[Congressional Record Volume 151, Number 46 (Monday, April 18, 2005)]
[Senate]
[Pages S3833-S3844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS


                        thursday, April 14, 2005

  SA 375. Mr. CRAIG (for himself and Mr. Kennedy) proposed an amendment 
to the bill H.R. 1268, making emergency supplemental appropriations for 
the fiscal year ending September 30, 2005, to establish and rapidly 
implement regulations for State driver's license and identification 
document security standards, to prevent terrorists from abusing the 
asylum laws of the United States, to unify terrorism-related grounds 
for inadmissibility and removal, to ensure expeditious construction of 
the San Diego border fence, and for other purposes; as follows:

       On page 231, between lines 3 and 4, insert the following:

 TITLE VII--AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY ACT 
                                OF 2005

     SEC. 701. SHORT TITLE.

       This title may be cited as the ``Agricultural Job 
     Opportunities, Benefits, and Security Act of 2005'' or the 
     ``AgJOBS Act of 2005''.

[[Page S3834]]

     SEC. 702. DEFINITIONS.

       In this title:
       (1) Agricultural employment.--The term ``agricultural 
     employment'' means any service or activity that is considered 
     to be agricultural under section 3(f) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural 
     labor under section 3121(g) of the Internal Revenue Code of 
     1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, 
     agricultural employment includes employment under section 
     101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
     (8 U.S.C. 1101(a)(15)(H)(ii)(a)).
       (2) Employer.--The term ``employer'' means any person or 
     entity, including any farm labor contractor and any 
     agricultural association, that employs workers in 
     agricultural employment.
       (3) Job opportunity.--The term ``job opportunity'' means a 
     job opening for temporary full-time employment at a place in 
     the United States to which United States workers can be 
     referred.
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Homeland Security.
       (5) Temporary.--A worker is employed on a ``temporary'' 
     basis where the employment is intended not to exceed 10 
     months.
       (6) United states worker.--The term ``United States 
     worker'' means any worker, whether a United States citizen or 
     national, a lawfully admitted permanent resident alien, or 
     any other alien, who is authorized to work in the job 
     opportunity within the United States, except an alien 
     admitted or otherwise provided status under section 
     101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
     (8 U.S.C. 1101(a)(15)(H)(ii)(a)).
       (7) Work day.--The term ``work day'' means any day in which 
     the individual is employed 1 or more hours in agriculture 
     consistent with the definition of ``man-day'' under section 
     3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
     203(u)).

                Subtitle A--Adjustment to Lawful Status

     SEC. 711. AGRICULTURAL WORKERS.

       (a) Temporary Resident Status.--
       (1) In general.--Notwithstanding any other provision of 
     law, the Secretary shall confer upon an alien who qualifies 
     under this subsection the status of an alien lawfully 
     admitted for temporary residence if the Secretary determines 
     that the alien--
       (A) has performed agricultural employment in the United 
     States for at least 575 hours or 100 work days, whichever is 
     less, during any 12 consecutive months during the 18-month 
     period ending on December 31, 2004;
       (B) applied for such status during the 18-month application 
     period beginning on the first day of the seventh month that 
     begins after the date of enactment of this Act; and
       (C) is otherwise admissible to the United States under 
     section 212 of the Immigration and Nationality Act (8 U.S.C. 
     1182), except as otherwise provided under subsection (e)(2).
       (2) Authorized travel.--During the period an alien is in 
     lawful temporary resident status granted under this 
     subsection, the alien has the right to travel abroad 
     (including commutation from a residence abroad) in the same 
     manner as an alien lawfully admitted for permanent residence.
       (3) Authorized employment.--During the period an alien is 
     in lawful temporary resident status granted under this 
     subsection, the alien shall be provided an ``employment 
     authorized'' endorsement or other appropriate work permit, in 
     the same manner as an alien lawfully admitted for permanent 
     residence.
       (4) Termination of temporary resident status.--
       (A) In general.--During the period of temporary resident 
     status granted an alien under this subsection, the Secretary 
     may terminate such status only upon a determination under 
     this Act that the alien is deportable.
       (B) Grounds for termination of temporary resident status.--
     Before any alien becomes eligible for adjustment of status 
     under subsection (c), the Secretary may deny adjustment to 
     permanent resident status and provide for termination of the 
     temporary resident status granted such alien under paragraph 
     (1) if--
       (i) the Secretary finds, by a preponderance of the 
     evidence, that the adjustment to temporary resident status 
     was the result of fraud or willful misrepresentation (as 
     described in section 212(a)(6)(C)(i) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
       (ii) the alien--

       (I) commits an act that makes the alien inadmissible to the 
     United States as an immigrant, except as provided under 
     subsection (e)(2);
       (II) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States; or
       (III) is convicted of a single misdemeanor for which the 
     actual sentence served is 6 months or longer.

       (5) Record of employment.--
       (A) In general.--Each employer of a worker granted status 
     under this subsection shall annually--
       (i) provide a written record of employment to the alien; 
     and
       (ii) provide a copy of such record to the Secretary.
       (B) Sunset.--The obligation under subparagraph (A) shall 
     terminate on the date that is 6 years after the date of 
     enactment of this Act.
       (b) Rights of Aliens Granted Temporary Resident Status.--
       (1) In general.--Except as otherwise provided in this 
     subsection, an alien who acquires the status of an alien 
     lawfully admitted for temporary residence under subsection 
     (a), such status not having changed, shall be considered to 
     be an alien lawfully admitted for permanent residence for 
     purposes of any law other than any provision of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
       (2) Delayed eligibility for certain federal public 
     benefits.--An alien who acquires the status of an alien 
     lawfully admitted for temporary residence under subsection 
     (a) as described in paragraph (1) shall not be eligible, by 
     reason of such acquisition of that status, for any form of 
     assistance or benefit described in section 403(a) of the 
     Personal Responsibility and Work Opportunity Reconciliation 
     Act of 1996 (8 U.S.C. 1613(a)) until 5 years after the date 
     on which the Secretary confers permanent resident status upon 
     that alien under subsection (a).
       (3) Terms of employment respecting aliens admitted under 
     this section.--
       (A) Prohibition.--No alien granted temporary resident 
     status under subsection (a) may be terminated from employment 
     by any employer during the period of temporary resident 
     status except for just cause.
       (B) Treatment of complaints.--
       (i) Establishment of process.--The Secretary shall 
     establish a process for the receipt, initial review, and 
     disposition in accordance with this subparagraph of 
     complaints by aliens granted temporary resident status under 
     subsection (a) who allege that they have been terminated 
     without just cause. No proceeding shall be conducted under 
     this subparagraph with respect to a termination unless the 
     Secretary determines that the complaint was filed not later 
     than 6 months after the date of the termination.
       (ii) Initiation of arbitration.--If the Secretary finds 
     that a complaint has been filed in accordance with clause (i) 
     and there is reasonable cause to believe that the complainant 
     was terminated without just cause, the Secretary shall 
     initiate binding arbitration proceedings by requesting the 
     Federal Mediation and Conciliation Service to appoint a 
     mutually agreeable arbitrator from the roster of arbitrators 
     maintained by such Service for the geographical area in which 
     the employer is located. The procedures and rules of such 
     Service shall be applicable to the selection of such 
     arbitrator and to such arbitration proceedings. The Secretary 
     shall pay the fee and expenses of the arbitrator, subject to 
     the availability of appropriations for such purpose.
       (iii) Arbitration proceedings.--The arbitrator shall 
     conduct the proceeding in accordance with the policies and 
     procedures promulgated by the American Arbitration 
     Association applicable to private arbitration of employment 
     disputes. The arbitrator shall make findings respecting 
     whether the termination was for just cause. The arbitrator 
     may not find that the termination was for just cause unless 
     the employer so demonstrates by a preponderance of the 
     evidence. If the arbitrator finds that the termination was 
     not for just cause, the arbitrator shall make a specific 
     finding of the number of days or hours of work lost by the 
     employee as a result of the termination. The arbitrator shall 
     have no authority to order any other remedy, including, but 
     not limited to, reinstatement, back pay, or front pay to the 
     affected employee. Within 30 days from the conclusion of the 
     arbitration proceeding, the arbitrator shall transmit the 
     findings in the form of a written opinion to the parties to 
     the arbitration and the Secretary. Such findings shall be 
     final and conclusive, and no official or court of the United 
     States shall have the power or jurisdiction to review any 
     such findings.
       (iv) Effect of arbitration findings.--If the Secretary 
     receives a finding of an arbitrator that an employer has 
     terminated an alien granted temporary resident status under 
     subsection (a) without just cause, the Secretary shall credit 
     the alien for the number of days or hours of work lost for 
     purposes of the requirement of subsection (c)(1).
       (v) Treatment of attorney's fees.--The parties shall bear 
     the cost of their own attorney's fees involved in the 
     litigation of the complaint.
       (vi) Nonexclusive remedy.--The complaint process provided 
     for in this subparagraph is in addition to any other rights 
     an employee may have in accordance with applicable law.
       (vii) Effect on other actions or proceedings.--Any finding 
     of fact or law, judgment, conclusion, or final order made by 
     an arbitrator in the proceeding before the Secretary shall 
     not be conclusive or binding in any separate or subsequent 
     action or proceeding between the employee and the employee's 
     current or prior employer brought before an arbitrator, 
     administrative agency, court, or judge of any State or the 
     United States, regardless of whether the prior action was 
     between the same or related parties or involved the same 
     facts, except that the arbitrator's specific finding of the 
     number of days or hours of work lost by the employee as a 
     result of the employment termination may be referred to the 
     Secretary pursuant to clause (iv).
       (C) Civil penalties.--
       (i) In general.--If the Secretary finds, after notice and 
     opportunity for a hearing, that an employer of an alien 
     granted temporary resident status under subsection (a) has 
     failed to provide the record of employment required under 
     subsection (a)(5) or has provided a false statement of 
     material fact

[[Page S3835]]

     in such a record, the employer shall be subject to a civil 
     money penalty in an amount not to exceed $1,000 per 
     violation.
       (ii) Limitation.--The penalty applicable under clause (i) 
     for failure to provide records shall not apply unless the 
     alien has provided the employer with evidence of employment 
     authorization granted under this section.
       (c) Adjustment to Permanent Residence.--
       (1) Agricultural workers.--
       (A) In general.--Except as provided in subparagraph (B), 
     the Secretary shall adjust the status of an alien granted 
     lawful temporary resident status under subsection (a) to that 
     of an alien lawfully admitted for permanent residence if the 
     Secretary determines that the following requirements are 
     satisfied:
       (i) Qualifying employment.--The alien has performed at 
     least 360 work days or 2,060 hours, but in no case less than 
     2,060 hours, of agricultural employment in the United States, 
     during the 6-year period beginning after the date of 
     enactment of this Act.
       (ii) Qualifying years.--The alien has performed at least 75 
     work days or 430 hours, but in no case less than 430 hours, 
     of agricultural employment in the United States in at least 3 
     nonoverlapping periods of 12 consecutive months during the 6-
     year period beginning after the date of enactment of this 
     Act. Qualifying periods under this clause may include 
     nonconsecutive 12-month periods.
       (iii) Qualifying work in first 3 years.--The alien has 
     performed at least 240 work days or 1,380 hours, but in no 
     case less than 1,380 hours, of agricultural employment during 
     the 3-year period beginning after the date of enactment of 
     this Act.
       (iv) Application period.--The alien applies for adjustment 
     of status not later than 7 years after the date of enactment 
     of this Act.
       (v) Proof.--In meeting the requirements of clauses (i), 
     (ii), and (iii), an alien may submit the record of employment 
     described in subsection (a)(5) or such documentation as may 
     be submitted under subsection (d)(3).
       (vi) Disability.--In determining whether an alien has met 
     the requirements of clauses (i), (ii), and (iii), the 
     Secretary shall credit the alien with any work days lost 
     because the alien was unable to work in agricultural 
     employment due to injury or disease arising out of and in the 
     course of the alien's agricultural employment, if the alien 
     can establish such disabling injury or disease through 
     medical records.
       (B) Grounds for denial of adjustment of status.--The 
     Secretary may deny an alien adjustment to permanent resident 
     status, and provide for termination of the temporary resident 
     status granted such alien under subsection (a), if--
       (i) the Secretary finds by a preponderance of the evidence 
     that the adjustment to temporary resident status was the 
     result of fraud or willful misrepresentation, as described in 
     section 212(a)(6)(C)(i) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(a)(6)(C)(i)); or
       (ii) the alien--

       (I) commits an act that makes the alien inadmissible to the 
     United States under section 212 of the Immigration and 
     Nationality Act (8 U.S.C. 1182), except as provided under 
     subsection (e)(2);
       (II) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States; or
       (III) is convicted of a single misdemeanor for which the 
     actual sentence served is 6 months or longer.

