[House Report 104-469]
[From the U.S. Government Publishing Office]
104th Congress Rept. 104-469
HOUSE OF REPRESENTATIVES
2d Session Part 3
_______________________________________________________________________
IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995;
TEMPORARY AGRICULTURAL WORKER AMENDMENTS OF 1996
_______
March 8, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Roberts, from the Committee on Agriculture, submitted the following
R E P O R T
together with
MINORITY AND ADDITIONAL VIEWS
[To accompany H.R. 2202]
The Committee on Agriculture, to whom was referred the bill
(H.R. 2202) to amend the Immigration and Nationality Act to
improve deterrence of illegal immigration to the United States
by increasing border patrol and investigative personnel, by
increasing penalties for alien smuggling and for document
fraud, by reforming exclusion and deportation law and
procedures, by improving the verification system for
eligibility for employment, and through other measures, to
reform the legal immigration system and facilitate legal
entries into the United States, and for other purposes, having
considered the same, report favorably thereon with amendments
and recommend that the bill as amended do pass.
The amendments (stated in terms of the page and line numbers
of the introduced bill) are as follows:
On page 364, after line 13, add the following (and conform
the table of contents accordingly):
Subtitle A--Miscellaneous Provisions
Add at the end the following (and conform the table of
contents accordingly):
Subtitle B--Guest Worker Visitation Program
SEC. 821. SHORT TITLE.
This subtitle may be cited as the ``Temporary Agricultural
Worker Amendments of 1996''.
SEC. 822. NEW NONIMMIGRANT H-2B CATEGORY FOR TEMPORARY AGRICULTURAL
WORKERS.
(a) Establishment of New Classification.--Section
101(a)(15)(H)(ii) (8 U.S.C. 1101(a)(15)(H)(ii)) is amended by
striking ``or (b)'' and inserting ``(b) having a residence in a
foreign country which he has no intention of abandoning who is
coming temporarily to the United States pursuant to section
218A to perform such agricultural labor or services of a
temporary or seasonal nature, or (c)''.
(b) No Family Members Permitted.--Section 101(a)(15)(H) (8
U.S.C. 1101(a)(15)(H)) is amended by striking ``specified in
this paragraph'' and inserting ``specified in this subparagraph
(other than in clause (ii)(b))''.
(c) Disqualification if Convicted of Ownership or Operation
of a Motor Vehicle in United States Without Insurance.--Section
214 (8 U.S.C. 1184) is amended by adding at the end the
following:
``(l)(1) An alien may not be admitted (or provided status) as
a temporary worker under section 101(a)(15)(H)(ii)(b) if the
alien (after the date of the enactment of this subsection) has
been convicted of owning (or knowingly operating) a motor
vehicle in the United States without having liability insurance
that meets applicable insurance requirements of the State in
which the alien is employed or in which the vehicle is
registered.
``(2) An alien who is admitted or provided status as such a
worker who is so convicted shall be considered, on and after
the date of the conviction and for purposes of section
241(a)(1)(C), to have failed to comply with a condition for the
maintenance of status under section 101(a)(15)(H)(ii)(b).''
(d) Conforming Redesignation.--Subsections (c)(5)(A) and
(g)(1)(B) of section 214 (8 U.S.C. 1184) are each amended by
striking ``101(a)(15)(H)(ii)(b)'' and inserting
``101(a)(15)(H)(ii)(c)''.
SEC. 823. ALTERATIVE AGRICULTURAL TEMPORARY WORKER PROCESS USING
ATTESTATIONS.
(a) In General.--The Immigration and Nationality Act is
amended by inserting after section 218 the following:
``alternative agricultural temporary worker program
``Sec. 218A. (a) Condition for the Employment of H-2B
Aliens.--
``(1) In general.--No alien may be admitted or
provided status as an H-2B alien (as defined in
subsection (n)(4)) unless--
``(A) the employment of the alien is covered
by a currently valid labor condition
attestation which--
``(i) is filed by the employer, or by
an association on behalf of the
employer, for the occupation in which
the alien will be employed;
``(ii) has been accepted by the
qualified State employment security
agency having jurisdiction over the
area of intended employment; and
``(iii) states each of the items
described in paragraph (2) and includes
information identifying the employer or
association and agricultural job
opportunities involved; and
``(B) the employer is not disqualified from
employing H-2B aliens pursuant to subsection
(g).
