[Congressional Record Volume 153, Number 5 (Wednesday, January 10, 2007)]
[Senate]
[Pages S361-S374]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Craig, Mr. Kennedy, Mr. 
        Martinez, Mrs. Boxer, and Mr. Voinovich):
  S. 237. A bill to improve agricultural job opportunities, benefits, 
and security for aliens in the United States and for other purposes; to 
the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, Senators Craig, Kennedy, Martinez, 
Boxer, Voinovich and I are once again introducing legislation that will 
address the chronic labor shortage in our Nation's agricultural 
industry. This bill is a priority for me--and for the tens of thousands 
of farmers who are currently suffering--and I hope we will move it 
forward early in this Congress.
  The Agricultural Job Opportunities, Benefits, and Security Act, or 
AgJOBS, is the product of more than ten years of work. It is a 
bipartisan bill supported by growers, farmers, and farm workers alike. 
It passed the Senate last year as part of the comprehensive immigration 
reform bill last spring in the 109th Congress. It is time to move this 
bill forward.
  The agricultural industry is in crisis. Farmers across the Nation 
report a 20 percent decline in labor.
  The result is that there are simply not enough farm workers to 
harvest the crops.
  The Nation's agricultural industry has suffered. If we do not enact a 
workable solution to the agricultural labor crisis, we risk a national 
production loss of $5 billion to $9 billion each year,

[[Page S362]]

according to the American Farm Bureau.
  California, in particular, will suffer. California is the single 
largest agricultural state in the nation. California agriculture 
accounts for $34 billion in annual revenue. There 76,500 farms that 
produce half of the nation's fruits, vegetables, and nuts from only 3 
percent of the Nation's farmland.
  California farms produce approximately 350 different crops: pears, 
walnuts, raisins, lettuce, onions, cotton, just to name a few.
  Many of the farmers who grow these crops have been in the business 
for generations. They farm the land that their parents and their 
grandparents farmed before them.
  The sad consequence of the labor shortage is that many of these 
farmers are giving up their farms. Some are leaving the business 
entirely. Others are bulldozing their fruit trees--literally pulling 
out trees that have been in the family for generations--because they do 
not have the labor they need to harvest their fruit.
  Once the trees are gone, they are replaced by crops that do not 
require manual labor. And our pears, our apples, our oranges will come 
from foreign sources.
  The trend is quite clear. If there is not a means to grow and harvest 
our produce here, we will import produce from China, from Mexico, from 
other countries who have the labor they need.
  We will put American farmers out of business. And there will be a 
ripple effect felt throughout the economy: in farm equipment, inputs, 
packaging, processing, transportation, marketing, lending and 
insurance. Jobs will be lost and our economy will suffer.
  The reality is that Americans have come to rely on undocumented 
workers to harvest their crops for them.
  In California alone, we rely on approximately one million 
undocumented workers to harvest the crops. The United Farm Workers 
estimate that undocumented workers make up as much as 90 percent the 
farm labor payroll.
  Americans simply will not do the work. It is hard, stooped labor, 
requiring long and unpredictable hours. Farm workers must leave home 
and travel from farm to farm to plant, prune, and harvest crops 
according to the season.
  We must come to terms with the fact that we rely on an undocumented 
migrant work force. We must bring those workers out of the shadows and 
create a legal and enforceable means to provide labor for agriculture. 
That realization is what led to the long and careful negotiations 
creating AgJOBS.
  The AgJOBS bill is a two part bill. Part one identifies and deals 
with those undocumented agricultural workers who have been working in 
the United States for the past 2 years or more. Part two creates a more 
usable H-2A Program, to implement a realistic and effective guest 
worker program.
  The first step requires undocumented agricultural workers to apply 
for a ``blue card'' if they can demonstrate that they have worked in 
American agriculture for at least 150 workdays over the past 2 years. 
The blue card entitles the worker to a temporary legal resident status.
  The blue card itself is encrypted and machine readable; it is tamper 
and counterfeit resistant, and contains biometric identifiers unique to 
the farm worker.
  The second step requires that a blue card holder work in American 
agriculture for an additional 5 years for at least 100 workdays a year, 
or 3 years at 150 workdays a year.
  Blue card workers would have to pay a $500 fine. The workers can 
travel abroad and reenter the United States and they may work in other, 
non-agricultural jobs, as long as they meet the agricultural work 
requirements.
  The blue card worker's spouse and minor children, who already live in 
the United States, may also apply for a temporary legal status and 
identification card, which would permit them to work and travel.
  The total number of blue cards is capped at 1.5 million over a five 
year period and the program sunsets after 5 years.
  At the end of the required work period, the blue card worker may 
apply for a green card to become a legal permanent resident.
  There are also a number of safeguards. If a blue card worker does not 
apply for a green card, or does not fulfill the work requirements, that 
individual can be deported.
  Likewise, a blue card holder who commits a felony, three 
misdemeanors, or any crime that involves bodily injury, the threat of 
serious bodily injury, or harm to property in excess of $500, cannot 
get a green card and can be deported.
  This program, for the first time, allows us to identify those 
hundreds of thousands of farm workers who now work in the shadows. It 
requires the farm workers to come forward and to be identified in 
exchange for the right to work and live legally in the United States. 
And it gives farmers the legal certainty they need to hire the workers 
they need.
  The program also modifies the H-2A guest worker program so that it 
realistically responds to our agricultural needs.
  Currently, the H-2A program is bureaucratic, unresponsive, expensive, 
and prone to litigation. Farmers cannot get the labor when they need 
it. AgJOBS offers a much-needed reform of the outdated system.
  The labor certification process, which often takes 60 days or more, 
is replaced by an ``attestation'' process. The employer can file a fax-
back application form agreeing to abide by the requirements of the H-2A 
program. Approval should occur in 48 to 72 hours.
  The interstate clearance order to determine whether there are U.S. 
workers who can qualify for the jobs is replaced by a requirement that 
the employer file a job notification with the local office of the state 
Employment Security Agency. Advertising and positive recruitment must 
take place in the local labor market area.
  Agricultural associations can continue to file applications on behalf 
of members.
  The statutory prohibition against ``adversely affecting'' U.S. 
workers is eliminated. The Adverse Effect Wage Rate is instead frozen 
for 3 years, and thereafter indexed by a methodology that will lead to 
its gradual replacement with a prevailing wage standard.
  Employers may elect to provide a housing allowance in lieu of housing 
if the governor determines that there is adequate rental housing 
available in the area of employment.
  Inbound and return transportation and subsistence are required on the 
same basis as under the current program, except that trips of less than 
100 miles are excluded, and workers whom an employer is not required to 
provide housing are excluded.
  The motor vehicle safety standards for U.S. workers are extended to 
H-2A workers.
  Petitions for admission of H-2A workers must be processed and the 
consulate or port of entry notified within 7 days of receipt. 
Requirements are the same as current law.
  Petitions extending aliens' stay or changing employers are valid upon 
filing.
  Employers may apply for the admission of new H-2A workers to replace 
those who abandoned their work or are terminated for cause, and the 
Department of Homeland Security is required to remove H-2A aliens who 
abandoned their work.
  H-2A visas will be secure and counterfeit resistant.
  A new limited federal right of action is available to foreign workers 
to enforce the economic benefits required under the H-2A program, and 
any benefits expressly offered by the employer in writing. A statute of 
limitations of three years is imposed.
  Finally, lawsuits in State court under State contract law alleging 
violations of the H-2A program requirements and obligations are 
expressly preempted. Such State court lawsuits have been the venue of 
choice for litigation against H-2A employers in recent years.
  AgJOBS is the one part of the immigration bill about which there is 
uniform agreement. Everyone knows that agriculture in America is 
supported by undocumented workers. As immigration enforcement tightens 
up, and increasing numbers of people are prevented from crossing the 
borders or are being deported, the result is our crops go unharvested.
  We are faced today with a very practical dilemma and one that is easy 
to solve. The legislation has been vetted over and over again. Senator 
Craig, I,

