[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2823 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 711
108th CONGRESS
  2d Session
                                S. 2823

To provide for the adjustment of status of certain foreign agricultural 
 workers, to amend the Immigration and Nationality Act to reform the H-
     2A worker program under that Act, to provide a stable, legal 
 agricultural workforce, to extend basic legal protections and better 
      working conditions to more workers, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 21, 2004

Mr. Craig (for himself and Mr. Kennedy) introduced the following bill; 
                     which was read the first time

                           September 22, 2004

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
To provide for the adjustment of status of certain foreign agricultural 
 workers, to amend the Immigration and Nationality Act to reform the H-
     2A worker program under that Act, to provide a stable, legal 
 agricultural workforce, to extend basic legal protections and better 
      working conditions to more 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 2004''.
    (b) Table of Contents.--The table of contents for this Act 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 Act:
            (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) Employer.--The term ``employer'' means any person or 
        entity, including any farm labor contractor and any 
        agricultural association, that employs workers in agricultural 
        employment.
            (3) 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.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (5) Temporary.--A worker is employed on a ``temporary'' 
        basis where the employment is intended not to exceed 10 months.
            (6) 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)).
            (7) Work day.--The term ``work day'' means any day in which 
        the individual is employed 1 or more hours in agriculture 
        consistent with the definition of ``man-day'' under section 
        3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
        203(u)).

                  TITLE I--ADJUSTMENT TO LAWFUL STATUS

SEC. 101. AGRICULTURAL WORKERS.