``(2) Contents of labor condition attestation.--Each
labor condition attestation filed by or on behalf of,
an employer shall include the following:
``(A) Wage rate.--The employer will pay H-2B
aliens and all other workers in the occupation
not less than the prevailing wage for similarly
employed workers in the area of employment, and
not less than the applicable Federal, State or
local statutory minimum wage.
``(B) Working conditions.--The employment of
H-2B aliens will not adversely affect the
working conditions with respect to housing and
transportation of similarly employed workers in
the area of employment.
``(C) Limitation on employment.--An H-2B
alien will not be employed in any job
opportunity which is not temporary or seasonal,
and will not be employed by the employer in any
job opportunity for more than 10 months in any
12-consecutive-month period.
``(D) No labor dispute.--No H-2B alien will
be employed in any job opportunity which is
vacant because its former occupant is involved
in a strike, lockout or work stoppage in the
course of a labor dispute in the occupation at
the place of employment.
``(E) Notice.--The employer, at the time of
filing the attestation, has provided notice of
the attestation to workers employed in the
occupation in which H-2B aliens will be
employed.
``(F) Job orders.--The employer will file
one or more job orders for the occupation (or
occupations) covered by the attestation with
the qualified State employment security agency
no later than the day on which the employer
first employs any H-2B aliens in the
occupation.
``(G) Preference to domestic workers.--The
employer will give preference to able, willing
and qualified United States workers who apply
to the employer and are available at the time
and place needed, for the first 25 days after
the filing of the job order in an occupation or
until 5 days before the date employment of
workers in the occupation begins, whichever
occurs later.
``(3) Establishment as pilot program; restriction of
admissions to pilot program period.--
``(A) In general.--The program under this
section is deemed to be a pilot program and no
alien may be admitted or provided status as an
H-2B alien under this section except during the
pilot program period specified in subparagraph
(B).
``(B) Pilot program period.--
``(i) In general.--Subject to clause
(ii), the pilot program period under
this subparagraph is the period (ending
on October 1, 1999) during which the
employment eligibility verification
system is in effect under section
274A(b)(7) (as amended by the
Immigration in the National Interest
Act of 1995).
``(ii) Consideration of extension.--
If Congress extends such verification
system, Congress shall also extend the
pilot program period under this
subparagraph for the same period of
time.
``(C) Annual reports.--The Comptroller
General shall submit to Congress annual reports
on the operation of the pilot program under
this section during the pilot program period.
Such reports shall include an assessment of the
program and of the need for foreign workers to
perform temporary agricultural employment in
the United States.
``(4) Limitations on number of visas.--
``(A) In general.--In no case may the number
of aliens who are admitted or provided status
as an H-2B alien in a fiscal year exceed the
numerical limitation specified under
subparagraph (B) for that fiscal year.
``(B) Numerical limitation.--The numerical
limitation specified in this subparagraph for--
``(i) the first fiscal year in which
this section is applied is 250,000; and
``(ii) any subsequent fiscal year is
the numerical limitation specified in
this subparagraph for the previous
fiscal year decreased by 25,000.
``(b) Filing a Labor Condition Attestation.--
``(1) Filing by employers.--Any employer in the
United States is eligible to file a labor condition
attestation.
``(2) Filing by associations on behalf of employer
members.--An agricultural association may file a labor
condition attestation as an agent on behalf of its
members. Such an attestation filed by an agricultural
association acting as an agent for its members, when
accepted, shall apply to those employer members of the
association that the association certifies to the
qualified State employment security agency are members
of the association and have agreed in writing to comply
with the requirements of this section.
``(3) Period of validity.--A labor condition
attestation is valid from the date on which it is
accepted by the qualified State employment security
agency for the period of time requested by the
employer, but not to exceed 12 months.
``(4) Where to file.--A labor condition attestation
shall be filed with such agency having jurisdiction
over the area of intended employment of the workers
covered by the attestation. If an employer, or the
members of an association of employers, will be
employing workers in an area or areas covered by more
than one such agency, the attestation shall be filed
with each such agency having jurisdiction over an area
where the workers will be employed.
``(5) Deadline for filing.--An employer may file a
labor condition attestation at any time up to 12 months
prior to the date of the employer's anticipated need
for workers in the occupation (or occupations) covered
by the attestation.
``(6) Filing for multiple occupations.--A labor
condition attestation may be filed for one or more
occupations and cover one or more periods of
employment.
``(7) Maintaining required documentation.--
``(A) By employers.--Each employer covered by
an accepted labor condition attestation must
maintain a file of the documentation required
in subsection (c) for each occupation included
in an accepted attestation covering the
employer. The documentation shall be retained
for a period of one year following the
expiration of an accepted attestation. The
employer shall make the documentation available
to representatives of the Secretary during
normal business hours.