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and a multitude of other Senators have sat down with the growers, with 
the farm bureaus, with the chambers, with everybody who knows 
agriculture, and they have all signed off on the AgJOBS bill.
  This is our opportunity to solve a real problem.
  I ask my colleagues to join Senator Craig, Senator Kennedy, Senator 
Martinez, Senator Boxer, Senator Voinovich and me in supporting this 
legislation.
  I also ask by unanimous consent that the text of this bill be printed 
in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 237

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

     SECTION 1. SHORT TITLE, TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the 
     ``Agricultural Job Opportunities, Benefits, and Security Act 
     of 2007'' or the ``AgJOBS Act of 2007''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title, table of contents.
Sec. 2. Definitions.

  TITLE I--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL 
                                WORKERS

                      Subtitle A--Blue Card Status

Sec. 101. Requirements for blue card status.
Sec. 102. Treatment of aliens granted blue card status.
Sec. 103. Adjustment to permanent residence.
Sec. 104. Applications.
Sec. 105. Waiver of numerical limitations and certain grounds for 
              inadmissibility.
Sec. 106. Administrative and judicial review.
Sec. 107. Use of information.
Sec. 108. Regulations, effective date, authorization of appropriations.

           Subtitle B--Correction of Social Security Records

Sec. 111. Correction of Social Security records.

                TITLE II--REFORM OF H-2A WORKER PROGRAM

Sec. 201. Amendment to the Immigration and Nationality Act.

                  TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Determination and use of user fees.
Sec. 302. Regulations.
Sec. 303. Reports to Congress.
Sec. 304. Effective date.

     SEC. 2. DEFINITIONS.

       In this Act:
       (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 or the performance of agricultural labor or services 
     described in section 101(a)(15)(H)(ii)(a) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).
       (2) Blue card status.--The term ``blue card status'' means 
     the status of an alien who has been lawfully admitted into 
     the United States for temporary residence under section 
     101(a).
       (3) Department.--The term ``Department'' means the 
     Department of Homeland Security.
       (4) Employer.--The term ``employer'' means any person or 
     entity, including any farm labor contractor and any 
     agricultural association, that employs workers in 
     agricultural employment.
       (5) Secretary.--Except as otherwise provided, the term 
     ``Secretary'' means the Secretary of Homeland Security.
       (6) Temporary.--A worker is employed on a ``temporary'' 
     basis when the employment is intended not to exceed 10 
     months.
       (7) Work day.--The term ``work day'' means any day in which 
     the individual is employed 5.75 or more hours in agricultural 
     employment.

  TITLE I--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL 
                                WORKERS

                      Subtitle A--Blue Card Status

     SEC. 101. REQUIREMENTS FOR BLUE CARD STATUS.