    (a) Temporary Resident Status.--
            (1) In general.--Notwithstanding any other provision of 
        law, the Secretary shall confer upon an alien who qualifies 
        under this subsection the status of an alien lawfully admitted 
        for temporary residence if the Secretary 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--
                            (i) entered the United States at least two 
                        years before the date of the enactment of this 
                        Act; and
                            (ii) has performed agricultural employment 
                        in the United States for at least 575 hours or 
                        100 work days, whichever is less, during any 12 
                        consecutive months during the 18-month period 
                        ending on August 31, 2003.
                    (B) Application period.--The alien must apply for 
                such status during the 18-month application period 
                beginning on the 1st day of the 7th month that begins 
after the date of 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 Secretary may terminate such status only upon a 
        determination under this Act that the alien is deportable.
            (5) Record of employment.--
                    (A) In general.--Each employer of a worker granted 
                status under this subsection shall annually--
                            (i) provide a written record of employment 
                        to the alien; and
                            (ii) provide a copy of such record to the 
                        Secretary.
                    (B) Sunset.--The obligation under subparagraph (A) 
                terminates on August 31, 2009.
    (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) Delayed eligibility for certain federal public 
        benefits.--An alien who acquires the status of an alien 
        lawfully admitted for temporary residence under subsection (a) 
        as described in paragraph (1) shall not be eligible, by reason 
        of such acquisition of that status, for any form of assistance 
        or benefit described in section 403(a) of the Personal 
        Responsibility and Work Opportunity Reconciliation Act of 1996 
        (8 U.S.C. 1613(a)) until 5 years after the date on which the 
        Secretary confers permanent resident status upon that alien 
        under subsection (a).
            (3) Terms of employment respecting aliens admitted under 
        this section.--
                    (A) Prohibition.--No alien granted status 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 
                        Secretary 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 Secretary determines that the 
                        complaint was filed not later than 6 months 
                        after the date of the termination.
                            (ii) Initiation of arbitration.--If the 
                        Secretary 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 Secretary shall initiate binding 
                        arbitration proceedings by requesting the 
                        Federal Mediation and Conciliation Service to 
                        appoint a mutually agreeable arbitrator from 
                        the roster of arbitrators maintained by such 
                        Service for the geographical area in which the 
                        employer is located. The procedures and rules 
                        of such Service shall be applicable to the 
                        selection of such arbitrator and to such 
                        arbitration proceedings. The Secretary shall 
                        pay the fee and expenses of the arbitrator, 
                        subject to the availability of appropriations 
                        for such purpose.
                            (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 
                        Secretary. 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 Secretary receives a finding of an 
                        arbitrator that an employer has terminated an 
                        alien granted temporary resident status under 
                        subsection (a) without just cause, the 
                        Secretary 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 attorney's fees.--The 
                        parties shall bear the cost of their own 
                        attorney's 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 
                        Secretary 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 Secretary 
                        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 an alien granted temporary 
                        resident status 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 Secretary shall adjust the status of an alien 
                granted lawful temporary resident status under 
                subsection (a) to that of an alien lawfully admitted 
                for permanent residence if the Secretary determines 
                that the following requirements are satisfied:
                            (i) Qualifying employment.--The alien has 
                        performed at least 360 work days or 2,060 
                        hours, but in no case less than 2,060 hours, of 
                        agricultural employment in the United States, 
                        during the period beginning on September 1, 
                        2003, and ending on August 31, 2009.
                            (ii) Qualifying years.--The alien has 
                        performed at least 75 work days or 430 hours, 
                        but in no case less than 430 hours, of 
                        agricultural employment in the United States in 
                        at least 3 nonoverlapping periods of 12 
                        consecutive months during the period beginning 
                        on September 1, 2003, and ending on August 31, 
                        2009. Qualifying periods under this clause may 
                        include nonconsecutive 12-month periods.
                            (iii) Qualifying work in first 3 years.--
                        The alien has performed at least 240 work days 
                        or 1,380 hours, but in no case less than 1,380 
                        hours, of agricultural employment during the 
                        period beginning on September 1, 2003, and 
                        ending on August 31, 2006.
                            (iv) Application period.--The alien applies 
                        for adjustment of status not later than August 
                        31, 2010.
                            (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 Secretary shall credit the 
                        alien with any work days lost because the alien 
                        was unable to work in agricultural employment 
                        due to injury or disease arising out of and in 
                        the course of the alien's agricultural 
                        employment, if the alien can establish such 
                        disabling injury or disease through medical 
                        records.
                    (B) Grounds for denial of adjustment of status.--
                The Secretary 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 Secretary 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). The Secretary shall 
                issue regulations establishing grounds to waive 
                subparagraph (A)(iii) with respect to an alien who has 
                completed at least 200 days of the work requirement 
                specified in such subparagraph in the event of a 
                natural disaster which substantially limits the 
                availability of agricultural employment or a personal 
                emergency that prevents compliance with such 
                subparagraph.
            (2) Spouses and minor children.--
                    (A) In general.--Notwithstanding any other 
                provision of law, the Secretary shall confer the status 
                of lawful permanent resident on the spouse and minor 
                child of an alien granted status under paragraph (1), 
                including any individual who was a minor child on the 
                date such alien was granted temporary resident status, 
                if the spouse or minor child applies for such status, 
                or if the principal alien includes the spouse or minor 
                child in an application for adjustment of status to 
                that of a lawful permanent resident.
                    (B) Treatment of spouses and minor children prior 
                to adjustment of status.--A spouse and minor child of 
                an alien granted temporary resident status under 
                subsection (a) may not be--
                            (i) removed while such alien maintains such 
                        status; and
                            (ii) granted authorization to engage in 
                        employment in the United States or be provided 
                        an ``employment authorized'' endorsement or 
                        other work permit, unless such employment 
                        authorization is granted under another 
                        provision of law.
    (d) Applications.--
            (1) To whom may be made.--
                    (A) Within the united states.--The Secretary shall 
                provide that--
                            (i) applications for temporary resident 
                        status under subsection (a) may be filed--
                                    (I) with the Secretary, 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 Secretary; and
                            (ii) applications for adjustment of status 
                        under subsection (c) shall be filed directly 
                        with the Secretary.
                    (B) Outside the united states.--The Secretary, in 
                cooperation with the Secretary of State, shall 
                establish a procedure whereby an alien may apply for 
                temporary resident 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 
                        Secretary 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 such 
                        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 Act.
                            (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 temporary 
                        resident status is credible.
                    (D) Travel documentation.--The Secretary shall 
                provide each alien granted status under this section 
                with a counterfeit-resistant document of authorization 
                to enter or reenter the United States that meets the 
                requirements established by the Secretary.
            (2) Designation of entities to receive applications.--
                    (A) In general.--For purposes of receiving 
                applications under subsection (a), the Secretary--
                            (i) shall designate qualified farm labor 
                        organizations and associations of employers; 
                        and
                            (ii) may designate such other persons as 
                        the Secretary 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) are referred 
                to in this Act 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 Secretary 
                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 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 Secretary.
                    (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 Secretary applications filed with it in 
        accordance with paragraph (1)(A)(i)(II) but not to forward to 
        the Secretary 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 
        Secretary. 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 Secretary 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 Secretary, nor any other 
                official or employee of the Department of Homeland 
                Security, 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 
                        Homeland Security, 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 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 Secretary shall provide for 
                a schedule of fees that--
                            (i) shall be charged for the filing of 
                        applications for status 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 Secretary until expended for processing 
                        applications for status 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 eligibility for status 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 Secretary 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 Secretary 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).
                            (iii) Construction.--Nothing in this 
                        subparagraph shall be construed as affecting 
                        the authority of the Secretary 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 status under 
                this section by reason of a ground of inadmissibility 
                under section 212(a)(4) of the Immigration and 
                Nationality Act (8 U.S.C. 1182(a)(4)) 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 
        enactment of this Act, the Secretary 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 for temporary 
        resident status under subsection (a) (but for the fact that the 
        alien may not apply for such status 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 temporary resident status, 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 Secretary shall provide 
        that, in the case of an alien who presents a nonfrivolous 
        application for temporary resident 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 status under subsection (a) or (c) except in accordance 
        with this subsection.
            (2) Administrative review.--
                    (A) Single level of administrative appellate 
                review.--The Secretary 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 determination 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 Secretary, 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 Secretary shall issue regulations to 
implement this section not later than the 1st day of the 7th month that 
begins after the date of 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.
    (k) Authorization of Appropriations.--There is hereby authorized to 
be appropriated to the Secretary to carry out this section $40,000,000 
for each of fiscal years 2005 through 2008.

