Admission of temporary H–2A workers

(a)

In general

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

218.

Admission of temporary H–2A workers

(a)

Application

An alien may not be admitted as an H-2A worker unless the employer has filed with the Secretary of Homeland Security a petition attesting to the following: (1)

Temporary or seasonal labor or services

The agricultural employment for which the H–2A worker or workers is or are sought is temporary or seasonal, the number of workers sought, and the wage rate and conditions under which they will be employed. (2)

Benefits, wage, and working conditions

The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (n) to all workers employed in the jobs for which the H–2A worker or workers is or are sought and to all other workers in the same occupation at the place of employment. (3)

Nondisplacement of United States workers

The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and during a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer seeks approval to employ H–2A workers. (A)

In general

The employer shall attest that the employer— (i)conducted adequate recruitment in the area of intended employment before filing the attestation; and (ii)was unsuccessful in locating qualified United States workers for the job opportunity for which the certification is sought. (B)

Satisfaction of recruitment

The adequate recruitment requirement under subparagraph (A) is satisfied if the employer— (i)places a job order with America’s Job Bank Program of the Department of Labor; and (ii)places a Sunday advertisement in a newspaper of general circulation. (C)

Advertisement criteria

The advertisement requirement under subparagraph (B)(ii) is satisfied if the advertisement— (i)names the employer; (ii)directs applicants to report or send resumes, as appropriate for the occupation, to the employer; (iii)provides a description of the vacancy that is specific enough to apprise United States workers of the job opportunity for which certification is sought; (iv)describes the geographic area with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job; (v)states the rate of pay, which must equal or exceed the wage paid for the occupation in the area of intended employment; and (vi)offers wages, terms, and conditions of employment, which are at least as favorable as those offered to the alien. (4)

Offers to United States workers

The employer has offered or will offer the job for which the nonimmigrant is, or the nonimmigrants are, sought to any eligible United States worker who applies and is equally or better qualified for the job and who will be available at the time and place of need. (5)

Provision of insurance

If the job for which the nonimmigrant is, or the nonimmigrants are, sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment. (6)

Requirements for placement of H–2A workers with other employers

A nonimmigrant who is admitted into the United States as an H-2A worker may be transferred to another employer that has certified to the Secretary of Homeland Security that it has filed an application under this subsection and is in compliance with this section. The Secretary of Homeland Security shall establish a process for the approval and reissuance of visas for such transferred H-2A workers as necessary (7)

Strike or lockout

There is not a strike or lockout in the course of a labor dispute which, under regulations promulgated by the Secretary of Labor, precludes the provision of the certification described in section 101(a)(15)(H)(ii)(a). (8)

Previous violations

The employer has not, during the previous two-year period, employed H–2A workers and substantially violated a material term or condition of approval with respect to the employment of domestic or nonimmigrant workers, as determined by the Secretary of Labor after notice and opportunity for a hearing. (b)

Publication

The employer shall make available for public examination, within one working day after the date on which a petition under this section is filed, at the employer's principal place of business or worksite, a copy of each such petition (and such accompanying documents as are necessary). (c)

List

The Secretary of Homeland Security shall compile, on a current basis, a list (by employer) of the petitions filed under subsection (a). Such list shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary of Homeland Security shall make such list available for public examination in Washington, D.C. (d)

Special rules for consideration of petitions

The following rules shall apply in the case of the filing and consideration of a petition under subsection (a): (1)

Deadline for filing applications

The Secretary of Homeland Security may not require that the petition be filed more than 28 days before the first date the employer requires the labor or services of the H–2A worker or workers. (2)

Issuance of approval

Unless the Secretary of Homeland Security finds that the petition is incomplete or obviously inaccurate, the Secretary of Homeland Security shall provide a decision within 7 days of the date of the filing of the petition. (e)

Roles of agricultural associations

(1)

Permitting filing by agricultural associations

A petition to hire an alien as a temporary agricultural worker may be filed by an association of agricultural producers which use agricultural services. (2)

