[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2847 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 2847

   To create a nonimmigrant H-2C work visa program for agricultural 
                    workers, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 7, 2011

Mr. Smith of Texas introduced the following bill; which was referred to 
  the Committee on the Judiciary, and in addition to the Committee on 
Education and the Workforce, for a period to be subsequently determined 
 by the Speaker, in each case for consideration of such provisions as 
        fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To create a nonimmigrant H-2C work visa program for agricultural 
                    workers, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``American Specialty Agriculture 
Act''.

SEC. 2. H-2C TEMPORARY AGRICULTURAL WORK VISA PROGRAM.

    Section 101(a)(15)(H) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(15)(H)) is amended by striking ``; or (iii)'' and 
inserting ``, or (c) having a residence in a foreign country which he 
has no intention of abandoning who is coming temporarily to the United 
States to perform agricultural labor or services that are defined as 
agricultural labor in section 3121(g) of the Internal Revenue Code of 
1986, as agriculture in section 3(f) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 203(f)), and the pressing of apples for cider on a 
farm; or (iii)''.

SEC. 3. ADMISSION OF TEMPORARY H-2C WORKERS.

    (a) Procedure for Admission.--Chapter 2 of title II of the 
Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by 
inserting after section 218 the following:

``SEC. 218A. ADMISSION OF TEMPORARY H-2C 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-2C 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-2C 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-2C worker.--The term `H-2C worker' means a 
        nonimmigrant described in section 101(a)(15)(H)(ii)(c).
            ``(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) 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 (b)(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.
            ``(7) Prevailing wage.--The term `prevailing wage' means 
        the wage rate paid to workers in the same occupation in the 
        area of employment that is calculated using the same 
        methodology used by the Department of Labor to determine 
        prevailing wages for the purpose of the program described in 
        section 101(a)(15)(H)(ii)(b) on January 1, 2011, except that if 
        the wage rate is determined by means of a governmental survey, 
        the survey shall provide at least four levels of wages 
        commensurate with factors such as experience, qualifications, 
        and the level of supervision (except that where an existing 
        government survey has only 2 levels, 2 intermediate levels may 
        be created by dividing by 3, the difference between the 2 
        levels offered, adding the quotient thus obtained to the first 
        level and subtracting that quotient from the second level), and 
        that if the wage rate is determined by a survey that provides 
        at least four levels of wages commensurate with factors such as 
        experience, qualifications and the level of supervision, the 
        prevailing wage shall be equal to the first wage level.
            ``(8) United states worker.--The term `United States 
        worker' means any worker who is--
                    ``(A) a citizen or national of the United States; 
                or
                    ``(B) 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) Petition.--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-2C worker shall file with the Secretary of 
Agriculture 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.
                    ``(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 (k) to all workers 
        employed in the jobs for which the H-2C 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-2C 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-2C 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-2C 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 or their representative;
                            ``(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 as described in 
                        subsection (k)(2)(A).
                    ``(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-2C 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.
        This requirement shall not apply to a United States worker who 
        applies for the job on or after the first day of the contract 
        period that work begins.
            ``(6) Provision of insurance.--If the job for which the H-
        2C worker is sought is not covered by State workers' 
        compensation law, the employer will provide, at no cost to the 
        worker unless State law provides otherwise, 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-2c workers with other 
        employers.--A nonimmigrant who is admitted into the United 
        States as an H-2C worker may be transferred to another employer 
        that has filed a petition under this subsection and is in 
        compliance with this section.
            ``(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 Agriculture, precludes the 
        hiring of H-2C workers.
            ``(9) Housing.--Except for H-2C workers who are reasonably 
        able to return to their permanent residence (either within or 
        outside the United States) within the same day, the employer 
        will provide housing to H-2C workers through one of the 
        following means:
                    ``(A) Employer-owned housing in accordance with 
                regulations promulgated by the Secretary of 
                Agriculture.
                    ``(B) Rental or public accommodations or other 
                substantially similar class of habitation in accordance 
