[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Senate]
[Pages S12608-S12614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SMITH of Oregon (for himself, Mr. Craig, Mr. Gorton, Mr. 
        Roberts and Mr. Grams):
  S. 1563. A bill to amend the Immigration and Nationality Act to 
establish a 24-month pilot program permitting certain aliens to be 
admitted into the United States to provide temporary or seasonal 
agricultural services pursuant to a labor condition attestation; to the 
Committee on the Judiciary.


             THE TEMPORARY AGRICULTURAL WORKER ACT OF 1997

  Mr. SMITH of Oregon. Mr. President, I rise today to introduce the 
Temporary Agricultural Worker Act of 1997. I am joined by Senators 
Craig, Gorton, and Roberts. Our bill would create a streamlined guest 
worker pilot program which would allow for a reliable supply of legal, 
temporary, agricultural immigrant workers.
  Mr. President, we are facing a crisis in agriculture--a crisis born 
of an inadequate labor supply, bureaucratic red tape, and burdensome 
regulations. For many years, farmers and nurserymen

[[Page S12609]]

have struggled to hire enough legal agricultural labor to harvest their 
produce and plants. This issue is not new to Congress. In the past, 
Congress has introduced legislation to address this urgency, but no 
workable solution has been implemented. The agriculture industry cannot 
survive without a reliable and legal supply of agricultural workers. 
The labor pool is tight and shortages are developing because of the 
limited domestic workers willing to work in agricultural fields.
  The United States has historically been faced with a need to 
supplement the domestic work force, especially during peak harvesting 
periods. Since domestic workers prefer the security of full-time 
employment in year-round agriculture-related jobs, the shorter term 
seasonal jobs are often left unfilled by domestic workers. These 
domestic workers also prefer the working conditions involved in packing 
and processing jobs, which are generally performed indoors and do not 
involve the degree of strenuous physical labor associated with field 
work.
  Labor intensive agriculture is one of the most rapidly growing areas 
of agricultural production in this country. Its growth not only creates 
many production and harvest jobs, but also creates many more jobs 
outside of agriculture. Approximately three off-farm jobs are directly 
dependent upon each on-farm job.
  Currently, the H-2A program is the only legal temporary foreign 
agricultural worker program in the United States. This program is not 
practicable for the agriculture and horticulture industry because it is 
loaded with burdensome regulations, excessive paperwork, a bureaucratic 
certification process, untimely and inconsistent decision-making by the 
U.S. Department of Labor, and costly housing requirements. The H-2A 
program has also been very small in relation to the total number of 
U.S. farm workers. It is estimated that out of the 2.5 million farm 
workers in the United States, only 23,496 H-2A job certifications have 
been issued by the Department of Labor this year. In my State of 
Oregon, only 12 sheepshearers and 62 sheepherders are currently using 
the H-2A program.
  It is time we address the shortfalls of current policy, and I believe 
that our bill is a meaningful step in that direction.
  Mr. President, the bill we are introducing today would not replace or 
interfere with the current H-2A program, but would supplement the H-2A 
program with a two-year pilot program that examines an alternative 
approach to recruiting agricultural workers. The pilot program will be 
limited to 25,000 participants per fiscal year and would protect the 
domestic workers' rights and living standards.
  Mr. President, let me briefly summarize the provisions of our bill.
  The bill would establish a procedure by which an agricultural 
employer anticipating a shortage of temporary or seasonal agricultural 
workers may file a labor condition statement, or attestation, with the 
state employment security agency. The attestation would provide 
specified terms and conditions of employment in the occupation in which 
a shortage is anticipated. Employers would also be required to file a 
job order with the local job service and give preference to all 
qualified U.S. domestic workers.
  The Department of Labor would enforce compliance with the labor 
condition requirements of the program and could impose back pay, civil 
monetary penalties, and debarment from the program for violators.
  The alien guest workers are issued an identification card, which is 
counterfeit- and tamper-resistant, with biometric identifiers to assure 
program integrity.
  A portion of the alien guest workers' earnings would be paid into an 
interest-bearing trust fund that would be rebated to the workers upon 
evidence of timely return to their home country. This would ensure that 
the aliens return to their countries of origin after the temporary job 
is completed. The alien guest workers could also be debarred from 
future participation in the program for violating the conditions of 
their admission.
  Our bill is endorsed by over 50 agriculture-related associations 
including the National Council of Agricultural Employers, American Farm 
Bureau, and the American Association of Nurserymen.
  I urge my fellow colleagues to join Senators Craig, Gorton, Roberts, 
and me as we introduce this important legislation today.
  Mr. President, I ask unanimous consent that this legislation be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
       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 ``Temporary Agricultural 
     Worker Act of 1997''.

     SEC. 2. NEW NONIMMIGRANT CATEGORY FOR PILOT PROGRAM TEMPORARY 
                   AND SEASONAL AGRICULTURAL WORKERS.

       (a) Establishment of New Classification.--Section 
     101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)(15)(H)(ii)) is amended--
       (1) by striking ``or (b)'' and inserting ``(b)''; and
       (2) by adding at the end the following:

     ``or (c) having a residence in a foreign country which he has 
     no intention of abandoning who is coming temporarily to the 
     United States pursuant to section 218A to perform such 
     agricultural labor or services of a temporary or seasonal 
     nature;''.
       (b) No Family Members Permitted.--Section 101(a)(15)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) 
     is amended by striking ``specified in this paragraph'' and 
     inserting ``specified in this subparagraph (other than in 
     clause (ii)(c))''.

     SEC. 3. PILOT PROGRAM FOR ALTERNATIVE AGRICULTURAL TEMPORARY 
                   WORKER PROCESS USING ATTESTATION.