Treatment of associations acting as employers

If an association is a joint or sole employer of temporary agricultural workers, such workers may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the petition was approved. (3)

Treatment of violations

(A)

Member’s violation does not necessarily disqualify association or other members

If an individual producer member of a joint employer association is determined to have committed an act that is in violation of the conditions for approval with respect to the member’s petition, the denial shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge of, or reason to know of, the violation. (B)

Association’s violation does not necessarily disqualify members

(i)If an association representing agricultural producers as a joint employer is determined to have committed an act that is in violation of the conditions for approval with respect to the association’s application petition, the denial shall apply only to the association and does not apply to any individual producer member of the association, unless the Secretary of Labor determines that the member participated in, had knowledge of, or reason to know of, the violation. (ii)If an association of agricultural producers approved as a sole employer is determined to have committed an act that is in violation of the conditions for approval with respect to the association’s application petition, no individual producer member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the commodity and occupation in which such aliens were employed by the association which was denied approval during the period such denial is in force, unless such producer member employs such aliens in the commodity and occupation in question directly or through an association which is a joint employer of such workers with the producer member. (f)

Expedited administrative appeals of certain determinations

Regulations shall provide for an expedited procedure for the review of a denial of approval of an application under this section, or at the applicant’s request, for a de novo administrative hearing respecting the denial. (g)

Miscellaneous provisions

(1)

Withholding of domestic workers

No person or entity shall willfully and knowingly withhold domestic workers prior to the arrival of H–2A workers in order to force the hiring of domestic workers under subsection (a)(5). (2)

Endorsement of documents

The Secretary of Homeland Security shall provide for the endorsement of entry and exit documents of nonimmigrants described in section 101(a)(15)(H)(ii)(a) as may be necessary to carry out this section and to provide notice for purposes of section 274A. (3)

Preemption of State laws

The provisions of subsections (a) and (c) of section 214 and the provisions of this section preempt any State or local law regulating admissibility of nonimmigrant workers. (4)

Fees

(A)

In general

The Secretary of Homeland Security may require, as a condition of approving the petition, the payment of a fee to recover the reasonable costs of processing petitions. (B)

Amounts

(i)

Employer

The fee for each employer that receives a temporary alien agricultural labor certification shall be equal to $100 plus $10 for each job opportunity for H-2A workers certified, except that the fee to an employer for each temporary alien agricultural labor certification received shall not exceed $1,000. (ii)

Joint employer association

In the case of a joint employer association that receives a temporary alien agricultural labor certification, each employer-member receiving such certification shall pay a fee equal to $100 plus $10 for each job opportunity for H-2A workers certified, except that the fee to an employer for each temporary alien agricultural labor certification received shall not exceed $1,000. The joint employer association shall not be charged a separate fee. (C)

Payments

The fees collected under this paragraph shall be paid by check or money order made payable to the Department of Homeland Security. In the case of employers of H–2A workers that are members of a joint employer association applying on their behalf, the aggregate fees for all employers of H–2A workers under the petition may be paid by one check or money order. (h)

Failures to meet conditions

If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of subsection (a), or a material misrepresentation of fact in a petition under subsection (a)— (1)the Secretary of Labor shall notify the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and (2)the Secretary of Homeland Security may disqualify the employer from the employment of H–2A workers for a period of 1 year. (i)

Willful failures and willful misrepresentations

If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (a), or a willful misrepresentation of a material fact in application a petition under subsection (a)— (1)the Secretary of Labor shall notify the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate; (2)the Secretary of Homeland Security may disqualify the employer from the employment of H–2A workers for a period of 2 years; (3)for a second violation, the Secretary of Homeland Security may disqualify the employer from the employment of H–2A workers for a period of 5 years; and (4)for a third violation, the Secretary of Homeland Security may permanently disqualify the employer from the employment of H–2A workers. (j)