       (a) Requirement to Grant Blue Card Status.--Notwithstanding 
     any other provision of law, the Secretary shall, pursuant to 
     the requirements of this section, grant blue card status to 
     an alien who qualifies under this section if the Secretary 
     determines that the alien--
       (1) has performed agricultural employment in the United 
     States for at least 863 hours or 150 work days during the 24-
     month period ending on December 31, 2006;
       (2) 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;
       (3) 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 section 105(b); and
       (4) has not been convicted of any felony or a misdemeanor, 
     an element of which involves bodily injury, threat of serious 
     bodily injury, or harm to property in excess of $500.
       (b) Authorized Travel.--An alien who is granted blue card 
     status is authorized to travel outside the United States 
     (including commuting to the United States from a residence in 
     a foreign country) in the same manner as an alien lawfully 
     admitted for permanent residence.
       (c) Authorized Employment.--The Secretary shall provide an 
     alien who is granted blue card status an employment 
     authorized endorsement or other appropriate work permit, in 
     the same manner as an alien lawfully admitted for permanent 
     residence.
       (d) Termination of Blue Card Status.--
       (1) In general.--The Secretary may terminate blue card 
     status granted to an alien under this section only if the 
     Secretary determines that the alien is deportable.
       (2) Grounds for termination of blue card status.--Before 
     any alien becomes eligible for adjustment of status under 
     section 103, the Secretary may deny adjustment to permanent 
     resident status and provide for termination of the blue card 
     status granted such alien under paragraph (1) if--
       (A) the Secretary finds, by a preponderance of the 
     evidence, that the adjustment to blue card 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
       (B) the alien--
       (i) commits an act that makes the alien inadmissible to the 
     United States as an immigrant, except as provided under 
     section 105(b);
       (ii) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States;
       (iii) is convicted of an offense, an element of which 
     involves bodily injury, threat of serious bodily injury, or 
     harm to property in excess of $500; or
       (iv) fails to perform the agricultural employment required 
     under section 103(a)(1)(A) unless the alien was unable to 
     work in agricultural employment due to the extraordinary 
     circumstances described in section 103(a)(3).
       (e) Record of Employment.--
       (1) In general.--Each employer of an alien granted blue 
     card status under this section shall annually--
       (A) provide a written record of employment to the alien; 
     and
       (B) provide a copy of such record to the Secretary.
       (2) Sunset.--The obligation under paragraph (1) shall 
     terminate on the date that is 6 years after the date of the 
     enactment of this Act.
       (f) Required Features of Identity Card.--The Secretary 
     shall provide each alien granted blue card status, and the 
     spouse and any child of each such alien residing in the 
     United States, with a card that contains--
       (1) an encrypted, machine-readable, electronic 
     identification strip that is unique to the alien to whom the 
     card is issued;
       (2) biometric identifiers, including fingerprints and a 
     digital photograph; and
       (3) physical security features designed to prevent 
     tampering, counterfeiting, or duplication of the card for 
     fraudulent purposes.
       (g) Fine.--An alien granted blue card status shall pay a 
     fine of $100 to the Secretary.
       (h) Maximum Number.--The Secretary may not issue more than 
     1,500,000 blue cards during the 5-year period beginning on 
     the date of the enactment of this Act.

     SEC. 102. TREATMENT OF ALIENS GRANTED BLUE CARD STATUS.

       (a) In General.--Except as otherwise provided under this 
     section, an alien granted blue card status 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.).
       (b) Delayed Eligibility for Certain Federal Public 
     Benefits.--An alien granted blue card status shall not be 
     eligible, by reason of such 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 alien is granted an adjustment of status under 
     section 103.
       (c) Terms of Employment.--
       (1) Prohibition.--No alien granted blue card status may be 
     terminated from employment by any employer during the period 
     of blue card status except for just cause.
       (2) Treatment of complaints.--
       (A) Establishment of process.--The Secretary shall 
     establish a process for the receipt, initial review, and 
     disposition of complaints by aliens granted blue card status 
     who allege that they have been terminated without just cause. 
     No proceeding shall be conducted under this paragraph 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.
       (B) Initiation of arbitration.--If the Secretary finds that 
     an alien has filed a complaint in accordance with 
     subparagraph (A) and there is reasonable cause to believe 
     that the alien was terminated from employment 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

[[Page S364]]

     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.
       (C) Arbitration proceedings.--The arbitrator shall conduct 
     the proceeding under this paragraph 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 
     reinstatement, back pay, or front pay to the affected 
     employee. Not later than 30 days after the date of 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.
       (D) Effect of arbitration findings.--If the Secretary 
     receives a finding of an arbitrator that an employer has 
     terminated the employment of an alien who is granted blue 
     card status without just cause, the Secretary shall credit 
     the alien for the number of days or hours of work not 
     performed during such period of termination for the purpose 
     of determining if the alien meets the qualifying employment 
     requirement of section 103(a).
       (E) Treatment of attorney's fees.--Each party to an 
     arbitration under this paragraph shall bear the cost of their 
     own attorney's fees for the arbitration.
       (F) Nonexclusive remedy.--The complaint process provided 
     for in this paragraph is in addition to any other rights an 
     employee may have in accordance with applicable law.
       (G) 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 subparagraph (D).
       (3) Civil penalties.--
       (A) In general.--If the Secretary finds, after notice and 
     opportunity for a hearing, that an employer of an alien 
     granted blue card status has failed to provide the record of 
     employment required under section 101(e) or has provided a 
     false statement of material fact in such a record, the 
     employer shall be subject to a civil money penalty in an 
     amount not to exceed $1,000 per violation.
       (B) Limitation.--The penalty applicable under subparagraph 
     (A) for failure to provide records shall not apply unless the 
     alien has provided the employer with evidence of employment 
     authorization granted under this section.