``(B) By associations.--In complying with
subparagraph (A), documentation maintained by
an association filing a labor condition
attestation on behalf of an employer shall be
deemed to be maintained by the employer.
``(8) Withdrawal.--
``(A) Compliance with attestation
obligations.--An employer covered by an
accepted labor condition attestation for an
occupation shall comply with the terms and
conditions of the attestation from the date the
attestation is accepted and continuing
throughout the period any persons are employed
in an occupation covered by such an accepted
attestation, whether or not H-2B aliens are
employed in the occupation, unless the
attestation is withdrawn.
``(B) Termination of obligations.--An
employer may withdraw a labor condition
attestation in total, or with respect to a
particular occupation covered by the
attestation. An association may withdraw such
an attestation with respect to one or more of
its members. To withdraw an attestation the
employer or association must notify in writing
the qualified State employment security agency
office with which the attestation was filed of
the withdrawal of the attestation. An employer
who withdraws an attestation, or on whose
behalf an attestation is withdrawn by an
association, is relieved of the obligations
undertaken in the attestation with respect to
the occupation (or occupations) with respect to
which the attestation was withdrawn, upon
acknowledgement by the appropriate qualified
State employment security agency of receipt of
the withdrawal notice. An attestation may not
be withdrawn with respect to any occupation
while any H-2B aliens covered by that
attestation are employed in the occupation.
``(C) Obligations under other statutes.--Any
obligation incurred by the employer under any
other law or regulation as a result of
recruitment of United States workers under an
offer of terms and conditions of employment
required by the H-2B program is unaffected by
withdrawal of a labor condition attestation.
``(c) Employer Responsibilities and Requirements For
Employing H-2B Nonimmigrants.--
``(1) Requirement to pay the prevailing wage.--
``(A) Effect of the attestation.--Employers
shall pay each worker in an occupation covered
by an accepted labor condition attestation at
least the prevailing wage in the occupation in
the area of intended employment. The preceding
sentence does not require employers to pay all
workers in the occupation the same wage. The
employer may, in the sole discretion of the
employer, maintain pay differentials based on
experience, tenure with the employer, skill, or
any other work-related factor, if the
differential is not based on a criterion for
which discrimination is prohibited by the law
and all workers in the covered occupation
receive at least the prevailing wage.
``(B) Payment of qualified state employment
security agency determined wage sufficient.--
The employer may request and obtain a
prevailing wage determination from the
qualified State employment security agency. If
the employer requests such a determination, and
pays the wage determined, such payment shall be
considered sufficient to meet the requirement
of this paragraph if the H-2B workers--
``(i) are employed in the occupation
for which the employer possesses an
accepted labor condition attestation,
and for which the employer or
association possesses a prevailing wage
determination by the qualified State
employment security agency, and
``(ii) are being paid at least the
prevailing wage so determined.
``(C) Reliance on wage survey.--In lieu of
the procedures of subparagraph (B), an employer
may rely on other information, such as an
employer generated prevailing wage survey and
determination, which meets criteria specified
by the Secretary by regulation. In the event of
a complaint that the employer has failed to pay
the required wage, the Secretary shall
investigate to determine if the information
upon which the employer relied complied with
the criteria for prevailing wage
determinations.
``(D) Alternate methods of payment
permitted.--
``(i) In general.--A prevailing wage
may be expressed as an hourly wage, a
piece rate, a task rate (described in
clause (ii)), or other incentive pay
system, including a group rate
(described in clause (iii)). The
requirement to pay at least the
prevailing wage in the occupation and
area of intended employment does not
require an employer to pay by the
method of pay in which the prevailing
rate is expressed. However, if the
employer adopts a method of pay other
than the prevailing rate, the burden of
proof is on the employer to demonstrate
that the employer's method of pay is
designed to produce earnings equivalent
to the earnings that would result from
payment of the prevailing rate.
``(ii) Task rate.--For purposes of
this subparagraph, a task rate is an
incentive payment based on a unit of
work performed such that the incentive
rate varies with the level of effort
required to perform individual units of
work.
``(iii) Group rate.--For purposes of
this subparagraph, a group rate is an
incentive payment system in which the
payment is shared among a group of
workers working together to perform the
task.
``(E) Required documentation.--The employer
or association shall document compliance with
this paragraph by retaining on file the
employer or association's request for a
determination by a qualified State employment
security agency and the prevailing wage
determination received from such agency or
other information upon which the employer or
association relied to assure compliance with
the prevailing wage requirement.