       (a) In General.--The Immigration and Nationality Act is 
     amended by inserting after section 218 the following:


          ``alternative agricultural temporary worker program

       ``Sec. 218A. (a) Condition for Employment of Pilot Program 
     Aliens.--
       ``(1) Establishment of pilot program; restriction of 
     admissions to pilot program period.--
       ``(A) In general.--The Attorney General shall establish a 
     pilot program for the admission of aliens classified as a 
     nonimmigrant under section 101(a)(15)(H)(ii)(c) to perform 
     temporary or seasonal agricultural services pursuant to a 
     labor condition attestation filed by an employer or an 
     association for the occupation in which the alien will be 
     employed. No alien may be admitted or provided status as a 
     pilot program alien under this section after the last day of 
     the pilot program period specified in subparagraph (B).
       ``(B) Pilot program period.--The pilot program period under 
     this subparagraph is the 24-month period beginning 6 months 
     after the date of the enactment of the Temporary Agricultural 
     Worker Act of 1997.
       ``(2) Admission of aliens.--No alien may be admitted to the 
     United States or provided status as a pilot program alien (as 
     defined in subsection (n)(4)) unless--
       ``(A) the employment of the alien is covered by a currently 
     valid labor condition attestation which--
       ``(i) is filed by the employer, or by an association on 
     behalf of the employer, for the occupation in which the alien 
     will be employed;
       ``(ii) has been accepted by the State employment security 
     agency having jurisdiction over the area of intended 
     employment; and
       ``(iii) states each of the items described in paragraph (2) 
     and includes information identifying the employer or 
     association and agricultural job opportunities involved;
       ``(B) the employer is not disqualified from employing pilot 
     program aliens pursuant to subsection (h); and
       ``(C) the employer has not, during the pilot program 
     period, been found by the Attorney General to have employed 
     any aliens in violation of section 274A(a) or this 
     section.
       ``(3) Contents of labor condition attestation.--Each labor 
     condition attestation filed by or on behalf of, an employer 
     shall state the following:
       ``(A) Wage rate.--The employer will pay pilot program 
     aliens and all other workers in the occupation not less than 
     the prevailing wage for similarly employed workers in the 
     area of employment, and not less than the applicable Federal, 
     State or local statutory minimum wage.
       ``(B) Working conditions.--The employment of pilot program 
     aliens will not adversely affect the working conditions of 
     similarly employed workers in the area of employment.
       ``(C) Limitation on employment.--A pilot program alien will 
     not be employed in any job opportunity which is not temporary 
     or seasonal, and will not be employed by the employer in any 
     job opportunity for more than 10 months in any 12-
     consecutive-month period.
       ``(D) No labor dispute.--No pilot program alien will be 
     employed in any job opportunity which is vacant because its 
     former occupant is involved in a strike, lockout or work 
     stoppage in the course of a labor dispute in the occupation 
     at the place of employment.

[[Page S12610]]