     SEC. 103. ADJUSTMENT TO PERMANENT RESIDENCE.

       (a) In General.--Except as provided in subsection (b), the 
     Secretary shall adjust the status of an alien granted blue 
     card status to that of an alien lawfully admitted for 
     permanent residence if the Secretary determines that the 
     following requirements are satisfied:
       (1) Qualifying employment.--
       (A) In general.--Subject to subparagraph (B), the alien has 
     performed at least--
       (i) 5 years of agricultural employment in the United States 
     for at least 100 work days per year, during the 5-year period 
     beginning on the date of the enactment of this Act; or
       (ii) 3 years of agricultural employment in the United 
     States for at least 150 work days per year, during the 3-year 
     period beginning on the date of the enactment of this Act.
       (B) 4-year period of employment.--An alien shall be 
     considered to meet the requirements of subparagraph (A) if 
     the alien has performed 4 years of agricultural employment in 
     the United States for at least 150 work days during 3 years 
     of those 4 years and at least 100 work days during the 
     remaining year, during the 4-year period beginning on the 
     date of the enactment of this Act.
       (2) Proof.--An alien may demonstrate compliance with the 
     requirement under paragraph (1) by submitting--
       (A) the record of employment described in section 101(e); 
     or
       (B) such documentation as may be submitted under section 
     104(c).
       (3) Extraordinary circumstances.--In determining whether an 
     alien has met the requirement of paragraph (1)(A), the 
     Secretary may credit the alien with not more than 12 
     additional months to meet the requirement of that 
     subparagraph if the alien was unable to work in agricultural 
     employment due to--
       (A) pregnancy, injury, or disease, if the alien can 
     establish such pregnancy, disabling injury, or disease 
     through medical records;
       (B) illness, disease, or other special needs of a minor 
     child, if the alien can establish such illness, disease, or 
     special needs through medical records; or
       (C) severe weather conditions that prevented the alien from 
     engaging in agricultural employment for a significant period 
     of time.
       (4) Application period.--The alien applies for adjustment 
     of status not later than 7 years after the date of the 
     enactment of this Act.
       (5) Fine.--The alien pays a fine of $400 to the Secretary.
       (b) Grounds for Denial of Adjustment of Status.--The 
     Secretary may deny an alien granted blue card status an 
     adjustment of status under this section and provide for 
     termination of such blue card status if--
       (1) the Secretary finds by a preponderance of the evidence 
     that the adjustment to blue card 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
       (2) the alien--
       (A) 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 
     section 105(b);
       (B) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States; or
       (C) is convicted of an offense, an element of which 
     involves bodily injury, threat of serious bodily injury, or 
     harm to property in excess of $500.
       (c) Grounds for Removal.--Any alien granted blue card 
     status who does not apply for adjustment of status under this 
     section before the expiration of the application period 
     described in subsection (a)(4) or who fails to meet the other 
     requirements of subsection (a) by the end of the application 
     period, is deportable and may be removed under section 240 of 
     the Immigration and Nationality Act (8 U.S.C. 1229a).
       (d) Payment of Taxes.--
       (1) In general.--Not later than the date on which an 
     alien's status is adjusted under this section, the alien 
     shall establish that the alien does not owe any applicable 
     Federal tax liability by establishing that--
       (A) no such tax liability exists;
       (B) all such outstanding tax liabilities have been paid; or
       (C) the alien has entered into an agreement for payment of 
     all outstanding liabilities with the Internal Revenue 
     Service.
       (2) Applicable federal tax liability.--In paragraph (1) the 
     term ``applicable Federal tax liability'' means liability for 
     Federal taxes, including penalties and interest, owed for any 
     year during the period of employment required under 
     subsection (a)(1) for which the statutory period for 
     assessment of any deficiency for such taxes has not expired.
       (3) IRS cooperation.--The Secretary of the Treasury shall 
     establish rules and procedures under which the Commissioner 
     of Internal Revenue shall provide documentation to an alien 
     upon request to establish the payment of all taxes required 
     by this subsection.
       (e) Spouses and Minor Children.--
       (1) 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 any adjustment of status under subsection (a), 
     including any individual who was a minor child on the date 
     such alien was granted blue card 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.
       (2) Treatment of spouses and minor children.--
       (A) Granting of status and removal.--The Secretary may 
     grant derivative status to the alien spouse and any minor 
     child residing in the United States of an alien granted blue 
     card status and shall not remove such derivative spouse or 
     child during the period that the alien granted blue card 
     status maintains such status, except as provided in paragraph 
     (3). A grant of derivative status to such a spouse or child 
     under this subparagraph shall not decrease the number of 
     aliens who may receive blue card status under subsection (h) 
     of section 101.
       (B) Travel.--The derivative spouse and any minor child of 
     an alien granted blue card status may travel outside the 
     United States in the same manner as an alien lawfully 
     admitted for permanent residence.
       (C) Employment.--The derivative spouse of an alien granted 
     blue card status may apply to the Secretary for a work permit 
     to authorize such spouse to engage in any lawful employment 
     in the United States while such alien maintains blue card 
     status.
       (3) Grounds for denial of adjustment of status and 
     removal.--The Secretary may deny an alien spouse or child 
     adjustment of status under paragraph (1) 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--
       (A) 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 section 105(b);
       (B) is convicted of a felony or 3 or more misdemeanors 
     committed in the United States; or

[[Page S365]]

       (C) is convicted of an offense, an element of which 
     involves bodily injury, threat of serious bodily injury, or 
     harm to property in excess of $500.

