other
than under this subparagraph to waive
provisions of such section 212(a).
(C) Special rule for determination of public
charge.--An alien is not ineligible for adjustment of
status under this section by reason of a ground of
inadmissibility under section 212(a)(4) of the
Immigration and Nationality Act if the alien
demonstrates a history of employment in the United
States evidencing self-support without reliance on
public cash assistance.
(f) Temporary Stay of Removal and Work Authorization for Certain
Applicants.--
(1) Before application period.--Effective on the date of
the enactment of this Act, the Attorney General shall provide
that, in the case of an alien who is apprehended before the
beginning of the application period described in subsection
(a)(1)(B) and who can establish a nonfrivolous case of
eligibility to have the alien's status adjusted under
subsection (a) (but for the fact that the alien may not apply
for such adjustment until the beginning of such period), until
the alien has had the opportunity during the first 30 days of
the application period to complete the filing of an application
for adjustment, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in
employment in the United States and be provided an
``employment authorized'' endorsement or other
appropriate work permit for such purpose.
(2) During application period.--The Attorney General shall
provide that, in the case of an alien who presents a
nonfrivolous application for adjustment of status under
subsection (a) during the application period described in
subsection (a)(1)(B), including an alien who files such an
application within 30 days of the alien's apprehension, and
until a final determination on the application has been made in
accordance with this section, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in
employment in the United States and be provided an
``employment authorized'' endorsement or other
appropriate work permit for such purpose.
(g) Administrative and Judicial Review.--
(1) In general.--There shall be no administrative or
judicial review of a determination respecting an application
for adjustment of status under subsection (a) or (c) except in
accordance with this subsection.
(2) Administrative review.--
(A) Single level of administrative appellate
review.--The Attorney General shall establish an
appellate authority to provide for a single level of
administrative appellate review of such a
determination.
(B) Standard for review.--Such administrative
appellate review shall be based solely upon the
administrative record established at the time of the
determination on the application and upon such
additional or newly discovered evidence as may not have
been available at the time of the determination.
(3) Judicial review.--
(A) Limitation to review of removal.--There shall
be judicial review of such a denial only in the
judicial review of an order of removal under section
242 of the Immigration and Nationality Act (8 U.S.C.
1252).
(B) Standard for judicial review.--Such judicial
review shall be based solely upon the administrative
record established at the time of the review by the
appellate authority and the findings of fact and
determinations contained in such record shall be
conclusive unless the applicant can establish abuse of
discretion or that the findings are directly contrary
to clear and convincing facts contained in the record
considered as a whole.
(h) Dissemination of Information on Adjustment Program.--Beginning
not later than the 1st day of the application period described in
subsection (a)(1)(B), the Attorney General, in cooperation with
qualified designated entities, shall broadly disseminate information
respecting the benefits that aliens may receive under this section and
the requirements to be satisfied to obtain such benefits.
(i) Regulations.--The Attorney General shall issue regulations to
implement this section not later than the 1st day of the 7th month that
begins after the date of the enactment of this Act.
(j) Effective Date.--This section shall take effect on the date
that regulations are issued implementing this section on an interim or
other basis.
SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(d)(1) of the Social Security Act (42
U.S.C. 408(d)(1)) is amended--
(1) in subparagraph (B), by striking ``or'' at the end of
clause (ii);
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) whose status is adjusted to that of lawful temporary
resident under the Agricultural Job Opportunity, Benefits, and
Security Act of 2001,''; and
(4) by striking ``1990.'' and inserting ``1990, or in the
case of an alien described in subparagraph (D), if such conduct
is alleged to have occurred prior to the date on which the
alien became lawfully admitted for temporary residence.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect on the 1st day of the 7th month that begins after the date
of the enactment of this Act.
TITLE II--REFORM OF H-2A WORKER PROGRAM
SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General.--The Immigration and Nationality Act is amended by
striking section 218 (8 U.S.C. 1188) and inserting the following:
``h-2a employer applications
``Sec. 218. (a) Applications to the Secretary.--
``(1) In general.--No alien may be admitted to the United
States as an H-2A worker, or otherwise provided status as an H-
2A worker, unless the employer has filed with the Secretary an
application containing--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of
the work to be performed;
``(C) the anticipated period (expected beginning
and ending dates) for which workers will be needed; and
``(D) the number of job opportunities in which the
employer seeks to employ workers.
``(2) Accompanied by job offer.--Each application filed
under paragraph (1) shall be accompanied by a copy of the job
offer describing the wages and other terms and conditions of
employment and the bona fide occupational qualifications that
must be possessed by a worker to be employed in the job
opportunity in question.
``(b) Assurances for Inclusion in Applications.--The assurances
referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining
agreements.--With respect to a job opportunity that is covered
under a collective bargaining agreement:
``(A) Union contract described.--The job
opportunity is covered by a union contract which was
negotiated at arm's length between a bona fide union
and the employer.
``(B) No strike or lockout.--The specific job
opportunity for which the employer is requesting H-2A
workers is not vacant because the former occupant is on
strike or being locked out in the course of a labor
dispute.
``(C) Notification of bargaining representatives.--
The employer, at the time of filing the application,
has provided notice of the filing under this paragraph
to the bargaining representative of the employer's
employees in the occupational classification at the
place or places of employment for which aliens are
sought.
``(D) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(E) Offers to united states workers.--The
employer has offered or will offer the job to any
eligible United States worker who applies and is
equally or better qualified for the job for which the
nonimmigrant is, or the nonimmigrants are, sought and
who will be available at the time and place of need.