       ``(E) Notice.--The employer, at the time of filing the 
     attestation, has provided notice of the attestation to its 
     workers employed in the occupation in which, and at the place 
     of employment where, pilot program aliens will be employed.
       ``(F) Job orders.--The employer will file one or more job 
     orders for the occupation (or occupations) covered by the 
     attestation with the State employment security agency no 
     later than the day on which the employer first employs any 
     pilot program aliens in the occupation.
       ``(G) Preference to domestic workers.--The employer will 
     give preference to able, willing and qualified United States 
     workers who apply to the employer and are available at the 
     time and place needed, for the first 25 days after the filing 
     of the job order in an occupation or until 5 days before the 
     date employment of workers in the occupation begins, 
     whichever occurs later.
       ``(4) Limitation on number of visas.--In no case may the 
     number of aliens who are admitted or provided status as a 
     pilot program alien in a fiscal year exceed 25,000.
       ``(5) Operation of program in not less than 5 areas.--Alien 
     admissions under this section shall be allocated equally to 
     employers in not less than 5 geographically and 
     agriculturally diverse areas designated by the Secretary of 
     Agriculture. The entire United States shall be encompassed 
     within such areas.
       ``(6) General accounting office report.--
       ``(A) In general.--The Comptroller General of the United 
     States shall, concurrently with the operation of the pilot 
     program established by this section, review the 
     implementation and enforcement of the pilot program for the 
     purpose of determining if--
       ``(i) the program has ensured an adequate and timely supply 
     of qualified, eligible workers at the time and place needed 
     for employers;
       ``(ii) the program has ensured that pilot program aliens 
     are employed only in authorized employment and that they 
     timely depart the United States when their authorized stay 
     ends;
       ``(iii) the program has ensured that implementation of the 
     program is not displacing United States agricultural workers 
     or diminishing the terms and conditions of employment of 
     United States agricultural workers; and
       ``(iv) an unnecessary regulatory burden has been created 
     for employers hiring workers admitted under this section.
       ``(B) Report.--Not later than 90 days after the termination 
     of the pilot program established by this section, the 
     Comptroller General of the United States shall submit a 
     report to Congress setting forth the conclusions of the 
     Comptroller General from the review conducted under 
     subparagraph (A).
       ``(b) Filing a Labor Condition Attestation.--
       ``(1) Filing by employers--Any employer in the United 
     States is eligible to file a labor condition attestation.
       ``(2) Filing by associations on behalf of employer 
     members.--An agricultural association may file a labor 
     condition attestation as an agent on behalf of its members. 
     Such an attestation filed by an agricultural association 
     acting as an agent for its members, when accepted, shall 
     apply to those employer members of the association that the 
     association certifies to the State employment security agency 
     are members of the association and have agreed in writing to 
     comply with the requirements of this section.
       ``(3) Period of validity.--A labor condition attestation is 
     valid from the date on which it is accepted by the State 
     employment security agency for the period of time requested 
     by the employer, but not to exceed 12 months.
       ``(4) Where to file.--A labor condition attestation shall 
     be filed with the State employment security agency having 
     jurisdiction over the area of intended employment of the 
     workers covered by the attestation. If an employer, or the 
     members of an association of employers, will be employing 
     workers in an area or areas covered by more than one such 
     agency, the attestation shall be filed with each such agency 
     having jurisdiction over an area where the workers will be 
     employed.
       ``(5) Deadline for filing.--A labor condition attestation 
     may be filed at any time up to 12 months prior to the date of 
     the employer's anticipated need for workers in the occupation 
     (or occupations) covered by the attestation.
       ``(6) Filing for multiple occupations.--A labor condition 
     attestation may be filed for one or more occupations and 
     cover one or more periods of employment.
       ``(7) Maintaining required documentation.--
       ``(A) By employers.--Each employer covered by an accepted 
     labor condition attestation must maintain a file of the 
     documentation required in subsection (c) for each occupation 
     included in an accepted attestation covering the employer. 
     The documentation shall be retained for a period of one year 
     following the expiration of an accepted attestation. The 
     employer shall make the documentation available to 
     representatives of the Secretary during normal business 
     hours.
       ``(B) By associations.--In complying with subparagraph (A), 
     documentation maintained by an association filing a labor 
     condition attestation on behalf of an employer shall be 
     deemed to be maintained by the employer.
       ``(8) Withdrawal.--
       ``(A) Compliance with attestation obligations.--An employer 
     covered by an accepted labor condition attestation for an 
     occupation shall comply with the terms and conditions of the 
     attestation from the date the attestation is accepted and 
     continuing throughout the period any persons are employed in 
     an occupation covered by such an accepted attestation, 
     whether or not pilot program aliens are employed in the 
     occupation, unless the attestation is withdrawn.
       ``(B) Termination of obligations.--An employer may withdraw 
     a labor condition attestation in total, or with respect to a 
     particular occupation covered by the attestation. An 
     association may withdraw such an attestation with respect to 
     one or more of its members. To withdraw an attestation the 
     employer or association must notify in writing the State 
     employment security agency office with which the attestation 
     was filed of the withdrawal of the attestation. An employer 
     who withdraws an attestation, or on whose behalf an 
     attestation is withdrawn by an association, is relieved of 
     the obligations undertaken in the attestation with respect to 
     the occupation (or occupations) with respect to which the 
     attestation was withdrawn, upon acknowledgement by the 
     appropriate State employment security agency of receipt of 
     the withdrawal notice. An attestation may not be withdrawn 
     with respect to any occupation while any pilot program alien 
     covered by that attestation is employed in the occupation.
       ``(C) Obligations under other statutes.--Any obligation 
     incurred by the employer under any other law or regulation as 
     a result of recruitment of United States workers under an 
     offer of terms and conditions of employment required by the 
     pilot program under this section is unaffected by withdrawal 
     of a labor condition attestation.
       ``(c) Employer Responsibilities and Requirements for 
     Employing Pilot Program Aliens.--
       ``(1) Requirement to pay the prevailing wage.--
       ``(A) Effect of the attestation.--Employers shall pay each 
     worker in an occupation covered by an accepted labor 
     condition attestation at least the prevailing wage in the 
     occupation in the area of intended employment. The preceding 
     sentence does not require employers to pay all workers in the 
     occupation the same wage. The employer may, in the sole 
     discretion of the employer, maintain pay differentials based 
     on experience, tenure with the employer, skill, or any other 
     work-related factor, if the differential is not based on a 
     criterion for which discrimination is prohibited by the law 
     and all workers in the covered occupation receive at least 
     the prevailing wage.
       ``(B) Payment of state employment security agency 
     determined wage sufficient.--The employer may request and 
     obtain a prevailing wage determination from the State 
     employment security agency. If the employer requests such a 
     determination, and pays the wage determined, such payment 
     shall be considered sufficient to meet the requirement of 
     this paragraph if the pilot program aliens--
       ``(i) are employed in the occupation for which the employer 
     possesses an accepted labor condition attestation, and for 
     which the employer or association possesses a prevailing wage 
     determination by the State employment security agency, and
       ``(ii) are being paid at least the prevailing wage so 
     determined.
       ``(C) Reliance on wage survey.--In lieu of the procedures 
     of subparagraph (B), an employer may rely on other 
     information, such as an employer generated prevailing wage 
     survey and determination, which meets criteria specified 
     by the Secretary by regulation. In the event of a 
     complaint that the employer has failed to pay the required 
     wage, the Secretary shall investigate to determine if the 
     information upon which the employer relied complied with 
     the criteria for prevailing wage determinations.
       ``(D) Alternate methods of payment permitted.--
       ``(i) In general.--A prevailing wage may be expressed as an 
     hourly wage, a piece rate, a task rate (described in clause 
     (ii)), or other incentive pay system, including a group rate 
     (described in clause (iii)). The requirement to pay at least 
     the prevailing wage in the occupation and area of intended 
     employment does not require an employer to pay by the method 
     of pay in which the prevailing rate is expressed. However, if 
     the employer adopts a method of pay other than the prevailing 
     rate, the burden of proof is on the employer to demonstrate 
     that the employer's method of pay is designed to produce 
     earnings equivalent to the earnings that would result from 
     payment of the prevailing rate.
       ``(ii) Task rate.--For purposes of this subparagraph, a 
     task rate is an incentive payment based on a unit of work 
     performed such that the incentive rate varies with the level 
     of effort required to perform individual units of work.
       ``(iii) Group rate.--For purposes of this subparagraph, a 
     group rate is an incentive payment system in which the 
     payment is shared among a group of workers working together 
     to perform the task.
       ``(E) Required documentation.--The employer or association 
     shall document compliance with this paragraph by retaining on 
     file the employer or association's request for a 
     determination by a State employment security agency and the 
     prevailing wage determination received from such agency or 
     other

[[Page S12611]]