                with regulations promulgated by the Secretary of 
                Agriculture.
                    ``(C) Except where the Governor of the State has 
                certified that there is inadequate housing available in 
                the area of intended employment for migrant farm 
                workers and H-2C workers seeking temporary housing 
                while employed in agricultural work, the employer may 
                furnish the worker with a housing voucher in accordance 
                with regulations, if--
                            ``(i) the employer has verified that 
                        housing is available for the period during 
                        which the work is to be performed, within a 
                        reasonable commuting distance of the place of 
                        employment, for the amount of the voucher 
                        provided, and that the voucher is useable for 
                        that housing;
                            ``(ii) upon the request of a worker seeking 
                        assistance in locating housing for which the 
                        voucher will be accepted, the employer makes a 
                        good faith effort to assist the worker in 
                        identifying, locating and securing housing in 
                        the area of intended employment; and
                            ``(iii) payment for the housing is made 
                        with a housing voucher that is only redeemable 
                        by the housing owner or their agent.
        An employer who provides housing through one of the foregoing 
        means shall not be deemed a housing provider under section 203 
        of the Migrant and Seasonal Agricultural Worker Protection Act 
        (29 U.S.C. 1823) by virtue of providing such housing.
            ``(10) Previous violations.--The employer has not, during 
        the previous two-year period, employed H-2C 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 Agriculture 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 Agriculture 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-2C workers sought, 
                the wage rate, the period of intended employment, and 
                the date of need for each alien.
            ``(2) Availability.--The Secretary of Agriculture shall 
        make the list available for public examination.
    ``(e) Petitioning for Admission.--
            ``(1) Consideration of petitions.--For petitions filed and 
        considered under subsection (b)--
                    ``(A) the Secretary of Agriculture may not require 
                such petition to be filed more than 28 calendar days 
                before the first date the employer requires the labor 
                or services of the H-2C worker;
                    ``(B) unless the Secretary of Agriculture 
                determines that the petition is incomplete or obviously 
                inaccurate, the Secretary, not later than 10 business 
                days after the date on which such petition was filed, 
                shall either approve or reject the petition and provide 
                the petitioner with notice of such action by means 
                ensuring same or next day delivery; and
                    ``(C) if the Secretary determines that the petition 
                is incomplete or obviously inaccurate, the Secretary 
                shall--
                            ``(i) within 5 business days of receipt of 
                        the petition, notify the petitioner of the 
                        deficiencies to be corrected by means ensuring 
                        same or next day delivery; and
                            ``(ii) within 10 business days of receipt 
                        of the corrected petition, approve or deny the 
                        petition and provide the petitioner with notice 
                        of such action by means ensuring same or next 
                        day delivery.
            ``(2) Petition agreements.--By filing an H-2C petition, a 
        petitioner and each employer consents to allow access to the 
        site where the labor is being performed to the Department of 
        Agriculture or the Department of Homeland Security for the 
        purpose of investigations to determine compliance with H-2C 
        requirements and the immigration laws. Notwithstanding any 
        other provision of law, the Departments of Agriculture and 
        Homeland Security cannot delegate their compliance functions to 
        other agencies or Departments.
    ``(f) Roles of Agricultural Associations.--
            ``(1) Permitting filing by agricultural associations.--A 
        petition under subsection (b) 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 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 Agriculture shall consider as an employer 
                for purposes of subsection (b)(10) and invoke penalties 
                pursuant to subsection (i) against only that member of 
                the association unless the Secretary of Agriculture 
                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.--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 
                Agriculture shall consider as an employer for purposes 
                of subsection (b)(10) and invoke penalties pursuant to 
                subsection (i) against only the association and not any 
                individual member of the association, unless the 
                Secretary determines that the member participated in, 
                had knowledge of, or had reason to know of the 
                violation.
    ``(g) Expedited Administrative Appeals.--The Secretary of 
Agriculture 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 at which new evidence may be introduced.
    ``(h) Miscellaneous Provisions.--
            ``(1) Endorsement of documents.--The Secretary of Homeland 