``(2) Requirement to provide housing and
transportation.--
``(A) Effect of the attestation.--The
employment of H-2B aliens shall not adversely
affect the working conditions of United States
workers similarly employed in the area of
intended employment. The employer's obligation
not to adversely affect working conditions
shall continue for the duration of the period
of employment by the employer of any H-2B
aliens in the occupation and area of intended
employment. An employer will be deemed to be in
compliance with this attestation if the
employer offers at least the benefits required
by subparagraphs (B) through (D). The previous
sentence does not require an employer to offer
more than such benefits.
``(B) Housing required.--
``(i) Housing offer.--The employer
must offer to H-2B aliens and United
States workers recruited from beyond
normal recruiting distance housing, or
a housing allowance, if it is
prevailing practice in the occupation
and area of intended employment to
offer housing or a housing allowance to
workers who are recruited from beyond
normal commuting distance.
``(ii) Housing standards.--If the
employer offers housing to such
workers, the housing shall meet (at the
option of the employer) applicable
Federal farm labor housing standards or
applicable local or State standards for
rental, public accommodation, or other
substantially similar class of
habitation.
``(iii) Charges for housing.--An
employer who offers housing to such
workers may charge an amount equal to
the fair market value (but not greater
than the employer's actual cost) for
utilities and maintenance, or such
lesser amount as permitted by law.
``(iv) Housing allowance as
alternative.--In lieu of offering
housing to such workers, at the
employer's sole discretion on an
individual basis, the employer may
provide a reasonable housing allowance.
An employer who offers a housing
allowance to such a worker under this
subparagraph shall not be deemed to be
a housing provider under section 203 of
the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1823)
merely by virtue of providing such
housing allowance.
``(v) Security deposit.--The
requirement, if any, to offer housing
to such a worker under this
subparagraph shall not preclude an
employer from requiring a reasonable
deposit to protect against gross
negligence or willful destruction of
property, as a condition for providing
such housing.
``(vi) Damages.--An employer who
offers housing to such a worker shall
not be precluded from requiring a
worker found to have been responsible
for damage to such housing which is not
the result of normal wear and tear
related to habitation to reimburse the
employer for the reasonable cost of
repair of such damage.
``(C) Transportation.--If the employer
provides transportation arrangements or
assistance to H-2B aliens, the employer must
offer to provide the same transportation
arrangements or assistance (generally
comparable in expense and scope) for other
individuals employed by the employer in the
occupation at the place of employment who were
recruited from beyond normal commuting
distance.
``(D) Workers' compensation.--If the
employment covered by a labor condition
attestation is not covered by the State
workers' compensation law, the employer must
provide, at no cost to the worker, insurance
covering injury and disease arising out of and
in the course of the workers' employment which
will provide benefits at least equal to those
provided under the State workers' compensation
law for comparable employment.
``(E) Required documentation.--
``(i) Housing and transportation.--No
specific documentation is required to
be maintained to evidence compliance
with the requirements of subparagraphs
(B) and (C). In the event of a
complaint alleging a failure to comply
with such a requirement, the burden of
proof shall be on the employer to show
that the employer offered the required
benefit to the complainant, or that the
employer was not required by the terms
of this paragraph to offer such benefit
to the complainant.
``(ii) Workers' compensation.--The
employer shall maintain copies of
certificates of insurance evidencing
compliance with subparagraph (D)
throughout the period of validity of
the labor condition attestation.
``(3) Requirement to employ aliens in temporary or
seasonal agricultural job opportunities.--
``(A) Limitations.--
``(i) In general.--The employer may
employ H-2B aliens only in agricultural
employment which is temporary or
seasonal.
``(ii) Seasonal basis.--For purposes
of this section, labor is performed on
a seasonal basis where, ordinarily, the
employment pertains to or is of the
kind exclusively performed at certain
seasons or periods of the year and
which, from its nature, may not be
continuous or carried on throughout the
year.
``(iii) Temporary basis.--For
purposes of this section, a worker is
employed on a temporary basis where the
employment is intended not to exceed 10
months.
``(B) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirement of subparagraph
(A). In the event of a complaint, the burden of
proof shall fall on the employer to show that
the employment meets such requirement.
``(4) Requirement not to employ aliens in job
opportunities vacant because of a labor dispute.--
``(A) In general.--No H-2B alien may be
employed in any job opportunity which is vacant
because its former occupant is involved in a
strike, lockout, or work stoppage in the course
of a labor dispute in the occupation at the
place of employment.