     information upon which the employer or association relied to 
     assure compliance with the prevailing wage requirement.
       ``(2) Requirement to provide housing and transportation.--
       ``(A) Effect of the attestation.--The employment of pilot 
     program aliens shall not adversely affect the working 
     conditions of United States workers similarly employed in the 
     area of intended employment. The employer's obligation not to 
     adversely affect working conditions shall continue for the 
     duration of the period of employment by the employer of any 
     pilot program aliens in the occupation and area of intended 
     employment. An employer will be deemed to be in compliance 
     with this attestation if the employer offers at least the 
     benefits required by subparagraphs (B) through (D). The 
     previous sentence does not require an employer to offer more 
     than such benefits.
       ``(B) Housing required.--
       ``(i) Housing offer.--The employer must offer to pilot 
     program aliens and United States workers recruited from 
     beyond normal recruiting distance housing, or a housing 
     allowance, if it is prevailing practice in the occupation and 
     area of intended employment to offer housing or a housing 
     allowance to workers who are recruited from beyond normal 
     commuting distance.
       ``(ii) Housing standards.--If the employer offers housing 
     to such workers, the housing shall meet (at the option of the 
     employer) applicable Federal farm labor housing standards or 
     applicable local or State standards for rental, public 
     accommodation, or other substantially similar class of 
     habitation.
       ``(iii) Charges for housing.--An employer who offers 
     housing to such workers may charge an amount equal to the 
     fair market value (but not greater than the employer's actual 
     cost) for utilities and maintenance, or such lesser amount as 
     permitted by law.
       ``(iv) Housing allowance as alternative.--In lieu of 
     offering housing to such workers, at the employer's sole 
     discretion on an individual basis, the employer may provide a 
     reasonable housing allowance. An employer who offers a 
     housing allowance to such a worker under this subparagraph 
     shall not be deemed to be a housing provider under section 
     203 of the Migrant and Seasonal Agricultural Worker 
     Protection Act (29 U.S.C. 1823) merely by virtue of providing 
     such housing allowance.
       ``(v) Security deposit.--The requirement, if any, to offer 
     housing to such a worker under this subparagraph shall not 
     preclude an employer from requiring a reasonable deposit to 
     protect against gross negligence or willful destruction of 
     property, as a condition for providing such housing.
       ``(vi) Damages.--An employer who offers housing to such a 
     worker shall not be precluded from requiring a worker found 
     to have been responsible for damage to such housing which is 
     not the result of normal wear and tear related to habitation 
     to reimburse the employer for the reasonable cost of repair 
     of such damage.
       ``(C) Transportation.--If the employer provides 
     transportation arrangements or assistance to pilot program 
     aliens, the employer must offer to provide the same 
     transportation arrangements or assistance (generally 
     comparable in expense and scope) for other individuals 
     employed by the employer in the occupation at the place of 
     employment who were recruited from beyond normal commuting 
     distance.
       ``(D) Workers' compensation.--If the employment covered by 
     a labor condition attestation is not covered by the State 
     workers' compensation law, the employer must provide, at no 
     cost to the worker, insurance covering injury and disease 
     arising out of and in the course of the workers' employment 
     which will provide benefits at least equal to those provided 
     under the State workers' compensation law for comparable 
     employment.
       ``(E) Required documentation.--
       ``(i) Housing and transportation.--No specific 
     documentation is required to be maintained to evidence 
     compliance with the requirements of subparagraphs (B) and 
     (C). In the event of a complaint alleging a failure to comply 
     with such a requirement, the burden of proof shall be on the 
     employer to show that the employer offered the required 
     benefit to the complainant, or that the employer was not 
     required by the terms of this paragraph to offer such benefit 
     to the complainant.
       ``(ii) Workers' compensation.--The employer shall maintain 
     copies of certificates of insurance evidencing compliance 
     with subparagraph (D) throughout the period of validity of 
     the labor condition attestation.
       ``(3) Requirement to employ aliens in temporary or seasonal 
     agricultural job opportunities.--
       ``(A) Limitations.--
       ``(i) In general.--The employer may employ pilot program 
     aliens only in agricultural employment which is temporary or 
     seasonal.
       ``(ii) Seasonal basis.--For purposes of this section, labor 
     is performed on a seasonal basis where, ordinarily, the 
     employment pertains to or is of the kind exclusively 
     performed at certain seasons or periods of the year and 
     which, from its nature, may not be continuous or carried on 
     throughout the year.
       ``(iii) Temporary basis.--For purposes of this section, a 
     worker is employed on a temporary basis where the employment 
     is intended not to exceed 10 months.
       ``(B) Required documentation.--No specific documentation is 
     required to demonstrate compliance with the requirement of 
     subparagraph (A). In the event of a complaint, the burden of 
     proof shall fall on the employer to show that the employment 
     meets such requirement.
       ``(4) Requirement not to employ aliens in job opportunities 
     vacant because of a labor dispute.--
       ``(A) In general.--No pilot program alien may be employed 
     in any job opportunity which is vacant because its former 
     occupant is involved in a strike, lockout, or work stoppage 
     in the course of a labor dispute in the occupation at the 
     place of employment.
       ``(B) Required documentation.--No specific documentation is 
     required to demonstrate compliance with the requirement of 
     subparagraph (A). In the event of a complaint, the burden of 
     proof shall fall on the employer to show that the job 
     opportunity in which the pilot program alien was employed was 
     not vacant because the former occupant was on strike, locked 
     out, or participating in a work stoppage in the course of a 
     labor dispute in the occupation at the place of employment.
       ``(5) Notice of filing of labor condition attestation and 
     supporting documentation.--
       ``(A) In general.--The employer shall--
       ``(i) provide notice of the filing of a labor condition 
     attestation to the appropriate certified bargaining agent (if 
     any) which represents workers of the employer in the 
     occupation (or occupations) at the place of employment 
     covered by the attestation; or
       ``(ii) in the case where no such bargaining agent exists, 
     post notice of the filing of such an attestation in at least 
     two conspicuous locations where applications for employment 
     are accepted.
       ``(B) Period for posting.--The requirement for a posting 
     under subparagraph (A)(ii) begins on the day the attestation 
     is filed, and continues through the period during which the 
     employer's job order is required to remain active pursuant to 
     paragraph (6)(A).
       ``(C) Required documentation.--The employer shall maintain 
     a copy of the notice provided to the bargaining agent (if 
     any), together with evidence that the notice was provided 
     (such as a signed receipt of evidence of attempt to send the 
     notice by certified or registered mail). In the case where no 
     certified bargaining agent described in subparagraph (A)(i) 
     exists, the employer shall retain a copy of the posted 
     notice, together with information as to the dates and 
     locations where the notice was displayed.
       ``(6) Requirement to file a job order.--
       ``(A) Effect of the attestation.--The employer, or an 
     association acting as agent for its members, shall file the 
     information necessary to complete a local job order for each 
     occupation covered by an accepted labor condition attestation 
     with the appropriate local office of the State employment 
     security agency having jurisdiction over the area of intended 
     employment, or with the State office of such an agency if 
     workers will be employed in an area within the jurisdiction 
     of more than one local office of such an agency. The job 
     orders shall remain on file for 25 calendar days or until 5 
     calendar days before the anticipated date of need for workers 
     in the occupation covered by the job order, whichever occurs 
     later. The job order shall provide at least the minimum terms 
     and conditions of employment required for participation in 
     the pilot program.
       ``(B) Deadline for filing.--A job order shall be filed 
     under subparagraph (A) no later than the date on which the 
     employer files a petition with the Attorney General for 
     admission or extension of stay for aliens to be employed in 
     the occupation for which the order is filed.
       ``(C) Required documentation.--The office of the State 
     employment security agency which the employer or association 
     provides with information necessary to file a local job order 
     shall provide the employer with evidence that the information 
     was provided in a timely manner as required by this 
     paragraph, and the employer or association shall retain such 
     evidence for each occupation in which pilot program aliens 
     are employed.
       ``(7) Requirement to give preference to qualified united 
     states workers.--
       ``(A) Filing 30 days or more before date of need.--If a job 
     order is filed 30 days or more before the anticipated date of 
     need for workers in an occupation covered by a labor 
     condition attestation and for which the job order has been 
     filed, the employer shall offer to employ able, willing, and 
     qualified United States workers who apply to the employer and 
     who will be available at the time and place needed for the 
     job opportunities covered by the attestation until 5 calendar 
     days before the anticipated date of need for workers in the 
     occupation, or until the employer's job opportunities in the 
     occupation are filled with qualified United States workers, 
     if that occurs more than 5 days before the anticipated date 
     of need for workers in the occupation.
       ``(B) Filing fewer than 30 days before date of need.--If a 
     job order is filed fewer than 30 days before the anticipated 
     date of need for workers in an occupation covered by such an 
     attestation and for which a job order has been filed, the 
     employer shall offer to employ able, willing, and qualified 
     United States workers who are or will be available at the 
     time and place needed during the first 25 days after the job 
     order is filed or until the employer's job opportunities in 
     the occupation are filled with United States workers,

