[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2185 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2185

  To simplify the process for admitting temporary alien agricultural 
   workers under section 101(a)(15)(H)(ii)(a) of the Immigration and 
  Nationality Act, to increase access to such workers, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 9, 2004

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

_______________________________________________________________________

                                 A BILL


 
  To simplify the process for admitting temporary alien agricultural 
   workers under section 101(a)(15)(H)(ii)(a) of the Immigration and 
  Nationality Act, to increase access to such 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.

    This Act may be cited as the ``Temporary Agricultural Work Reform 
Act of 2004''.

SEC. 2. ADMISSION OF TEMPORARY H-2A WORKERS.

    (a) In General.--Section 218 of the Immigration and Nationality Act 
(8 U.S.C. 1188) is amended to read as follows:

                 ``admission of temporary h-2a workers

    ``Sec. 218. (a) Application.--No alien may be admitted as an H-2A 
worker (as defined in subsection (u)(4)) unless the employer has filed 
with the Secretary of Labor an application stating the following:
            ``(1) Temporary or seasonal work or services.--
                    ``(A) In general.--The agricultural employment for 
                which the H-2A worker or workers is or are sought is 
                temporary or seasonal, the number of workers sought, 
                and the wage rate and conditions under which they will 
                be employed.
                    ``(B) Seasonal work.--For purposes of subparagraph 
                (A), the term `seasonal' means an annually recurring 
                time period in which a particular crop is planted, 
                cultivated, or harvested, along with the ancillary 
                activities that are required to support such planting, 
                cultivation, or harvest. For purposes of an employer's 
                eligibility to hire H-2A workers, an application filed 
                under this subsection shall be classified as a 
                `seasonal job opportunity' if the crop activity is 
                traditionally performed in that geographical area 
                during the time specified on the application. There 
                shall be no limit to the number of applications that 
                can be filed by an agricultural employer during any 12-
                month period as long as each application has a clearly 
                specified season for that particular crop activity.
            ``(2) Benefits, wage, and working conditions.--The employer 
        will provide, at a minimum, the benefits, wages, and working 
        conditions required by subsection (m) to all workers employed 
        in the jobs for which the H-2A worker or workers is or are 
        sought and to all other temporary workers in the same 
        occupation at the place of employment.
            ``(3) 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 during 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.
            ``(4) Recruitment.--Using the State workforce agency, the 
        employer has attempted to recruit domestic workers within the 
        State or region of traditional or expected labor supply. The 
        obligation to engage in recruitment under this paragraph shall 
        terminate on the date the H-2A workers depart for the 
        employer's place of employment.
            ``(5) Offers to united states workers.--The employer has 
        offered or will offer the job for which the nonimmigrant is, or 
        the nonimmigrants are, sought to any eligible United States 
        worker who applies and is equally or better qualified for the 
        job and who will be available at the time and place of need.
            ``(6) 50 percent rule.--The employer will provide 
        employment to any qualified United States worker who applies to 
        the employer until 50 percent of the period of the work 
        contract under which the H-2A worker who is in the job was 
        hired has elapsed.
            ``(7) Provision of insurance.--If the job for which the 
        nonimmigrant is, or the nonimmigrants are, sought is not 
        covered by 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 workers' compensation law for 
        comparable employment.
            ``(8) Requirements for placement of h-2a workers with other 
        h-2a employers.--A nonimmigrant who is admitted into the United 
        States as an H-2A worker may be transferred to another employer 
        that has certified to the Secretary of Homeland Security that 
        it has filed an application under this subsection and is in 
        compliance with this section. The Secretary of Homeland 
        Security shall establish a process for the approval and 
        reissuance of visas for such transferred H-2A workers as 
        necessary.
            ``(9) Strike or lockout.--There is not a strike or lockout 
        in the course of a labor dispute which, under regulations 
        promulgated by the Secretary of Labor, precludes the provision 
        of the certification described in section 101(a)(15)(H)(ii)(a).
            ``(10) Previous violations.--The employer has not, during 
        the previous 2-year period, employed H-2A workers and 
        substantially violated a material term or condition of approval 
        with respect to the employment of domestic or nonimmigrant 
        workers, as determined by the Secretary of Labor after notice 
        and opportunity for a hearing.
    ``(b) Publication.--The employer shall make available for public 
examination, within 1 working day after the date on which an 
application under this section is filed, at the employer's principal 
place of business or worksite, a copy of each such application (and 
such accompanying documents as are necessary).
    ``(c) List.--The Secretary of Labor shall compile, on a current 
basis, a list (by employer) of the applications filed under subsection 
(a). Such list shall include the wage rate, number of aliens sought, 
period of intended employment, and date of need. The Secretary of Labor 
shall make such list available for public examination in Washington, 
DC.