       (C) Grounds for removal.--Any alien granted temporary 
     resident status under subsection (a) who does not apply for 
     adjustment of status under this subsection before the 
     expiration of the application period described in 
     subparagraph (A)(iv), or who fails to meet the other 
     requirements of subparagraph (A) by the end of the applicable 
     period, is deportable and may be removed under section 240 of 
     the Immigration and Nationality Act (8 U.S.C. 1229a). The 
     Secretary shall issue regulations establishing grounds to 
     waive subparagraph (A)(iii) with respect to an alien who has 
     completed at least 200 days of the work requirement specified 
     in such subparagraph in the event of a natural disaster which 
     substantially limits the availability of agricultural 
     employment or a personal emergency that prevents compliance 
     with such subparagraph.
       (2) Spouses and minor children.--
       (A) In general.--Notwithstanding any other provision of 
     law, the Secretary shall confer the status of lawful 
     permanent resident on the spouse and minor child of an alien 
     granted status under paragraph (1), including any individual 
     who was a minor child on the date such alien was granted 
     temporary resident status, if the spouse or minor child 
     applies for such status, or if the principal alien includes 
     the spouse or minor child in an application for adjustment of 
     status to that of a lawful permanent resident.
       (B) Treatment of spouses and minor children before 
     adjustment of status.--A spouse and minor child of an alien 
     granted temporary resident status under subsection (a) may 
     not be--
       (i) removed while such alien maintains such status, except 
     as provided in subparagraph (C); and
       (ii) granted authorization to engage in employment in the 
     United States or be provided an ``employment authorized'' 
     endorsement or other work permit, unless such employment 
     authorization is granted under another provision of law.
       (C) Grounds for denial of adjustment of status and 
     removal.--The Secretary may deny an alien spouse or child 
     adjustment of status under subparagraph (A) and may remove 
     such spouse or child under section 240 of the Immigration and 
     Nationality Act (8 U.S.C. 1229a) if the spouse or child--
       (i) commits an act that makes the alien spouse or child 
     inadmissible to the United States under section 212 of such 
     Act (8 U.S.C. 1182), except as provided under subsection 
     (e)(2);
       (ii) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States; or
       (iii) is convicted of a single misdemeanor for which the 
     actual sentence served is 6 months or longer.
       (d) Applications.--
       (1) To whom may be made.--
       (A) Within the united states.--The Secretary shall provide 
     that--
       (i) applications for temporary resident status under 
     subsection (a) may be filed--

       (I) with the Secretary, but only if the applicant is 
     represented by an attorney; or
       (II) with a qualified designated entity (designated under 
     paragraph (2)), but only if the applicant consents to the 
     forwarding of the application to the Secretary; and

       (ii) applications for adjustment of status under subsection 
     (c) shall be filed directly with the Secretary.
       (B) Outside the united states.--The Secretary, in 
     cooperation with the Secretary of State, shall establish a 
     procedure whereby an alien may apply for temporary resident 
     status under subsection (a) at an appropriate consular office 
     outside the United States.
       (C) Preliminary applications.--
       (i) In general.--During the application period described in 
     subsection (a)(1)(B), the Secretary may grant admission to 
     the United States as a temporary resident and provide an 
     ``employment authorized'' endorsement or other appropriate 
     work permit to any alien who presents a preliminary 
     application for such status under subsection (a) at a 
     designated port of entry on the southern land border of the 
     United States. An alien who does not enter through a port of 
     entry is subject to deportation and removal as otherwise 
     provided in this Act.
       (ii) Definition.--For purposes of clause (i), the term 
     ``preliminary application'' means a fully completed and 
     signed application which contains specific information 
     concerning the performance of qualifying employment in the 
     United States, together with the payment of the appropriate 
     fee and the submission of photographs and the documentary 
     evidence which the applicant intends to submit as proof of 
     such employment.
       (iii) Eligibility.--An applicant under clause (i) shall 
     otherwise be admissible to the United States under subsection 
     (e)(2) and shall establish to the satisfaction of the 
     examining officer during an interview that the applicant's 
     claim to eligibility for temporary resident status is 
     credible.
       (D) Travel documentation.--The Secretary shall provide each 
     alien granted status under this section with a counterfeit-
     resistant document of authorization to enter or reenter the 
     United States that meets the requirements established by the 
     Secretary.
       (2) Designation of entities to receive applications.--
       (A) In general.--For purposes of receiving applications 
     under subsection (a), the Secretary--
       (i) shall designate qualified farm labor organizations and 
     associations of employers; and
       (ii) may designate such other persons as the Secretary 
     determines are qualified and have substantial experience, 
     demonstrate competence, and have traditional long-term 
     involvement in the preparation and submission of applications 
     for adjustment of status under section 209, 210, or 245 of 
     the Immigration and Nationality Act, Public Law 89-732, 
     Public Law 95-145, or the Immigration Reform and Control Act 
     of 1986.
       (B) References.--Organizations, associations, and persons 
     designated under subparagraph (A) are referred to in this Act 
     as ``qualified designated entities''.
       (3) Proof of eligibility.--
       (A) In general.--An alien may establish that the alien 
     meets the requirement of subsection (a)(1)(A) or (c)(1)(A) 
     through government employment records or records supplied by 
     employers or collective bargaining organizations, and other 
     reliable documentation as the alien may provide. The 
     Secretary shall establish special procedures to properly 
     credit work in cases in which an alien was employed under an 
     assumed name.
       (B) Documentation of work history.--
       (i) Burden of proof.--An alien applying for status under 
     subsection (a)(1) or (c)(1) has the burden of proving by a 
     preponderance of the evidence that the alien has worked the 
     requisite number of hours or days (as required under 
     subsection (a)(1)(A) or (c)(1)(A)).
       (ii) Timely production of records.--If an employer or farm 
     labor contractor employing such an alien has kept proper and 
     adequate records respecting such employment, the alien's 
     burden of proof under clause (i) may be met by securing 
     timely production of those records under regulations to be 
     promulgated by the Secretary.
       (iii) Sufficient evidence.--An alien can meet the burden of 
     proof under clause (i) to establish that the alien has 
     performed the work described in subsection (a)(1)(A) or 
     (c)(1)(A) by producing sufficient evidence to show the extent 
     of that employment as a matter of just and reasonable 
     inference.
       (4) Treatment of applications by qualified designated 
     entities.--Each qualified

[[Page S3836]]

     designated entity shall agree to forward to the Secretary 
     applications filed with it in accordance with paragraph 
     (1)(A)(i)(II) but shall not forward to the Secretary 
     applications filed with it unless the applicant has consented 
     to such forwarding. No such entity may make a determination 
     required by this section to be made by the Secretary. Upon 
     the request of the alien, a qualified designated entity shall 
     assist the alien in obtaining documentation of the work 
     history of the alien.
       (5) Limitation on access to information.--Files and records 
     prepared for purposes of this subsection by qualified 
     designated entities operating under this subsection are 
     confidential and the Secretary shall not have access to such 
     files or records relating to an alien without the consent of 
     the alien, except as allowed by a court order issued pursuant 
     to paragraph (6).
       (6) Confidentiality of information.--
       (A) In general.--Except as otherwise provided in this 
     subsection, neither the Secretary, nor any other official or 
     employee of the Department of Homeland Security, or bureau or 
     agency thereof, may--
       (i) use the information furnished by the applicant pursuant 
     to an application filed under this section, the information 
     provided to the applicant by a person designated under 
     paragraph (2)(A), or any information provided by an employer 
     or former employer, for any purpose other than to make a 
     determination on the application, or for enforcement of 
     paragraph (7);
       (ii) make any publication whereby the information furnished 
     by any particular individual can be identified; or
       (iii) permit anyone other than the sworn officers and 
     employees of the Department of Homeland Security, or bureau 
     or agency thereof, or, with respect to applications filed 
     with a qualified designated entity, that qualified designated 
     entity, to examine individual applications.
       (B) Required disclosures.--The Secretary shall provide the 
     information furnished under this section, or any other 
     information derived from such furnished information, to--
       (i) a duly recognized law enforcement entity in connection 
     with a criminal investigation or prosecution, if such 
     information is requested in writing by such entity; or
       (ii) an official coroner, for purposes of affirmatively 
     identifying a deceased individual, whether or not the death 
     of such individual resulted from a crime.
       (C) Construction.--
       (i) In general.--Nothing in this paragraph shall be 
     construed to limit the use, or release, for immigration 
     enforcement purposes or law enforcement purposes of 
     information contained in files or records of the Department 
     of Homeland Security pertaining to an application filed under 
     this section, other than information furnished by an 
     applicant pursuant to the application, or any other 
     information derived from the application, that is not 
     available from any other source.
       (ii) Criminal convictions.--Information concerning whether 
     the applicant has at any time been convicted of a crime may 
     be used or released for immigration enforcement or law 
     enforcement purposes.
       (D) Crime.--Any person who knowingly uses, publishes, or 
     permits information to be examined in violation of this 
     paragraph shall be subject to a fine in an amount not to 
     exceed $10,000.
       (7) Penalties for false statements in applications.--
       (A) Criminal penalty.--Any person who--
       (i) files an application for status under subsection (a) or 
     (c) and knowingly and willfully falsifies, conceals, or 
     covers up a material fact or makes any false, fictitious, or 
     fraudulent statements or representations, or makes or uses 
     any false writing or document knowing the same to contain any 
     false, fictitious, or fraudulent statement or entry; or
       (ii) creates or supplies a false writing or document for 
     use in making such an application,