[[Page S12612]]

     regardless of whether any of the job opportunities may 
     already be occupied by pilot program aliens.
       ``(C) Filing vacancies.--An employer may fill a job 
     opportunity in an occupation covered by an accepted labor 
     condition attestation which remains or becomes vacant after 
     expiration of the required preference period specified in 
     subparagraph (A) or (B) of paragraph (6) without regard to 
     such preference.
       ``(D) Job-related requirements.--No employer shall be 
     required to initially employ a worker who fails to meet 
     lawful job-related employment criteria, nor to continue the 
     employment of a worker who fails to meet lawful job-related 
     standards of conduct and performance, including failure to 
     meet minimum productivity standards after a 3-day break-in 
     period.
       ``(E) Required documentation.--No specific documentation is 
     required to demonstrate compliance with the requirements of 
     this paragraph. In the event of a complaint, the burden of 
     proof shall be on the complainant to show that the 
     complainant applied for the job and was available at the time 
     and place needed. If the complainant makes such a showing, 
     the burden of proof shall be on the employer to show that the 
     complainant was not qualified or that the preference period 
     had expired.
       ``(d) Requirements of Notice of Certain Breaks in 
     Employment.--
       ``(1) In general.--The employer (or the association acting 
     as agent for the employer) shall notify the Attorney General 
     within 7 days if a pilot program alien prematurely abandons 
     the alien's employment.
       ``(2) Out-of-status.--A pilot program alien who abandons 
     the alien's employment shall be considered to have failed to 
     maintain nonimmigrant status as an alien described in section 
     101(a)(15)(H)(ii)(c) and shall leave the United States or be 
     subject to removal under section 237(a)(1)(C)(i).
       ``(e) Acceptance by State Employment Security Agency.--The 
     State employment security agency shall review labor condition 
     attestations submitted by employers or associations pursuant 
     to this section only for completeness and obvious 
     inaccuracies. Unless such an agency finds that the 
     application is incomplete or obviously inaccurate, the agency 
     shall accept the attestation within 7 days of the date of 
     filing of the attestation, and return a copy to the applicant 
     marked `accepted'.
       ``(f) Public Registry.--The Secretary shall maintain a 
     registry of all accepted labor condition attestations and 
     make such registry available for public inspection.
       ``(g) Responsibilities of the State Employment Security 
     Agencies.--
       ``(1) Dissemination of labor market information.--The 
     Secretary shall direct State employment security agencies to 
     disseminate non-employer-specific information about potential 
     labor needs based on accepted attestations filed by 
     employers. Such dissemination shall be separate from the 
     clearance of job orders through the Interstate and Intrastate 
     Clearance Systems, and shall create no obligations for 
     employers except as provided in this section.
       ``(2) Referral of workers on state employment security 
     agency job orders.--
       ``(A) In general.--Such agencies holding job orders filed 
     by employers covered by approved labor condition attestations 
     shall be authorized to refer any able, willing, and qualified 
     eligible job applicant who will be available at the time and 
     place needed and who is authorized to work in the United 
     States, including pilot program aliens who are seeking 
     additional work in the United States and whose eligibility to 
     remain in the United States pursuant to subsection (i) has 
     not expired, on job orders filed by holders of accepted 
     attestations.
       ``(B) Procedures.--A State employment agency that refers 
     any individuals for employment pursuant to subsection 
     (g)(2)(A) shall comply with the procedures specified in 
     subsection (b) of section 274A. For purposes of the 
     attestation requirement in subsection (b)(1), the agency 
     employee who is primarily involved in the referral of the 
     individual shall make the attestation on behalf of the 
     agency. The agency shall retain the completed forms and make 
     them available for inspection as required in subsection 
     (b)(3) of section 274A.
       ``(C) Employment verification.--For purposes of complying 
     with subsection (b) of section 274A with respect to an 
     individual referred by a State employment agency, a pilot 
     program employer may, at the employer's option, fulfill the 
     requirements of subsection (b) of this section in lieu of 
     retaining the documentation described in section 274A(a)(5).
       ``(h) Enforcement and Penalties.--
       ``(1) Enforcement authority.--
       ``(A) Investigation of complaints.--The Secretary shall 
     establish a process for the receipt, investigation, and 
     disposition of complaints respecting an employer's failure to 
     meet a condition specified in subsection (a) or an employer's 
     misrepresentation of material facts in such an application. 
     Complaints may be filed by any aggrieved person or 
     organizations (including bargaining representatives). No 
     investigation or hearing shall be conducted on a complaint 
     concerning such a failure or misrepresentation unless the 
     complaint was filed not later than 2 years after the date of 
     the failure or misrepresentation, respectively. The Secretary 
     shall conduct an investigation under this subparagraph if 
     there is reasonable cause to believe that such a failure or 
     misrepresentation has occurred.
       ``(B) Written notice of findings and opportunity for 
     appeal.--After an investigation has been conducted, the 
     Secretary shall issue a written determination as to whether 
     or not any violation described in subparagraph (A) has been 
     committed. The Secretary's determination shall be served on 
     the complainant and the employer, and shall provide an 
     opportunity for an appeal of the Secretary's decision to an 
     administrative law judge, who may conduct a de novo hearing.
       ``(2) Remedies.--
       ``(A) Back wages.--Upon a final determination that the 
     employer has failed to pay wages as required under this 
     section, the Secretary may assess payment of back wages due 
     to any United States worker or pilot program alien employed 
     by the employer in the specific employment in question. The 
     back wages shall be equal to the difference between the 
     amount that should have been paid and the amount that 
     actually was paid to such worker.
       ``(B) Failure to pay wages.--Upon a final determination 
     that the employer has failed to pay the wages required under 
     this section, the Secretary may assess a civil money penalty 
     up to $1,000 for each failure, and may recommend to the 
     Attorney General the disqualification of the employer from 
     the employment of pilot program aliens for a period of time 
     determined by the Secretary not to exceed 1 year.
       ``(C) Other violations.--If the Secretary, as a result of 
     an investigation pursuant to a complaint, determines that an 
     employer covered by an accepted labor condition attestation 
     has--
       ``(i) filed an attestation which misrepresents a material 
     fact; or
       ``(ii) failed to meet a condition specified in subsection 
     (a),