``(B) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirement of subparagraph
(A). In the event of a complaint, the burden of
proof shall fall on the employer to show that
the job opportunity in which the H-2B alien was
employed was not vacant because the former
occupant was on strike, locked out, or
participating in a work stoppage in the course
of a labor dispute in the occupation at the
place of employment.
``(5) Notice of filing of attestation and supporting
documentation.--
``(A) In general.--The employer shall--
``(i) provide notice of the filing of
a labor condition attestation to the
appropriate certified bargaining agent
(if any) which represents workers of
the employer in the occupation (or
occupations) at the place of employment
covered by the attestation; or
``(ii) in the case where no
appropriate bargaining agent exists,
post notice of the filing of such an
attestation in at least two conspicuous
locations where applications for
employment are accepted.
``(B) Period for posting.--The requirement
for a posting under subparagraph (A)(ii) begins
on the day the attestation is filed, and
continues through the period during which the
employer's job order is required to remain
active pursuant to paragraph (6)(A).
``(C) Required documentation.--The employer
shall maintain a copy of the notice provided to
the bargaining agent (if any), together with
evidence that the notice was provided (such as
a signed receipt of evidence of attempt to send
the notice by certified or registered mail). In
the case where no appropriate certified
bargaining agent exists, the employer shall
retain a copy of the posted notice, together
with information as to the dates and locations
where the notice was displayed.
``(6) Requirement to file a job order.--
``(A) Effect of the attestation.--The
employer, or an association acting as agent for
its members, shall file the information
necessary to complete a local job order for
each occupation covered by an accepted labor
condition attestation with the appropriate
local office of the qualified State employment
security agency having jurisdiction over the
area of intended employment, or with the State
office of such an agency if workers will be
employed in an area within the jurisdiction of
more than one local office of such an agency.
The job orders shall remain on file for 25
calendar days or until 5 calendar days before
the anticipated date of need for workers in the
occupation covered by the job order, whichever
occurs later. The job order shall provide at
least the minimum terms and conditions of
employment required for participation in the H-
2B program.
``(B) Deadline for filing.--A job order shall
be filed under subparagraph (A) no later than
the date on which the employer files a petition
with the Attorney General for admission or
extension of stay for aliens to be employed in
the occupation for which the order is filed.
``(C) Required documentation.--The office of
the qualified State employment security agency
which the employer or association provides with
information necessary to file a local job order
shall provide the employer with evidence that
the information was provided in a timely manner
as required by this paragraph, and the employer
or association shall retain such evidence for
each occupation in which H-2B aliens are
employed.
``(7) Requirement to give preference to qualified
united states workers.--
``(A) Filing 30 days or more before date of
need.--If a job order is filed 30 days or more
before the anticipated date of need for workers
in an occupation covered by a labor condition
attestation and for which the job order has
been filed, the employer shall offer to employ
able, willing, and qualified United States
workers who apply to the employer and who will
be available at the time and place needed for
the job opportunities covered by the
attestation until 5 calendar days before the
anticipated date of need for workers in the
occupation, or until the employer's job
opportunities in the occupation are filled with
qualified United States workers, if that occurs
more than 5 days before the anticipated date of
need for workers in the occupation.
``(B) Filling fewer than 30 days before date
of need.--If a job order is filed fewer than 30
days before the anticipated date of need for
workers in an occupation covered by such an
attestation and for which a job order has been
filed, the employer shall offer to employ able,
willing, and qualified United States workers
who are or will be available at the time and
place needed during the first 25 days after the
job order is filed or until the employer's job
opportunities in the occupation are filled with
United States workers, regardless of whether
any of the job opportunities may already be
occupied by H-2B aliens.
``(C) Filing vacancies.--An employer may fill
a job opportunity in an occupation covered by
an accepted attestation which remains or
becomes vacant after expiration of the required
preference period specified in subparagraph (A)
or (B) of paragraph (6) without regard to such
preference.
``(D) Job-related requirements.--No employer
shall be required to initially employ a worker
who fails to meet lawful job-related employment
criteria, nor to continue the employment of a
worker who fails to meet lawful job-related
standards of conduct and performance, including
failure to meet minimum productivity standards
after a 3-day break-in period.
``(E) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirements of this
paragraph. In the event of a complaint, the
burden of proof shall be on the complainant to
show that the complainant applied for the job
and was available at the time and place needed.
If the complainant makes such a showing, the
burden of proof shall be on the employer to
show that the complainant was not qualified or
that the preference period had expired.