     SEC. 104. APPLICATIONS.

       (a) Submission.--The Secretary shall provide that--
       (1) applications for blue card status under section 101 may 
     be submitted--
       (A) to the Secretary if the applicant is represented by an 
     attorney or a nonprofit religious, charitable, social 
     service, or similar organization recognized by the Board of 
     Immigration Appeals under section 292.2 of title 8, Code of 
     Federal Regulations; or
       (B) to a qualified designated entity if the applicant 
     consents to the forwarding of the application to the 
     Secretary; and
       (2) applications for adjustment of status under section 103 
     shall be filed directly with the Secretary.
       (b) Qualified Designated Entity Defined.--In this section, 
     the term ``qualified designated entity'' means--
       (1) a qualified farm labor organization or an association 
     of employers designated by the Secretary; or
       (2) any such other person designated by the Secretary if 
     that Secretary determines such person is qualified and has 
     substantial experience, demonstrated competence, and has a 
     history of 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 (8 U.S.C. 1159, 1160, and 1255), the Act entitled ``An 
     Act to adjust the status of Cuban refugees to that of lawful 
     permanent residents of the United States, and for other 
     purposes'', approved November 2, 1966 (Public Law 89-732; 8 
     U.S.C. 1255 note), Public Law 95-145 (8 U.S.C. 1255 note), or 
     the Immigration Reform and Control Act of 1986 (Public Law 
     99-603; 100 Stat. 3359) or any amendment made by that Act.
       (c) Proof of Eligibility.--
       (1) In general.--An alien may establish that the alien 
     meets the requirement of section 101(a)(1) or 103(a)(1) 
     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.
       (2) Documentation of work history.--
       (A) Burden of proof.--An alien applying for status under 
     section 101(a) or 103(a) has the burden of proving by a 
     preponderance of the evidence that the alien has worked the 
     requisite number of hours or days required under section 
     101(a)(1) or 103(a)(1), as applicable.
       (B) 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 subparagraph (A) may be met by securing 
     timely production of those records under regulations to be 
     promulgated by the Secretary.
       (C) Sufficient evidence.--An alien may meet the burden of 
     proof under subparagraph (A) to establish that the alien has 
     performed the days or hours of work required by section 
     101(a)(1) or 103(a)(1) by producing sufficient evidence to 
     show the extent of that employment as a matter of just and 
     reasonable inference.
       (d) Applications Submitted to Qualified Designated 
     Entities.--
       (1) Requirements.--Each qualified designated entity shall 
     agree--
       (A) to forward to the Secretary an application submitted to 
     that entity pursuant to subsection (a)(1)(B) if the applicant 
     has consented to such forwarding;
       (B) not to forward to the Secretary any such application if 
     the applicant has not consented to such forwarding; and
       (C) to assist an alien in obtaining documentation of the 
     alien's work history, if the alien requests such assistance.
       (2) No authority to make determinations.--No qualified 
     designated entity may make a determination required by this 
     subtitle to be made by the Secretary.
       (e) Limitation on Access to Information.--Files and records 
     collected or compiled by a qualified designated entity for 
     the purposes of this section are confidential and the 
     Secretary shall not have access to such a file or record 
     relating to an alien without the consent of the alien, except 
     as allowed by a court order issued pursuant to subsection 
     (f).
       (f) Confidentiality of Information.--
       (1) In general.--Except as otherwise provided in this 
     section, the Secretary or any other official or employee of 
     the Department or a bureau or agency of the Department is 
     prohibited from--
       (A) using information furnished by the applicant pursuant 
     to an application filed under this title, the information 
     provided by an applicant to a qualified designated entity, or 
     any information provided by an employer or former employer 
     for any purpose other than to make a determination on the 
     application or for imposing the penalties described in 
     subsection (g);
       (B) making any publication in which the information 
     furnished by any particular individual can be identified; or
       (C) permitting a person other than a sworn officer or 
     employee of the Department or a bureau or agency of the 
     Department or, with respect to applications filed with a 
     qualified designated entity, that qualified designated 
     entity, to examine individual applications.
       (2) Required disclosures.--The Secretary shall provide the 
     information furnished under this title or any other 
     information derived from such furnished information to--
       (A) 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
       (B) an official coroner, for purposes of affirmatively 
     identifying a deceased individual, whether or not the death 
     of such individual resulted from a crime.
       (3) Construction.--
       (A) In general.--Nothing in this subsection 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 
     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.
       (B) Criminal convictions.--Notwithstanding any other 
     provision of this subsection, information concerning whether 
     the alien applying for blue card status under section 101 or 
     an adjustment of status under section 103 has been convicted 
     of a crime at any time may be used or released for 
     immigration enforcement or law enforcement purposes.
       (4) Crime.--Any person who knowingly uses, publishes, or 
     permits information to be examined in violation of this 
     subsection shall be subject to a fine in an amount not to 
     exceed $10,000.
       (g) Penalties for False Statements in Applications.--
       (1) Criminal penalty.--Any person who--
       (A) files an application for blue card status under section 
     101 or an adjustment of status under section 103 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
       (B) 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.
       (2) Inadmissibility.--An alien who is convicted of a crime 
     under paragraph (1) 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)).
       (h) 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 blue card status under section 101 or an adjustment of 
     status under section 103.
       (i) Application Fees.--
       (1) Fee schedule.--The Secretary shall provide for a 
     schedule of fees that--
       (A) shall be charged for the filing of an application for 
     blue card status under section 101 or for an adjustment of 
     status under section 103; and
       (B) may be charged by qualified designated entities to help 
     defray the costs of services provided to such applicants.
       (2) 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 paragraph (1)(B) for services provided to applicants.
       (3) Disposition of fees.--
       (A) 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 paragraph (1)(A).
       (B) 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 blue card 
     status under section 101 or an adjustment of status under 
     section 103.