     shall be fined in accordance with title 18, United States 
     Code, imprisoned not more than 5 years, or both.
       (B) Inadmissibility.--An alien who is convicted of a crime 
     under subparagraph (A) shall be considered to be inadmissible 
     to the United States on the ground described in section 
     212(a)(6)(C)(i) of the Immigration and Nationality Act (8 
     U.S.C. 1182(a)(6)(C)(i)).
       (8) Eligibility for legal services.--Section 504(a)(11) of 
     Public Law 104-134 (110 Stat. 1321-53 et seq.) shall not be 
     construed to prevent a recipient of funds under the Legal 
     Services Corporation Act (42 U.S.C. 2996 et seq.) from 
     providing legal assistance directly related to an application 
     for adjustment of status under this section.
       (9) Application fees.--
       (A) Fee schedule.--The Secretary shall provide for a 
     schedule of fees that--
       (i) shall be charged for the filing of applications for 
     status under subsections (a) and (c); and
       (ii) may be charged by qualified designated entities to 
     help defray the costs of services provided to such 
     applicants.
       (B) Prohibition on excess fees by qualified designated 
     entities.--A qualified designated entity may not charge any 
     fee in excess of, or in addition to, the fees authorized 
     under subparagraph (A)(ii) for services provided to 
     applicants.
       (C) Disposition of fees.--
       (i) In general.--There is established in the general fund 
     of the Treasury a separate account, which shall be known as 
     the ``Agricultural Worker Immigration Status Adjustment 
     Account''. Notwithstanding any other provision of law, there 
     shall be deposited as offsetting receipts into the account 
     all fees collected under subparagraph (A)(i).
       (ii) Use of fees for application processing.--Amounts 
     deposited in the ``Agricultural Worker Immigration Status 
     Adjustment Account'' shall remain available to the Secretary 
     until expended for processing applications for status under 
     subsections (a) and (c).
       (e) Waiver of Numerical Limitations and Certain Grounds for 
     Inadmissibility.--
       (1) Numerical limitations do not apply.--The numerical 
     limitations of sections 201 and 202 of the Immigration and 
     Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to 
     the adjustment of aliens to lawful permanent resident status 
     under this section.
       (2) Waiver of certain grounds of inadmissibility.--In the 
     determination of an alien's eligibility for status under 
     subsection (a)(1)(C) or an alien's eligibility for adjustment 
     of status under subsection (c)(1)(B)(ii)(I), the following 
     rules shall apply:
       (A) Grounds of exclusion not applicable.--The provisions of 
     paragraphs (5), (6)(A), (7)(A), and (9)(B) of section 212(a) 
     of the Immigration and Nationality Act (8 U.S.C. 1182(a)) 
     shall not apply.
       (B) Waiver of other grounds.--
       (i) In general.--Except as provided in clause (ii), the 
     Secretary may waive any other provision of such section 
     212(a) in the case of individual aliens for humanitarian 
     purposes, to ensure family unity, or if otherwise in the 
     public interest.
       (ii) Grounds that may not be waived.--Paragraphs (2)(A), 
     (2)(B), (2)(C), (3), and (4) of such section 212(a) may not 
     be waived by the Secretary under clause (i).
       (iii) Construction.--Nothing in this subparagraph shall be 
     construed as affecting the authority of the Secretary other 
     than under this subparagraph to waive provisions of such 
     section 212(a).
       (C) Special rule for determination of public charge.--An 
     alien is not ineligible for status under this section by 
     reason of a ground of inadmissibility under section 212(a)(4) 
     of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) 
     if the alien demonstrates a history of employment in the 
     United States evidencing self-support without reliance on 
     public cash assistance.
       (f) Temporary Stay of Removal and Work Authorization for 
     Certain Applicants.--
       (1) Before application period.--Effective on the date of 
     enactment of this Act, the Secretary shall provide that, in 
     the case of an alien who is apprehended before the beginning 
     of the application period described in subsection (a)(1)(B) 
     and who can establish a nonfrivolous case of eligibility for 
     temporary resident status under subsection (a) (but for the 
     fact that the alien may not apply for such status until the 
     beginning of such period), until the alien has had the 
     opportunity during the first 30 days of the application 
     period to complete the filing of an application for temporary 
     resident status, the alien--
       (A) may not be removed; and
       (B) shall be granted authorization to engage in employment 
     in the United States and be provided an ``employment 
     authorized'' endorsement or other appropriate work permit for 
     such purpose.
       (2) During application period.--The Secretary shall provide 
     that, in the case of an alien who presents a nonfrivolous 
     application for temporary resident status under subsection 
     (a) during the application period described in subsection 
     (a)(1)(B), including an alien who files such an application 
     within 30 days of the alien's apprehension, and until a final 
     determination on the application has been made in accordance 
     with this section, the alien--
       (A) may not be removed; and
       (B) shall be granted authorization to engage in employment 
     in the United States and be provided an ``employment 
     authorized'' endorsement or other appropriate work permit for 
     such purpose.
       (g) Administrative and Judicial Review.--
       (1) In general.--There shall be no administrative or 
     judicial review of a determination respecting an application 
     for status under subsection (a) or (c) except in accordance 
     with this subsection.
       (2) Administrative review.--
       (A) Single level of administrative appellate review.--The 
     Secretary shall establish an appellate authority to provide 
     for a single level of administrative appellate review of such 
     a determination.
       (B) Standard for review.--Such administrative appellate 
     review shall be based solely upon the administrative record 
     established at the time of the determination on the 
     application and upon such additional or newly discovered 
     evidence as may not have been available at the time of the 
     determination.
       (3) Judicial review.--
       (A) Limitation to review of removal.--There shall be 
     judicial review of such a determination only in the judicial 
     review of an order of removal under section 242 of the 
     Immigration and Nationality Act (8 U.S.C. 1252).
       (B) Standard for judicial review.--Such judicial review 
     shall be based solely upon the administrative record 
     established at the time of the review by the appellate 
     authority and the findings of fact and determinations 
     contained in such record shall be conclusive unless the 
     applicant can establish abuse of discretion or that the 
     findings are directly

[[Page S3837]]

     contrary to clear and convincing facts contained in the 
     record considered as a whole.
       (h) Dissemination of Information on Adjustment Program.--
     Beginning not later than the first day of the application 
     period described in subsection (a)(1)(B), the Secretary, in 
     cooperation with qualified designated entities, shall broadly 
     disseminate information respecting the benefits that aliens 
     may receive under this section and the requirements to be 
     satisfied to obtain such benefits.
       (i) Regulations.--The Secretary shall issue regulations to 
     implement this section not later than the first day of the 
     seventh month that begins after the date of enactment of this 
     Act.
       (j) Effective Date.--This section shall take effect on the 
     date that regulations are issued implementing this section on 
     an interim or other basis.
       (k) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary to carry out this section 
     $40,000,000 for each of fiscal years 2006 through 2009.

     SEC. 712. CORRECTION OF SOCIAL SECURITY RECORDS.

       (a) In General.--Section 208(d)(1) of the Social Security 
     Act (42 U.S.C. 408(d)(1)) is amended--
       (1) in subparagraph (B)(ii), by striking ``or'' at the end;
       (2) in subparagraph (C), by inserting ``or'' at the end;
       (3) by inserting after subparagraph (C) the following:
       ``(D) who is granted status as a lawful temporary resident 
     under the Agricultural Job Opportunity, Benefits, and 
     Security Act of 2005,''; and
       (4) by striking ``1990.'' and inserting ``1990, or in the 
     case of an alien described in subparagraph (D), if such 
     conduct is alleged to have occurred before the date on which 
     the alien was granted lawful temporary resident status.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall take effect on the first day of the seventh month that 
     begins after the date of enactment of this Act.

               Subtitle B--Reform of H-2A Worker Program

     SEC. 721. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.

       (a) In General.--The Immigration and Nationality Act is 
     amended by striking section 218 (8 U.S.C. 1188) and inserting 
     the following:


                      ``H-2A EMPLOYER APPLICATIONS

       ``Sec. 218. (a) Applications to the Secretary of Labor.--
       ``(1) In general.--No alien may be admitted to the United 
     States as an H-2A worker, or otherwise provided status as an 
     H-2A worker, unless the employer has filed with the Secretary 
     of Labor an application containing--
       ``(A) the assurances described in subsection (b);
       ``(B) a description of the nature and location of the work 
     to be performed;
       ``(C) the anticipated period (expected beginning and ending 
     dates) for which the workers will be needed; and
       ``(D) the number of job opportunities in which the employer 
     seeks to employ the workers.
       ``(2) Accompanied by job offer.--Each application filed 
     under paragraph (1) shall be accompanied by a copy of the job 
     offer describing the wages and other terms and conditions of 
     employment and the bona fide occupational qualifications that 
     shall be possessed by a worker to be employed in the job 
     opportunity in question.
       ``(b) Assurances for Inclusion in Applications.--The 
     assurances referred to in subsection (a)(1) are the 
     following:
       ``(1) Job opportunities covered by collective bargaining 
     agreements.--With respect to a job opportunity that is 
     covered under a collective bargaining agreement:
       ``(A) Union contract described.--The job opportunity is 
     covered by a union contract which was negotiated at arm's 
     length between a bona fide union and the employer.
       ``(B) Strike or lockout.--The specific job opportunity for 
     which the employer is requesting an H-2A worker is not vacant 
     because the former occupant is on strike or being locked out 
     in the course of a labor dispute.
       ``(C) Notification of bargaining representatives.--The 
     employer, at the time of filing the application, has provided 
     notice of the filing under this paragraph to the bargaining 
     representative of the employer's employees in the 
     occupational classification at the place or places of 
     employment for which aliens are sought.
       ``(D) Temporary or seasonal job opportunities.--The job 
     opportunity is temporary or seasonal.
       ``(E) Offers to united states workers.--The employer has 
     offered or will offer the job to any eligible United States 
     worker who applies and is equally or better qualified for the 
     job for which the nonimmigrant is, or the nonimmigrants are, 
     sought and who will be available at the time and place of 
     need.
       ``(F) Provision of insurance.--If the job opportunity is 
     not covered by the State workers' compensation law, the 
     employer will provide, at no cost to the worker, insurance 
     covering injury and disease arising out of, and in the course 
     of, the worker's employment which will provide benefits at 
     least equal to those provided under the State's workers' 
     compensation law for comparable employment.
       ``(2) Job opportunities not covered by collective 
     bargaining agreements.--With respect to a job opportunity 
     that is not covered under a collective bargaining agreement:
       ``(A) Strike or lockout.--The specific job opportunity for 
     which the employer is requesting an H-2A worker is not vacant 
     because the former occupant is on strike or being locked out 
     in the course of a labor dispute.
       ``(B) Temporary or seasonal job opportunities.--The job 
     opportunity is temporary or seasonal.
       ``(C) Benefit, wage, and working conditions.--The employer 
     will provide, at a minimum, the benefits, wages, and working 
     conditions required by section 218A to all workers employed 
     in the job opportunities for which the employer has applied 
     under subsection (a) and to all other workers in the same 
     occupation at the place of employment.
       ``(D) Nondisplacement of united states workers.--The 
     employer did not displace and will not displace a United 
     States worker employed by the employer during the period of 
     employment and for a period of 30 days preceding the period 
     of employment in the occupation at the place of employment 
     for which the employer seeks approval to employ H-2A workers.
       ``(E) Requirements for placement of nonimmigrant with other 
     employers.--The employer will not place the nonimmigrant with 
     another employer unless--
       ``(i) the nonimmigrant performs duties in whole or in part 
     at 1 or more work sites owned, operated, or controlled by 
     such other employer;
       ``(ii) there are indicia of an employment relationship 
     between the nonimmigrant and such other employer; and
       ``(iii) the employer has inquired of the other employer as 
     to whether, and has no actual knowledge or notice that, 
     during the period of employment and for a period of 30 days 
     preceding the period of employment, the other employer has 
     displaced or intends to displace a United States worker 
     employed by the other employer in the occupation at the place 
     of employment for which the employer seeks approval to employ 
     H-2A workers.
       ``(F) Statement of liability.--The application form shall 
     include a clear statement explaining the liability under 
     subparagraph (E) of an employer if the other employer 
     described in such subparagraph displaces a United States 
     worker as described in such subparagraph.
       ``(G) Provision of insurance.--If the job opportunity is 
     not covered by the State workers' compensation law, the 
     employer will provide, at no cost to the worker, insurance 
     covering injury and disease arising out of and in the course 
     of the worker's employment which will provide benefits at 
     least equal to those provided under the State's workers' 
     compensation law for comparable employment.
       ``(H) Employment of united states workers.--
       ``(i) Recruitment.--The employer has taken or will take the 
     following steps to recruit United States workers for the job 
     opportunities for which the H-2A nonimmigrant is, or H-2A 
     nonimmigrants are, sought:

       ``(I) Contacting former workers.--The employer shall make 
     reasonable efforts through the sending of a letter by United 
     States Postal Service mail, or otherwise, to contact any 
     United States worker the employer employed during the 
     previous season in the occupation at the place of intended 
     employment for which the employer is applying for workers and 
     has made the availability of the employer's job opportunities 
     in the occupation at the place of intended employment known 
     to such previous workers, unless the worker was terminated 
     from employment by the employer for a lawful job-related 
     reason or abandoned the job before the worker completed the 
     period of employment of the job opportunity for which the 
     worker was hired.
       ``(II) Filing a job offer with the local office of the 
     state employment security agency.--Not later than 28 days 
     before the date on which the employer desires to employ an H-
     2A worker in a temporary or seasonal agricultural job 
     opportunity, the employer shall submit a copy of the job 
     offer described in subsection (a)(2) to the local office of 
     the State employment security agency which serves the area of 
     intended employment and authorize the posting of the job 
     opportunity on `America's Job Bank' or other electronic job 
     registry, except that nothing in this subclause shall require 
     the employer to file an interstate job order under section 
     653 of title 20, Code of Federal Regulations.
       ``(III) Advertising of job opportunities.--Not later than 
     14 days before the date on which the employer desires to 
     employ an H-2A worker in a temporary or seasonal agricultural 
     job opportunity, the employer shall advertise the 
     availability of the job opportunities for which the employer 
     is seeking workers in a publication in the local labor market 
     that is likely to be patronized by potential farm workers.
       ``(IV) Emergency procedures.--The Secretary of Labor shall, 
     by regulation, provide a procedure for acceptance and 
     approval of applications in which the employer has not 
     complied with the provisions of this subparagraph because the 
     employer's need for H-2A workers could not reasonably have 
     been foreseen.

       ``(ii) Job offers.--The employer has offered or will offer 
     the job to any eligible United States worker who applies and 
     is

[[Page S3838]]

     equally or better qualified for the job for which the 
     nonimmigrant is, or nonimmigrants are, sought and who will be 
     available at the time and place of need.
       ``(iii) Period of employment.--The employer will provide 
     employment to any qualified United States worker who applies 
     to the employer during the period beginning on the date on 
     which the foreign worker departs for the employer's place of 
     employment and ending on the date on which 50 percent of the 
     period of employment for which the foreign worker who is in 
     the job was hired has elapsed, subject to the following 
     requirements:

       ``(I) Prohibition.--No person or entity shall willfully and 
     knowingly withhold United States workers before the arrival 
     of H-2A workers in order to force the hiring of United States 
     workers under this clause.
       ``(II) Complaints.--Upon receipt of a complaint by an 
     employer that a violation of subclause (I) has occurred, the 
     Secretary of Labor shall immediately investigate. The 
     Secretary of Labor shall, within 36 hours of the receipt of 
     the complaint, issue findings concerning the alleged 
     violation. If the Secretary of Labor finds that a violation 
     has occurred, the Secretary of Labor shall immediately 
     suspend the application of this clause with respect to that 
     certification for that date of need.
       ``(III) Placement of united states workers.--Before 
     referring a United States worker to an employer during the 
     period described in the matter preceding subclause (I), the 
     Secretary of Labor shall make all reasonable efforts to place 
     the United States worker in an open job acceptable to the 
     worker, if there are other job offers pending with the job 
     service that offer similar job opportunities in the area of 
     intended employment.

       ``(iv) Statutory construction.--Nothing in this 
     subparagraph shall be construed to prohibit an employer from 
     using such legitimate selection criteria relevant to the type 
     of job that are normal or customary to the type of job 
     involved so long as such criteria are not applied in a 
     discriminatory manner.
       ``(c) Applications by Associations on Behalf of Employer 
     Members.--
       ``(1) In general.--An agricultural association may file an 
     application under subsection (a) on behalf of 1 or more of 
     its employer members that the association certifies in its 
     application has or have agreed in writing to comply with the 
     requirements of this section and sections 218A through 218C.
       ``(2) Treatment of associations acting as employers.--If an 
     association filing an application under paragraph (1) is a 
     joint or sole employer of the temporary or seasonal 
     agricultural workers requested on the application, the 
     certifications granted under subsection (e)(2)(B) to the 
     association may be used for the certified job opportunities 
     of any of its producer members named on the application, and 
     such workers may be transferred among such producer members 
     to perform the agricultural services of a temporary or 
     seasonal nature for which the certifications were granted.
       ``(d) Withdrawal of Applications.--
       ``(1) In general.--An employer may withdraw an application 
     filed pursuant to subsection (a), except that if the employer 
     is an agricultural association, the association may withdraw 
     an application filed pursuant to subsection (a) with respect 
     to 1 or more of its members. To withdraw an application, the 
     employer or association shall notify the Secretary of Labor 
     in writing, and the Secretary of Labor shall acknowledge in 
     writing the receipt of such withdrawal notice. An employer 
     who withdraws an application under subsection (a), or on 
     whose behalf an application is withdrawn, is relieved of the 
     obligations undertaken in the application.
       ``(2) Limitation.--An application may not be withdrawn 
     while any alien provided status under section 
     101(a)(15)(H)(ii)(a) pursuant to such application is employed 
     by the employer.
       ``(3) Obligations under other statutes.--Any obligation 
     incurred by an employer under any other law or regulation as 
     a result of the recruitment of United States workers or H-2A 
     workers under an offer of terms and conditions of employment 
     required as a result of making an application under 
     subsection (a) is unaffected by withdrawal of such 
     application.
       ``(e) Review and Approval of Applications.--
       ``(1) Responsibility of employers.--The employer shall make 
     available for public examination, within 1 working day after 
     the date on which an application under subsection (a) is 
     filed, at the employer's principal place of business or work 
     site, a copy of each such application (and such accompanying 
     documents as are necessary).
       ``(2) Responsibility of the secretary of labor.--
       ``(A) Compilation of list.--The Secretary of Labor shall 
     compile, on a current basis, a list (by employer and by 
     occupational classification) of the applications filed under 
     this subsection. Such list shall include the wage rate, 
     number of workers sought, period of intended employment, and 
     date of need. The Secretary of Labor shall make such list 
     available for examination in the District of Columbia.
       ``(B) Review of applications.--The Secretary of Labor shall 
     review such an application only for completeness and obvious 
     inaccuracies. Unless the Secretary of Labor finds that the 
     application is incomplete or obviously inaccurate, the 
     Secretary of Labor shall certify that the intending employer 
     has filed with the Secretary of Labor an application as 
     described in subsection (a). Such certification shall be 
     provided within 7 days of the filing of the application.


                     ``H-2A EMPLOYMENT REQUIREMENTS

       ``Sec. 218A. (a) Preferential Treatment of Aliens 
     Prohibited.--Employers seeking to hire United States workers 
     shall offer the United States workers no less than the same 
     benefits, wages, and working conditions that the employer is 
     offering, intends to offer, or will provide to H-2A workers. 
     Conversely, no job offer may impose on United States workers 
     any restrictions or obligations which will not be imposed on 
     the employer's H-2A workers.
       ``(b) Minimum Benefits, Wages, and Working Conditions.--
     Except in cases where higher benefits, wages, or working 
     conditions are required by the provisions of subsection (a), 
     in order to protect similarly employed United States workers 
     from adverse effects with respect to benefits, wages, and 
     working conditions, every job offer which shall accompany an 
     application under section 218(b)(2) shall include each of the 
     following benefit, wage, and working condition provisions:
       ``(1) Requirement to provide housing or a housing 
     allowance.--
       ``(A) In general.--An employer applying under section 
     218(a) for H-2A workers shall offer to provide housing at no 
     cost to all workers in job opportunities for which the 
     employer has applied under that section and to all other 
     workers in the same occupation at the place of employment, 
     whose place of residence is beyond normal commuting distance.
       ``(B) Type of housing.--In complying with subparagraph (A), 
     an employer may, at the employer's election, provide housing 
     that meets applicable Federal standards for temporary labor 
     camps or secure housing that meets applicable local standards 
     for rental or public accommodation housing or other 
     substantially similar class of habitation, or in the absence 
     of applicable local standards, State standards for rental or 
     public accommodation housing or other substantially similar 
     class of habitation. In the absence of applicable local or 
     State standards, Federal temporary labor camp standards shall 
     apply.
       ``(C) Family housing.--When it is the prevailing practice 
     in the occupation and area of intended employment to provide 
     family housing, family housing shall be provided to workers 
     with families who request it.
       ``(D) Workers engaged in the range production of 
     livestock.--The Secretary of Labor shall issue regulations 
     that address the specific requirements for the provision of 
     housing to workers engaged in the range production of 
     livestock.
       ``(E) Limitation.--Nothing in this paragraph shall be 
     construed to require an employer to provide or secure housing 
     for persons who were not entitled to such housing under the 
     temporary labor certification regulations in effect on June 
     1, 1986.
       ``(F) Charges for housing.--
       ``(i) Charges for public housing.--If public housing 
     provided for migrant agricultural workers under the auspices 
     of a local, county, or State government is secured by an 
     employer, and use of the public housing unit normally 
     requires charges from migrant workers, such charges shall be 
     paid by the employer directly to the appropriate individual 
     or entity affiliated with the housing's management.
       ``(ii) Deposit charges.--Charges in the form of deposits 
     for bedding or other similar incidentals related to housing 
     shall not be levied upon workers by employers who provide 
     housing for their workers. An employer may require 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.
       ``(G) Housing allowance as alternative.--
       ``(i) In general.--If the requirement under clause (ii) is 
     satisfied, the employer may provide a reasonable housing 
     allowance instead of offering housing under subparagraph (A). 
     Upon the request of a worker seeking assistance in locating 
     housing, the employer shall make a good faith effort to 
     assist the worker in identifying and locating housing in the 
     area of intended employment. An employer who offers a housing 
     allowance to a worker, or assists a worker in locating 
     housing which the worker occupies, pursuant to this clause 
     shall not be deemed a housing provider under section 203 of 
     the Migrant and Seasonal Agricultural Worker Protection Act 
     (29 U.S.C. 1823) solely by virtue of providing such housing 
     allowance. No housing allowance may be used for housing which 
     is owned or controlled by the employer.
       ``(ii) Certification.--The requirement of this clause is 
     satisfied if the Governor of the State certifies to the 
     Secretary of Labor that there is adequate housing available 
     in the area of intended employment for migrant farm workers, 
     and H-2A workers, who are seeking temporary housing while 
     employed at farm work. Such certification shall expire after 
     3 years unless renewed by the Governor of the State.
       ``(iii) Amount of allowance.--

       ``(I) Nonmetropolitan counties.--If the place of employment 
     of the workers provided an allowance under this subparagraph 
     is a nonmetropolitan county, the amount of the housing 
     allowance under this subparagraph shall be equal to the 
     statewide average fair

[[Page S3839]]

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

       ``(2) Reimbursement of transportation.--
       ``(A) To place of employment.--A worker who completes 50 
     percent of the period of employment of the job opportunity 
     for which the worker was hired shall be reimbursed by the 
     employer for the cost of the worker's transportation and 
     subsistence from the place from which the worker came to work 
     for the employer (or place of last employment, if the worker 
     traveled from such place) to the place of employment.
       ``(B) From place of employment.--A worker who completes the 
     period of employment for the job opportunity involved shall 
     be reimbursed by the employer for the cost of the worker's 
     transportation and subsistence from the place of employment 
     to the place from which the worker, disregarding intervening 
     employment, came to work for the employer, or to the place of 
     next employment, if the worker has contracted with a 
     subsequent employer who has not agreed to provide or pay for 
     the worker's transportation and subsistence to such 
     subsequent employer's place of employment.
       ``(C) Limitation.--
       ``(i) Amount of reimbursement.--Except as provided in 
     clause (ii), the amount of reimbursement provided under 
     subparagraph (A) or (B) to a worker or alien shall not exceed 
     the lesser of--

       ``(I) the actual cost to the worker or alien of the 
     transportation and subsistence involved; or
       ``(II) the most economical and reasonable common carrier 
     transportation charges and subsistence costs for the distance 
     involved.