    ``(d) Special Rules for Consideration of Applications.--The 
following rules shall apply in the case of the filing and consideration 
of an application under subsection (a):
            ``(1) Deadline for filing applications.--The Secretary of 
        Labor may not require that the application be filed more than 
        45 days before the first date the employer requires the labor 
        or services of the H-2A worker or workers.
            ``(2) Review.--The Secretary of Labor shall review such an 
        application only for completeness and obvious inaccuracies.
            ``(3) Issuance of approval.--Unless the Secretary of Labor 
        finds that the application is incomplete or obviously 
        inaccurate, the Secretary of Labor shall provide the 
        certification described in section 101(a)(15)(H)(ii)(a) within 
        15 days of the date of the filing of the application.
    ``(e) Roles of Agricultural Associations.--
            ``(1) Permitting filing by agricultural associations.--An 
        application to import an alien as a temporary agricultural 
        worker may be filed by an association of agricultural producers 
        which use agricultural services.
            ``(2) Treatment of associations acting as employers.--If an 
        association is a joint or sole employer of temporary 
        agricultural workers, such workers may be transferred among its 
        producer members to perform agricultural services of a 
        temporary or seasonal nature for which the application was 
        approved.
            ``(3) Statement of liability.--The application form shall 
        include a clear statement explaining the liability under this 
        section of an employer who places an H-2A worker with another 
        H-2A employer if the other employer displaces a United States 
        worker in violation of the condition described in subsection 
        (a)(8).
            ``(4) Treatment of violations.--
                    ``(A) Member's violation does not necessarily 
                disqualify association or other members.--If an 
                individual producer member of a joint employer 
                association is determined to have committed an act that 
                is in violation of the conditions for approval with 
                respect to the member's application, the denial shall 
                apply only to that member of the association unless the 
                Secretary of Labor determines that the association or 
                other member participated in, had knowledge of, or had 
                reason to know of, the violation.
                    ``(B) Association's violation does not necessarily 
                disqualify members.--
                            ``(i) Joint employer.--If an association 
                        representing agricultural producers as a joint 
                        employer is determined to have committed an act 
                        that is in violation of the conditions for 
                        approval with respect to the association's 
                        application, the denial shall apply only to the 
                        association and does not apply to any 
                        individual producer member of the association, 
                        unless the Secretary of Labor determines that 
                        the member participated in, had knowledge of, 
                        or had reason to know of, the violation.
                            ``(ii) Sole employer.--If an association of 
                        agricultural producers approved as a sole 
                        employer is determined to have committed an act 
                        that is in violation of the conditions for 
                        approval with respect to the association's 
                        application, no individual producer member of 
                        such association may be the beneficiary of the 
                        services of temporary alien agricultural 
                        workers admitted under this section in the 
                        commodity and occupation in which such aliens 
                        were employed by the association which was 
                        denied approval during the period such denial 
                        is in force, unless such producer member 
                        employs such aliens in the commodity and 
                        occupation in question directly or through an 
                        association which is a joint employer of such 
                        workers with the producer member.
    ``(f) Expedited Administrative Appeals of Certain Determinations.--
Regulations shall provide for an expedited procedure for the review of 
a denial of approval under this section, or at the applicant's request, 
for a de novo administrative hearing respecting the denial.
    ``(g) Miscellaneous Provisions.--
            ``(1) Withholding of domestic workers.--No person or entity 
        shall willfully and knowingly withhold domestic workers prior 
        to the arrival of H-2A workers in order to force the hiring of 
        domestic workers under subsection (a)(6).
            ``(2) Endorsement of documents.--The Secretary of Homeland 
        Security shall provide for the endorsement of entry and exit 
        documents of nonimmigrants described in section 
        101(a)(15)(H)(ii)(a) as may be necessary to carry out this 
        section and to provide notice for purposes of section 274A.
            ``(3) Preemption of state laws.--The provisions of 
        subsections (a) and (c) of section 214 and the provisions of 
        this section preempt any State or local law regulating 
        admissibility of nonimmigrant workers.
            ``(4) Fees.--
                    ``(A) In general.--The Secretary of Labor may 
                require, as a condition of approving the application, 
                the payment of a fee in accordance with subparagraph 
                (B) to recover the reasonable costs of processing 
                applications.
                    ``(B) Amounts.--
                            ``(i) Employer.--The fee for each employer 
                        that receives a temporary alien agricultural 
                        labor certification shall be equal to $100 plus 
                        $10 for each job opportunity for H-2A workers 