``(8) Requirements of notice of certain breaks in
employment.--
``(A) In general.--The employer (or an
association in relation to an H-2B alien) shall
notify the Service within 7 days if an H-2B
alien prematurely abandons the alien's
employment.
``(B) Out-of-status.--An H-2B alien who
abandons the alien's employment shall be
considered to have failed to maintain
nonimmigrant status as an alien described in
section 101(a)(15)(H)(ii)(b) and shall leave
the United States or be subject to deportation
under section 241(a)(1)(C)(i).
``(d) Acceptance By Qualified State Employment Security
Agency.--The qualified State employment security agency shall
review labor condition attestations submitted by employers or
associations only for completeness and obvious inaccuracies.
Unless such an agency finds that the application is incomplete
or obviously inaccurate, the agency shall accept the
attestation within 7 days of the date of filing of the
attestation, and return a copy to the applicant marked
`accepted'.
``(e) Public Registry.--The Secretary shall maintain a
registry of all accepted labor condition attestations and make
such registry available for public inspection.
``(f) Responsibilities of the Qualified State Employment
Security Agencies.--
``(1) Dissemination of labor market information.--The
Secretary shall direct qualified State employment
security agencies to disseminate nonemployer-specific
information about potential labor needs based on
accepted attestations filed by employers. Such
dissemination shall be separate from the clearance of
job orders through the Interstate and Intrastate
Clearance Systems, and shall create no obligations for
employers except as provided in this section.
``(2) Referral of workers on qualified state
employment security agency job orders.--Such agencies
holding job orders filed by employers covered by
approved labor condition attestations shall be
authorized to refer any able, willing, and qualified
eligible job applicant who will be available at the
time and place needed and who is authorized to work in
the United States, including H-2B aliens who are
seeking additional work in the United States and whose
eligibility to remain in the United States pursuant to
subsection (h) has not expired, on job orders filed by
holders of accepted attestations.
``(g) Enforcement and Penalties.--
``(1) Enforcement authority.--
``(A) Investigation of complaints.--The
Secretary shall establish a process for the
receipt, investigation, and disposition of
complaints respecting an employer's failure to
meet a condition specified in subsection (a) or
an employer's misrepresentation of material
facts in such an application. Complaints may be
filed by any aggrieved person or organizations
(including bargaining representatives). No
investigation or hearing shall be conducted on
a complaint concerning such a failure or
misrepresentation unless the complaint was
filed not later than 12 months after the date
of the failure or misrepresentation,
respectively. The Secretary shall conduct an
investigation under this subparagraph if there
is reasonable cause to believe that such a
failure or misrepresentation has occurred.
``(B) Written notice of findings and
opportunity for appeal.--After an investigation
has been conducted, the Secretary shall issue a
written determination as to whether or not any
violation described in paragraph (2) has been
committed. The Secretary's determination shall
be served on the complainant and the employer,
and shall provide an opportunity for an appeal
of the Secretary's decision to an
administrative law judge, who may conduct a de
novo hearing.
``(2) Remedies.--
``(A) Back wages.--Upon a final determination
that the employer has failed to pay wages as
required under this section, the Secretary may
assess payment of back wages due to any United
States worker or H-2B alien employed by the
employer in the specific employment in
question. The back wages shall be equal to the
difference between the amount that should have
been paid and the amount that actually was paid
to such worker.
``(B) Failure to pay wages.--Upon a final
determination that the employer has failed to
pay the wages required under this section, the
Secretary may assess a civil money penalty up
to $1,000 for each failure, and may recommend
to the Attorney General the disqualification of
the employer from the employment of H-2B aliens
for a period of time determined by the
Secretary not to exceed 1 year.
``(C) Other violations.--If the Secretary, as
a result of an investigation pursuant to a
complaint, determines that an employer covered
by an accepted labor condition attestation
has--
``(i) filed an attestation which
misrepresents a material fact; or
``(ii) failed to meet a condition
specified in subsection (a),
the Secretary may assess a civil money penalty
not to exceed $1,000 for each violation. In
determining the amount of civil money penalty
to be assessed, the Secretary shall consider
the seriousness of the violation, the good
faith of the employer, the size of the business
of the employer being charged, the history of
previous violations by the employer, whether
the employer obtained a financial gain from the
violation, whether the violation was willful,
and other relevant factors.
