Admission of temporary H–2A workers

(a)

Procedure for admission

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)

Definitions

In 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 work site or location is within a Metropolitan Statistical Area, any place within such area shall be considered to be within the area of employment. (2)

Displace

The term displace means to lay off a worker from a job that is essentially equivalent to the job for which an H–2A worker is sought. A job shall not be considered to be essentially equivalent to another job unless the job— (A)involves essentially the same responsibilities as such other job; (B)was held by a United States worker with substantially equivalent qualifications and experience; and (C)is located in the same area of employment as the other job. (3)

Eligible individual

The term eligible individual means an individual who is not an unauthorized alien (as defined in section 274A(h)(3)) with respect to the employment of the individual. (4)

Employer

The term employer means an employer who hires workers to perform agricultural employment. (5)

H–2A worker

The term H–2A worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(a). (6)

Lay off

(A)

In general

The term lay off— (i)means to cause a 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 (b); and (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 (h)(2), 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. (7)

Prevailing wage

The term prevailing wage means the wage rate that includes the 51st percentile of employees with similar experience and qualifications in the agricultural occupation in the area of intended employment, calculated using the same methodology used by the Department of Labor to determine prevailing wage for the purpose of the program described in section 101(a)(15)(H)(ii)(b) during 2007, and expressed in terms of the prevailing method of pay for the occupation in the area of intended employment. (8)

United States worker

The term United States worker means any worker who is— (A)a national of the United States; or (B)a person admitted for permanent resident status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255). (b)

Petition

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

Temporary work or services

(A)

In general

The employer is seeking to employ a specific number of agricultural workers on a temporary basis and will provide compensation to such workers at a specified wage rate and under specified conditions. (B)

Definition

For purposes of this paragraph, a worker is employed on a temporary basis if the employer intends to employ the worker for no longer than 10 months during any contract period. (2)

Benefits, wages, and working conditions

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

Nondisplacement of United States workers

The employer did not displace and will not displace a United States worker employed by the employer during the period of employment of the H–2A worker and during the 30-day period immediately preceding such period of employment in the occupation at the place of employment for which the employer seeks approval to employ H–2A workers. (4)

Recruitment

(A)

In general

The employer— (i)conducted adequate recruitment in the area of intended employment before filing the attestation; and (ii)was unsuccessful in locating a qualified United States worker for the job opportunity for which the H–2A worker is sought. (B)

Other requirements

The recruitment requirement under subparagraph (A) is satisfied if the employer places— (i)a local job order with the State workforce agency serving the local area where the work will be performed, except that nothing in this clause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations; and (ii)a Sunday advertisement in a newspaper of general circulation in the area of intended employment. (C)

Advertisement requirement

The advertisement requirement under subparagraph (B)(ii) is satisfied if the advertisement— (i)names the employer; (ii)directs applicants to contact 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; and (v)states the rate of pay, which shall not be less than the wage paid for the occupation in the area of intended employment. (D)

End of recruitment requirement

The requirement to recruit United States workers shall terminate on the first day of the contract period that work begins. (5)

Offers to united states workers

The employer has offered or will offer the job for which the H–2A worker is sought to any eligible United States worker who— (A)applies; (B)is qualified for the job; and (C)will be available at the time and place of need. (6)

Provision of insurance

If the job for which the H–2A worker is 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. (7)

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 a petition 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. (8)

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 hiring of H–2A workers. (9)

Previous violations

The employer has not, during the previous two-year period, employed H–2A workers and knowingly 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. (c)

Public examination

Not later than 1 working day after the date on which a petition under this section is filed, the employer shall make a copy of each such petition available for public examination, at the employer’s principal place of business or worksite. (d)

List

(1)

In general

The Secretary of Homeland Security shall maintain a list of the petitions filed under subsection (b), which shall— (A)be sorted by employer; and (B)include the number of H–2A workers sought, the wage rate, the period of intended employment, and the date of need for each alien. (2)

Availability

The Secretary of Homeland Security shall, at least monthly, submit a copy of the list described in paragraph (1) to the Secretary of Labor, who shall make the list available for public examination. (e)

Petitioning for admission

(1)

In general

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 shall file with the Secretary of Homeland Security a petition that includes the attestations described in subsection (b). (2)