        Security shall provide for the endorsement of entry and exit 
        documents of H-2C workers as may be necessary to carry out this 
        section and to provide notice for purposes of section 274A.
            ``(2) Fees.--
                    ``(A) In general.--The Secretary of Agriculture 
                shall 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-2C worker; and
                                    ``(II) does not exceed $1,000.
                            ``(ii) Association.--Each employer-member 
                        of a joint employer association whose petition 
                        for H-2C 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-2C 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 Agriculture. In the case of employers 
                of H-2C workers that are members of a joint employer 
                association petitioning on their behalf, the aggregate 
                fees for all employers of H-2C workers under the 
                petition may be paid by 1 check or money order.
    ``(i) Enforcement.--
            ``(1) Investigations and audits.--The Secretary of 
        Agriculture shall be responsible for conducting investigations 
        and random audits of employer work sites to ensure compliance 
        with the requirements of the H-2C program. All monetary fines 
        levied against violating employers shall be paid to the 
        Department of Agriculture and used to enhance the Department of 
        Agriculture's investigatory and auditing power.
            ``(2) Failure to meet conditions.--If the Secretary of 
        Agriculture finds, after notice and opportunity for a hearing, 
        a failure to meet a condition of subsection (b), or a material 
        misrepresentation of fact in a petition under subsection (b), 
        the Secretary--
                    ``(A) may impose such other administrative remedies 
                (including civil money penalties in an amount not to 
                exceed $1,000 per violation) as the Secretary 
                determines to be appropriate; and
                    ``(B) may disqualify the employer from the 
                employment of H-2C workers for a period of 1 year.
            ``(3) Penalties for willful failure.--If the Secretary of 
        Agriculture finds, after notice and opportunity for a hearing, 
        a willful failure to meet a material condition of subsection 
        (b), or a willful misrepresentation of a material fact in a 
        petition under subsection (b), the Secretary--
                    ``(A) may impose such other administrative remedies 
                (including civil money penalties in an amount not to 
                exceed $5,000 per violation) as the Secretary 
                determines to be appropriate;
                    ``(B) may disqualify the employer from the 
                employment of H-2C workers for a period of 2 years;
                    ``(C) may, for a subsequent violation not arising 
                out of the prior incident, disqualify the employer from 
                the employment of H-2C workers for a period of 5 years; 
                and
                    ``(D) may, for a subsequent violation not arising 
                out of the prior incident, permanently disqualify the 
                employer from the employment of H-2C workers.
            ``(4) Penalties for displacement of united states 
        workers.--If the Secretary of Agriculture finds, after notice 
        and opportunity for a hearing, a willful failure to meet a 
        material condition of subsection (b) or a willful 
        misrepresentation of a material fact in a petition under 
        subsection (b), 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 (b) or during the period 
        of 30 days preceding such period of employment, the Secretary--
                    ``(A) may impose such other administrative remedies 
                (including civil money penalties in an amount not to 
                exceed $15,000 per violation) as the Secretary 
                determines to be appropriate;
                    ``(B) may disqualify the employer from the 
                employment of H-2C workers for a period of 5 years; and
                    ``(C) may, for a second violation, permanently 
                disqualify the employer from the employment of H-2C 
                workers.
    ``(j) Failure To Pay Wages or Required Benefits.--
            ``(1) Assessment.--If the Secretary of Agriculture 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 shall assess 
        payment of back wages, or such other required benefits, due any 
        United States worker or H-2C 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-2C workers. No job offer may impose 
                on United States workers any restrictions or 
                obligations which will not be imposed on the employer's 
                H-2C 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-2C 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; or
                            ``(ii) the applicable Federal, State, or 
                        local minimum wage, whichever is greatest.
                    ``(B) Special rule.--An employer can utilize a 
                piece rate or other alternative wage payment system as 
                long as the employer guarantees each worker a wage rate 
                that equals or exceeds the amount required under 
                subparagraph (A).
            ``(3) Reimbursement of transportation costs.--
                    ``(A) Requirement for reimbursement.--
                            ``(i) In general.--Except for H-2C workers 
                        who are reasonably able to return to their 
                        permanent residence (either within or outside 
                        the United States) within the same day, an H-2C 