     the Secretary may assess a civil money penalty not to exceed 
     $1,000 for each violation. In determining the amount of civil 
     money penalty to be assessed, the Secretary shall consider 
     the seriousness of the violation, the good faith of the 
     employer, the size of the business of the employer being 
     charged, the history of previous violations by the employer, 
     whether the employer obtained a financial gain from the 
     violation, whether the violation was willful, and other 
     relevant factors.
       ``(D) Program disqualification.--Upon a second final 
     determination that an employer has failed to pay the wages 
     required under this section, the Secretary shall report such 
     determination to the Attorney General and the Attorney 
     General shall disqualify the employer from any subsequent 
     employment of pilot program aliens.
       ``(3) Role of associations.--
       ``(A) Violation by an association.--An employer on whose 
     behalf a labor condition attestation is filed by an 
     association acting as its agent is fully responsible for such 
     attestation, and for complying with the terms and conditions 
     of this section, as though the employer had filed the 
     attestation itself. If such an employer is determined to have 
     violated a requirement of this section, the penalty for such 
     violation shall be assessed against the employer who 
     committed the violation and not against the association or 
     other members of the association.
       ``(B) Violation by an association acting as an employer.--
     If an association filing a labor condition attestation on its 
     own behalf as an employer is determined to have committed a 
     violation under this subsection which results in 
     disqualification from the program under paragraph (2)(D), no 
     individual member of such association may be the beneficiary 
     of the services of a pilot program alien in an occupation in 
     which such alien was employed by the association during the 
     period such disqualification is in effect, unless such member 
     files a labor condition attestation as an individual employer 
     or such an attestation is filed on the employer's behalf by 
     an association with which the employer has an agreement that 
     the employer will comply with the requirements of this 
     section.
       ``(i) Procedure for Admission or Extension of Pilot Program 
     Aliens.--
       ``(1) Aliens who are outside the united states.--
       ``(A) Petitioning for admission.--An employer or an 
     association acting as agent for its members who seeks the 
     admission into the United States of pilot program aliens may 
     file a petition with the District Director of the Immigration 
     and Naturalization Service having jurisdiction over the 
     location where the aliens will be employed. The petition 
     shall be accompanied by an accepted and currently valid labor 
     condition attestation covering the petitioner. The petition 
     may be for named or unnamed individual or multiple 
     beneficiaries.
       ``(B) Expedited adjudication by district director.--If an 
     employer's petition for admission of pilot program aliens is 
     correctly filled out, and the employer is not ineligible to 
     employ pilot program aliens, the District Director (or the 
     Director's designee) shall approve the petition within 3 
     working days of receipt of the petition and accepted labor 
     condition attestation and immediately (by fax, cable, or 
     other means assuring expedited delivery) transmit a copy of 
     the approved petition to the petitioner and 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.

[[Page S12613]]

       ``(C) Unnamed beneficiaries selected by petitioner.--The 
     petitioning employer or association or its representative 
     shall approve the issuance of visas to beneficiaries who are 
     unnamed on a petition for admission granted to the employer 
     or association.
       ``(D) Criteria for admissibility.--
       ``(i) In general.--An alien shall be admissible under this 
     section if the alien is otherwise admissible under this Act 
     and the alien is not debarred pursuant to the provisions of 
     clause (ii).
       ``(ii) Disqualification.--An alien shall be debarred from 
     admission or being provided status as a pilot program alien 
     under this section if the alien has, at any time during the 
     past 5 years--

       ``(I) violated a material provision of this section, 
     including the requirement to promptly depart the United 
     States when the alien's authorized period of admission under 
     this section has expired; or
       ``(II) otherwise violated a term or condition of admission 
     to the United States as a nonimmigrant, including overstaying 
     the period of authorized admission as such a nonimmigrant.

       ``(E) Period of admission.--The alien shall be admitted for 
     the period requested by the petitioner not to exceed 10 
     months, or the remaining validity period of the petitioner's 
     approved labor condition attestation, whichever is less, plus 
     an additional period of 14 days, during which the alien shall 
     seek authorized employment in the United States. During the 
     14-day period following the expiration of the alien's work 
     authorization, the alien is not authorized to be employed 
     unless the original petitioner or a subsequent petitioner has 
     filed an extension of stay on behalf of the alien pursuant to 
     paragraph (2).
       ``(F) Issuance of identification and employment eligibility 
     document.--
       ``(i) In general.--The Attorney General shall cause to be 
     issued to each pilot program alien a card in a form which is 
     resistant to counterfeiting and tampering for the purpose of 
     providing proof of identity and employment eligibility under 
     section 274A.
       ``(ii) Design of card.--Each card issued pursuant to clause 
     (i) shall be designed in such a manner and contain a 
     photograph and other identifying information (such as date of 
     birth, sex, and distinguishing marks) that would allow an 
     employer to determine with reasonable certainty that the 
     bearer is not claiming the identity of another individual, 
     and shall--

       ``(I) contain a fingerprint or other biometric identifying 
     data (or both);
       ``(II) specify the date of the alien's authorization as a 
     pilot program alien;
       ``(III) specify the expiration date of the alien's work 
     authorization; and

       ``(IV) specify the alien's admission number or alien file 
     number.