     SEC. 105. WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS 
                   FOR INADMISSIBILITY.

       (a) 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 section 103.
       (b) Waiver of Certain Grounds of Inadmissibility.--In the 
     determination of an alien's eligibility for status under 
     section 101(a) or an alien's eligibility for adjustment of 
     status under section 103(b)(2)(A) the following rules shall 
     apply:
       (1) Grounds of exclusion not applicable.--The provisions of 
     paragraphs (5), (6)(A), (7), and (9) of section 212(a) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not 
     apply.
       (2) Waiver of other grounds.--
       (A) In general.--Except as provided in subparagraph (B), 
     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.

[[Page S366]]

       (B) 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 subparagraph (A).
       (C) Construction.--Nothing in this paragraph shall be 
     construed as affecting the authority of the Secretary other 
     than under this subparagraph to waive provisions of such 
     section 212(a).
       (3) Special rule for determination of public charge.--An 
     alien is not ineligible for blue card status under section 
     101 or an adjustment of status under section 103 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.
       (c) 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 section 101(a)(2) and 
     who can establish a nonfrivolous case of eligibility for blue 
     card status (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 blue card 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 blue card status during the application 
     period described in section 101(a)(2), 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.

     SEC. 106. ADMINISTRATIVE AND JUDICIAL REVIEW.

       (a) In General.--There shall be no administrative or 
     judicial review of a determination respecting an application 
     for blue card status under section 101 or adjustment of 
     status under section 103 except in accordance with this 
     section.
       (b) Administrative Review.--
       (1) 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.
       (2) 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.
       (c) Judicial Review.--
       (1) 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).
       (2) 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 contrary to clear and convincing facts 
     contained in the record considered as a whole.

     SEC. 107. USE OF INFORMATION.

       Beginning not later than the first day of the application 
     period described in section 101(a)(2), the Secretary, in 
     cooperation with qualified designated entities (as that term 
     is defined in section 104(b)), shall broadly disseminate 
     information respecting the benefits that aliens may receive 
     under this subtitle and the requirements that an alien is 
     required to meet to receive such benefits.

     SEC. 108. REGULATIONS, EFFECTIVE DATE, AUTHORIZATION OF 
                   APPROPRIATIONS.

       (a) Regulations.--The Secretary shall issue regulations to 
     implement this subtitle not later than the first day of the 
     seventh month that begins after the date of enactment of this 
     Act.
       (b) Effective Date.--This subtitle shall take effect on the 
     date that regulations required by subsection (a) are issued, 
     regardless of whether such regulations are issued on an 
     interim basis or on any other basis.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Secretary such sums as may be 
     necessary to implement this subtitle, including any sums 
     needed for costs associated with the initiation of such 
     implementation, for fiscal years 2007 and 2008.

           Subtitle B--Correction of Social Security Records

     SEC. 111. CORRECTION OF SOCIAL SECURITY RECORDS.

       (a) In General.--Section 208(e)(1) of the Social Security 
     Act (42 U.S.C. 408(e)(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 blue card status under the 
     Agricultural Job Opportunity, Benefits, and Security Act of 
     2007,''; 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 blue card 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 the enactment of this Act.

                TITLE II--REFORM OF H-2A WORKER PROGRAM

     SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.

       (a) In General.--Title II of the Immigration and 
     Nationality Act (8 U.S.C. 1151 et seq.) is amended by 
     striking section 218 and inserting the following:

     ``SEC. 218. H-2A EMPLOYER APPLICATIONS.

       ``(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 has applied for 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 
     for an H-2A worker 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 has applied for an H-2A worker.

[[Page S367]]

       ``(E) Requirements for placement of the 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 worksites 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 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 H-2A 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 H-2A 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, 218B, and 
     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 
     worksite, 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 
     subsection (a). 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.''

     ``SEC. 218A. H-2A EMPLOYMENT REQUIREMENTS.

       ``(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:

[[Page S368]]

       ``(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.--If 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 set out in 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 in agricultural 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 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 
     worksite.--The employer shall provide transportation between 
     the worker's living quarters and the employer's worksite 
     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 the enactment 
     of the Agricultural Job Opportunities, Benefits, and Security 
     Act of 2007 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

[[Page S369]]

     and above the \3/4\ 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 December 
     31, 2009, 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 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; 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) Four representatives of agricultural employers and 1 
     representative of the Department of Agriculture, each 
     appointed by the Secretary of Agriculture.
       ``(II) Four 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 December 31, 2009, 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 \3/4\ of the work days of the total period of 
     employment, beginning with the first work day after the 
     arrival of the worker at the place of employment and ending 
     on the expiration date specified in the job offer. 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 `\3/4\ 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 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

[[Page S370]]

     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.

     ``SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF 
                   H-2A WORKERS.