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)(ii), by striking ``or'' at the end;
            (2) in subparagraph (C), by inserting ``or'' at the end;
            (3) by inserting after subparagraph (C) the following:
            ``(D) who is granted status as a lawful temporary resident 
        under the Agricultural Job Opportunity, Benefits, and Security 
        Act of 2004,''; 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 was granted lawful temporary resident status.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on the 1st day of the 7th month that begins after the date 
of 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 of Labor.--
            ``(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 of 
        Labor 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 the workers will be needed; 
                and
                    ``(D) the number of job opportunities in which the 
                employer seeks to employ the 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) Strike or lockout.--The specific job 
                opportunity for which the employer is requesting an H-
                2A worker 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) Strike or lockout.--The specific job 
                opportunity for which the employer is requesting an H-
                2A worker 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 1 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.
                    ``(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 of Labor 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 any eligible 
                        United States worker who applies and is equally 
                        or better qualified for the job for which the 
                        nonimmigrant is, or nonimmigrants are, sought 
                        and who will be available at the time and place 
                        of need.
                            ``(iii) Period of employment.--The employer 
                        will provide employment to any qualified United 
                        States worker who applies to the employer 
                        during the period beginning 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 of Labor shall 
                                immediately investigate. The Secretary 
                                of Labor shall, within 36 hours of the 
                                receipt of the complaint, issue 
                                findings concerning the alleged 
                                violation. If the Secretary of Labor 
                                finds that a violation has occurred, 
                                the Secretary of Labor 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 
                                of Labor shall make all reasonable 
                                efforts to place the United States 
                                worker in an open job acceptable to the 
                                worker, if there are other job offers 
                                pending with the job service that offer 
                                similar job opportunities 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 1 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 
        filed pursuant to subsection (a), except that if the employer 
        is an agricultural association, the association may withdraw an 
        application filed pursuant to subsection (a) with respect to 1 
        or more of its members. To withdraw an application, the 
        employer or association shall notify the Secretary of Labor in 
        writing, and the Secretary of Labor 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 of labor.--
                    ``(A) Compilation of list.--The Secretary of Labor 
                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 of 
                Labor shall make such list available for examination in 
                the District of Columbia.
                    ``(B) Review of applications.--The Secretary of 
                Labor shall review such an application only for 
                completeness and obvious inaccuracies. Unless the 
                Secretary of Labor finds that the application is 
                incomplete or obviously inaccurate, the Secretary of 
                Labor shall certify that the intending employer has 
                filed with the Secretary of Labor 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(b)(2) 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 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) 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 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.
            ``(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 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 in 
                the occupation in the area of intended employment or 
                the adverse effect wage rate. No worker shall be paid 
                less than 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) Limitation.--Effective on the date of 
                enactment of the Agricultural Job Opportunity, 
                Benefits, and Security Act of 2004 and continuing for 3 
                years thereafter, no adverse effect wage rate for a 
                State may be more than the adverse effect wage rate for 
                that State in effect on January 1, 2003, as established 
                by section 655.107 of title 20, Code of Federal 
                Regulations.
                    ``(C) Required wages after 3-year freeze.--
                            ``(i) First adjustment.--Unless Congress 
                        acts to set a new wage standard applicable to 
                        this section, effective on December 1, 2006, 
                        the adverse effect wage rate then in effect 
shall be adjusted by the 12 month percentage change in the Consumer 
Price Index for All Urban Consumers between December of the preceding 
year and December of the second preceding year, except that such 
adjustment shall not exceed 4 percent.
                            ``(ii) Subsequent annual adjustments.--
                        Effective on March 1, 2007, and each March 1 
                        thereafter, the adverse effect wage rate then 
                        in effect shall be adjusted in accordance with 
                        the requirements of clause (i).
                    ``(D) Deductions.--The employer shall make only 
                those deductions from the worker's wages that 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 wages.
                    ``(E) Frequency of pay.--The employer shall pay the 
                worker not less frequently than twice monthly, or in 
                accordance with the prevailing practice in the area of 
                employment, whichever is more frequent.
                    ``(F) Hours and earnings statements.--The employer 
                shall furnish to the worker, on or before each payday, 
                in one or more written statements the following 
                information:
                            ``(i) The worker's total earnings for the 
                        pay period.
                            ``(ii) The worker's hourly rate of pay, 
                        piece rate of pay, or both.
                            ``(iii) The hours of employment which have 