                        certified, provided that the fee to an employer 
                        for each temporary alien agricultural labor 
                        certification received shall not exceed $1,000.
                            ``(ii) Joint employer association.--In the 
                        case of a joint employer association that 
                        receives a temporary alien agricultural labor 
                        certification, each employer-member receiving 
                        such certification shall pay a fee equal to 
                        $100 plus $10 for each job opportunity for H-2A 
                        workers certified, provided that the fee to an 
                        employer for each temporary alien agricultural 
                        labor certification received shall not exceed 
                        $1,000. The joint employer association shall 
                        not be charged a separate fee.
                    ``(C) Payments.--The fees collected under this 
                paragraph shall be paid by check or money order made 
                payable to the `Department of Labor'. In the case of 
                employers of H-2A workers that are members of a joint 
                employer association applying on their behalf, the 
                aggregate fees for all employers of H-2A workers under 
                the application may be paid by one check or money 
                order.
                    ``(D) Inflation adjustment.--In the case of any 
                calendar year beginning after 2005, each dollar amount 
                in subparagraph (B) may be increased by an amount equal 
                to--
                            ``(i) such dollar amount; multiplied by
                            ``(ii) the percentage (if any) by which the 
                        average of the Consumer Price Index for all 
                        urban consumers (United States city average) 
                        for the 12-month period ending with August of 
                        the preceding calendar year exceeds such 
                        average for the 12-month period ending with 
                        August 2004.
    ``(h) Failure To Meet Conditions.--If the Secretary of Labor finds, 
after notice and opportunity for a hearing, a failure to meet a 
condition of subsection (a), or a material misrepresentation of fact in 
an application under subsection (a)--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        Homeland Security 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 of Labor determines to be appropriate; and
            ``(2) the Secretary of Homeland Security may disqualify the 
        employer from the employment of H-2A workers for a period of 1 
        year.
    ``(i) Willful Failures and Willful Misrepresentations.--If the 
Secretary of Labor finds, after notice and opportunity for a hearing, a 
willful failure to meet a condition of subsection (a) or a willful 
misrepresentation of a material fact in an application under subsection 
(a), or a violation of subsection (g)(1)--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        Homeland Security 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 of Labor determines to be appropriate;
            ``(2) the Secretary of Labor may seek appropriate legal or 
        equitable relief to effectuate the purposes of subsection 
        (g)(1); and
            ``(3) the Secretary of Homeland Security may disqualify the 
        employer from the employment of H-2A workers for a period of 2 
        years.
    ``(j) Displacement of United States Workers.--If the Secretary of 
Labor finds, after notice and opportunity for a hearing, a willful 
failure to meet a condition of subsection (a) or a willful 
misrepresentation of a material fact in an application under subsection 
(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 subsection (a) 
or during the period of 30 days preceding such period of employment--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        Homeland Security 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 of Labor determines to be appropriate; and
            ``(2) the Secretary of Homeland Security may disqualify the 
        employer from the employment of H-2A workers for a period of 3 
        years.
    ``(k) Limitations on Civil Money Penalties.--The Secretary of Labor 
shall not impose total civil money penalties with respect to an 
application under subsection (a) in excess of $90,000.
    ``(l) Failures To Pay Wages or Required Benefits.--If the Secretary 
of Labor 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 subsection (a)(2), the Secretary of Labor 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 subsection (a)(2) shall be equal to the difference between the 
amount that should have been paid and the amount that actually was paid 
to such worker.
    ``(m) Minimum Benefits, Wages, and Working Conditions.--
            ``(1) Preferential treatment of aliens prohibited.--
                    ``(A) In general.--Employers seeking to hire United 
                States workers shall offer the United States workers 
                not 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) Interpretations and determinations.--While 
                benefits, wages, and other terms and conditions of 
                employment specified in this subsection are required to 
                be provided in connection with employment under this 
                section, every interpretation and determination made 
                under this Act or under any other law, regulation, or 
                interpretative provision regarding the nature, scope, 
                and timing of the provision of these and any other 
                benefits, wages, and other terms and conditions of 
                employment, must be made in conformance with the 
                governing principles that the services of workers to 
                their employers and the employment opportunities 
                afforded to workers by their employers, including those 
                employment opportunities that require United States 
                workers or H-2A workers to travel or relocate in order 
                to accept or perform employment, mutually benefit such 
                workers, as well as their families, and employers, 