       ``(ii) Distance traveled.--No reimbursement under 
     subparagraph (A) or (B) shall be required if the distance 
     traveled is 100 miles or less, or the worker is not residing 
     in employer-provided housing or housing secured through an 
     allowance as provided in paragraph (1)(G).
       ``(D) Early termination.--If the worker is laid off or 
     employment is terminated for contract impossibility (as 
     described in paragraph (4)(D)) before the anticipated ending 
     date of employment, the employer shall provide the 
     transportation and subsistence required by subparagraph (B) 
     and, notwithstanding whether the worker has completed 50 
     percent of the period of employment, shall provide the 
     transportation reimbursement required by subparagraph (A).
       ``(E) Transportation between living quarters and work 
     site.--The employer shall provide transportation between the 
     worker's living quarters and the employer's work site without 
     cost to the worker, and such transportation will be in 
     accordance with applicable laws and regulations.
       ``(3) Required wages.--
       ``(A) In general.--An employer applying for workers under 
     section 218(a) shall offer to pay, and shall pay, all workers 
     in the occupation for which the employer has applied for 
     workers, not less (and is not required to pay more) than the 
     greater of the prevailing wage in the occupation in the area 
     of intended employment or the adverse effect wage rate. No 
     worker shall be paid less than the greater of the hourly wage 
     prescribed under section 6(a)(1) of the Fair Labor Standards 
     Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State 
     minimum wage.
       ``(B) Limitation.--Effective on the date of enactment of 
     the Agricultural Job Opportunity, Benefits, and Security Act 
     of 2005 and continuing for 3 years thereafter, no adverse 
     effect wage rate for a State may be more than the adverse 
     effect wage rate for that State in effect on January 1, 2003, 
     as established by section 655.107 of title 20, Code of 
     Federal Regulations.
       ``(C) Required wages after 3-year freeze.--
       ``(i) First adjustment.--If Congress does not set a new 
     wage standard applicable to this section before the first 
     March 1 that is not less than 3 years after the date of 
     enactment of this section, the adverse effect wage rate for 
     each State beginning on such March 1 shall be the wage rate 
     that would have resulted if the adverse effect wage rate in 
     effect on January 1, 2003, had been annually adjusted, 
     beginning on March 1, 2006, by the lesser of--

       ``(I) the 12 month percentage change in the Consumer Price 
     Index for All Urban Consumers between December of the second 
     preceding year and December of the preceding year; and
       ``(II) 4 percent.

       ``(ii) Subsequent annual adjustments.--Beginning on the 
     first March 1 that is not less than 4 years after the date of 
     enactment of this section, and each March 1 thereafter, the 
     adverse effect wage rate then in effect for each State shall 
     be adjusted by the lesser of--

       ``(I) the 12 month percentage change in the Consumer Price 
     Index for All Urban Consumers between December of the second 
     preceding year and December of the preceding year; and
       ``(II) 4 percent.

       ``(D) Deductions.--The employer shall make only those 
     deductions from the worker's wages that are authorized by law 
     or are reasonable and customary in the occupation and area of 
     employment. The job offer shall specify all deductions not 
     required by law which the employer will make from the 
     worker's wages.
       ``(E) Frequency of pay.--The employer shall pay the worker 
     not less frequently than twice monthly, or in accordance with 
     the prevailing practice in the area of employment, whichever 
     is more frequent.
       ``(F) Hours and earnings statements.--The employer shall 
     furnish to the worker, on or before each payday, in 1 or more 
     written statements--
       ``(i) the worker's total earnings for the pay period;
       ``(ii) the worker's hourly rate of pay, piece rate of pay, 
     or both;
       ``(iii) the hours of employment which have been offered to 
     the worker (broken out by hours offered in accordance with 
     and over and above the three-quarters guarantee described in 
     paragraph (4);
       ``(iv) the hours actually worked by the worker;
       ``(v) an itemization of the deductions made from the 
     worker's wages; and
       ``(vi) if piece rates of pay are used, the units produced 
     daily.
       ``(G) Report on wage protections.--Not later than June 1, 
     2007, the Comptroller General of the United States shall 
     prepare and transmit to the Secretary of Labor, the Committee 
     on the Judiciary of the Senate, and Committee on the 
     Judiciary of the House of Representatives, a report that 
     addresses--
       ``(i) whether the employment of H-2A or unauthorized aliens 
     in the United States agricultural work force has depressed 
     United States farm worker wages below the levels that would 
     otherwise have prevailed if alien farm workers had not been 
     employed in the United States;
       ``(ii) whether an adverse effect wage rate is necessary to 
     prevent wages of United States farm workers in occupations in 
     which H-2A workers are employed from falling below the wage 
     levels that would have prevailed in the absence of the 
     employment of H-2A workers in those occupations;
       ``(iii) whether alternative wage standards, such as a 
     prevailing wage standard, would be sufficient to prevent 
     wages in occupations in which H-2A workers are employed from 
     falling below the wage level that would have prevailed in the 
     absence of H-2A employment;
       ``(iv) whether any changes are warranted in the current 
     methodologies for calculating the adverse effect wage rate 
     and the prevailing wage; and
       ``(v) recommendations for future wage protection under this 
     section.
       ``(H) Commission on wage standards.--
       ``(i) Establishment.--There is established the Commission 
     on Agricultural Wage Standards under the H-2A program (in 
     this subparagraph referred to as the `Commission').
       ``(ii) Composition.--The Commission shall consist of 10 
     members as follows:

       ``(I) 4 representatives of agricultural employers and 1 
     representative of the Department of Agriculture, each 
     appointed by the Secretary of Agriculture.
       ``(II) 4 representatives of agricultural workers and 1 
     representative of the Department of Labor, each appointed by 
     the Secretary of Labor.

       ``(iii) Functions.--The Commission shall conduct a study 
     that shall address--

       ``(I) whether the employment of H-2A or unauthorized aliens 
     in the United States agricultural workforce has depressed 
     United States farm worker wages below the levels that would 
     otherwise have prevailed if alien farm workers had not been 
     employed in the United States;
       ``(II) whether an adverse effect wage rate is necessary to 
     prevent wages of United States farm workers in occupations in 
     which H-2A workers are employed from falling below the wage 
     levels that would have prevailed in the absence of the 
     employment of H-2A workers in those occupations;
       ``(III) whether alternative wage standards, such as a 
     prevailing wage standard, would be sufficient to prevent 
     wages in occupations in which H-2A workers are employed from 
     falling below the wage level that would have prevailed in the 
     absence of H-2A employment;
       ``(IV) whether any changes are warranted in the current 
     methodologies for calculating the adverse effect wage rate 
     and the prevailing wage rate; and
       ``(V) recommendations for future wage protection under this 
     section.

       ``(iv) Final report.--Not later than June 1, 2007, the 
     Commission shall submit a report to the Congress setting 
     forth the findings of the study conducted under clause (iii).
       ``(v) Termination date.--The Commission shall terminate 
     upon submitting its final report.
       ``(4) Guarantee of employment.--
       ``(A) Offer to worker.--The employer shall guarantee to 
     offer the worker employment for the hourly equivalent of at 
     least three-fourths of the work days of the total period of 
     employment, beginning with the first work day after the 
     arrival of the worker

[[Page S3840]]

     at the place of employment and ending on the expiration date 
     specified in the job offer. For purposes of this 
     subparagraph, the hourly equivalent means the number of hours 
     in the work days as stated in the job offer and shall exclude 
     the worker's Sabbath and Federal holidays. If the employer 
     affords the United States or H-2A worker less employment than 
     that required under this paragraph, the employer shall pay 
     such worker the amount which the worker would have earned had 
     the worker, in fact, worked for the guaranteed number of 
     hours.
       ``(B) Failure to work.--Any hours which the worker fails to 
     work, up to a maximum of the number of hours specified in the 
     job offer for a work day, when the worker has been offered an 
     opportunity to do so, and all hours of work actually 
     performed (including voluntary work in excess of the number 
     of hours specified in the job offer in a work day, on the 
     worker's Sabbath, or on Federal holidays) may be counted by 
     the employer in calculating whether the period of guaranteed 
     employment has been met.
       ``(C) Abandonment of employment, termination for cause.--If 
     the worker voluntarily abandons employment before the end of 
     the contract period, or is terminated for cause, the worker 
     is not entitled to the `three-fourths guarantee' described in 
     subparagraph (A).
       ``(D) Contract impossibility.--If, before the expiration of 
     the period of employment specified in the job offer, the 
     services of the worker are no longer required for reasons 
     beyond the control of the employer due to any form of natural 
     disaster, including but not limited to a flood, hurricane, 
     freeze, earthquake, fire, drought, plant or animal disease or 
     pest infestation, or regulatory drought, before the guarantee 
     in subparagraph (A) is fulfilled, the employer may terminate 
     the worker's employment. In the event of such termination, 
     the employer shall fulfill the employment guarantee in 
     subparagraph (A) for the work days that have elapsed from the 
     first work day after the arrival of the worker to the 
     termination of employment. In such cases, the employer will 
     make efforts to transfer the United States worker to other 
     comparable employment acceptable to the worker. If such 
     transfer is not effected, the employer shall provide the 
     return transportation required in paragraph (2)(D).
       ``(5) Motor vehicle safety.--
       ``(A) Mode of transportation subject to coverage.--
       ``(i) In general.--Except as provided in clauses (iii) and 
     (iv), this subsection applies to any H-2A employer that uses 
     or causes to be used any vehicle to transport an H-2A worker 
     within the United States.
       ``(ii) Defined term.--In this paragraph, the term `uses or 
     causes to be used'--

       ``(I) applies only to transportation provided by an H-2A 
     employer to an H-2A worker, or by a farm labor contractor to 
     an H-2A worker at the request or direction of an H-2A 
     employer; and
       ``(II) does not apply to--

       ``(aa) transportation provided, or transportation 
     arrangements made, by an H-2A worker, unless the employer 
     specifically requested or arranged such transportation; or
       ``(bb) car pooling arrangements made by H-2A workers 
     themselves, using 1 of the workers' own vehicles, unless 
     specifically requested by the employer directly or through a 
     farm labor contractor.
       ``(iii) Clarification.--Providing a job offer to an H-2A 
     worker that causes the worker to travel to or from the place 
     of employment, or the payment or reimbursement of the 
     transportation costs of an H-2A worker by an H-2A employer, 
     shall not constitute an arrangement of, or participation in, 
     such transportation.
       ``(iv) Agricultural machinery and equipment excluded.--This 
     subsection does not apply to the transportation of an H-2A 
     worker on a tractor, combine, harvester, picker, or other 
     similar machinery or equipment while such worker is actually 
     engaged in the planting, cultivating, or harvesting of 
     agricultural commodities or the care of livestock or poultry 
     or engaged in transportation incidental thereto.
       ``(v) Common carriers excluded.--This subsection does not 
     apply to common carrier motor vehicle transportation in which 
     the provider holds itself out to the general public as 
     engaging in the transportation of passengers for hire and 
     holds a valid certification of authorization for such 
     purposes from an appropriate Federal, State, or local agency.
       ``(B) Applicability of standards, licensing, and insurance 
     requirements.--
       ``(i) In general.--When using, or causing to be used, any 
     vehicle for the purpose of providing transportation to which 
     this subparagraph applies, each employer shall--

       ``(I) ensure that each such vehicle conforms to the 
     standards prescribed by the Secretary of Labor under section 
     401(b) of the Migrant and Seasonal Agricultural Worker 
     Protection Act (29 U.S.C. 1841(b)) and other applicable 
     Federal and State safety standards;
       ``(II) ensure that each driver has a valid and appropriate 
     license, as provided by State law, to operate the vehicle; 
     and
       ``(III) have an insurance policy or a liability bond that 
     is in effect which insures the employer against liability for 
     damage to persons or property arising from the ownership, 
     operation, or causing to be operated, of any vehicle used to 
     transport any H-2A worker.