``(D) Program disqualification.--
``(i) 3-years for second violation.--
Upon a second final determination that
an employer has failed to pay the wages
required under this section, the
Secretary shall report such
determination to the Attorney General
and the Attorney General shall
disqualify the employer from the
employment of H-2B aliens for a period
of 3 years.
``(ii) Permanent for third
violation.--Upon a third final
determination that an employer has
failed to pay the wages required under
this section, the Secretary shall
report such determination to the
Attorney General and the Attorney
General shall disqualify the employer
from any subsequent employment of H-2B
aliens.
``(3) Role of associations.--
``(A) Violation by a member of an
association.--An employer on whose behalf a
labor condition attestation is filed by an
association acting as its agent is fully
responsible for such attestation, and for
complying with the terms and conditions of this
section, as though the employer had filed the
attestation itself. If such an employer is
determined to have violated a requirement of
this section, the penalty for such violation
shall be assessed against the employer who
committed the violation and not against the
association or other members of the
association.
``(B) Violation by an association acting as
an employer.--If an association filing a labor
condition attestation on its own behalf as an
employer is determined to have committed a
violation under this subsection which results
in disqualification from the program under
paragraph (2)(D), no individual member of such
association may be the beneficiary of the
services of an H-2B alien in an occupation in
which such alien was employed by the
association during the period such
disqualification is in effect, unless such
member files a labor condition attestation as
an individual employer or such an attestation
is filed on the employer's behalf by an
association with which the employer has an
agreement that the employer will comply with
the requirements of this section.
``(h) Procedure for Admission or Extension of H-2B Aliens.--
``(1) Aliens who are outside the united states.--
``(A) Petitioning for admission.--An employer
or an association acting as agent for its
members who seeks the admission into the United
States of H-2B aliens may file a petition with
the District Director of the Service having
jurisdiction over the location where the aliens
will be employed. The petition shall be
accompanied by an accepted and currently valid
labor condition attestation covering the
petitioner. The petition may be for named or
unnamed individual or multiple beneficiaries.
``(B) Expedited adjudication by district
director.--If an employer's petition for
admission of H-2B aliens is correctly filled
out, and the employer is not ineligible to
employ H-2B aliens, the District Director (or
the Director's designee) shall approve the
petition within 3 working days of receipt of
the petition and accepted labor condition
attestation and immediately (by fax, cable, or
other means assuring expedited delivery)
transmit a copy of the approved petition to the
petitioner and to the appropriate immigration
officer at the port of entry or United States
consulate (as the case may be) where the
petitioner has indicated that the alien
beneficiary (or beneficiaries) will apply for a
visa or admission to the United States.
``(C) Unnamed beneficiaries selected by
petitioner.--The petitioning employer or
association or its representative shall approve
the issuance of visas to beneficiaries who are
unnamed on a petition for admission granted to
the employer or association.
``(D) Criteria for admissibility.--
``(i) In general.--An alien shall be
admissible under this section if the
alien is otherwise admissible under
this Act and the alien is not debarred
pursuant to the provisions of clause
(ii).
``(ii) Disqualification.--An alien
shall be debarred from admission or
being provided status as an H-2B alien
under this section if the alien has, at
any time--
``(I) violated a material
provision of this section,
including the requirement to
promptly depart the United
States when the alien's
authorized period of admission
under this section has expired;
or
``(II) has otherwise
violated a term or condition of
admission to the United States
as a nonimmigrant, including
overstaying the period of
authorized admission as such a
nonimmigrant.
``(E) Period of admission.--The alien shall
be admitted for the period requested by the
petitioner not to exceed 10 months, or the
remaining validity period of the petitioner's
approved labor condition attestation, whichever
is shorter, plus an additional period of 14
days, during which the alien shall seek
authorized employment in the United States.
During the 14-day period following the
expiration of the alien's work authorization,
the alien is not authorized to be employed
unless the original petitioner or a subsequent
petitioner has filed an extension of stay on
behalf of the alien.
``(F) Issuance of identification and
employment eligibility document.--
``(i) In general.--The Attorney
General shall cause to be issued to
each H-2B alien a card in a form which
is resistant to counterfeiting and
tampering for the purpose of providing
proof of identity and employment
eligibility under section 274A.
``(ii) Design of card.--Each card
issued pursuant to clause (i) shall be
designed in such a manner and contain a
photograph and other identifying
information (such as date of birth,
sex, and distinguishing marks) that
would allow an employer to determine
with reasonable certainty that the
bearer is not claiming the identity of
another individual, and shall--
``(I) contain a fingerprint
or other biometric identifying
data (or both);
``(II) specify the date of
the aliens authorization as an
H-2B alien;
``(III) specify the
expiration date of the alien's
work authorization; and
``(IV) specify the alien's
admission number or alien file
number.