                        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-2C 
                                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-2C worker traveled 
                                from a place in the United States at 
                                which the H-2C worker was last 
                                employed, from such place of last 
                                employment to the location at which the 
                                work for the employer is performed.
                            ``(ii) Construction.--Notwithstanding the 
                        Fair Labor Standards Act of 1938 (29 U.S.C. 201 
                        et seq.), the employer need not reimburse the 
                        cost of the H-2C worker's transportation and 
                        subsistence unless the worker has completed 50 
                        percent of the period of employment of the job 
                        for which the workers was hired.
                    ``(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.--Except for H-2C 
                workers who are reasonably able to return to their 
                permanent residence (either within or outside the 
                United States) within the same day, an H-2C 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 
                        reimbursement required under subparagraph (C); 
                        and
                            ``(ii) notwithstanding whether the worker 
                        has completed 50 percent of the period of 
                        employment, the transportation and subsistence 
                        reimbursement required under subparagraph (A).
                    ``(F) Construction.--Notwithstanding the Fair Labor 
                Standards Act of 1938 (29 U.S.C. 201 et seq.), the 
                employer is not required to reimburse visa, passport, 
                consular, or international border crossing fees or any 
                other fees associated with the H-2C 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 50 
                        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-2C 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 50 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;
                                    ``(II) make efforts to transfer the 
                                United States worker to other 
                                comparable employment acceptable to the 
                                worker; and
                                    ``(III) not later than 24 hours 
                                after termination, notify (or have an 
                                association acting as an agent for the 
                                employer notify) the Secretary of 
                                Homeland Security of such termination.
    ``(l) Period of Admission.--
            ``(1) In general.--An H-2C 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 is otherwise authorized.
    ``(m) Abandonment of Employment.--
            ``(1) In general.--An alien admitted or provided status 
        under section 101(a)(15)(H)(ii)(c) who abandons the employment 
        which was the basis for such admission or status--
                    ``(A) shall have failed to maintain nonimmigrant 
                status as an H-2C 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 an 
        employer learns of the abandonment of employment by an H-2C 
        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-2C 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.
    ``(n) Replacement of Alien.--An employer may designate an eligible 
alien to replace an H-2C worker who abandons employment notwithstanding 
the numerical limitation found in section 214(g)(1)(C).
    ``(o) Extension of Stay of H-2C Workers in the United States.--
            ``(1) Extension of stay.--If an employer seeks approval to 
        employ an H-2C worker who is lawfully present in the United 
        States, the petition filed by the employer or an association 
        pursuant to subsection (b) shall request an extension of the 
        alien's stay and, if applicable, a change in the alien's 
        employment.
            ``(2) 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) until and unless the petition is 
                denied. 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.
            ``(3) Limitation on an individual's stay in status.--
                    ``(A) Maximum period.--The maximum continuous 
                period of authorized status as an H-2C worker 
                (including any extensions) is 10 months.
                    ``(B) Requirement to remains outside the united 
                states.--In the case of an alien outside the United 
                States whose period of authorized status as an H-2C 
                worker (including any extensions) has expired, the 
                alien may not again apply for admission to the United 
                States as an H-2C 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-2C worker 
                (including any extensions).''.
    (b) Prohibition on Family Members.--Section 101(a)(15)(H) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by 
striking ``him;'' at the end and inserting ``him, except that no spouse 
or child may be admitted under clause (ii)(c);''.
    (c) Numerical Cap.--Section 214(g)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1184(g)(1)) is amended--
            (1) in subparagraph (A), by striking ``or'' at the end;
            (2) in subparagraph (B), by striking the period at the end 
        and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(C) under section 1101(a)(15)(H)(ii)(c) may not 
                exceed 500,000.''.
    (d) Clerical Amendment.--The table of contents for the Immigration 
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting 
after the item relating to section 218 the following:

``Sec. 218A. Admission of temporary H-2C workers.''.

SEC. 4. LEGAL ASSISTANCE.

    (a) In General.--A nonimmigrant worker admitted to or permitted to 
remain in the United States under section 101(a)(15)(H)(ii)(c) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) for 
agricultural labor or service shall be considered to be an alien 
described in section 101(a)(20) of such Act (8 U.S.C. 1101(a)(20)) for 
purposes of establishing eligibility for legal assistance under the 
Legal Services Corporation Act (42 U.S.C. 2996 et seq.), but only with 
respect to legal assistance on matters relating to wages, housing, 
transportation, and other employment rights as provided in the job 
offer under which the nonimmigrant was admitted. The Legal Services 
Corporation may not provide legal assistance for or on behalf of any 
such alien, and may not provide financial assistance to any person or 
entity that provides legal assistance for or on behalf of such alien, 
unless the alien is present in the United States at the time the legal 
assistance is provided.
    (b) Mediation.--An H-2C worker may not bring a civil action for 
damages against their employer, nor may the Legal Services Corporation 
or any other attorney or individual bring a civil action for damages on 
behalf of an H-2C worker, unless at least 90 days prior to bringing the 
action a request has been made to the Federal Mediation and 
Conciliation Service to assist the parties in reaching a satisfactory 
resolution of all issues involving all parties to the dispute and 
mediation has been attempted.
    (c) Condition for Entry Onto Property for Legal Services 
Corporation Representation.--No employer of a nonimmigrant having 
status under section 101(a)(15)(H)(ii)(c) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) shall be required to 
permit any recipient of a grant or contract under section 1007 of the 
Legal Services Corporation Act (42 U.S.C. 2996f), or any employee of 
such a recipient, to enter upon the employer's property, unless such 
recipient or employee has a pre-arranged appointment with a specific 
nonimmigrant having such status.

SEC. 5. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION.

    Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker 
Protection Act (29 U.S.C. 1802(8)(B)(ii)) is amended by striking 
``under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and 
Nationality Act.'' and inserting ``under subclauses (a) and (c) of 
section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and 
Nationality Act.''.

SEC. 6. ARBITRATION AND MEDIATION.

    (a) Applicability.--Any H-2C worker may, as a condition of 
employment with an employer, be subject to mandatory binding 
arbitration and mediation of any grievance relating to the employment 
relationship. An employer shall provide any such worker with notice of 
such condition of employment at the time the job offer is made.
    (b) Allocation of Costs.--Any cost associated with such arbitration 
and mediation process shall be equally divided between the employer and 
the H-2C worker, except that each party shall be responsible for the 
cost of its own counsel, if any.
    (c) Definitions.--As used in this section:
            (1) The term ``condition of employment'' means a term, 
        condition, obligation, or requirement that is part of the job 
        offer, such as the term of employment, the job 
        responsibilities, the employee conduct standards, and the 
        grievance resolution process, and to which an applicant or 
        prospective H-2C worker must consent or accept in order to be 
        hired for the position.
            (2) The term ``H-2C worker'' means a nonimmigrant described 
        in section 101(a)(15)(H)(ii)(c) of the Immigration and 
        Nationality Act (8 U.S.C. 1101(a)(15)(ii)(c)).

SEC. 7. EFFECTIVE DATE; SUNSET; REGULATIONS.

    (a) Effective Date.--The amendments made by this Act shall take 
effect on the date that is 2 years after the date of the enactment of 
this Act, and the Secretary of Agriculture shall accept petitions to 
import an alien under sections 101(a)(15)(H)(ii)(c) and 218A of the 
Immigration and Nationality Act (as added by sections 2 and 3 of this 
Act) beginning on such date.
    (b) Sunset.--Beginning on the date that is 2 years after the date 
of the enactment of this Act, no new petition to import an alien under 
sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall 
be accepted. The Department of Labor H-2A program regulations published 
at 73 Fed. Reg. 77110 et seq. (2008) shall be in force for all 
petitions approved under such sections beginning on the date of the 
enactment of this Act.
    (c) Regulations.--Not later than 18 months after the date of the 
enactment of this Act, the Secretary of Agriculture shall promulgate 
regulations, in accordance with the notice and comment provisions of 
section 553 of title 5, United States Code, to implement the 
Secretary's duties under this Act.
                                 <all>