Consideration of petitions

For each petition filed and considered under this subsection— (A)the Secretary of Homeland Security may not require such petition to be filed more than 28 days before the first date the employer requires the labor or services of the H–2A worker; and (B)unless the Secretary of Homeland Security determines that the petition is incomplete or obviously inaccurate, the Secretary, not later than 7 days after the date on which such petition was filed, shall either approve or reject the petition. (3)

Expedited adjudication

The Secretary of Homeland Security shall— (A)establish a procedure for expedited adjudication of petitions filed under this subsection; and (B)not later than 7 working days after such filing, transmit, by fax, cable, or other means assuring expedited delivery, a copy of notice of action on the petition— (i)in the case of approved petitions, to the petitioner, the Secretary of Labor, and to the appropriate immigration officer at the port of entry or United States consulate where the petitioner has indicated that the alien beneficiary or beneficiaries will apply for a visa or admission to the United States; and (ii)in the case of denied petitions, to the petitioner, including reasons for the denial and instructions on how to appeal such denial. (4)

Petition agreements

By filing an H–2A petition, a petitioner and each employer consents to allow access to the site where the labor is being performed to the Department of Labor, the Department of Homeland Security, or a State agency for the purpose of investigations to determine compliance with H–2A requirements. (f)

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 employers 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 members to perform agricultural services of a temporary nature for which the petition was approved. (3)

Treatment of violations

(A)

Individual member

If an individual member of a joint employer association violates any condition for approval with respect to the member’s petition, the Secretary of Homeland Security shall deny such petition only with respect to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge of, or had reason to know of the violation. (B)

Association of agricultural employers

(i)

Joint employer

If an association representing agricultural employers as a joint employer violates any condition for approval with respect to the association’s petition, the Secretary of Homeland Security shall deny such petition only with respect to the association and may not apply the denial to any individual member of the association, unless the Secretary of Labor determines that the member participated in, had knowledge of, or had reason to know of the violation. (ii)

Sole employer

If an association of agricultural employers approved as a sole employer violates any condition for approval with respect to the association’s petition, no individual member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the occupation in which such aliens were employed by the association which was denied approval during the period such denial is in force, unless such member employs such aliens in the occupation in question directly or through an association which is a joint employer of such workers with the member. (g)

Expedited administrative appeals

The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure— (1)for the review of a denial of a petition under this section by the Secretary; or (2)at the petitioner’s request, for a de novo administrative hearing respecting the denial. (h)

Miscellaneous provisions

(1)

Endorsement of documents

The Secretary of Homeland Security shall provide for the endorsement of entry and exit documents of H–2A workers as may be necessary to carry out this section and to provide notice for purposes of section 274A. (2)

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. (3)

Fees

(A)

In general

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

Fee by type of employee

(i)

Single employer

An employer whose petition for temporary alien agricultural workers is approved shall, for each approved petition, pay a fee that— (I)subject to subclause (II), is equal to $100 plus $10 for each approved H–2A worker; and (II)does not exceed $1,000. (ii)

Association

Each employer-member of a joint employer association whose petition for H–2A workers is approved shall, for each such approved petition, pay a fee that— (I)subject to subclause (II), is equal to $100 plus $10 for each approved H–2A worker; and (II)does not exceed $1,000. (iii)

Limitation on association fees

A joint employer association under clause (ii) shall not be charged a separate fee. (C)

Method of payment

The fees collected under this paragraph shall be paid by check or money order to the Department of Homeland Security. In the case of employers of H–2A workers that are members of a joint employer association petitioning applying on their behalf, the aggregate fees for all employers of H–2A workers under the petition may be paid by 1 check or money order. (4)

Employment verification program

(A)

In general

Not later than 12 months after the date of enactment of this paragraph, the Secretary of Homeland Security shall establish a mandatory employment verification program for all employers of H–2A workers to verify the eligibility of all individuals hired by each such employer, including those who present an H–2A visa to work in the United States. (B)

Employer compliance

Each employer of an H–2A worker shall comply with the requirements promulgated by the Secretary of Homeland Security to verify the identity and employment eligibility of all individuals hired. (C)

Regulations

In carrying out the program under this paragraph, the Secretary of Homeland Security shall promulgate regulations to require each employer to verify the employment eligibility of each employee hired through— (i)a secure Internet site; (ii)a machine capable of reading the H–2A visa, which shall serve as the identification and employment eligibility document for each H–2A alien; or (iii)a toll-free telephone number to check the accuracy of any social security number presented to the employer. (i)

Enforcement

(1)