``(F) Provision of insurance.--If the job
opportunity is not covered by the State workers'
compensation law, the employer will provide, at no cost
to the worker, insurance covering injury and disease
arising out of, and in the course of, the worker's
employment which will provide benefits at least equal
to those provided under the State's workers'
compensation law for comparable employment.
``(2) Job opportunities not covered by collective
bargaining agreements.--With respect to a job opportunity that
is not covered under a collective bargaining agreement:
``(A) No strike or lockout.--The specific job
opportunity for which the employer is requesting H-2A
workers is not vacant because the former occupant is on
strike or being locked out in the course of a labor
dispute.
``(B) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(C) Benefit, wage, and working conditions.--The
employer will provide, at a minimum, the benefits,
wages, and working conditions required by section 218A
to all workers employed in the job opportunities for
which the employer has applied under subsection (a) and
to all other workers in the same occupation at the
place of employment.
``(D) Nondisplacement of united states workers.--
The employer did not displace and will not displace a
United States worker employed by the employer during
the period of employment and for a period of 30 days
preceding the period of employment in the occupation at
the place of employment for which the employer seeks
approval to employ H-2A workers.
``(E) Requirements for placement of nonimmigrant
with other employers.--The employer will not place the
nonimmigrant with another employer unless--
``(i) the nonimmigrant performs duties in
whole or in part at one or more work sites
owned, operated, or controlled by such other
employer;
``(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer; and
``(iii) the employer has inquired of the
other employer as to whether, and has no actual
knowledge or notice that, during the period of
employment and for a period of 30 days
preceding the period of employment, the other
employer has displaced or intends to displace a
United States worker employed by the other
employer in the occupation at the place of
employment for which the employer seeks
approval to employ H-2A workers; however,
nothing in this paragraph shall limit the
rights of a joint employer association under
section 201(c).
``(F) Statement of liability.--The application form
shall include a clear statement explaining the
liability under subparagraph (E) of an employer if the
other employer described in such subparagraph displaces
a United States worker as described in such
subparagraph.
``(G) Provision of insurance.--If the job
opportunity is not covered by the State workers'
compensation law, the employer will provide, at no cost
to the worker, insurance covering injury and disease
arising out of and in the course of the worker's
employment which will provide benefits at least equal
to those provided under the State's workers'
compensation law for comparable employment.
``(H) Employment of united states workers.--
``(i) Recruitment.--The employer has taken
or will take the following steps to recruit
United States workers for the job opportunities
for which the H-2A nonimmigrant is, or H-2A
nonimmigrants are, sought:
``(I) Contacting former workers.--
The employer shall make reasonable
efforts through the sending of a letter
by United States Postal Service mail,
or otherwise, to contact any United
States worker the employer employed
during the previous season in the
occupation at the place of intended
employment for which the employer is
applying for workers and has made the
availability of the employer's job
opportunities in the occupation at the
place of intended employment known to
such previous workers, unless the
worker was terminated from employment
by the employer for a lawful job-
related reason or abandoned the job
before the worker completed the period
of employment of the job opportunity
for which the worker was hired.
``(II) Filing a job offer with the
local office of the state employment
security agency.--Not later than 28
days prior to the date on which the
employer desires to employ an H-2A
worker in a temporary or seasonal
agricultural job opportunity, the
employer shall submit a copy of the job
offer described in subsection (a)(2) to
the local office of the State
employment security agency which serves
the area of intended employment and
authorize the posting of the job
opportunity on `America's Job Bank' or
other electronic job registry, except
that nothing in this subclause shall
require the employer to file an
interstate job order under section 653
of title 20, Code of Federal
Regulations.
``(III) Advertising of job
opportunities.--Not later than 14 days
prior to the date on which the employer
desires to employ an H-2A worker in a
temporary or seasonal agricultural job
opportunity, the employer shall
advertise the availability of the job
opportunities for which the employer is
seeking workers in a publication in the
local labor market that is likely to be
patronized by potential farm workers.
``(IV) Emergency procedures.--The
Secretary shall, by regulation, provide
a procedure for acceptance and approval
of applications in which the employer
has not complied with the provisions of
this subparagraph because the
employer's need for H-2A workers could
not reasonably have been foreseen.
``(ii) Job offers.--The employer has
offered or will offer the job to eligible
United States workers who apply and are equally
or better qualified for the job for which
nonimmigrants are sought, and who will be
available at the time and place of need.
``(iii) Period of employment.--The employer
will continue to offer the job to eligible
United States workers who are equally or better
qualified for the jobs for which nonimmigrants
are sought during the period begining on the
date on which the foreign worker departs for
the employer's place of employment and ending
on the date on which 50 percent of the period
of employment for which the foreign worker who is in the job was hired
has elapsed, subject to the following requirements:
``(I) Prohibition.--No person or
entity shall willfully and knowingly
withhold United States workers prior to
the arrival of H-2A workers in order to
force the hiring of United States
workers under this clause.
``(II) Complaints.--Upon receipt of
a complaint by an employer that a
violation of subclause (I) has
occurred, the Secretary shall
immediately investigate. The Secretary
shall, within 36 hours of the receipt
of the complaint, issue findings
concerning the alleged violation. If
the Secretary finds that a violation
has occurred, the Secretary shall
immediately suspend the application of
this clause with respect to that
certification for that date of need.