       ``(2) Extension of stay.--
       ``(A) Application for extension of stay.--If a petitioner 
     seeks to employ a pilot program alien already in the United 
     States, the petitioner shall file with the Attorney General 
     an application for an extension of the alien's stay. The 
     application for extension of stay shall be accompanied by a 
     currently valid labor condition attestation.
       ``(B) Limitation on filing an application for extension of 
     stay.--An application may not be filed for an extension of an 
     alien's stay for a period of more than 10 months, or later 
     than a date which is 2 years from the date of the alien's 
     last admission to the United States as a pilot program alien, 
     whichever occurs first. An application for extension of stay 
     may not be filed during the pendency of an alien's previous 
     authorized period of employment, nor after the alien's 
     authorized stay in the United States has expired.
       ``(C) Work authorization upon filing an application for 
     extension of stay.--An employer may begin employing an alien 
     already in the United States in pilot program alien status on 
     the day the employer files its application for extension of 
     stay. For the purpose of this requirement, the term `filing' 
     means sending the application by certified mail via the 
     United States Postal Service, return receipt requested, or 
     delivered by guaranteed commercial delivery which will 
     provide the employer with a documented acknowledgment of the 
     date of sending and receipt of the application. The employer 
     shall provide a copy of the employer's application for 
     extension of stay to the alien, who shall keep the 
     application with the alien's identification and employment 
     eligibility document as evidence that the extension has been 
     filed and that the alien is authorized to work in the United 
     States. Upon approval of an application for extension of 
     stay, the Attorney General 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 application for extension of stay.
       ``(D) Limitation on employment authorization of pilot 
     program aliens without valid identification and employment 
     eligibility card.--An expired identification and employment 
     eligibility document, together with a copy of an application 
     for extension of stay, shall constitute a valid work 
     authorization document for a period of not more than 60 days 
     from the date of application for the extension of stay, after 
     which time only a currently valid identification and 
     employment eligibility document shall be acceptable.
       ``(3) Limitation on an individual's stay in pilot program 
     status.--An alien having status as a pilot program alien may 
     not have the status extended for a continuous period longer 
     than 2 years unless the alien remains outside the United 
     States for an uninterrupted period of 6 months. An absence 
     from the United States may break the continuity of the period 
     for which a nonimmigrant visa issued under section 
     101(a)(15)(H)(ii)(c) is valid. If the alien has resided in 
     the United States 10 months or less, an absence breaks the 
     continuity of the period if its lasts for at least 2 months. 
     If the alien has resided in the United States 10 months or 
     more, an absence breaks the continuity of the period if it 
     lasts for at least one-fifth the duration of the stay.
       ``(j) Trust Fund To Assure Worker Return.--
       ``(1) Establishment.--There is established in the Treasury 
     of the United States a trust fund (in this section referred 
     to as the `Trust Fund') for the purpose of providing a 
     monetary incentive for pilot program aliens to return to 
     their country of origin upon expiration of their visas under 
     this section.
       ``(2) Withholding of wages; payment into the trust fund.--
       ``(A) In general.--Employers of pilot program aliens 
     shall--
       ``(i) withhold from the wages of their pilot program alien 
     workers an amount equivalent to 25 percent of the wages of 
     each pilot program alien worker and pay such withheld amount 
     into the Trust Fund in accordance with paragraph (3); and
       ``(ii) pay to the Trust Fund an amount equivalent to the 
     Federal tax on the wages paid to pilot program aliens that 
     the employer would be obligated to pay under the Federal 
     Unemployment Tax Act and the Federal Insurance Contributions 
     Act.

     Amounts withheld under clause (i) shall be maintained in such 
     interest bearing account with such a financial institution as 
     the Attorney General shall specify.
       ``(3) Distribution of funds.--Amounts paid into the Trust 
     Fund on behalf of a worker, and held pursuant to paragraph 
     (2)(A)(i) and interest earned thereon, shall be paid by the 
     Attorney General to the worker if--
       ``(A) the worker applies to the Attorney General (or the 
     designee of the Attorney General) for payment within 30 days 
     of the expiration of the alien's last authorized stay in the 
     United States as a pilot program alien;
       ``(B) in such application the worker establishes that the 
     worker has complied with the terms and conditions of this 
     section; and
       ``(C) in connection with the application, the worker 
     tenders the identification and employment authorization card 
     issued to the worker pursuant to subsection (i)(1)(F) and 
     establishes that the worker is identified as the person to 
     whom the card was issued based on the biometric 
     identification information contained on the card.
       ``(4) Administrative expenses.--The amounts paid into the 
     Trust Fund and held pursuant to paragraph (2)(A)(ii), and 
     interest earned thereon, shall be paid to the Attorney 
     General, the Secretary of Labor, and the Secretary of State 
     in amounts equivalent to the expenses incurred by such 
     officials in the administration of section 
     101(a)(15)(H)(ii)(c) and this section.
       ``(5) Regulations.--The Attorney General shall prescribe 
     regulations to carry out this subsection.
       ``(k) Investment of Trust Fund.--
       ``(1) In general.--It shall be the duty of the Secretary of 
     the Treasury to invest such portion of the Trust Fund as is 
     not, in the Secretary's judgment, required to meet current 
     withdrawals. Such investments may be made only in interest-
     bearing obligations of the United States or in obligations 
     guaranteed as to both principal and interest by the United 
     States. For such purpose, such obligations may be acquired--
       ``(A) on original issue at the price; or
       ``(B) by purchase of outstanding obligations at the market 
     price.