                        been offered to the worker (broken out by hours 
                        offered in accordance with and over and above 
                        the three-quarters guarantee described in 
                        paragraph (4)).
                            ``(iv) The hours actually worked by the 
                        worker.
                            ``(v) An itemization of the deductions made 
                        from the worker's wages.
                            ``(vi) If piece rates of pay are used, the 
                        units produced daily.
                    ``(G) Report on wage protections.--Not later than 
                June 1, 2007, the Resources, Community and Economic 
                Development Division, and the Health, Education and 
                Human Services Division, of the General Accounting 
                Office shall jointly prepare and transmit to the 
                Secretary of Labor and to the Committees on the 
                Judiciary of the House of Representatives and the 
                Senate a report which shall address--
                            ``(i) whether the employment of H-2A or 
                        unauthorized aliens in the United States 
                        agricultural work force has depressed United 
                        States farm worker wages below the levels that 
                        would otherwise have prevailed if alien farm 
                        workers had not been employed in the United 
                        States;
                            ``(ii) whether an adverse effect wage rate 
                        is necessary to prevent wages of United States 
                        farm workers in occupations in which H-2A 
                        workers are employed from falling below the 
                        wage levels that would have prevailed in the 
                        absence of the employment of H-2A workers in 
                        those occupations;
                            ``(iii) whether alternative wage standards, 
                        such as a prevailing wage standard, would be 
                        sufficient to prevent wages in occupations in 
                        which H-2A workers are employed from falling 
below the wage level that would have prevailed in the absence of H-2A 
employment;
                            ``(iv) whether any changes are warranted in 
                        the current methodologies for calculating the 
                        adverse effect wage rate and the prevailing 
                        wage; and
                            ``(v) recommendations for future wage 
                        protection under this section.
                    ``(H) Commission on wage standards.--
                            ``(i) Establishment.--There is established 
                        the Commission on Agricultural Wage Standards 
                        under the H-2A program (in this subparagraph 
                        referred to as the `Commission').
                            ``(ii) Composition.--The Commission shall 
                        consist of 10 members as follows:
                                    ``(I) 4 representatives of 
                                agricultural employers and 1 
                                representative of the Department of 
                                Agriculture, each appointed by the 
                                Secretary of Agriculture.
                                    ``(II) 4 representatives of 
                                agricultural workers and 1 
                                representative of the Department of 
                                Labor, each appointed by the Secretary 
                                of Labor.
                            ``(iii) Functions.--The Commission shall 
                        conduct a study that shall address--
                                    ``(I) whether the employment of H-
                                2A or unauthorized aliens in the United 
                                States agricultural workforce has 
                                depressed United States farm worker 
                                wages below the levels that would 
                                otherwise have prevailed if alien farm 
                                workers had not been employed in the 
                                United States;
                                    ``(II) whether an adverse effect 
                                wage rate is necessary to prevent wages 
                                of United States farm workers in 
                                occupations in which H-2A workers are 
                                employed from falling below the wage 
                                levels that would have prevailed in the 
                                absence of the employment of H-2A 
                                workers in those occupations;
                                    ``(III) whether alternative wage 
                                standards, such as a prevailing wage 
                                standard, would be sufficient to 
                                prevent wages in occupations in which 
                                H-2A workers are employed from falling 
                                below the wage level that would have 
                                prevailed in the absence of H-2A 
                                employment;
                                    ``(IV) whether any changes are 
                                warranted in the current methodologies 
                                for calculating the adverse effect wage 
                                rate and the prevailing wage rate; and
                                    ``(V) recommendations for future 
                                wage protection under this section.
                            ``(iv) Final report.--Not later than June 
                        1, 2007, the Commission shall submit a report 
                        to the Congress setting forth the findings of 
                        the study conducted under clause (iii).
                            ``(v) Termination date.--The Commission 
                        shall terminate upon submitting its final 
                        report.
            ``(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).
            ``(5) Motor vehicle safety.--
                    ``(A) Mode of transportation subject to coverage.--
                            ``(i) In general.--Except as provided in 
                        clauses (iii) and (iv), this subsection applies 
                        to any H-2A employer that uses or causes to be 
                        used any vehicle to transport an H-2A worker 
                        within the United States.
                            ``(ii) Uses or causes to be used.--(I) In 
                        this subsection, the term `uses or causes to be 
                        used' applies only to transportation provided 
                        by an H-2A employer to an H-2A worker, or by a 
                        farm labor contractor to an H-2A worker at the 
                        request or direction of an H-2A employer.
                            ``(II) The term `uses or causes to be used' 
                        does not apply to--