Investigations and audits

The Secretary of Labor shall be responsible for conducting investigations and random audits of employer work sites to ensure compliance with the requirements of the H–2A program and all other requirements under this Act. All monetary fines levied against violating employers shall be paid to the Department of Labor and used to enhance the Department of Labor's investigatory and auditing power. (2)

Failure to meet conditions

If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of subsection (a), or a material misrepresentation of fact in a petition under subsection (a)— (A)the Secretary of Labor— (i)shall notify the Secretary of Homeland Security of such finding; and (ii)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 (B)the Secretary of Homeland Security may disqualify the employer from the employment of H–2A workers for a period of 1 year. (3)

Penalties for willful failure

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)— (A)the Secretary of Labor— (i)shall notify the Secretary of Homeland Security of such finding; and (ii)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; (B)the Secretary of Homeland Security may— (i)disqualify the employer from the employment of H–2A workers for a period of 2 years; (ii)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 (iii)for a third violation, the Secretary of Homeland Security may permanently disqualify the employer from the employment of H–2A workers. (4)

Penalties for 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— (A)the Secretary of Labor— (i)shall notify the Secretary of Homeland Security of such finding; and (ii)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 (B)the Secretary of Homeland Security may— (i)disqualify the employer from the employment of H–2A workers for a period of 5 years; and (ii)for a second violation, permanently disqualify the employer from the employment of H–2A workers. (5)

Limitations on civil money penalties

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

Failure To pay wages or required benefits

(1)

Assessment

If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, transportation, subsistence reimbursement, or guarantee of employment attested by the employer under subsection (b)(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. (2)

Amount

The back wages or other required benefits described in paragraph (1)— (A)shall be equal to the difference between the amount that should have been paid and the amount that was paid to such worker; and (B)shall be distributed to the worker to whom such wages are due. (k)

Minimum wages, benefits, and working conditions

(1)

Preferential treatment of aliens prohibited

(A)

In general

Each employer seeking to hire United States workers shall offer such workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H–2A workers. 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)

Interpretation

Every interpretation and determination made under this section 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 shall be made so that— (i)the services of workers to their employers and the employment opportunities afforded to workers by the 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— (I)mutually benefit such workers, as well as their families, and employers; and (II)principally benefit neither employer nor employee; and (ii)employment opportunities within the United States benefit the United States economy. (2)

Required wages

(A)

In general

Each employer petitioning for workers under subsection (b) shall pay not less than the greater of— (i)the prevailing wage to all workers in the occupation for which the employer has petitioned for workers; or (ii)the applicable State minimum wage. (B)

Determination of wages

An employer seeking to comply with subparagraph (A) may— (i)request and obtain a prevailing wage determination from the State employment agency; or (ii)rely on other wage information, including a survey of the prevailing wages of workers in the occupation in the area of employment that has been conducted or funded by the employer or a group of employers, using the methodology used by the Secretary of Labor to establish Occupational Employment and Wage estimate, or another methodology approved by the Secretary of Labor for the purpose of determining H–2A wages. (C)

Compliance

An employer shall be considered to have complied with the requirement under subparagraph (A) if the employer— (i)(I)obtains a prevailing wage determination under subparagraph (C)(i); or (II)relies on a qualifying survey of prevailing wages; and (ii)pays such prevailing wage. (3)

Reimbursement of transportation costs

(A)

Requirement for reimbursement

An H–2A worker who completes 50 percent of the period of employment of the job for which the worker was hired, beginning on the first day of such employment, shall be reimbursed by the employer for the cost of the worker’s transportation and subsistence from— (i)the place from which the H–2A worker was approved to enter the United States to the location at which the work for the employer is performed; or (ii)if the H–2A worker traveled from a place in the United States at which the H–2A worker was last employed, from such place of last employment to the location at which the work for the employer is performed. (B)

Timing of reimbursement

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

Additional reimbursement

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 work site to the place where the worker was approved to enter the United States to work for the employer. If the worker has contracted with a subsequent employer, the previous and subsequent employer shall share the cost of the worker’s transportation and subsistence from work site to work site. (D)

Limitation

(i)

Amount of reimbursement

The amount of reimbursement provided to a worker or alien under this paragraph shall be equal to 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. (E)

Reimbursement for laid off workers

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— (i)the transportation and subsistence required under subparagraph (C); and (ii)notwithstanding whether the worker has completed 50 percent of the period of employment, the transportation reimbursement required under subparagraph (A). (F)