       ``(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 worksite and a period of 14 days 
     following the period of employment for the purpose of 
     departure or extension based 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 
     the alien's 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.--

[[Page S371]]

       ``(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, 
     Goat Herders, or Dairy Workers.--Notwithstanding any 
     provision of the Agricultural Job Opportunities, Benefits, 
     and Security Act of 2007, an alien admitted under section 
     101(a)(15)(H)(ii)(a) for employment as a sheepherder, goat 
     herder, or dairy worker--
       ``(1) may be admitted for an initial period of 12 months;
       ``(2) subject to subsection (j)(5), may have such initial 
     period of admission extended for a 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).
       ``(j) Adjustment to Lawful Permanent Resident Status for 
     Aliens Employed as Sheepherders, Goat Herders, or Dairy 
     Workers.--
       ``(1) Eligible alien.--For purposes of this subsection, the 
     term `eligible alien' means an alien--
       ``(A) having nonimmigrant status under section 
     101(a)(15)(H)(ii)(a) based on employment as a sheepherder, 
     goat herder, or dairy worker;
       ``(B) who has maintained such nonimmigrant status in the 
     United States for a cumulative total of 36 months (excluding 
     any period of absence from the United States); and
       ``(C) who is seeking to receive an immigrant visa under 
     section 203(b)(3)(A)(iii).
       ``(2) Classification petition.--In the case of an eligible 
     alien, the petition under section 204 for classification 
     under section 203(b)(3)(A)(iii) may be filed by--
       ``(A) the alien's employer on behalf of the eligible alien; 
     or
       ``(B) the eligible alien.
       ``(3) No labor certification required.--Notwithstanding 
     section 203(b)(3)(C), no determination under section 
     212(a)(5)(A) is required with respect to an immigrant visa 
     described in paragraph (1)(C) for an eligible alien.
       ``(4) Effect of petition.--The filing of a petition 
     described in paragraph (2) or an application for adjustment 
     of status based on the approval of such a petition shall not 
     constitute evidence of an alien's ineligibility for 
     nonimmigrant status under section 101(a)(15)(H)(ii)(a).
       ``(5) Extension of stay.--The Secretary shall extend the 
     stay of an eligible alien having a pending or approved 
     classification petition described in paragraph (2) in 1-year 
     increments until a final determination is made on the alien's 
     eligibility for adjustment of status to that of an alien 
     lawfully admitted for permanent residence.
       ``(6) Construction.--Nothing in this subsection shall be 
     construed to prevent an eligible alien from seeking 
     adjustment of status in accordance with any other provision 
     of law.

     ``SEC. 218C. WORKER PROTECTIONS AND LABOR STANDARDS 
                   ENFORCEMENT.

       ``(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 (G). 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
       ``(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).

[[Page S372]]

       ``(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 nonbinding 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 over 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 an H-2A employer or any person 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.
       ``(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.

     ``SEC. 218D. DEFINITIONS.

       ``For purposes of this section and section 218, 218A, 218B, 
     and 218C:
       ``(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 or the performance of agricultural labor or services 
     described in 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.

[[Page S373]]

       ``(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).
       ``(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 or seasonal full-time employment at 
     a place in the United States to which United States workers 
     can be referred.
       ``(9) Laying off.--
       ``(A) In general.--The term `laying 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 suspension of employment 
     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.--Except as otherwise provided, 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 national of the United 
     States, an alien lawfully admitted for permanent residence, 
     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.''.

                  TITLE III--MISCELLANEOUS PROVISIONS

     SEC. 301. 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 pursuant to the amendment made by section 201(a) of 
     this Act and a collection process for such fees from 
     employers. Such fees shall be the only fees chargeable to 
     employers for services provided under such amendment.
       (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 amended by section 
     201 of this Act, and sufficient to provide for the direct 
     costs of providing services related to an employer's 
     authorization to employ aliens pursuant to the amendment made 
     by section 201(a) of 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 fees 
     pursuant to the amendment made by section 201(a) of this Act 
     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 amended and added, 
     respectively, by section 201 of this Act, and the provisions 
     of this Act.

     SEC. 302. REGULATIONS.

       (a) Requirement for the Secretary To Consult.--The 
     Secretary shall consult with the Secretary of Labor and the 
     Secretary of Agriculture during the promulgation of all 
     regulations to implement the duties of the Secretary under 
     this Act and the amendments made by this Act.
       (b) Requirement for the Secretary of State To Consult.--The 
     Secretary of State shall consult 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 Act and the amendments made by this Act.
       (c) Requirement for the Secretary of Labor To Consult.--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 Act and the 
     amendments made by this Act.
       (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, 218C, and 218D of the Immigration and Nationality 
     Act, as amended or added by section 201 of this Act, shall 
     take effect on the effective date of section 201 and shall be 
     issued not later than 1 year after the date of enactment of 
     this Act.

     SEC. 303. REPORTS TO CONGRESS.