                                    ``(aa) transportation provided, or 
                                transportation arrangements made, by an 
                                H-2A worker himself or herself, unless 
the employer specifically requested or arranged such transportation; or
                                    ``(bb) carpooling arrangements made 
                                by H-2A workers themselves, using one 
                                of the workers' own vehicles, unless 
                                specifically requested by the employer 
                                directly or through a farm labor 
                                contractor.
                            ``(III) The mere providing of a job offer 
                        by an employer to an H-2A worker that causes 
                        the worker to travel to or from the place of 
                        employment, or the payment or reimbursement of 
                        the transportation costs of an H-2A worker by 
                        an H-2A employer, shall not constitute an 
                        arrangement of, or participation in, such 
                        transportation.
                            ``(iii) Agricultural machinery and 
                        equipment excluded.--This subsection does not 
                        apply to the transportation of an H-2A worker 
                        on a tractor, combine, harvester, picker, or 
                        other similar machinery or equipment while such 
                        worker is actually engaged in the planting, 
                        cultivating, or harvesting of agricultural 
                        commodities or the care of livestock or poultry 
                        or engaged in transportation incidental 
                        thereto.
                            ``(iv) Common carriers excluded.--This 
                        subsection does not apply to common carrier 
                        motor vehicle transportation in which the 
                        provider holds itself out to the general public 
                        as engaging in the transportation of passengers 
                        for hire and holds a valid certification of 
                        authorization for such purposes from an 
                        appropriate Federal, State, or local agency.
                    ``(B) Applicability of standards, licensing, and 
                insurance requirements.--
                            ``(i) In general.--When using, or causing 
                        to be used, any vehicle for the purpose of 
                        providing transportation to which this 
                        subparagraph applies, each employer shall--
                                    ``(I) ensure that each such vehicle 
                                conforms to the standards prescribed by 
                                the Secretary of Labor under section 
                                401(b) of the Migrant and Seasonal 
                                Agricultural Worker Protection Act (29 
                                U.S.C. 1841(b)) and other applicable 
                                Federal and State safety standards;
                                    ``(II) ensure that each driver has 
                                a valid and appropriate license, as 
                                provided by State law, to operate the 
                                vehicle; and
                                    ``(III) have an insurance policy or 
                                a liability bond that is in effect 
                                which insures the employer against 
                                liability for damage to persons or 
                                property arising from the ownership, 
                                operation, or causing to be operated, 
                                of any vehicle used to transport any H-
                                2A worker.
                            ``(ii) Amount of insurance required.--The 
                        level of insurance required shall be determined 
                        by the Secretary of Labor pursuant to 
                        regulations to be issued under this subsection.
                            ``(iii) Effect of workers' compensation 
                        coverage.--If the employer of any H-2A worker 
                        provides workers' compensation coverage for 
                        such worker in the case of bodily injury or 
                        death as provided by State law, the following 
                        adjustments in the requirements of subparagraph 
                        (B)(i)(III) relating to having an insurance 
                        policy or liability bond apply:
                                    ``(I) No insurance policy or 
                                liability bond shall be required of the 
                                employer, if such workers are 
                                transported only under circumstances 
                                for which there is coverage under such 
                                State law.
                                    ``(II) An insurance policy or 
                                liability bond shall be required of the 
                                employer for circumstances under which 
                                coverage for the transportation of such 
                                workers is not provided under such 
                                State law.
    ``(c) Compliance With Labor Laws.--An employer shall assure that, 
except as otherwise provided in this section, the employer will comply 
with all applicable Federal, State, and local labor laws, including 
laws affecting migrant and seasonal agricultural workers, with respect 
to all United States workers and alien workers employed by the 
employer, except that a violation of this assurance shall not 
constitute a violation of the Migrant and Seasonal Agricultural Worker 
Protection Act (29 U.S.C. 1801 et seq.).
    ``(d) Copy of Job Offer.--The employer shall provide to the worker, 
not later than the day the work commences, a copy of the employer's 
application and job offer described in section 218(a), or, if the 
employer will require the worker to enter into a separate employment 
contract covering the employment in question, such separate employment 
contract.
    ``(e) Range Production of Livestock.--Nothing in this section or 
sections 218 or 218B shall preclude the Secretary of Labor and the 
Secretary 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 Secretary. The petition shall be accompanied by an 
accepted and currently valid certification provided by the Secretary of 
Labor under section 218(e)(2)(B) covering the petitioner.
    ``(b) Expedited Adjudication by the Secretary.--The Secretary 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 status, but may not be granted that 
                status 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 of Labor 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 authority of the Secretary 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 Secretary 
        within 7 days of an H-2A worker's having prematurely abandoned 
        employment.
            ``(3) Removal by the secretary.--The Secretary 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 