                principally benefiting neither, and that employment 
                opportunities within the United States further benefit 
                the United States economy as a whole and should be 
                encouraged.
            ``(2) Required wages.--
                    ``(A) An employer applying for workers under 
                subsection (a) shall offer to pay, and shall pay, all 
                workers in the occupation for which the employer has 
                applied for workers, not less than the prevailing wage.
                    ``(B) In complying with subparagraph (A), an 
                employer may request and obtain a prevailing wage 
                determination from the State employment security 
                agency.
                    ``(C) In lieu of the procedure described in 
                subparagraph (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 meets criteria 
                specified by the Secretary of Labor in regulations.
                    ``(D) An employer who obtains such prevailing wage 
                determination, or who relies on a qualifying survey of 
                prevailing wages, and who pays the wage determined to 
                be prevailing, shall be considered to have complied 
                with the requirement of subparagraph (A).
                    ``(E) No worker shall be paid less than the greater 
                of the prevailing wage or the applicable State minimum 
                wage.
            ``(3) Requirement to provide housing or a housing 
        allowance.--
                    ``(A) In general.--An employer applying for workers 
                under subsection (a) 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) Certificate of inspection.--Prior to any 
                occupation by a worker in housing described in 
                subparagraph (B), the employer shall submit a 
                certificate of inspection by an approved Federal or 
                State agency to the Secretary of Labor.
                    ``(D) Workers engaged in the range production of 
                livestock.--The Secretary of Labor 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) 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. The 
                        employer must provide the Secretary of Labor 
                        with a list of the names of all workers 
                        assisted under this clause and the local 
                        address of each such worker.
                            ``(ii) Certification.--The requirement of 
                        this clause is satisfied if the Governor of the 
                        State certifies to the Secretary of Labor 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.
            ``(4) Reimbursement of transportation.--
                    ``(A) To place of employment.--
                            ``(i) In general.--A worker who completes 
                        50 percent of the period of employment of the 
                        job opportunity for which the worker was hired, 
                        measured from the worker's first day of work in 
                        such employment, shall be reimbursed by the 
                        employer for the cost of the worker's 
                        transportation and subsistence from the place 
                        from which the worker was approved to enter the 
                        United States to work for the employer (or 
                        place of last employment, if the worker 
                        traveled from such place) to the place of 
                        employment by the employer, except that the 
                        employer shall not be required to reimburse 
                        visa, passport, consular, or international 
                        border-crossing fees or any other fees 
                        associated with the worker's lawful admission 
                        into the United States to perform employment 
                        that may be incurred by the worker.
                            ``(ii) Timely reimbursement.--Reimbursement 
                        to the worker of expenses for the cost of the 
                        worker's transportation and subsistence to the 
                        place of employment shall be considered timely 
                        if such reimbursement is made not later than 
                        the worker's first regular payday after the 
                        worker completes 50 percent of the period of 
                        employment of the job opportunity as provided 
                        under this paragraph.
                    ``(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 from which the worker 
                was approved to enter the United States 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 if the worker is not residing in employer-
                        provided housing or housing secured through an 
                        allowance as provided in paragraph (3).
                    ``(D) Early termination.--If the worker is laid off 
                or employment is terminated for contract impossibility 
                (as described in paragraph (5)(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 provide transportation 
                between the worker's living quarters (such as housing 
                provided by the employer pursuant to paragraph (3), 
                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.
            ``(5) 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 subparagraph, 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 a flood, 
                hurricane, freeze, earthquake, fire, or drought), plant 
                or animal disease, pest infestation, or regulatory 
                action, before the employment 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.
    ``(n) 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 must file a petition 
with the Secretary of Homeland Security. The petition shall be 
accompanied by the certification described in section 
101(a)(15)(H)(ii)(a).
    ``(o) Expedited Adjudication by the Secretary.--The Secretary of 
Homeland Security shall establish a procedure for expedited 
adjudication of petitions filed under subsection (n) and within 7 