``(III) Placement of united states
workers.--Prior to referring a United
States worker to an employer during the
period described in the matter
preceding subclause (I), the Secretary
shall make all reasonable efforts to
place the United States worker in an
open job acceptable to the worker, if
there are similarr job opportunities
pending with the job service in the
area of intended employment.
``(iv) Statutory construction.--Nothing in
this subparagraph shall be construed to
prohibit an employer from using such legitimate
selection criteria relevant to the type of job
that are normal or customary to the type of job
involved so long as such criteria are not
applied in a discriminatory manner.
``(c) Applications by Associations on Behalf of Employer Members.--
``(1) In general.--An agricultural association may file an
application under subsection (a) on behalf of one or more of
its employer members that the association certifies in its
application has or have agreed in writing to comply with the
requirements of this section and sections 218A through 218C.
``(2) Treatment of associations acting as employers.--If an
association filing an application under paragraph (1) is a
joint or sole employer of the temporary or seasonal
agricultural workers requested on the application, the
certifications granted under subsection (e)(2)(B) to the
association may be used for the certified job opportunities of
any of its producer members named on the application, and such
workers may be transferred among such producer members to
perform the agricultural services of a temporary or seasonal
nature for which the certifications were granted.
``(d) Withdrawal of Applications.--
``(1) In general.--An employer may withdraw an application
under subsection (a), except that if the employer is an
agricultural association, the association may withdraw an
application under subsection (a) with respect to one or more of
its members. To withdraw an application, the employer or
association shall notify the Secretary in writing, and the
Secretary shall acknowledge in writing the receipt of such
withdrawal notice. An employer who withdraws an application
under subsection (a), or on whose behalf an application is
withdrawn, is relieved of the obligations undertaken in the
application.
``(2) Limitation.--An application may not be withdrawn
while any alien provided status under section
101(a)(15)(H)(ii)(a) pursuant to such application is employed
by the employer.
``(3) Obligations under other statutes.--Any obligation
incurred by an employer under any other law or regulation as a
result of the recruitment of United States workers or H-2A
workers under an offer of terms and conditions of employment
required as a result of making an application under subsection
(a) is unaffected by withdrawal of such application.
``(e) Review and Approval of Applications.--
``(1) Responsibility of employers.--The employer shall make
available for public examination, within 1 working day after
the date on which an application under subsection (a) is filed,
at the employer's principal place of business or work site, a
copy of each such application (and such accompanying documents
as are necessary).
``(2) Responsibility of the secretary.--
``(A) Compilation of list.--The Secretary shall
compile, on a current basis, a list (by employer and by
occupational classification) of the applications filed under this
subsection. Such list shall include the wage rate, number of workers
sought, period of intended employment, and date of need. The Secretary
shall make such list available for examination in the District of
Columbia.
``(B) Review of applications.--The Secretary shall
review such an application only for completeness and
obvious inaccuracies. Unless the Secretary finds that
the application is incomplete or obviously inaccurate,
the Secretary shall certify that the intending employer
has filed with the Secretary an application as
described in subsection (a). Such certification shall
be provided within 7 days of the filing of the
application.
``h-2a employment requirements
``Sec. 218A. (a) Preferential Treatment of Aliens Prohibited.--
Employers seeking to hire United States workers shall offer the United
States workers no less than the same benefits, wages, and working
conditions that the employer is offering, intends to offer, or will
provide to H-2A workers. Conversely, no job offer may impose on United
States workers any restrictions or obligations which will not be
imposed on the employer's H-2A workers.
``(b) Minimum Benefits, Wages, and Working Conditions.--Except in
cases where higher benefits, wages, or working conditions are required
by the provisions of subsection (a), in order to protect similarly
employed United States workers from adverse effects with respect to
benefits, wages, and working conditions, every job offer which must
accompany an application under section 218 shall include each of the
following benefit, wage, and working condition provisions:
``(1) Requirement to provide housing or a housing
allowance.--
``(A) In general.--An employer applying under
section 218(a) for H-2A workers shall offer to provide
housing at no cost to all workers in job opportunities
for which the employer has applied under that section
and to all other workers in the same occupation at the
place of employment, whose place of residence is beyond
normal commuting distance.
``(B) Type of housing.--In complying with
subparagraph (A), an employer may, at the employer's
election, provide housing that meets applicable Federal
standards for temporary labor camps or secure housing
that meets applicable local standards for rental or
public accommodation housing or other substantially
similar class of habitation, or in the absence of
applicable local standards, State standards for rental
or public accommodation housing or other substantially
similar class of habitation. In the absence of
applicable local or State standards, Federal temporary
labor camp standards shall apply.
``(C) Family housing.--When it is the prevailing
practice in the occupation and area of intended
employment to provide family housing, family housing
shall be provided to workers with families who request
it.
``(D) Workers engaged in the range production of
livestock.--The Secretary shall issue regulations that
address the specific requirements for the provision of
housing to workers engaged in the range production of
livestock.
``(E) Limitation.--Nothing in this paragraph shall
be construed to require an employer to provide or
secure housing for persons who were not entitled to
such housing under the temporary labor certification
regulations in effect on June 1, 1986.
``(F) Charges for housing.--
``(i) Charges for public housing.--If
public housing provided for migrant
agricultural workers under the auspices of a
local, county, or State government is secured
by an employer, and use of the public housing
unit normally requires charges from migrant
workers, such charges shall be paid by the
employer directly to the appropriate individual
or entity affiliated with the housing's
management.