       ``(ii) Amount of insurance required.--The level of 
     insurance required shall be determined by the Secretary of 
     Labor pursuant to regulations to be issued under this 
     subsection.
       ``(iii) Effect of workers' compensation coverage.--If the 
     employer of any H-2A worker provides workers' compensation 
     coverage for such worker in the case of bodily injury or 
     death as provided by State law, the following adjustments in 
     the requirements of subparagraph (B)(i)(III) relating to 
     having an insurance policy or liability bond apply:

       ``(I) No insurance policy or liability bond shall be 
     required of the employer, if such workers are transported 
     only under circumstances for which there is coverage under 
     such State law.
       ``(II) An insurance policy or liability bond shall be 
     required of the employer for circumstances under which 
     coverage for the transportation of such workers is not 
     provided under such State law.

       ``(c) Compliance With Labor Laws.--An employer shall assure 
     that, except as otherwise provided in this section, the 
     employer will comply with all applicable Federal, State, and 
     local labor laws, including laws affecting migrant and 
     seasonal agricultural workers, with respect to all United 
     States workers and alien workers employed by the employer, 
     except that a violation of this assurance shall not 
     constitute a violation of the Migrant and Seasonal 
     Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
       ``(d) Copy of Job Offer.--The employer shall provide to the 
     worker, not later than the day the work commences, a copy of 
     the employer's application and job offer described in section 
     218(a), or, if the employer will require the worker to enter 
     into a separate employment contract covering the employment 
     in question, such separate employment contract.
       ``(e) Range Production of Livestock.--Nothing in this 
     section, section 218, or section 218B shall preclude the 
     Secretary of Labor and the Secretary from continuing to apply 
     special procedures and requirements to the admission and 
     employment of aliens in occupations involving the range 
     production of livestock.


    ``PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS

       ``Sec. 218B. (a) Petitioning for Admission.--An employer, 
     or an association acting as an agent or joint employer for 
     its members, that seeks the admission into the United States 
     of an H-2A worker may file a petition with the Secretary. The 
     petition shall be accompanied by an accepted and currently 
     valid certification provided by the Secretary of Labor under 
     section 218(e)(2)(B) covering the petitioner.
       ``(b) Expedited Adjudication by the Secretary.--The 
     Secretary shall establish a procedure for expedited 
     adjudication of petitions filed under subsection (a) and 
     within 7 working days shall, by fax, cable, or other means 
     assuring expedited delivery, transmit a copy of notice of 
     action on the petition to the petitioner and, in the case of 
     approved petitions, to the appropriate immigration officer at 
     the port of entry or United States consulate (as the case may 
     be) where the petitioner has indicated that the alien 
     beneficiary (or beneficiaries) will apply for a visa or 
     admission to the United States.
       ``(c) Criteria for Admissibility.--
       ``(1) In general.--An H-2A worker shall be considered 
     admissible to the United States if the alien is otherwise 
     admissible under this section, section 218, and section 218A, 
     and the alien is not ineligible under paragraph (2).
       ``(2) Disqualification.--An alien shall be considered 
     inadmissible to the United States and ineligible for 
     nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the 
     alien has, at any time during the past 5 years--
       ``(A) 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
       ``(B) otherwise violated a term or condition of admission 
     into the United States as a nonimmigrant, including 
     overstaying the period of authorized admission as such a 
     nonimmigrant.
       ``(3) Waiver of ineligibility for unlawful presence.--
       ``(A) In general.--An alien who has not previously been 
     admitted into the United States pursuant to this section, and 
     who is otherwise eligible for admission in accordance with 
     paragraphs (1) and (2), shall not be deemed inadmissible by 
     virtue of section 212(a)(9)(B). If an alien described in the 
     preceding sentence is present in the United States, the alien 
     may apply from abroad for H-2A status, but may not be granted 
     that status in the United States.
       ``(B) Maintenance of waiver.--An alien provided an initial 
     waiver of ineligibility pursuant to subparagraph (A) shall 
     remain eligible for such waiver unless the alien violates the 
     terms of this section or again becomes ineligible under 
     section 212(a)(9)(B) by virtue of unlawful presence in the 
     United States after the date of the initial waiver of 
     ineligibility pursuant to subparagraph (A).
       ``(d) Period of Admission.--
       ``(1) In general.--The alien shall be admitted for the 
     period of employment in the application certified by the 
     Secretary of Labor pursuant to section 218(e)(2)(B), not to 
     exceed 10 months, supplemented by a period of not more than 1 
     week before the beginning of the period of employment for the 
     purpose of travel to the work site and a period of 14 days 
     following the period of employment for the purpose of 
     departure or extension based

[[Page S3841]]

     on a subsequent offer of employment, except that--
       ``(A) the alien is not authorized to be employed during 
     such 14-day period except in the employment for which the 
     alien was previously authorized; and
       ``(B) the total period of employment, including such 14-day 
     period, may not exceed 10 months.
       ``(2) Construction.--Nothing in this subsection shall limit 
     the authority of the Secretary to extend the stay of the 
     alien under any other provision of this Act.
       ``(e) Abandonment of Employment.--
       ``(1) In general.--An alien admitted or provided status 
     under section 101(a)(15)(H)(ii)(a) who abandons the 
     employment which was the basis for such admission or status 
     shall be considered to have failed to maintain nonimmigrant 
     status as an H-2A worker and shall depart the United States 
     or be subject to removal under section 237(a)(1)(C)(i).
       ``(2) Report by employer.--The employer, or association 
     acting as agent for the employer, shall notify the Secretary 
     not later than 7 days after an H-2A worker prematurely 
     abandons employment.
       ``(3) Removal by the secretary.--The Secretary shall 
     promptly remove from the United States any H-2A worker who 
     violates any term or condition of the worker's nonimmigrant 
     status.
       ``(4) Voluntary termination.--Notwithstanding paragraph 
     (1), an alien may voluntarily terminate his or her employment 
     if the alien promptly departs the United States upon 
     termination of such employment.
       ``(f) Replacement of Alien.--
       ``(1) In general.--Upon presentation of the notice to the 
     Secretary required by subsection (e)(2), the Secretary of 
     State shall promptly issue a visa to, and the Secretary shall 
     admit into the United States, an eligible alien designated by 
     the employer to replace an H-2A worker--
       ``(A) who abandons or prematurely terminates employment; or
       ``(B) whose employment is terminated after a United States 
     worker is employed pursuant to section 218(b)(2)(H)(iii), if 
     the United States worker voluntarily departs before the end 
     of the period of intended employment or if the employment 
     termination is for a lawful job-related reason.
       ``(2) Construction.--Nothing in this subsection is intended 
     to limit any preference required to be accorded United States 
     workers under any other provision of this Act.
       ``(g) Identification Document.--
       ``(1) In general.--Each alien authorized to be admitted 
     under section 101(a)(15)(H)(ii)(a) shall be provided an 
     identification and employment eligibility document to verify 
     eligibility for employment in the United States and verify 
     such person's proper identity.
       ``(2) Requirements.--No identification and employment 
     eligibility document may be issued which does not meet the 
     following requirements:
       ``(A) The document shall be capable of reliably determining 
     whether--
       ``(i) the individual with the identification and employment 
     eligibility document whose eligibility is being verified is 
     in fact eligible for employment;
       ``(ii) the individual whose eligibility is being verified 
     is claiming the identity of another person; and
       ``(iii) the individual whose eligibility is being verified 
     is authorized to be admitted into, and employed in, the 
     United States as an H-2A worker.
       ``(B) The document shall be in a form that is resistant to 
     counterfeiting and to tampering.
       ``(C) The document shall--
       ``(i) be compatible with other databases of the Secretary 
     for the purpose of excluding aliens from benefits for which 
     they are not eligible and determining whether the alien is 
     unlawfully present in the United States; and
       ``(ii) be compatible with law enforcement databases to 
     determine if the alien has been convicted of criminal 
     offenses.
       ``(h) Extension of Stay of H-2A Aliens in the United 
     States.--
       ``(1) Extension of stay.--If an employer seeks approval to 
     employ an H-2A alien who is lawfully present in the United 
     States, the petition filed by the employer or an association 
     pursuant to subsection (a), shall request an extension of the 
     alien's stay and a change in the alien's employment.
       ``(2) Limitation on filing a petition for extension of 
     stay.--A petition may not be filed for an extension of an 
     alien's stay--
       ``(A) for a period of more than 10 months; or
       ``(B) to a date that is more than 3 years after the date of 
     the alien's last admission to the United States under this 
     section.
       ``(3) Work authorization upon filing a petition for 
     extension of stay.--
       ``(A) In general.--An alien who is lawfully present in the 
     United States may commence the employment described in a 
     petition under paragraph (1) on the date on which the 
     petition is filed.
       ``(B) Definition.--For purposes of subparagraph (A), the 
     term `file' means sending the petition by certified mail via 
     the United States Postal Service, return receipt requested, 
     or delivered by guaranteed commercial delivery which will 
     provide the employer with a documented acknowledgment of the 
     date of receipt of the petition.
       ``(C) Handling of petition.--The employer shall provide a 
     copy of the employer's petition to the alien, who shall keep 
     the petition with the alien's identification and employment 
     eligibility document as evidence that the petition has been 
     filed and that the alien is authorized to work in the United 
     States.
       ``(D) Approval of petition.--Upon approval of a petition 
     for an extension of stay or change in the alien's authorized 
     employment, the Secretary 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.
       ``(4) Limitation on employment authorization of aliens 
     without valid identification and employment eligibility 
     document.--An expired identification and employment 
     eligibility document, together with a copy of a petition for 
     extension of stay or change in the alien's authorized 
     employment that complies with the requirements of paragraph 
     (1), shall constitute a valid work authorization document for 
     a period of not more than 60 days beginning on the date on 
     which such petition is filed, after which time only a 
     currently valid identification and employment eligibility 
     document shall be acceptable.
       ``(5) Limitation on an individual's stay in status.--
       ``(A) Maximum period.--The maximum continuous period of 
     authorized status as an H-2A worker (including any 
     extensions) is 3 years.
       ``(B) Requirement to remain outside the united states.--
       ``(i) In general.--Subject to clause (ii), in the case of 
     an alien outside the United States whose period of authorized 
     status as an H-2A worker (including any extensions) has 
     expired, the alien may not again apply for admission to the 
     United States as an H-2A worker unless the alien has remained 
     outside the United States for a continuous period equal to at 
     least \1/5\ the duration of the alien's previous period of 
     authorized status as an H-2A worker (including any 
     extensions).
       ``(ii) Exception.--Clause (i) shall not apply in the case 
     of an alien if the alien's period of authorized status as an 
     H-2A worker (including any extensions) was for a period of 
     not more than 10 months and such alien has been outside the 
     United States for at least 2 months during the 12 months 
     preceding the date the alien again is applying for admission 
     to the United States as an H-2A worker.
       ``(i) Special Rules for Aliens Employed as Sheepherders.--
     Notwithstanding any provision of the Agricultural Job 
     Opportunity, Benefits, and Security Act of 2005, aliens 
     admitted under section 101(a)(15)(H)(ii)(a) for employment as 
     sheepherders--
       ``(1) may be admitted for a period of 12 months;
       ``(2) may be extended for a continuous period of up to 3 
     years; and
       ``(3) shall not be subject to the requirements of 
     subsection (h)(5) relating to periods of absence from the 
     United States.