Displacement of United States workers

If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (a) or a willful misrepresentation of a material fact in a petition under subsection (a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's petition under subsection (a) or during the period of 30 days preceding such period of employment— (1)the Secretary of Labor shall notify the Secretary of Homeland Security of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; (2)the Secretary of Homeland Security may disqualify the employer from the employment of H– 2A workers for a period of 5 years; and (3)for a second violation, the Secretary of Homeland Security may permanently disqualify the employer from the employment of H–2A workers. (k)

Limitations on civil money penalties

The Secretary of Labor shall not impose total civil money penalties with respect to a petition under subsection (a) in excess of $90,000. (l)

Failures to pay wages or required benefits

If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment required under subsection (a)(2), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or H–2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under subsection (a)(2) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker. (m)

Minimum benefits, wages, and working conditions

(1)

Preferential treatment of aliens prohibited

(A)

In general

Employers seeking to hire United States workers shall offer the United States workers 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)

Interpretations and determinations

While benefits, wages, and other terms and conditions of employment specified in this subsection are required to be provided in connection with employment under this section, every interpretation and determination made under this Act or under any other law, regulation, or interpretative provision regarding the nature, scope, and timing of the provision of these and any other benefits, wages, and other terms and conditions of employment, must be made in conformance with the governing principles that the services of workers to their employers and the employment opportunities afforded to workers by their employers, including those employment opportunities that require United States workers or H–2A workers to travel or relocate in order to accept or perform employment, mutually benefit such workers, as well as their families, and employers, principally benefiting neither, and that employment opportunities within the United States further benefit the United States economy as a whole and should be encouraged. (2)

Required wages

(A)An employer applying for workers under subsection (a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less than the prevailing wage. (B)In complying with subparagraph (A), an employer may request and obtain a prevailing wage determination from the State employment security agency. (C)In lieu of the procedure described in subparagraph (B), an employer may rely on other wage information, including a survey of the prevailing wages of workers in the occupation in the area of intended employment that has been conducted or funded by the employer or a group of employers, that meets criteria specified by the Secretary of Labor in regulations. (D)An employer who obtains such prevailing wage determination, or who relies on a qualifying survey of prevailing wages, and who pays the wage determined to be prevailing, shall be considered to have complied with the requirement of subparagraph (A). (E)No worker shall be paid less than the greater of the prevailing wage or the applicable State minimum wage. (3)

Requirement to provide housing or a housing allowance

(A)

In general

An employer applying for workers under subsection (a) shall offer to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance. (B)

Type of housing

In complying with subparagraph (A), an employer may, at the employer’s election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation. In the absence of applicable local or State standards, Federal temporary labor camp standards shall apply. (C)

Certificate of inspection

Prior to any occupation by a worker in housing described in subparagraph (B), the employer shall submit a certificate of inspection by an approved Federal or State agency to the Secretary of Labor. (D)

Workers engaged in the range production of livestock

The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock. (E)

Limitation

Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986. (F)

Housing allowance as alternative

(i)

In general

In lieu of offering housing pursuant to subparagraph (A), the employer may provide a reasonable housing allowance, but only if the requirement of clause (v) is satisfied. An employer who provides a housing allowance to a worker shall not be required to reserve housing accommodations for the worker. (ii)

Assistance to locate housing

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. (iii)

Limitation

A housing allowance may not be used for housing that is owned or controlled by the employer. 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. (iv)

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. (v)

Amount of allowance

(I)

Nonmetropolitan counties

If the place of employment of the workers provided an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2 persons per bedroom. (II)

Metropolitan counties

If the place of employment of the workers provided an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2 persons per bedroom. (4)

Reimbursement of transportation

(A)

To place of employment

(i)

In general

A worker who completes 50 percent of the period of employment of the job opportunity for which the worker was hired, measured from the worker’s first day of work in such employment, shall be reimbursed by the employer for the cost of the worker’s transportation and subsistence from the place from which the worker was approved to enter the United States to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment by the employer. (ii)