        Secretary required by subsection (e)(2), the Secretary of State 
        shall promptly issue a visa to, and the Secretary 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 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 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 H-2A alien who is lawfully present in the United 
        States, 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 an 
        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, 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 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 a 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 the 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 the Agricultural Job 
Opportunity, Benefits, and Security Act of 2004, 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 of Labor 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 of Labor 
                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 of Labor 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 (H). If the Secretary of Labor determines 
                that such a reasonable basis exists, the Secretary of 
                Labor 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 of Labor 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 of Labor 
                may consolidate the hearings under this subparagraph on 
                such complaints.
                    ``(C) Failures to meet conditions.--If the 
                Secretary of Labor 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), 
                (1)(E), (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 of Labor shall notify 
                        the Secretary 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
                            ``(ii) the Secretary 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 of Labor 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 (d)(1)--
                            ``(i) the Secretary of Labor shall notify 
                        the Secretary 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;
                            ``(ii) the Secretary of Labor may seek 
                        appropriate legal or equitable relief to 
                        effectuate the purposes of subsection (d)(1); 
                        and
                            ``(iii) the Secretary 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 of Labor 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 of Labor shall notify 
                        the Secretary 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
                            ``(ii) the Secretary 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 of Labor 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 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 section 218A(b), 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 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 
        of Labor 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) Rights Enforceable by Private Right of Action.--H-2A workers 
may enforce the following rights through the private right of action 
provided in subsection (c), and no other right of action shall exist 
under Federal or State law to enforce such rights:
            ``(1) The providing of housing or a housing allowance as 
        required under section 218A(b)(1).
            ``(2) The reimbursement of transportation as required under 
        section 218A(b)(2).
            ``(3) The payment of wages required under section 
        218A(b)(3) when due.
            ``(4) The benefits and material terms and conditions of 
        employment expressly provided in the job offer described in 
        section 218(a)(2), not including the assurance to comply with 
        other Federal, State, and local labor laws described in section 
        218A(c), compliance with which shall be governed by the 
        provisions of such laws.
            ``(5) The guarantee of employment required under section 
        218A(b)(4).
            ``(6) The motor vehicle safety requirements under section 
        218A(b)(5).
            ``(7) The prohibition of discrimination under subsection 
        (d)(2).
    ``(c) Private Right of Action.--
            ``(1) Mediation.--Upon the filing of a complaint by an H-2A 
        worker aggrieved by a violation of rights enforceable under 
        subsection (b), and within 60 days of the filing of proof of 
        service of the complaint, a party to the action may file a 
        request with the Federal Mediation and Conciliation Service to 
        assist the parties in reaching a satisfactory resolution of all 
        issues involving all parties to the dispute. Upon a filing of 
        such request and giving of notice to the parties, the parties 
        shall attempt mediation within the period specified in 
        subparagraph (B).
                    ``(A) Mediation services.--The Federal Mediation 
                and Conciliation Service shall be available to assist 
                in resolving disputes arising under subsection (b) 
                between H-2A workers and agricultural employers without 
                charge to the parties.
                    ``(B) 90-day limit.--The Federal Mediation and 
                Conciliation Service may conduct mediation or other 
                non-binding dispute resolution activities for a period 
                not to exceed 90 days beginning on the date on which 
                the Federal Mediation and Conciliation Service receives 
                the request for assistance unless the parties agree to 
                an extension of this period of time.
                    ``(C) Authorization.--There is hereby authorized to 
                be appropriated annually not to exceed $500,000 to the 
                Federal Mediation and Conciliation Service to carry out 
                this section, provided that, any contrary provision of 
                law notwithstanding, the Director of the Federal 
                Mediation and Conciliation Service is authorized to 
                conduct the mediation or other dispute resolution 
                activities from any other appropriated funds available 
                to the Director and to reimburse such appropriated 
                funds when the funds are appropriated pursuant to this 
                authorization, such reimbursement to be credited to 
                appropriations currently available at the time of 
                receipt thereof.
            ``(2) Maintenance of civil action in district court by 
        aggrieved person.--An H-2A worker aggrieved by a violation of 
        rights enforceable under subsection (b) by an agricultural 
        employer or other person may file suit in any district court of 
        the United States having jurisdiction of the parties, without 
        regard to the amount in controversy, without regard to the 
        citizenship of the parties, and without regard to the 
        exhaustion of any alternative administrative remedies under 
        this Act, not later than 3 years after the date the violation 
        occurs.
            ``(3) Election.--An H-2A worker who has filed an 
        administrative complaint with the Secretary of Labor may not 
        maintain a civil action under paragraph (2) unless a complaint 
        based on the same violation filed with the Secretary of Labor 