``(ii) Deposit charges.--Charges in the
form of deposits for bedding or other similar
incidentals related to housing shall not be
levied upon workers by employers who provide
housing for their workers. However, an employer
may require 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.
``(G) Housing allowance as alternative.--
``(i) In general.--In lieu of offering
housing pursuant to subparagraph (A), the
employer may provide a reasonable housing
allowance, but only if the requirement of
clause (ii) is satisfied. Upon the request of a
worker seeking assistance in locating housing,
the employer shall make a good faith effort to
assist the worker in identifying and locating
housing in the area of intended employment. An
employer who offers a housing allowance to a
worker, or assists a worker in locating housing
which the worker occupies, pursuant to this
clause shall not be deemed a housing provider
under section 203 of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C.
1823) solely by virtue of providing such
housing allowance. However, no housing
allowance may be used for housing which is
owned or controlled by the employer.
``(ii) Certification.--The requirement of
this clause is satisfied if the Governor of the
State certifies to the Secretary that there is
adequate housing available in the area of
intended employment for migrant farm workers,
and H-2A workers, who are seeking temporary
housing while employed at farm work. Such
certification shall expire after 3 years unless
renewed by the Governor of the State.
``(iii) Amount of allowance.--
``(I) Nonmetropolitan counties.--If
the place of employment of the workers
provided an allowance under this
subparagraph is a nonmetropolitan
county, the amount of the housing
allowance under this subparagraph shall
be equal to the statewide average fair
market rental for existing housing for
nonmetropolitan counties for the State,
as established by the Secretary of
Housing and Urban Development pursuant
to section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(II) Metropolitan counties.--If
the place of employment of the workers
provided an allowance under this
paragraph is in a metropolitan county,
the amount of the housing allowance
under this subparagraph shall be equal
to the statewide average fair market
rental for existing housing for
metropolitan counties for the State, as
established by the Secretary of Housing
and Urban Development pursuant to
section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(2) Reimbursement of transportation.--
``(A) To place of employment.--A worker who
completes 50 percent of the period of employment of the
job opportunity for which the worker was hired shall be
reimbursed by the employer for the cost of the worker's
transportation and subsistence from the place from
which the worker came to work for the employer (or
place of last employment, if the worker traveled from
such place) to the place of employment.
``(B) From place of employment.--A worker who
completes the period of employment for the job
opportunity involved shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the place of employment to the
place from which the worker, disregarding intervening
employment, came to work for the employer, or to the
place of next employment, if the worker has contracted
with a subsequent employer who has not agreed to
provide or pay for the worker's transportation and
subsistence to such subsequent employer's place of
employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as
provided in clause (ii), the amount of
reimbursement provided under subparagraph (A)
or (B) to a worker or alien shall not exceed
the lesser of--
``(I) the actual cost to the worker
or alien of the transportation and
subsistence involved; or
``(II) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
``(ii) Distance traveled.--No reimbursement
under subparagraph (A) or (B) shall be required
if the distance traveled is 100 miles or less,
or the worker is not residing in employer-
provided housing or housing secured through an
allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off
or employment is terminated for contract impossibility
(as described in paragraph (4)(D)) before the
anticipated ending date of employment, the employer
shall provide the transportation and subsistence
required by subparagraph (B) and, notwithstanding
whether the worker has completed 50 percent of the
period of employment, shall provide the transportation
reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and
work site.--The employer shall offer to provide
transportation between the worker's living quarters
(i.e., housing provided by the employer pursuant to
paragraph (1), including housing provided through a
housing allowance) and the employer's work site without
cost to the worker, and such transportation will be in
accordance with applicable laws and regulations.
``(3) Required wages.--
``(A) In general.--An employer applying for workers
under section 218(a) shall offer to pay, and shall pay,
all workers in the occupation for which the employer
has applied for workers, not less (and is not required
to pay more) than the greater of the prevailing wage
for seasonal agricultural workers in the occupation in
the area of intended employment or the greater of the
hourly wage prescribed under section 6(a)(1) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
or the applicable State minimum wage.
``(B) In complying with the requirement of
subparagraph (A), an employer or the employer's agent
may request and obtain a prevailing wage determination
from the State employment security agency. An employer
who obtains such a determination and pays the wage
determined to be prevailing, shall be considered to
have met the requirement of subparagraph (A).
``(C) In lieu of the procedure of paragraph (B), an
employer may rely on other wage information, including
a survey of the prevailing wages of workers in the
occupation in the area of intended employment that has
been conducted or funded by the employer or a group of
employers, that meet criteria specified by the
Secretary in regulations.
``(D) If the prevailing wage described in
subparagraph (A)(i) is an hourly wage, the employer may
pay workers in the occupation by an incentive method of
pay such as a piece rate, task rate, group incentive
rate, or other incentive method: Provided, That the
average hourly earnings of the employer's workers paid
by such incentive method, taken as a group, are at
least equal to the prevailing hourly wage required by
subparagraph (A)(i) for the hours worked at the
incentive payment method, after making any additions to
any workers pay required to comply with the requirement
of subparagraph (A)(ii).
``(E) Deductions.--The employer shall make only
those deductions from the worker's paycheck which are
authorized by law or are reasonable and customary in
the occupation and area of employment. The job offer
shall specify all deductions not required by law which
the employer will make from the worker's paycheck.