          ``WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT

       ``Sec. 218C. (a) Enforcement Authority.--
       ``(1) Investigation of complaints.--
       ``(A) Aggrieved person or third-party complaints.--The 
     Secretary of Labor shall establish a process for the receipt, 
     investigation, and disposition of complaints respecting a 
     petitioner's failure to meet a condition specified in section 
     218(b), or an employer's misrepresentation of material facts 
     in an application under section 218(a). Complaints may be 
     filed by any aggrieved person or organization (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 12 months after the date of the failure, or 
     misrepresentation, respectively. The Secretary of Labor shall 
     conduct an investigation under this subparagraph if there is 
     reasonable cause to believe that such a failure or 
     misrepresentation has occurred.
       ``(B) Determination on complaint.--Under such process, the 
     Secretary of Labor shall provide, within 30 days after the 
     date such a complaint is filed, for a determination as to 
     whether or not a reasonable basis exists to make a finding 
     described in subparagraph (C), (D), (E), or (H). If the 
     Secretary of Labor determines that such a reasonable basis 
     exists, the Secretary of Labor shall provide for notice of 
     such determination to the interested parties and an 
     opportunity for a hearing on the complaint, in accordance 
     with section 556 of title 5, United States Code, within 60 
     days after the date of the determination. If such a hearing 
     is requested, the Secretary of Labor shall make a finding 
     concerning the matter not later than 60 days after the date 
     of the hearing. In the case of similar complaints respecting 
     the same applicant, the Secretary of Labor may consolidate 
     the hearings under this subparagraph on such complaints.
       ``(C) Failures to meet conditions.--If the Secretary of 
     Labor finds, after notice and opportunity for a hearing, a 
     failure to meet a condition of paragraph (1)(A), (1)(B), 
     (1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218(b), 
     a substantial failure to meet a condition of paragraph 
     (1)(C), (1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section 
     218(b), or a material misrepresentation of fact in an 
     application under section 218(a)--
       ``(i) the Secretary of Labor shall notify the Secretary of 
     such finding and may, in addition, impose such other 
     administrative remedies (including civil money penalties in 
     an amount not to exceed $1,000 per violation) as the 
     Secretary of Labor determines to be appropriate; and

[[Page S3842]]

       ``(ii) the Secretary may disqualify the employer from the 
     employment of aliens described in section 
     101(a)(15)(H)(ii)(a) for a period of 1 year.
       ``(D) Willful failures and willful misrepresentations.--If 
     the Secretary of Labor finds, after notice and opportunity 
     for hearing, a willful failure to meet a condition of section 
     218(b), a willful misrepresentation of a material fact in an 
     application under section 218(a), or a violation of 
     subsection (d)(1)--
       ``(i) the Secretary of Labor shall notify the Secretary of 
     such finding and may, in addition, impose such other 
     administrative remedies (including civil money penalties in 
     an amount not to exceed $5,000 per violation) as the 
     Secretary of Labor determines to be appropriate;
       ``(ii) the Secretary of Labor may seek appropriate legal or 
     equitable relief to effectuate the purposes of subsection 
     (d)(1); and
       ``(iii) the Secretary may disqualify the employer from the 
     employment of H-2A workers for a period of 2 years.
       ``(E) Displacement of united states workers.--If the 
     Secretary of Labor finds, after notice and opportunity for 
     hearing, a willful failure to meet a condition of section 
     218(b) or a willful misrepresentation of a material fact in 
     an application under section 218(a), in the course of which 
     failure or misrepresentation the employer displaced a United 
     States worker employed by the employer during the period of 
     employment on the employer's application under section 218(a) 
     or during the period of 30 days preceding such period of 
     employment--
       ``(i) the Secretary of Labor shall notify the Secretary of 
     such finding and may, in addition, impose such other 
     administrative remedies (including civil money penalties in 
     an amount not to exceed $15,000 per violation) as the 
     Secretary of Labor determines to be appropriate; and
       ``(ii) the Secretary may disqualify the employer from the 
     employment of H-2A workers for a period of 3 years.
       ``(F) Limitations on civil money penalties.--The Secretary 
     of Labor shall not impose total civil money penalties with 
     respect to an application under section 218(a) in excess of 
     $90,000.
       ``(G) Failures to pay wages or required benefits.--If the 
     Secretary of Labor finds, after notice and opportunity for a 
     hearing, that the employer has failed to pay the wages, or 
     provide the housing allowance, transportation, subsistence 
     reimbursement, or guarantee of employment, required under 
     section 218A(b), the Secretary of Labor shall assess payment 
     of back wages, or other required benefits, due any United 
     States worker or H-2A worker employed by the employer in the 
     specific employment in question. The back wages or other 
     required benefits under section 218A(b) shall be equal to the 
     difference between the amount that should have been paid and 
     the amount that actually was paid to such worker.
       ``(2) Statutory construction.--Nothing in this section 
     shall be construed as limiting the authority of the Secretary 
     of Labor to conduct any compliance investigation under any 
     other labor law, including any law affecting migrant and 
     seasonal agricultural workers, or, in the absence of a 
     complaint under this section, under section 218 or 218A.
       ``(b) Rights Enforceable by Private Right of Action.--H-2A 
     workers may enforce the following rights through the private 
     right of action provided in subsection (c), and no other 
     right of action shall exist under Federal or State law to 
     enforce such rights:
       ``(1) The providing of housing or a housing allowance as 
     required under section 218A(b)(1).
       ``(2) The reimbursement of transportation as required under 
     section 218A(b)(2).
       ``(3) The payment of wages required under section 
     218A(b)(3) when due.
       ``(4) The benefits and material terms and conditions of 
     employment expressly provided in the job offer described in 
     section 218(a)(2), not including the assurance to comply with 
     other Federal, State, and local labor laws described in 
     section 218A(c), compliance with which shall be governed by 
     the provisions of such laws.
       ``(5) The guarantee of employment required under section 
     218A(b)(4).
       ``(6) The motor vehicle safety requirements under section 
     218A(b)(5).
       ``(7) The prohibition of discrimination under subsection 
     (d)(2).
       ``(c) Private Right of Action.--
       ``(1) Mediation.--Upon the filing of a complaint by an H-2A 
     worker aggrieved by a violation of rights enforceable under 
     subsection (b), and within 60 days of the filing of proof of 
     service of the complaint, a party to the action may file a 
     request with the Federal Mediation and Conciliation Service 
     to assist the parties in reaching a satisfactory resolution 
     of all issues involving all parties to the dispute. Upon a 
     filing of such request and giving of notice to the parties, 
     the parties shall attempt mediation within the period 
     specified in subparagraph (B).
       ``(A) Mediation services.--The Federal Mediation and 
     Conciliation Service shall be available to assist in 
     resolving disputes arising under subsection (b) between H-2A 
     workers and agricultural employers without charge to the 
     parties.
       ``(B) 90-day limit.--The Federal Mediation and Conciliation 
     Service may conduct mediation or other non-binding dispute 
     resolution activities for a period not to exceed 90 days 
     beginning on the date on which the Federal Mediation and 
     Conciliation Service receives the request for assistance 
     unless the parties agree to an extension of this period of 
     time.
       ``(C) Authorization.--
       ``(i) In general.--Subject to clause (ii), there are 
     authorized to be appropriated to the Federal Mediation and 
     Conciliation Service $500,000 for each fiscal year to carry 
     out this section.
       ``(ii) Mediation.--Notwithstanding any other provision of 
     law, the Director of the Federal Mediation and Conciliation 
     Service is authorized to conduct the mediation or other 
     dispute resolution activities from any other appropriated 
     funds available to the Director and to reimburse such 
     appropriated funds when the funds are appropriated pursuant 
     to this authorization, such reimbursement to be credited to 
     appropriations currently available at the time of receipt.
       ``(2) Maintenance of civil action in district court by 
     aggrieved person.--An H-2A worker aggrieved by a violation of 
     rights enforceable under subsection (b) by an agricultural 
     employer or other person may file suit in any district court 
     of the United States having jurisdiction of the parties, 
     without regard to the amount in controversy, without regard 
     to the citizenship of the parties, and without regard to the 
     exhaustion of any alternative administrative remedies under 
     this Act, not later than 3 years after the date the violation 
     occurs.
       ``(3) Election.--An H-2A worker who has filed an 
     administrative complaint with the Secretary of Labor may not 
     maintain a civil action under paragraph (2) unless a 
     complaint based on the same violation filed with the 
     Secretary of Labor under subsection (a)(1) is withdrawn 
     before the filing of such action, in which case the rights 
     and remedies available under this subsection shall be 
     exclusive.
       ``(4) Preemption of state contract rights.--Nothing in this 
     Act shall be construed to diminish the rights and remedies of 
     an H-2A worker under any other Federal or State law or 
     regulation or under any collective bargaining agreement, 
     except that no court or administrative action shall be 
     available under any State contract law to enforce the rights 
     created by this Act.
       ``(5) Waiver of rights prohibited.--Agreements by employees 
     purporting to waive or modify their rights under this Act 
     shall be void as contrary to public policy, except that a 
     waiver or modification of the rights or obligations in favor 
     of the Secretary of Labor shall be valid for purposes of the 
     enforcement of this Act. The preceding sentence may not be 
     construed to prohibit agreements to settle private disputes 
     or litigation.
       ``(6) Award of damages or other equitable relief.--
       ``(A) If the court finds that the respondent has 
     intentionally violated any of the rights enforceable under 
     subsection (b), it shall award actual damages, if any, or 
     equitable relief.
       ``(B) Any civil action brought under this section shall be 
     subject to appeal as provided in chapter 83 of title 28, 
     United States Code.
       ``(7) Workers' compensation benefits; exclusive remedy.--
       ``(A) Notwithstanding any other provision of this section, 
     where a State's workers' compensation law is applicable and 
     coverage is provided for an H-2A worker, the workers' 
     compensation benefits shall be the exclusive remedy for the 
     loss of such worker under this section in the case of bodily 
     injury or death in accordance with such State's workers' 
     compensation law.
       ``(B) The exclusive remedy prescribed in subparagraph (A) 
     precludes the recovery under paragraph (6) of actual damages 
     for loss from an injury or death but does not preclude other 
     equitable relief, except that such relief shall not include 
     back or front pay or in any manner, directly or indirectly, 
     expand or otherwise alter or affect--
       ``(i) a recovery under a State workers' compensation law; 
     or
       ``(ii) rights conferred under a State workers' compensation 
     law.
       ``(8) Tolling of statute of limitations.--If it is 
     determined under a State workers' compensation law that the 
     workers' compensation law is not applicable to a claim for 
     bodily injury or death of an H-2A worker, the statute of 
     limitations for bringing an action for actual damages for 
     such injury or death under subsection (c) shall be tolled for 
     the period during which the claim for such injury or death 
     under such State workers' compensation law was pending. The 
     statute of limitations for an action for actual damages or 
     other equitable relief arising out of the same transaction or 
     occurrence as the injury or death of the H-2A worker shall be 
     tolled for the period during which the claim for such injury 
     or death was pending under the State workers' compensation 
     law.
       ``(9) Preclusive effect.--Any settlement by an H-2A worker 
     and H-2A employer reached through the mediation process 
     required under subsection (c)(1) shall preclude any right of 
     action arising out of the same facts between the parties in 
     any Federal or State court or administrative proceeding, 
     unless specifically provided otherwise in the settlement 
     agreement.
       ``(10) Settlements.--Any settlement by the Secretary of 
     Labor with an H-2A employer on behalf of an H-2A worker of a 
     complaint filed with the Secretary of Labor under this 
     section or any finding by the Secretary of Labor under 
     subsection (a)(1)(B) shall preclude any right of action 
     arising out of the same facts between the parties under any 
     Federal or State court or administrative proceeding, unless 
     specifically provided otherwise in the settlement agreement.