        under subsection (a)(1) is withdrawn prior to the filing of 
        such action, in which case the rights and remedies available 
        under this subsection shall be exclusive.
            ``(4) Preemption of state contract rights.--Nothing in this 
        Act shall be construed to diminish the rights and remedies of 
        an H-2A worker under any other Federal or State law or 
        regulation or under any collective bargaining agreement, except 
        that no court or administrative action shall be available under 
        any State contract law to enforce the rights created by this 
        Act.
            ``(5) Waiver of rights prohibited.--Agreements by employees 
        purporting to waive or modify their rights under this Act shall 
        be void as contrary to public policy, except that a waiver or 
        modification of the rights or obligations in favor of the 
        Secretary of Labor shall be valid for purposes of the 
        enforcement of this Act. The preceding sentence may not be 
        construed to prohibit agreements to settle private disputes or 
        litigation.
            ``(6) Award of damages or other equitable relief.--
                    ``(A) If the court finds that the respondent has 
                intentionally violated any of the rights enforceable 
                under subsection (b), it shall award actual damages, if 
                any, or equitable relief.
                    ``(B) Any civil action brought under this section 
                shall be subject to appeal as provided in chapter 83 of 
                title 28, United States Code.
            ``(7) Workers' compensation benefits; exclusive remedy.--
                    ``(A) Notwithstanding any other provision of this 
                section, where a State's workers' compensation law is 
                applicable and coverage is provided for an H-2A worker, 
                the workers' compensation benefits shall be the 
                exclusive remedy for the loss of such worker under this 
                section in the case of bodily injury or death in 
                accordance with such State's workers' compensation law.
                    ``(B) The exclusive remedy prescribed in 
                subparagraph (A) precludes the recovery under paragraph 
                (6) of actual damages for loss from an injury or death 
                but does not preclude other equitable relief, except 
                that such relief shall not include back or front pay or 
                in any manner, directly or indirectly, expand or 
                otherwise alter or affect--
                            ``(i) a recovery under a State workers' 
                        compensation law; or
                            ``(ii) rights conferred under a State 
                        workers' compensation law.
            ``(8) Tolling of statute of limitations.--If it is 
        determined under a State workers' compensation law that the 
        workers' compensation law is not applicable to a claim for 
        bodily injury or death of an H-2A worker, the statute of 
        limitations for bringing an action for actual damages for such 
        injury or death under subsection (c) shall be tolled for the 
        period during which the claim for such injury or death under 
        such State workers' compensation law was pending. The statute 
        of limitations for an action for actual damages or other 
        equitable relief arising out of the same transaction or 
        occurrence as the injury or death of the H-2A worker shall be 
        tolled for the period during which the claim for such injury or 
        death was pending under the State workers' compensation law.
            ``(9) Preclusive effect.--Any settlement by an H-2A worker 
        and H-2A employer reached through the mediation process 
        required under subsection (c)(1) shall preclude any right of 
        action arising out of the same facts between the parties in any 
        Federal or State court or administrative proceeding, unless 
        specifically provided otherwise in the settlement agreement.
            ``(10) Settlements.--Any settlement by the Secretary of 
        Labor with an H-2A employer on behalf of an H-2A worker of a 
        complaint filed with the Secretary of Labor under this section 
        or any finding by the Secretary of Labor under subsection 
        (a)(1)(B) shall preclude any right of action arising out of the 
        same facts between the parties under any Federal or State court 
        or administrative proceeding, unless specifically provided 
        otherwise in the settlement agreement.
    ``(d) Discrimination Prohibited.--
            ``(1) In general.--It is a violation of this subsection for 
        any person 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.
            ``(2) Discrimination against h-2a workers.--It is a 
        violation of this subsection for any person who has filed an 
        application under section 218(a), to intimidate, threaten, 
        restrain, coerce, blacklist, discharge, or in any manner 
        discriminate against an H-2A employee because such worker has, 
        with just cause, filed a complaint with the Secretary of Labor 
        regarding a denial of the rights enumerated and enforceable 
        under subsection (b) or instituted, or caused to be instituted, 
        a private right of action under subsection (c) regarding the 
        denial of the rights enumerated under subsection (b), or has 
        testified or is about to testify in any court proceeding 
        brought under subsection (c).
    ``(e) Authorization To Seek Other Appropriate Employment.--The 
Secretary of Labor and the Secretary shall establish a process under 
which an H-2A worker who files a complaint regarding a violation of 
subsection (d) 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.
    ``(f) 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 of Labor 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 of Labor 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 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 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 1 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) 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 produce an agricultural commodity, 
        thereby reducing the need for labor.
            ``(11) 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.
            ``(12) Secretary.--The term `Secretary' means the Secretary 
        of Homeland Security.
            ``(13) Temporary.--A worker is employed on a `temporary' 
        basis where the employment is intended not to exceed 10 months.
            ``(14) 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 Act, and a collection process for such fees from employers 
participating in the program provided under this Act. Such fees shall 
be the only fees chargeable to employers for services provided under 
this Act.
    (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 Act, and sufficient to provide for the direct costs of 
        providing services related to an employer's authorization to 
        employ eligible aliens pursuant to this Act, 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 Secretary of Labor for the costs of 
carrying out sections 218 and 218B of the Immigration and Nationality 
Act, as added by section 201 of this Act, and the provisions of this 
Act.