``(4) Guarantee of employment.--
``(A) Offer to worker.--The employer shall
guarantee to offer the worker employment for the hourly
equivalent of at least three-fourths of the work days
of the total period of employment, beginning with the
first work day after the arrival of the worker at the
place of employment and ending on the expiration date
specified in the job offer. For purposes of this
subparagraph, the hourly equivalent means the number of
hours in the work days as stated in the job offer and
shall exclude the worker's Sabbath and Federal
holidays. If the employer affords the United States or
H-2A worker less employment than that required under
this paragraph, the employer shall pay such worker the
amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of
hours.
``(B) Failure to work.--Any hours which the worker
fails to work, up to a maximum of the number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for
cause.--If the worker voluntarily abandons employment
before the end of the contract period, or is terminated
for cause, the worker is not entitled to the `three-
fourths guarantee' described in subparagraph (A).
``(D) Contract impossibility.--If, before the
expiration of the period of employment specified in the
job offer, the services of the worker are no longer
required for reasons beyond the control of the employer
due to any form of natural disaster, including but not
limited to a flood, hurricane, freeze, earthquake,
fire, drought, plant or animal disease or pest
infestation, or regulatory drought, before the
guarantee in subparagraph (A) is fulfilled, the
employer may terminate the worker's employment. In the
event of such termination, the employer shall fulfill
the employment guarantee in subparagraph (A) for the
work days that have elapsed from the first work day
after the arrival of the worker to the termination of
employment. In such cases, the employer will make
efforts to transfer the United States worker to other
comparable employment acceptable to the worker. If such
transfer is not effected, the employer shall provide
the return transportation required in paragraph (2)(D).
``(c) Range Production of Livestock.--Nothing in this section,
section 218, section 218B, or section 218C shall preclude the Secretary
of Labor and the Attorney General from continuing to apply special
procedures and requirements to the admission and employment of aliens
in occupations involving the range production of livestock.
``procedure for admission and extension of stay of h-2a workers
``Sec. 218B. (a) Petitioning for Admission.--An employer, or an
association acting as an agent or joint employer for its members, that
seeks the admission into the United States of an H-2A worker may file a
petition with the Attorney General. The petition shall be accompanied
by an accepted and currently valid certification provided by the
Secretary under section 218(e)(2)(B) covering the petitioner.
``(b) Expedited Adjudication by the Attorney General.--The Attorney
General shall establish a procedure for expedited adjudication of
petitions filed under subsection (a) and within 7 working days shall,
by fax, cable, or other means assuring expedited delivery, transmit a
copy of notice of action on the petition to the petitioner and, in the
case of approved petitions, 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) Criteria for Admissibility.--
``(1) In general.--An H-2A worker shall be considered
admissible to the United States if the alien is otherwise
admissible under this section, section 218, and section 218A,
and the alien is not ineligible under paragraph (2).
``(2) Disqualification.--An alien shall be considered
inadmissible to the United States and ineligible for
nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the
alien has, at any time during the past 5 years--
``(A) 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
``(B) otherwise violated a term or condition of
admission into the United States as a nonimmigrant,
including overstaying the period of authorized
admission as such a nonimmigrant.
``(3) Waiver of ineligibility for unlawful presence.--
``(A) In general.--An alien who has not previously
been admitted into the United States pursuant to this
section, and who is otherwise eligible for admission in
accordance with paragraphs (1) and (2), shall not be
deemed inadmissible by virtue of section 212(a)(9)(B).
If an alien described in the preceding sentence is
present in the United States, the alien may apply from
abroad for H-2A worker status, but may not be granted
that status by adjustment in the United States.
``(B) Maintenance of waiver.--An alien provided an
initial waiver of ineligibility pursuant to
subparagraph (A) shall remain eligible for such waiver
unless the alien violates the terms of this section or
again becomes ineligible under section 212(a)(9)(B) by
virtue of unlawful presence in the United States after
the date of the initial waiver of ineligibility
pursuant to subparagraph (A).
``(d) Period of Admission.--
``(1) In general.--The alien shall be admitted for the
period of employment in the application, certified by the
Secretary pursuant to section 218(e)(2)(B), not to exceed 10
months, supplemented by a period of up to 1 week before the
beginning of the period of employment (to be granted for the
purpose of travel to the work site) and a period of 14 days
following the period of employment (to be granted for the
purpose of departure or extension based on a subsequent offer
of employment), except that--
``(A) the alien is not authorized to be employed
during such 14-day period except in the employment for
which the alien was previously authorized; and
``(B) the total period of employment, including
such 14-day period, may not exceed 10 months.
``(2) Construction.--Nothing in this subsection shall limit
the Attorney General's authority to extend the stay of the
alien under any other provision of this Act.
``(e) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)15)(H)(ii)(a) who abandons the employment
which was the basis for such admission or status shall be
considered to have failed to maintain nonimmigrant status as an
H-2A worker and shall depart the United States or be subject to
removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer (or association
acting as agent for the employer) shall notify the Attorney
General within 7 days of an H-2A worker's having prematurely
abandoned employment.
``(3) Removal by the attorney general.--The Attorney
General shall promptly remove from the United States any H-2A
worker who violates any term or condition of the worker's
nonimmigrant status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate his or her employment
if the alien promptly departs the United States upon
termination of such employment.
``(f) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the
Attorney General required by subsection (e)(2), the Secretary
of State shall promptly issue a visa to, and the Attorney
General shall admit into the United States, an eligible alien
designated by the employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates
employment; or
``(B) whose employment is terminated after a United
States worker is employed pursuant to section
218(b)(2)(H)(iii), if the United States worker
voluntarily departs before the end of the period of
intended employment or if the employment termination is
for a lawful job-related reason.