[[Page S3843]]

       ``(d) Discrimination Prohibited.--
       ``(1) In general.--It is a violation of this subsection for 
     any person who has filed an application under section 218(a), 
     to intimidate, threaten, restrain, coerce, blacklist, 
     discharge, or in any other manner discriminate against an 
     employee (which term, for purposes of this subsection, 
     includes a former employee and an applicant for employment) 
     because the employee has disclosed information to the 
     employer, or to any other person, that the employee 
     reasonably believes evidences a violation of section 218 or 
     218A or any rule or regulation pertaining to section 218 or 
     218A, or because the employee cooperates or seeks to 
     cooperate in an investigation or other proceeding concerning 
     the employer's compliance with the requirements of section 
     218 or 218A or any rule or regulation pertaining to either of 
     such sections.
       ``(2) Discrimination against h-2a workers.--It is a 
     violation of this subsection for any person who has filed an 
     application under section 218(a), to intimidate, threaten, 
     restrain, coerce, blacklist, discharge, or in any manner 
     discriminate against an H-2A employee because such worker 
     has, with just cause, filed a complaint with the Secretary of 
     Labor regarding a denial of the rights enumerated and 
     enforceable under subsection (b) or instituted, or caused to 
     be instituted, a private right of action under subsection (c) 
     regarding the denial of the rights enumerated under 
     subsection (b), or has testified or is about to testify in 
     any court proceeding brought under subsection (c).
       ``(e) Authorization To Seek Other Appropriate Employment.--
     The Secretary of Labor and the Secretary shall establish a 
     process under which an H-2A worker who files a complaint 
     regarding a violation of subsection (d) and is otherwise 
     eligible to remain and work in the United States may be 
     allowed to seek other appropriate employment in the United 
     States for a period not to exceed the maximum period of stay 
     authorized for such nonimmigrant classification.
       ``(f) Role of Associations.--
       ``(1) Violation by a member of an association.--An employer 
     on whose behalf an application is filed by an association 
     acting as its agent is fully responsible for such 
     application, and for complying with the terms and conditions 
     of sections 218 and 218A, as though the employer had filed 
     the application itself. If such an employer is determined, 
     under this section, to have committed a violation, the 
     penalty for such violation shall apply only to that member of 
     the association unless the Secretary of Labor determines that 
     the association or other member participated in, had 
     knowledge, or reason to know, of the violation, in which case 
     the penalty shall be invoked against the association or other 
     association member as well.
       ``(2) Violations by an association acting as an employer.--
     If an association filing an application as a sole or joint 
     employer is determined to have committed a violation under 
     this section, the penalty for such violation shall apply only 
     to the association unless the Secretary of Labor determines 
     that an association member or members participated in or had 
     knowledge, or reason to know of the violation, in which case 
     the penalty shall be invoked against the association member 
     or members as well.


                             ``DEFINITIONS

       ``Sec. 218D. For purposes of sections 218 through 218D:
       ``(1) Agricultural employment.--The term `agricultural 
     employment' means any service or activity that is considered 
     to be agricultural under section 3(f) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural 
     labor under section 3121(g) of the Internal Revenue Code of 
     1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, 
     agricultural employment includes employment under section 
     101(a)(15)(H)(ii)(a).
       ``(2) Bona fide union.--The term `bona fide union' means 
     any organization in which employees participate and which 
     exists for the purpose of dealing with employers concerning 
     grievances, labor disputes, wages, rates of pay, hours of 
     employment, or other terms and conditions of work for 
     agricultural employees. Such term does not include an 
     organization formed, created, administered, supported, 
     dominated, financed, or controlled by an employer or employer 
     association or its agents or representatives.
       ``(3) Displace.--The term `displace', in the case of an 
     application with respect to 1 or more H-2A workers by an 
     employer, means laying off a United States worker from a job 
     for which the H-2A worker or workers is or are sought.
       ``(4) Eligible.--The term `eligible', when used with 
     respect to an individual, means an individual who is not an 
     unauthorized alien (as defined in section 274A(h)(3)).
       ``(5) Employer.--The term `employer' means any person or 
     entity, including any farm labor contractor and any 
     agricultural association, that employs workers in 
     agricultural employment.
       ``(6) H-2a employer.--The term `H-2A employer' means an 
     employer who seeks to hire 1 or more nonimmigrant aliens 
     described in section 101(a)(15)(H)(ii)(a).
       ``(7) H-2a worker.--The term `H-2A worker' means a 
     nonimmigrant described in section 101(a)(15)(H)(ii)(a).
       ``(8) Job opportunity.--The term `job opportunity' means a 
     job opening for temporary full-time employment at a place in 
     the United States to which United States workers can be 
     referred.
       ``(9) Lays off.--
       ``(A) In general.--The term `lays off', with respect to a 
     worker--
       ``(i) means to cause the worker's loss of employment, other 
     than through a discharge for inadequate performance, 
     violation of workplace rules, cause, voluntary departure, 
     voluntary retirement, contract impossibility (as described in 
     section 218A(b)(4)(D)), or temporary layoffs due to weather, 
     markets, or other temporary conditions; but
       ``(ii) does not include any situation in which the worker 
     is offered, as an alternative to such loss of employment, a 
     similar employment opportunity with the same employer (or, in 
     the case of a placement of a worker with another employer 
     under section 218(b)(2)(E), with either employer described in 
     such section) 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) Statutory construction.--Nothing in this paragraph is 
     intended to limit an employee's rights under a collective 
     bargaining agreement or other employment contract.
       ``(10) Regulatory drought.--The term `regulatory drought' 
     means a decision subsequent to the filing of the application 
     under section 218 by an entity not under the control of the 
     employer making such filing which restricts the employer's 
     access to water for irrigation purposes and reduces or limits 
     the employer's ability to produce an agricultural commodity, 
     thereby reducing the need for labor.
       ``(11) Seasonal.--Labor is performed on a `seasonal' basis 
     if--
       ``(A) ordinarily, it pertains to or is of the kind 
     exclusively performed at certain seasons or periods of the 
     year; and
       ``(B) from its nature, it may not be continuous or carried 
     on throughout the year.
       ``(12) Secretary.--The term `Secretary' means the Secretary 
     of Homeland Security.
       ``(13) Temporary.--A worker is employed on a `temporary' 
     basis where the employment is intended not to exceed 10 
     months.
       ``(14) United states worker.--The term `United States 
     worker' means any worker, whether a United States citizen or 
     national, a lawfully admitted permanent resident alien, or 
     any other alien, who is authorized to work in the job 
     opportunity within the United States, except an alien 
     admitted or otherwise provided status under section 
     101(a)(15)(H)(ii)(a).''.
       (b) Table of Contents.--The table of contents of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is 
     amended by striking the item relating to section 218 and 
     inserting the following:

``Sec. 218 H-2A employer applications.
``Sec. 218A H-2A employment requirements.
``Sec. 218B Procedure for admission and extension of stay of H-2A 
              workers.
``Sec. 218C Worker protections and labor standards enforcement.
``Sec. 218D Definitions.''.

                  Subtitle C--Miscellaneous Provisions

     SEC. 731. DETERMINATION AND USE OF USER FEES.

       (a) Schedule of Fees.--The Secretary shall establish and 
     periodically adjust a schedule of fees for the employment of 
     aliens under this title and the amendments made by this 
     title, and a collection process for such fees from employers 
     participating in the program provided under this Act. Such 
     fees shall be the only fees chargeable to employers for 
     services provided under this Act.
       (b) Determination of Schedule.--
       (1) In general.--The schedule under subsection (a) shall 
     reflect a fee rate based on the number of job opportunities 
     indicated in the employer's application under section 218 of 
     the Immigration and Nationality Act, as added by section 721 
     of this Act, and sufficient to provide for the direct costs 
     of providing services related to an employer's authorization 
     to employ eligible aliens pursuant to this Act, to include 
     the certification of eligible employers, the issuance of 
     documentation, and the admission of eligible aliens.
       (2) Procedure.--
       (A) In general.--In establishing and adjusting such a 
     schedule, the Secretary shall comply with Federal cost 
     accounting and fee setting standards.
       (B) Publication and comment.--The Secretary shall publish 
     in the Federal Register an initial fee schedule and 
     associated collection process and the cost data or estimates 
     upon which such fee schedule is based, and any subsequent 
     amendments thereto, pursuant to which public comment shall be 
     sought and a final rule issued.
       (c) Use of Proceeds.--Notwithstanding any other provision 
     of law, all proceeds resulting from the payment of the alien 
     employment user fees shall be available without further 
     appropriation and shall remain available without fiscal year 
     limitation to reimburse the Secretary, the Secretary of 
     State, and the Secretary of Labor for the costs of carrying 
     out sections 218 and 218B of the Immigration and Nationality 
     Act, as added by section 721 of this Act, and the provisions 
     of this Act.

     SEC. 732. REGULATIONS.

       (a) Regulations of the Secretary.--The Secretary shall 
     consult with the Secretary of Labor and the Secretary of 
     Agriculture on all regulations to implement the duties of the 
     Secretary under this title and the amendments made by this 
     title.
       (b) Regulations of the Secretary of State.--The Secretary 
     of State shall consult

[[Page S3844]]

     with the Secretary, the Secretary of Labor, and the Secretary 
     of Agriculture on all regulations to implement the duties of 
     the Secretary of State under this title and the amendments 
     made by this title.
       (c) Regulations of the Secretary of Labor.--The Secretary 
     of Labor shall consult with the Secretary of Agriculture and 
     the Secretary on all regulations to implement the duties of 
     the Secretary of Labor under this title and the amendments 
     made by this title.
       (d) Deadline for Issuance of Regulations.--All regulations 
     to implement the duties of the Secretary, the Secretary of 
     State, and the Secretary of Labor created under sections 218, 
     218A, 218B, and 218C of the Immigration and Nationality Act, 
     as added by section 721 of this Act, shall take effect on the 
     effective date of section 721 and shall be issued not later 
     than 1 year after the date of enactment of this Act.

     SEC. 733. RELIGIOUS ORGANIZATIONS.

       Section 274(a)(1) of the Immigration and Nationality Act (8 
     U.S.C. 1324(a)(1)) is amended by adding at the end the 
     following:
       ``(C) It is not a violation of clauses (ii), (iii), or (iv) 
     of subparagraph (A) for a religious denomination described in 
     section 101(a)(27)(C)(i) or an affiliated religious 
     organization described in section 101(a)(27)(C)(ii)(III), or 
     their agents or officers, to encourage, invite, call, allow, 
     or enable an alien who is present in the United States in 
     violation of law to carry on the vocation described in 
     section 101(a)(27)(C)(ii)(I), as a volunteer who is not 
     compensated as an employee, notwithstanding the provision of 
     room, board, travel, and other basic living expenses.''.

     SEC. 734. EFFECTIVE DATE.

       (a) In General.--Except as otherwise provided, sections 721 
     and 731 shall take effect 1 year after the date of enactment 
     of this Act.
       (b) Report.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary shall prepare and submit 
     to the appropriate committees of Congress a report that 
     describes the measures being taken and the progress made in 
     implementing this title.

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