Other fees

The employer shall not be required to reimburse visa, passport, consular, or international bordercrossing fees or any other fees associated with the worker’s lawful admission into the United States to perform employment that may be incurred by the worker. (iii)

Timely reimbursement

Reimbursement to the worker of expenses for the cost of the worker's transportation and subsistence to the place of employment shall be considered timely if such reimbursement is made not later than the worker’s first regular payday after the worker completes 50 percent of the period of employment of the job opportunity as provided under this paragraph. (B)

From place of employment

A worker who completes the period of employment for the job opportunity involved shall be reimbursed by the employer for the cost of the worker’s transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, was approved to enter the United States to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker’s transportation and subsistence to such subsequent employer’s place of employment. (C)

Limitation

(i)

Amount of reimbursement

Except as provided in clause (ii), the amount of reimbursement provided under subparagraph (A) or (B) to a worker or alien shall not exceed the lesser of— (I)the actual cost to the worker or alien of the transportation and subsistence involved; or (II)the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved. (ii)

Distance traveled

No reimbursement under subparagraph (A) or (B) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through an allowance as provided in paragraph (1)(F). (D)

Early termination

If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (5)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A). (E)

Transportation between living quarters and work site

The employer shall provide transportation between the worker’s living quarters (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. (5)

Guarantee of employment

(A)

Offer to worker

The employer shall guarantee to offer the worker employment for the hourly equivalent of at least three-fourths of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker’s Sabbath and Federal holidays. If the employer affords the United States or H–2A worker less employment than that required under this 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. (n)

Petitioning for admission

An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H–2A worker must file a petition with the Secretary of Homeland Security. The petition shall include the attestations for the certification described in section 101(a)(15)(H)(ii)(a). (o)

Expedited adjudication by the Secretary

The Secretary of Homeland Security— (1)shall establish a procedure for expedited adjudication of petitions filed under subsection (n); and (2)not later than 7 working days after such filing shall, by fax, cable, or other means assuring expedited delivery transmit a copy of notice of action on the petition— (A)to the petitioner; and (B)in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States. (p)

Disqualification

(1)Subject to paragraph (2), an alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years, violated a term or condition of admission into the United States as a nonimmigrant, including overstaying the period of authorized admission. (2)

Waivers

(A)

In general

An alien outside the United States, and seeking admission under section 101(a)(15)(H)(ii)(a), shall not be deemed inadmissible under such section by reason of— (i)paragraph (1); (ii)section 212(a)(6)(c), only if such alien has previously falsely represented himself to be a citizen of the United States for the purpose of agricultural employment; or (iii)section 212(a)(9)(B),

if the previous violation occurred on or before the date of enactment of this Act.

(B)

Limitation

In any case in which an alien is admitted to the United States upon having a ground of inadmissibility waived under subparagraph (A), such waiver shall be considered to remain in effect unless the alien again violates a material provision of this section or otherwise violates a term or condition of admission into the United States as a nonimmigrant, in which case such waiver shall terminate. (q)

Period of admission

(1)

In general

The alien shall be admitted for a period of employment, not to exceed 10 months, that includes a period of not more than 7 days prior to the beginning of the period of employment (to be granted for the purpose of travel to the work site) and a period of not more than 14 days following the period of employment (to be granted for the purpose of departure or extension based on a subsequent offer of employment). (2)

Limitation on employment

An alien is not authorized to be employed during the 14-day period granted for the purpose of departure or extension except in the employment for which the alien was previously authorized. (3)

Construction

Nothing in this subsection shall limit the authority of the Secretary of Homeland Security to extend the stay of the alien under any other provision of this Act. (r)

Abandonment of employment

(1)

In general

An alien admitted or provided status under section 101(a)(15)(H)(ii)(a) who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an H–2A worker and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i). (2)

Report by employer

The employer (or association acting as agent for the employer) shall notify the Secretary of Homeland Security within 7 days of an H–2A worker’s having prematurely abandoned employment. (3)