``(2) Construction.--Nothing in this subsection is intended
to limit any preference required to be accorded United States
workers under any other provision of this Act.
``(g) Identification Document.--
``(1) In general.--Each alien authorized to be admitted
under section 101(a)(15)(H)(ii)(a) shall, upon receipt of a
visa, be given an identification and employment eligibility
document to verify eligibility for employment in the United
States and verify such person's proper identity.
``(2) Requirements.--No identification and employment
eligibility document may be issued which does not meet the
following requirements:
``(A) The document shall be capable of reliably
determining whether--
``(i) the individual with the
identification and employment eligibility
document whose eligibility is being verified is
in fact eligible for employment;
``(ii) the individual whose eligibility is
being verified is claiming the identity of
another person; and
``(iii) the individual whose eligibility is
being verified is authorized to be admitted
into, and employed in, the United States as an
H-2A worker.
``(B) The document shall be in a form that is
resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of
the Attorney General for the purpose of
excluding aliens from benefits for which they
are not eligible and determining whether the
alien is unlawfully present in the United
States; and
``(ii) be compatible with law enforcement
databases to determine if the alien has been
convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an aliean in H-2A status who is lawfully present in the
United States pursuant to this division of pursuant to sec.
101(a)(15)(H)(ii) of the Immigration and Naturalization Act (8
U.S.C. 1101(a)), the petition filed by the employer or an
association pursuant to subsection (a), shall request an
extension of the alien's stay and a change in the alien's
employment.
``(2) Limitation on filing a petition for extension of
stay.--A petition may not be filed for an extension of the
alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 3 years after the
date of the alien's last admission to the United States
under this section.
``(3) Work authorization upon filing a petition for
extension of stay.--In the case of an alien who is lawfully
present in the United States, the alien is authorized to
commence the employment described in a petition under paragraph
(1) on the date on which the petition is filed. For purposes of
the preceding sentence, the term `file' means sending the
petition by certified mail via the United States Postal
Service, return receipt requested, by guaranteed commercial
delivery which will provide the employer with a documented
acknowledgment of the date of sending the petition. The
employer shall provide a copy of the employer's petition to the
alien, who shall keep the petition with the alien's
identification and employment eligibility document as evidence
that the petition has been filed and that the alien is
authorized to work in the United States. Upon approval of a
petition for an extension of stay or change in the alien's
authorized employment, 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 petition.
``(4) Limitation on employment authorization of aliens
without valid identification and employment eligibility
document.--An expired identification and employment eligibility
document, together with a copy of an petition for extension of
stay or change in the alien's authorized employment that
complies with the requirements of paragraph (1), shall
constitute a valid work authorization document for a period of
not more than 60 days beginning on the date on which such
petition is filed, after which time only a currently valid
identification and employment eligibility document shall be
acceptable.
``(5) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous
period of authorized status as an H-2A worker
(including any extensions) is 3 years.
``(B) Requirement to remain outside united
states.--
``(i) In general.--Subject to clause (ii),
in the case of an alien outside the United
States whose period of authorized status as an
H-2A worker (including any extensions) has
expired, the alien may not again apply for
admission to the United States as an H-2A
worker unless the alien has remained outside
the United States for a continuous period equal
to at least \1/5\ the duration of the alien's
previous period of authorized status as an H-2A worker (including any
extensions).
``(ii) Exception.--Clause (i) shall not
apply in the case of an alien if the alien's
period of authorized status as an H-2A worker
(including any extensions) was for a period of
not more than 10 months and such alien has been
outside the United States for at least 2 months
during the 12 months preceding the date the
alien again is applying for admission to the
United States as an H-2A worker.
``(i) Special Rules for Aliens Employed as Sheepherders.--
Notwithstanding any other provision of this section, aliens admitted
under section 101(a)(15)(H)(ii)(a) for employment as sheepherders--
``(1) may be admitted for a period of 12 months;
``(2) may be extended for a continuous period of up to 3
years; and
``(3) shall not be subject to the requirements of
subsection (h)(5) relating to periods of absence from the
United States.
``worker protections and labor standards enforcement
``Sec. 218C. (a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(A) Aggrieved person or third-party complaints.--
The Secretary shall establish a process for the
receipt, investigation, and disposition of complaints
respecting a petitioner's failure to meet a condition
specified in section 218(b), or an employer's
misrepresentation of material facts in an application
under section 218(a). Complaints may be filed by any
aggrieved person or organization (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 12 months 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) Determination on complaint.--Under such
process, the Secretary shall provide, within 30 days
after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis
exists to make a finding described in subparagraph (C),
(D), (E), or (F). If the Secretary determines that such
a reasonable basis exists, the Secretary shall provide
for notice of such determination to the interested
parties and an opportunity for a hearing on the
complaint, in accordance with section 556 of title 5,
United States Code, within 60 days after the date of
the determination. If such a hearing is requested, the
Secretary shall make a finding concerning the matter
not later than 60 days after the date of the hearing.
In the case of similar complaints respecting the same
applicant, the Secretary may consolidate the hearings
under this subparagraph on such complaints.
