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:

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.