Removal by the Secretary

The Secretary of Homeland Security shall promptly remove from the United States any H–2A worker who violates any term or condition of the worker’s nonimmigrant status. (4)

Voluntary termination

Notwithstanding paragraph (1), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment. (s)

Replacement of alien

(1)

In general

Upon presentation of the notice to the Secretary of Homeland Security required by subsection (q)(2), the Secretary of State shall promptly issue a visa to, and the Secretary of Homeland Security shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker who abandons or prematurely terminates employment. (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. (t)

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)

Form

(A)The document shall be in a form that is resistant to counterfeiting and to tampering. (B)As soon as practicable, all documents shall include a biometric identifier. The determination of a biometric identifier to be used for such purposes shall take into account factors such as efficiency, accuracy, the technology available, economic considerations, and storage requirements. (C)The document shall— (i)be compatible with other databases of the Secretary of Homeland Security for the purpose of excluding aliens from benefits for which they are not eligible and determining whether the alien is unlawfully present in the United States; and (ii)be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses. (u)

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 (n) shall request an extension of the alien’s stay and, if applicable, a change in the alien’s employment. (2)

Limitation on filing petition for extension of stay

A petition may not be filed for an extension of an alien’s stay for a period of more than 10 months. (3)

Work authorization upon filing petition for extension of stay

(A)

In general

An alien who is lawfully present in the United States may commence or continue the employment described in a petition under paragraph (1) on the date on which the petition is filed. 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. (B)

Approval

Upon approval of a petition for an extension of stay or change in the alien’s authorized employment, the Secretary of Homeland Security shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition. (C)

Definition

In this paragraph, 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. (4)

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 20 months. (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. (v)

Special rule for aliens employed as sheepherders, goatherders, or dairy workers

Notwithstanding any other provision of this section, an alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a sheepherder, goatherder, or dairy worker— (1)may be admitted for a period of 12 months; and (2)shall not be subject to the requirements of subsection (v)(4)(B). (w)

Definitions

For purposes of this section: (1)

Area of employment

The term area of employment means the area within normal commuting distance of the worksite or physical location where the work of the H–2A worker is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment. (2)

Eligible individual

The term eligible individual means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A(h)(3)) with respect to that employment. (3)

Displace

In the case of a petition with respect to one or more H–2A workers by an employer, the employer is considered to displace a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the H–2A worker or workers is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job. (4)

H–2A worker

The term H–2A worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(a). (5)

Lays off

(A)

In general

The term lays off, with respect to a worker— (i)means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in paragraph (3) or (7) of subsection (a); but (ii)does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under subsection (a)(7), with either employer described in such subsection) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer. (B)

Construction

Nothing in this paragraph is intended to limit an employee’s rights under a collective bargaining agreement or other employment contract. (6)

Prevailing wage

The term prevailing wage means, with respect to an agricultural occupation in an area of intended employment, the rate of wages that includes the 51st percentile of employees with similar experience and qualifications in the agricultural occupation in the area of intended employment, expressed in terms of the prevailing method of pay for the occupation in the area of intended employment. (7)

United States worker

The term United States worker means an employee who— (A)is a citizen or national of the United States; or (B)is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized, by this Act or by the Secretary of Homeland Security, to be employed.

(b)

Conforming amendment

Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended— (1)by striking temporarily and inserting on a temporary or seasonal basis; and (2)by striking of a temporary or seasonal nature and inserting and with respect to whom the intending employer has filed with the Secretary under section 218(a). (c)

Regulations

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall promulgate regulations, in accordance with the notice and comment provisions of section 553 of title 5, United States Code, to provide for the uniform procedures for the issuance of visas to nonimmigrants described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C 1101(a)(15)(H)(ii)(a)) by visa-issuing United States consulates and consular officers. (d)

Effective date

The amendments made by this section shall take effect on the date that is 180 days after the date of the enactment of this Act.