``(C) Failures to meet conditions.--If the
Secretary finds, after notice and opportunity for a
hearing, a failure to meet a condition of paragraph
(1)(A), (1)(B), (1)(D), (1)(F), (2)(A), (2)(B), or
(2)(G) of section 218(b), a substantial failure to meet
a condition of paragraph (1)(C) or (E), or paragraph
(2)(C), (2)(D), (2)(E), or (2)(H) of section 218(b), or
a material misrepresentation of fact in an application
under section 218(a)--
``(i) the Secretary shall notify the
Attorney General of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $1,000 per violation) as
the Secretary determines to be appropriate; and
``(ii) the Attorney General may disqualify
the employer from the employment of aliens
described in section 101(A)(15)(H)(ii)(a) for a
period of 1 year.
``(D) Willful failures and willful
misrepresentations.--If the Secretary finds, after
notice and opportunity for hearing, a willful failure
to meet a condition of section 218(b), a willful
misrepresentation of a material fact in an application
under section 218(a), or a violation of subsection
(b)--
``(i) the Secretary shall notify the
Attorney General of such finding and may, in
addition, impose such other
administrative remedies (including civil money penalties in an amount
not to exceed $5,000 per violation) as the Secretary determines to be
appropriate; and
``(ii) the Attorney General may disqualify
the employer from the employment of H-2A
workers for a period of 2 years.
``(E) Displacement of united states workers.--If
the Secretary finds, after notice and opportunity for
hearing, a willful failure to meet a condition of
section 218(b) or a willful misrepresentation of a
material fact in an application under section 218(a),
in the course of which failure or misrepresentation the
employer displaced a United States worker employed by
the employer during the period of employment on the
employer's application under section 218(a) or during
the period of 30 days preceding such period of
employment--
``(i) the Secretary shall notify the
Attorney General of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $15,000 per violation) as
the Secretary determines to be appropriate; and
``(ii) the Attorney General may disqualify
the employer from the employment of H-2A
workers for a period of 3 years.
``(F) Limitations on civil money penalties.--The
Secretary shall not impose total civil money penalties
with respect to an application under section 218(a) in
excess of $90,000.
``(G) Failures to pay wages or required benefits.--
If the Secretary finds, after notice and opportunity
for a hearing, that the employer has failed to pay the
wages, or provide the housing allowance,
transportation, subsistence reimbursement, or guarantee
of employment, required under section 218A(b), the
Secretary shall assess payment of back wages, or other
required benefits, due any United States worker or H-2A
worker employed by the employer in the specific
employment in question. The back wages or other
required benefits under section 218A(b) shall be equal
to the difference between the amount that should have
been paid and the amount that actually was paid to such
worker.
``(2) Statutory construction.--Nothing in this section
shall be construed as limiting the authority of the Secretary
to conduct any compliance investigation under any other labor
law, including any law affecting migrant and seasonal
agricultural workers, or, in the absence of a complaint under
this section, under section 218 or 218A.
``(b) Discrimination Prohibited.--It is a violation of this
subsection for an employer who has filed an application under section
218(a), to intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any other manner discriminate against an employee
(which term, for purposes of this subsection, includes a former
employee and an applicant for employment) because the employee has
disclosed information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of section 218 or
218A or any rule or regulation pertaining to section 218 or 218A, or
because the employee cooperates or seeks to cooperate in an
investigation or other proceeding concerning the employer's compliance
with the requirements of section 218 or 218A or any rule or regulation
pertaining to either of such sections.
``(c) Authorization To Seek Other Appropriate Employment.--The
Secretary and the Attorney General shall establish a process under
which an H-2A worker who files a complaint regarding a violation of
subsection (b) and is otherwise eligible to remain and work in the
United States may be allowed to seek other appropriate employment in
the United States for a period not to exceed the maximum period of stay
authorized for such nonimmigrant classification.
``(d) Role of Associations.--
``(1) Violation by a member of an association.--An employer
on whose behalf an application is filed by an association
acting as its agent is fully responsible for such application,
and for complying with the terms and conditions of sections 218
and 218A, as though the employer had filed the application
itself. If such an employer is determined, under this section,
to have committed a violation, the penalty for such violation
shall apply only to that member of the association unless the
Secretary determines that the association or other member
participated in, had knowledge, or reason to know of the
violation, in which case the penalty shall be invoked against
the association or other association member as well.
``(2) Violations by an association acting as an employer.--
If an association filing an application as a sole or joint
employer is determined to have committed a violation under this
section, the penalty for such violation shall apply only to the
association unless the Secretary determines that an association member
or members participated in or had knowledge, or reason to know of the
violation, in which case the penalty shall be invoked against the
association member or members as well.
``definitions
``Sec. 218D. For purposes of sections 218 through 218C:
``(1) Agricultural employment.--The term `agricultural
employment' means any service or activity that is considered to
be agricultural under section 3(f) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under
section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C.
3121(g)). For purposes of this paragraph, agricultural
employment includes employment under section
101(a)(15)(H)(ii)(a).
``(2) Bona fide union.--The term `bona fide union' means
any organization in which employees participate and which
exists for the purpose of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of work for
agricultural employees. Such term does not include an
organization formed, created, administered, supported,
dominated, financed, or controlled by an employer or employer
association or its agents or representatives.
``(3) Displace.--In the case of an application with respect
to one or more H-2A workers by an employer, the employer is
considered to `displace' a United States worker from a job if
the employer lays off the worker from a job for which the H-2A
worker or workers is or are sought.
``(4) Eligible.--The term `eligible', when used with
respect to an individual, means an individual who is not an
unauthorized alien (as defined in section 274A(h)(3)).