     The purposes for which obligations of the United States may 
     be issued under chapter 31 of title 31, United States Code, 
     are hereby extended to authorize the issuance at par of 
     special obligations exclusively to the Trust Fund. Such 
     special obligations shall bear interest at a rate equal to 
     the average rate of interest, computed as to the end of the 
     calendar month next preceding the date of such issue, borne 
     by all marketable interest-bearing obligations of the United 
     States then forming a part of the public debt, except that 
     where such average rate is not a multiple of one-eighth of 1 
     percent next lower than such average rate. Such special 
     obligations shall be issued only if the Secretary of the 
     Treasury determines that the purchase of other interest-
     bearing obligations of the United States, or of obligations 
     guaranteed as to both principal and interest by the United 
     States on original issue or at the market price, is not in 
     the public interest.
       ``(2) Sale of obligation.--Any obligation acquired by the 
     Trust Fund (except special obligations issued exclusively to 
     the Trust Fund) may be sold by the Secretary of the Treasury 
     at the market price, and such special obligations may be 
     redeemed at par plus accrued interest.
       ``(3) Credits to trust fund.--The interest on, and the 
     proceeds from the sale or redemption of, any obligations held 
     in the Trust Fund shall be credited to and form a part of the 
     Trust Fund.
       ``(4) Report to congress.--It shall be the duty of the 
     Secretary of the Treasury to hold the Trust Fund, and (after 
     consultation with the Attorney General) to report to the 
     Congress each year on the financial condition

[[Page S12614]]

     and the results of the operations of the Trust Fund during 
     the preceding fiscal year and on its expected condition and 
     operations during the next fiscal year. Such report shall be 
     printed as both a House and a Senate document of the session 
     of the Congress to which the report is made.
       ``(l) Miscellaneous Provisions.--
       ``(1) Applicability of labor laws.--Except as provided in 
     paragraphs (2), (3), and (4), all Federal, State, and local 
     labor laws (including laws affecting migrant farm workers) 
     applicable to United States workers shall also apply to pilot 
     program aliens.
       ``(2) Limitation of written disclosure imposed upon 
     recruiters.--Any disclosure required of recruiters under 
     section of 201(a) of the Migrant and Seasonal Agricultural 
     Worker Protection Act (29 U.S.C. 1821(a)) need not be given 
     to pilot program aliens prior to the time their visa is 
     issued permitting entry into the United States.
       ``(3) Exemption from fica and futa taxes.--The wages paid 
     to pilot program aliens shall be excluded from wages subject 
     to taxation under the Federal Unemployment Tax Act and under 
     the Federal Insurance Contributions Act.
       ``(4) Ineligibility for certain public benefits programs.--
       ``(A) In general.--Notwithstanding any other provision of 
     law and except as provided in subparagraph (B), any alien 
     provided status as a pilot program alien shall not be 
     eligible for any Federal or State or local means-tested 
     public benefit program.
       ``(B) Exceptions.--Subparagraph (A) shall not apply to the 
     following:
       ``(i) Emergency medical services.--The provision of 
     emergency medical services (as defined by the Attorney 
     General in consultation with the Secretary of Health and 
     Human Services).
       ``(ii) Public health immunizations.--Public health 
     assistance for immunizations with respect to immunizable 
     diseases and for testing and treatment for communicable 
     diseases.
       ``(iii) Short-term emergency disaster relief.--The 
     provision of non-cash, in-kind, short-term emergency disaster 
     relief.
       ``(m) Regulations.--
       ``(1) Selection of areas.--The Secretary of Agriculture 
     shall select the areas under subsection (a)(4) not later than 
     60 days after the date of the enactment of the Temporary 
     Agricultural Worker Act of 1997.
       ``(2) Regulations of the secretary.--The Secretary shall 
     consult with the Secretary of Agriculture, and the Attorney 
     General shall approve, all regulations dealing with the 
     approval of labor condition attestations for pilot program 
     aliens and enforcement of the requirements for employing 
     pilot program aliens under an approved attestation. The 
     Secretary shall promulgate, and the Attorney General shall 
     approve, such regulations not later than 90 days after the 
     date of the enactment of the Temporary Agricultural Worker 
     Act of 1997.
       ``(3) Regulations of the attorney general.--The Attorney 
     General shall consult with the Secretary of Agriculture on 
     all regulations dealing with the approval of petitions for 
     admission or extension of stay of pilot program aliens and 
     the requirements for employing pilot program aliens and the 
     enforcement of such requirements. The Attorney General shall 
     promulgate such regulations not later than 90 days after the 
     date of the enactment of the Temporary Agricultural Worker 
     Act of 1997.
       ``(n) Definitions.--For the purpose of this section:
       ``(1) Agricultural association.--The term `agricultural 
     association' means any nonprofit or cooperative association 
     of farmers, growers, or ranchers incorporated or qualified 
     under applicable State law, which recruits, solicits, hires, 
     employs, furnishes, or transports any agricultural workers.
       ``(2) Agricultural employment.--The term `agricultural 
     employment' means any service or activity included within the 
     provisions of section 3(f) of the Fair Labor Standards Act of 
     1938 (29 U.S.C. 203(f)) or section 3121(g) of the Internal 
     Revenue Code of 1986 and the handling, planting, drying, 
     packing, packaging, processing, freezing, or grading prior to 
     delivery for storage of any agricultural or horticultural 
     commodity in its unmanufactured state.
       ``(3) Employer.--The term `employer' means any person or 
     entity, including any independent contractor and any 
     agricultural association, that employs workers.
       ``(4) Pilot program alien.--The term `pilot program alien' 
     means an alien admitted to the United States or provided 
     status as a nonimmigrant under section 101(a)(15)(H)(ii)(c).
       ``(5) Secretary.--The term `Secretary' means the Secretary 
     of Labor.
       ``(6) United states worker.--The term `United States 
     worker' means any worker, whether a United States citizen, a 
     United States national, or an alien, who is legally permitted 
     to work in the job opportunity within the United States other 
     than an alien admitted pursuant to this section.''.
       (b) Clerical Amendment.--The table of contents of the 
     Immigration and Nationality Act is amended by inserting after 
     the item relating to section 218 the following new item:

``Sec. 218A. Alternative agricultural worker program.''.

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