Construction

Nothing in this paragraph shall be construed to require an employer to reimburse visa, passport, consular, or international bordercrossing fees or any other fees associated with the H–2A worker’s lawful admission into the United States to perform employment that may be incurred by the worker. (4)

Employment guarantee

(A)

In general

(i)

Requirement

Each employer petitioning for workers under subsection (b) shall guarantee to offer the worker employment for the hourly equivalent of not less than 75 percent of the work hours during the total anticipated 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. (ii)

Failure to meet guarantee

If the employer affords the United States worker or the H–2A worker less employment than that required under this subparagraph, the employer shall pay such worker the amount which the worker would have earned if the worker had worked for the guaranteed number of hours. (iii)

Period of employment

For purposes of this subparagraph, the term “period of employment” means the total number of anticipated work hours and workdays described in the job offer and shall exclude the worker’s Sabbath and Federal holidays. (B)

Calculation of hours

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)

Limitation

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 75 percent guarantee described in subparagraph (A). (D)

Termination of employment

(i)

In general

If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required due to any form of natural disaster, including flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease, pest infestation, regulatory action, or any other reason beyond the control of the employer before the employment guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker’s employment. (ii)

Requirements

If a worker’s employment is terminated under clause (i), the employer shall— (I)fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed during the period beginning on the first work day after the arrival of the worker and ending on the date on which such employment is terminated; and (II)make efforts to transfer the United States worker to other comparable employment acceptable to the worker. (l)

Expedited adjudication by the Secretary

The Secretary of Homeland Security— (1)shall establish a procedure for expedited adjudication of petitions filed under subsection (e); 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. (m)

Disqualification

(1)

In general

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

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

(B)

Effective period of waiver

If an alien is admitted to the United States as a result of a waiver under subparagraph (A), such waiver shall remain in effect unless the alien subsequently violates— (i)a material provision of this section; or (ii)a term or condition of admission into the United States as a nonimmigrant. (n)

Period of admission

(1)

In general

An H–2A worker shall be admitted for a period of employment, not to exceed 10 months, that includes— (A)a period of not more than 7 days prior to the beginning of the period of employment for the purpose of travel to the work site; and (B)a period of not more than 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment. (2)

Employment limitation

An alien may not be employed during the 14-day period described in paragraph (1)(B) 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 an alien under any other provision of this Act. (o)

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— (A)shall have failed to maintain nonimmigrant status as an H–2A worker; and (B)shall depart the United States or be subject to removal under section 237(a)(1)(C)(i). (2)

Report by employer

Not later than 24 hours after the abandonment of employment by an H–2A worker, the employer or association acting as an agent for the employer, shall notify the Secretary of Homeland Security of such abandonment. (3)

Removal

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 the alien’s employment if the alien promptly departs the United States upon termination of such employment. (p)

Replacement of alien

(1)

In general

Upon notification under subsection (p)(2)— (A)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; and (B)the Secretary of Homeland Security shall admit such alien into the United States. (2)

Construction

Nothing in this subsection shall limit any preference for which United States workers are eligible under this Act. (q)

Identification document

(1)

In general

The Secretary of Homeland Security shall provide each authorized H–2A worker with a single machine-readable, tamper-resistant, and counterfeit-resistant document that— (A)authorizes the alien’s entry into the United States; (B)serves, for the appropriate period, as an employment eligibility document; and (C)verifies the identity of the alien. (2)

Form

(A)The document shall be— (i)in a form that is resistant to counterfeiting and to tampering; and (ii)compatible with— (I)other databases of the Secretary of Homeland Security for the purpose of excluding an alien from benefits for which an alien is not eligible and determining whether the alien is unlawfully present in the United States; and (II)law enforcement databases for the purpose of determining if an alien has been convicted of criminal offenses. (B)As soon as practicable, the document 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. (r)

Extension of stay of H–2A workers in the United States

(1)

Extension of stay

If an employer seeks approval to employ an H–2A worker who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (p) 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 on the date of the filing of a petition to extend the stay of the alien may commence or continue the employment described in a petition under paragraph (1). The employer shall provide a copy of the employer’s petition for extension of stay to the alien. The alien 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)

Employment eligibility document

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)

File defined

In this paragraph, the term file means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivering by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition for an extension of stay. (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 remains 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 Stats 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. (s)

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 (r)(4)(B).

(b)

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. (c)

Conforming amendment

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