working days of such filing 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.
    ``(p) Disqualification.--
            ``(1) Subject to paragraph (2), 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, violated a term 
        or condition of admission into the United States as a 
        nonimmigrant, including overstaying the period of authorized 
        admission.
            ``(2) Waivers.--
                    ``(A) In general.--An alien outside the United 
                States, and seeking admission under section 
                101(a)(15)(H)(ii)(a) shall not be deemed inadmissible 
                under such section by reason of paragraph (1) or 
                section 212(a)(9)(B). A waiver under this subparagraph 
                may be granted only once to an individual alien.
                    ``(B) Limitation.--In any case in which an alien is 
                admitted to the United States upon having a ground of 
                inadmissibility waived under subparagraph (A), such 
                waiver shall be considered to remain in effect unless 
                the alien again violates a material provision of this 
                section or otherwise violates a term or condition of 
                admission into the United States as a nonimmigrant, in 
                which case such waiver shall terminate.
    ``(q) 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 Secretary of 
        Homeland Security within 7 days of an H-2A worker's having 
        prematurely abandoned employment.
            ``(3) Removal by the secretary.--The Secretary of Homeland 
        Security 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.
    ``(r) Replacement of Alien.--
            ``(1) In general.--Upon presentation of the notice to the 
        Secretary of Homeland Security required by subsection (q)(2), 
        the Secretary of State shall promptly issue a visa to, and the 
        Secretary of Homeland Security 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 subsection 
                (a)(6), 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.
    ``(s) Identification Document.--
            ``(1) In general.--Each alien authorized to be admitted 
        under section 101(a)(15)(H)(ii)(a) shall be provided 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 Secretary of Homeland Security 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.
    ``(t) Extension of Stay of H-2A Workers in the United States.--
            ``(1) Extension of stay.--If an employer seeks approval to 
        employ an H-2A worker who is lawfully present in the United 
        States, the petition filed by the employer or an association 
        pursuant to subsection (n) shall request an extension of the 
        alien's stay and a change in the alien's employment.
            ``(2) Work authorization upon filing 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, or delivered by guaranteed commercial 
        delivery which will provide the employer with a documented 
        acknowledgment of the date of receipt of 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 Secretary of Homeland Security 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.
    ``(u) Definitions.--For purposes of this section:
            ``(1) Area of employment.--The term `area of employment' 
        means the area within normal commuting distance of the worksite 
        or physical location where the work of the H-2A worker is or 
        will be performed. If such worksite or location is within a 
        Metropolitan Statistical Area, any place within such area is 
        deemed to be within the area of employment.
            ``(2) Eligible individual.--The term `eligible individual' 
        means, with respect to employment, an individual who is not an 
        unauthorized alien (as defined in section 274A(h)(3)) with 
        respect to that employment.
            ``(3) Displace.--In the case of an application with respect 
        to 1 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 that is essentially 
        the equivalent of the job for which the H-2A worker or workers 
        is or are sought. A job shall not be considered to be 
        essentially equivalent of another job unless it involves 
        essentially the same responsibilities, was held by a United 
        States worker with substantially equivalent qualifications and 
        experience, and is located in the same area of employment as 
        the other job.
            ``(4) H-2A worker.--The term `H-2A worker' means a 
        nonimmigrant described in section 101(a)(15)(H)(ii)(a).
            ``(5) 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, or the expiration of a grant or 
                        contract (other than a temporary employment 
                        contract entered into in order to evade a 
                        condition described in paragraph (3) or (8) of 
                        subsection (a); 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 subsection (a)(8), 
                        with either employer described in such 
                        subsection) 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) Construction.--Nothing in this paragraph is 
                intended to limit an employee's rights under a 
                collective bargaining agreement or other employment 
                contract.
            ``(6) 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.
            ``(7) United states worker.--The term `United States 
        worker' means an employee who--
                    ``(A) is a citizen or national of the United 
                States; or
                    ``(B) is an alien who is lawfully admitted for 
                permanent residence, is admitted as a refugee under 
                section 207, is granted asylum under section 208, or is 
                an immigrant otherwise authorized, by this Act or by 
                the Secretary of Homeland Security, to be employed.''.
    (b) Conforming Amendment.--Section 101(a)(15)(H)(ii)(a) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is 
amended by striking ``seasonal nature, or (b)'' and inserting 
``seasonal nature, and with respect to whom the Secretary of Labor 
determines and certifies to the Secretary of Homeland Security that the 
intending employer has filed with the Secretary of Labor an application 
under section 218(a), or (b)''.