SEC. 302. REGULATIONS.

    (a) Regulations of the Secretary.--The Secretary shall consult with 
the Secretary of Labor and the Secretary of Agriculture on all 
regulations to implement the duties of the Secretary under this Act.
    (b) Regulations of the Secretary of State.--The Secretary of State 
shall consult with the Secretary, the Secretary of Labor, and the 
Secretary of Agriculture on all regulations to implement the duties of 
the Secretary of State under this Act.
    (c) Regulations of the Secretary of Labor.--The Secretary of Labor 
shall consult with the Secretary of Agriculture and the Secretary on 
all regulations to implement the duties of the Secretary of Labor under 
this Act.
    (d) Deadline for Issuance of Regulations.--All regulations to 
implement the duties of the Secretary, the Secretary of State, and the 
Secretary of Labor created under sections 218, 218A, 218B, and 218C of 
the Immigration and Nationality Act, as added by section 201, shall 
take effect on the effective date of section 201 and shall be issued 
not later than 1 year after the date of enactment of this Act.

SEC. 303. EFFECTIVE DATE.

    (a) In General.--Except as otherwise provided, sections 201 and 301 
shall take effect 1 year after the date of enactment of this Act.
    (b) Report.--Not later than 180 days after the date of enactment of 
this Act, the Secretary shall prepare and submit to the appropriate 
committees of Congress a report that describes the measures being taken 
and the progress made in implementing this Act.




                                                       Calendar No. 711

108th CONGRESS

  2d Session

                                S. 2823

_______________________________________________________________________

                                 A BILL

To provide for the adjustment of status of certain foreign agricultural 
 workers, to amend the Immigration and Nationality Act to reform the H-
     2A worker program under that Act, to provide a stable, legal 
 agricultural workforce, to extend basic legal protections and better 
      working conditions to more workers, and for other purposes.

_______________________________________________________________________

                           September 22, 2004

            Read the second time and placed on the calendar