``(5) Employer.--The term `employer' means any person or
entity, including any farm labor contractor and any
agricultural association, that employs workers in agricultural
employment.
``(6) H-2A employer.--The term `H-2A employer' means an
employer who seeks to hire one or more nonimmigrant aliens
described in section 101(a)(15)(H)(ii)(a).
``(7) H-2A worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(8) Job opportunity.--The term `job opportunity' means a
job opening for temporary full-time employment at a place in
the United States to which United States workers can be
referred.
``(9) Lays off.--
``(A) In general.--The term `lays off', with
respect to a worker--
``(i) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, contract impossibility (as
described in section 218A(b)(4)(D)), or
temporary layoffs due to weather, markets, or
other temporary conditions; but
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under section
218(b)(2)(E), with either employer described in
such section) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
``(B) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
``(10) Prevailing wage.--The term `prevailing wage' means,
with respect to an agricultural occupation in an area of
intended employment, the rate of wages that includes the 51st
percentile of employees with similar experience and
qualifications in the agricultural occupation in the area of
intended employment, expressed in terms of the prevailing
method of pay for the occupation in the area of intended
employment.
``(11) Regulatory drought.--The term `regulatory drought'
means a decision subsequent to the filing of the application
under section 218 by an entity not under the control of the
employer making such filing which restricts the employer's
access to water for irrigation purposes and reduces or limits
the employer's ability to product an agricultural commodity,
thereby reducing the need for labor.
``(12) Seasonal.--Labor is performed on a `seasonal' basis
if--
(A) ordinarily, it pertains to or is of the kind
exclusively performed at certain seasons or periods of
the year; and
(B) from its nature, it may not be continuous or
carried on throughout the year.
``(13) Secretary.--The term `Secretary' means the Secretary
of Labor.
``(14) Temporary.--A worker is employed on a `temporary'
basis where the employment is intended not to exceed 10 months.
``(15) United states worker.--The term `United States
worker' means any worker, whether a United States citizen or
national, a lawfully admitted permanent resident alien, or any
other alien, who is authorized to work in the job opportunity
within the United States, except an alien admitted or otherwise
provided status under section 101(a)(15)(H)(ii)(a).''.
(b) Table of Contents.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the
item relating to section 218 and inserting the following:
``Sec. 218. H-2A employer applications.
``Sec. 218A. H-2A employment requirements.
``Sec. 218B. Procedure for admission and extension of stay of H-2A
workers.
``Sec. 218C. Worker protections and labor standards enforcement.
``Sec. 218D. Definitions.''.
TITLE III--MISCELLANEOUS PROVISIONS
SEC. 301. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees.--The Secretary shall establish and
periodically adjust a schedule of fees for the employment of aliens
under this division, and a collection process for such fees from
employers participating in the program provided under this division.
Such fees shall be the only fees chargeable to employers for services
provided under this division.
(b) Determination of Schedule.--
(1) In general.--The schedule under subsection (a) shall
reflect a fee rate based on the number of job opportunities
indicated in the employer's application under section 218 of
the Immigration and Nationality Act, as added by section 201 of
this division, and sufficient to provide for the direct costs
of providing services related to an employer's authorization to
employ eligible aliens pursuant to this division, to include
the certification of eligible employers, the issuance of
documentation, and the admission of eligible aliens.
(2) Procedure.--
(A) In general.--In establishing and adjusting such
a schedule, the Secretary shall comply with Federal
cost accounting and fee setting standards.
(B) Publication and comment.--The Secretary shall
publish in the Federal Register an initial fee schedule
and associated collection process and the cost data or
estimates upon which such fee schedule is based, and
any subsequent amendments thereto, pursuant to which
public comment shall be sought and a final rule issued.
(c) Use of Proceeds.--Notwithstanding any other provision of law,
all proceeds resulting from the payment of the alien employment user
fees shall be available without further appropriation and shall remain
available without fiscal year limitation to reimburse the Secretary,
the Secretary of State, and the Attorney General for the costs of
carrying out section 218 of the Immigration and Nationality Act, as
added by section 201 of this division, and the provisions of this
division.
SEC. 302. REGULATIONS.
(a) Regulations of the Attorney General.--The Attorney General
shall consult with the Secretary of Labor and the Secretary of
Agriculture on all regulations to implement the duties of the Attorney
General under this division.
(b) Regulations of the Secretary of State.--The Secretary of State
shall consult with the Attorney General, the Secretary of Labor, and
the Secretary of Agriculture on all regulations to implement the duties
of the Secretary of State under this division.
(c) Regulations of the Secretary of Labor.--The Secretary of Labor
shall consult with the Secretary of Agriculture and the Attorney
General on all regulations to implement the duties of the Secretary of
Labor under this division.
(d) Deadline for Issuance of Regulations.--All regulations to
implement the duties of the Attorney General, the Secretary of State,
and the Secretary of Labor under this title and the amendments made by
sections 201 and 301 shall take effect on the effective date of such
title and amendments and shall be issued not later than 1 year after
the date of the enactment of this Act.
SEC. 303. EFFECTIVE DATE.
(a) In General.--Except as otherwise provided, this title and the
amendments made by sections 201 and 301 shall take effect on the date
that is 1 year after the date of the enactment of this Act.
(b) Report.--Not later than 180 days after the date of the
enactment of this Act, the Secretary shall prepare and submit to the
appropriate committees of the Congress a report that describes the
measures being taken and the progress made in implementing this
division.
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