SEC. 3. LEGAL ASSISTANCE PROVIDED BY THE LEGAL SERVICES CORPORATION.

    (a) In General.--Section 305 of the Immigrant Reform and Control 
Act of 1986 (8 U.S.C. 1101 note) is amended--
            (1) by striking ``A nonimmigrant'' and inserting ``(a) In 
        General.--A nonimmigrant''; and
            (2) by adding at the end the following:
    ``(b) Legal Assistance.--The Legal Services Corporation may not 
provide legal assistance for or on behalf of any alien, and may not 
provide financial assistance to any person or entity that provides 
legal assistance for or on behalf of any alien, unless the alien--
            ``(1) is present in the United States at the time the legal 
        assistance is provided; and
            ``(2) is an alien to whom subsection (a) applies.''.
    (b) Mediation.--Section 305 of the Immigrant Reform and Control Act 
of 1986 (8 U.S.C. 1101 note), as amended by subsection (a), is further 
amended by adding at the end the following:
    ``(c) Required Mediation.--The Legal Services Corporation may not 
bring a civil action for damages on behalf of 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)), unless at least 90 days prior to 
bringing the action a request has been made to the Federal Mediation 
and Conciliation Service to assist the parties in reaching a 
satisfactory resolution of all issues involving all parties to the 
dispute and mediation has been attempted.''.
                                 <all>