       (a) Annual Report.--Not later than September 30 of each 
     year, the Secretary shall submit a report to Congress that 
     identifies, for the previous year--
       (1) the number of job opportunities approved for employment 
     of aliens admitted under section 101(a)(15)(H)(ii)(a) of the 
     Immigration and Nationality Act (8 U.S.C. 
     1101(a)(15)(H)(ii)(a)), and the number of workers actually 
     admitted, disaggregated by State and by occupation;
       (2) the number of such aliens reported to have abandoned 
     employment pursuant to subsection 218B(e)(2) of such Act;
       (3) the number of such aliens who departed the United 
     States within the period specified in subsection 218B(d) of 
     such Act;
       (4) the number of aliens who applied for adjustment of 
     status pursuant to section 101(a);
       (5) the number of such aliens whose status was adjusted 
     under section 101(a);
       (6) the number of aliens who applied for permanent 
     residence pursuant to section 103(c); and
       (7) the number of such aliens who were approved for 
     permanent residence pursuant section 103(c).
       (b) Implementation Report.--Not later than 180 days after 
     the date of the enactment of this Act, the Secretary shall 
     prepare and submit to Congress a report that describes the 
     measures being taken and the progress made in implementing 
     this Act.

     SEC. 304. EFFECTIVE DATE.

       Except as otherwise provided, sections 201 and 301 shall 
     take effect 1 year after the date of the enactment of this 
     Act.

  Mr. KENNEDY. Mr. President, It's a privilege to join Senator 
Feinstein and Senator Craig and my other colleagues today as we 
reintroduce the Agricultural Jobs, Opportunity, Benefits, and Security 
Act. I commend them and Representatives Howard Berman and Chris Cannon 
for their bipartisan leadership and I'm honored to be part of this 
landmark legislation.
  The bill reflects a far-reaching and welcome agreement between the 
United Farm Workers and the agricultural industry on one of the most 
difficult immigration' challenges we face, and we in Congress should 
make the most of this unique opportunity for progress.
  America has a proud tradition as a Nation of immigrants and a Nation 
of laws. But our current immigration laws fail us on both counts. Much 
of the Nation's economy today depends on the hard work and the many 
contributions of immigrants. The agricultural industry would grind to a 
halt without immigrant farm workers. Yet, the overwhelming majority of 
these workers lack legal status, and can be easily exploited by 
unscrupulous employers.
  The legislation we are introducing, called the ``AgJOBS Act,'' is an 
opportunity to correct these long-festering problems. It will give farm 
workers and their families the dignity and justice they deserve, and it 
will give agricultural employers a legal workforce.

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  It is a realistic compromise that now has broad support in Congress, 
and from business and labor, civic and faith-based organizations, 
liberals and conservatives, trade associations and immigrant rights 
groups.
  The Act is a needed reform in our immigration law to reflect current 
economic realities and meet our national security needs more 
effectively, and do so in a way that respects America's immigrant 
heritage. It provides a fair and reasonable means for illegal 
agricultural workers to earn legal status, and it also reforms the 
current visa program, so that employers unable to obtain American 
workers can hire needed foreign workers.
  The AgJOBS Act is good for both labor and business. The Nation can no 
longer ignore the fact that more than half of our agricultural workers 
are undocumented. Growers need an immediate, reliable and legal 
workforce at harvest time. Farm workers need legal statues to improve 
their wages and working conditions. Everyone suffers when crops rot in 
the fields because of the lack of an adequate labor force.
  The AgJOBS Act provides a fair and reasonable process for 
undocumented agricultural workers to earn legal status. Undocumented 
farm workers are clearly vulnerable to abuse by unscrupulous labor 
contractors and growers. Their illegal status deprives them of 
bargaining power and depresses the wages of all farm workers. Our bill 
provides fair solutions for undocumented workers who have been toiling 
in our fields and harvesting our fruits and vegetables.
  This bill is not an amnesty. To earn the right to remain in this 
country, workers would not only have to demonstrate past work 
contributions to the U.S. economy, but also make a substantial future 
work commitment. These workers will be able to come forward, identify 
themselves, provide evidence that they have been employed in 
agriculture and will continue to work hard, and will play by the rules 
in the future.
  This legislation will modify the current temporary foreign 
agricultural worker program, while preserving and enhancing key labor 
protections. It achieves a fair balance. It streamlines the H-2A visa 
application process by reducing paperwork for employers and 
accelerating processing. But individuals participating in the program 
receive strong labor protections.
  Our legislation will unify families. When temporary residence is 
granted a farm worker's spouse and minor children will be able to 
remain legally in the U.S. but they will not be authorized to work. 
When the worker becomes a permanent resident, the spouse and minor 
children will also gain such status.
  AgJOBS will also enhance national security and reduce illegal 
immigration. It will reduce the chaotic, illegal, and all-too-deadly 
flows of immigrants at our borders by providing safe and legal avenues 
for farm workers and their families. Future temporary workers will be 
carefully screened to meet security concerns. Enforcement resources 
will be more effectively focused on the highest risks. By bringing 
undocumented farm workers out of the shadows and requiring them to pass 
through security checks, it will enable officials to concentrate more 
effectively on terrorists and criminals.
  Last year, Senators came together--Democrats and Republicans--to pass 
a far-reaching immigration reform bill that included the AgJOBS bill. 
The American people are calling on us to come together again. They know 
there is a crisis, and they want action now.
  President Bush has been a leader on immigration reform, and I'm 
hopeful that he will renew his efforts with members of his party, so 
that we can continue action quickly this year on comprehensive reform 
legislation and end this festering crisis once and for all. The House 
of Representatives is now ready to be a genuine partner in this effort.
  By heritage and history, America is a Nation of immigrants. Our 
legislation proposes necessary changes in the law while preserving this 
tradition. This bill will ensure that immigrant farm workers can live 
the American dream and contribute to our prosperity, our security, and 
our values, and I hope very much that it can be enacted as soon as 
possible in this new Congress.
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