``(2) Extension of stay.--
``(A) Application for extension of stay.--If
a petitioner seeks to employ an H-2B alien
already in the United States, the petitioner
shall file an application for an extension of
stay. The application for extension of stay
shall be accompanied by a currently valid labor
condition attestation.
``(B) Limitation on filing an application for
extension of stay.--An application may not be
filed for an extension of an alien's stay for a
period of more than 10 months, or later than a
date which is 2 years from the date of the
alien's last admission to the United States as
a H-2B alien, whichever occurs first. An
application for extension of stay may not be
filed during the pendency of an alien's
previous authorized period of admission, nor
after the alien's authorized stay in the United
States has expired.
``(C) Work authorization upon filing an
application for extension of stay.--An employer
may begin employing an alien already in the
United States in H-2B status on the day the
employer files its application for extension of
stay with the Service. For the purpose of this
requirement, the term `filing' means sending
the application by certified mail via the
United States Postal Service, return receipt
requested, or delivered by guaranteed
commercial delivery which will provide the
employer with a documented acknowledgment of
receipt of the application. The employer shall
provide a copy of the employer's application
for extension of stay to the alien, who shall
keep the application with the alien's
identification and employment eligibility card
as evidence that the extension has been filed
and that the alien is authorized to work in the
United States. Upon approval of an application
for extension of stay, the Service shall
provide a new employment document to the alien
indicating a new validity date, after which the
alien is not required to retain a copy of the
application for extension of stay.
``(D) Limitation on employment authorization
of h-2b aliens without valid identification and
employment eligibility card.--An expired
identification and employment eligibility card,
together with a copy of an application for
extension of stay, shall constitute a valid
work authorization document for a period of not
more than 60 days from the date of application
for the extension of stay, after which time
only a currently valid identification and
employment eligibility card shall be
acceptable.
``(3) Limitation on an individual's stay in h-2b
status.--An alien having status as an H-2B alien may
not have the status extended for a continuous period
longer than 2 years unless the alien remains outside
the United States for an uninterrupted period of 6
months. An absence from the United States may break the
continuity of the period for which an H-2B visa is
valid. If the alien has resided in the United States 10
months or less, an absence breaks the continuity of the
period if its lasts for at least 2 months. If the alien
has resided in the United States 10 months or more, an
absence breaks the continuity of the period if it lasts
for at least one-fifth the duration of the stay.
``(i) Trust Fund to Assure Worker Return.--
``(1) Establishment.--There is established in the
Treasury of the United States a trust fund (in this
section referred to as the `Trust Fund') for the
purpose of providing a monetary incentive for H-2B
aliens to return to their country of origin upon
expiration of their visas under this section.
``(2) Withholding of wages; payment into the trust
fund.--
``(A) In general.--Employers of H-2B aliens
shall--
``(i) withhold from the wages of
their H-2B alien workers an amount
equivalent to 25 percent of the wages
of each H-2B alien worker and pay such
withheld amount into the Trust Fund in
accordance paragraph (3); and
``(ii) pay to the Trust Fund an
amount equivalent to the Federal tax on
the wages paid to H-2B aliens that the
employer would be obligated to pay
under the Federal Unemployment Tax Act
and the Federal Insurance Contributions
Act.
Amounts withheld under clause (i) shall be
maintained in such interest bearing account
with such a financial institution as the
Attorney General shall specify.
``(3) Distribution of funds.--The amounts paid into
the Trust Fund and held pursuant to paragraph
(2)(A)(i), and interest earned thereon, shall be paid
by the Attorney General as follows:
``(A) Reimbursement of emergency medical
expenses.--To reimburse valid claims for
reimbursement of emergency medical services
furnished to H-2B aliens, to the extent that
sufficient funds are not available on an annual
basis from the Trust Fund pursuant to
paragraphs (2)(A)(ii) and (4)(B).
``(B) Payments to workers.--Amounts paid into
the Trust Fund on behalf of a worker, and
interest earned thereon, less a pro rata
reduction for any payments made pursuant to
subparagraph (A), shall be paid by the Attorney
General to the worker if--
``(i) the worker applies to the
Attorney General (or the designee of
the Attorney General) for payment
within 30 days of the expiration of the
alien's last authorized stay in the
United States as a H-2B alien;
``(ii) in such application the worker
establishes that the worker has
complied with the terms and conditions
of this section; and
``(iii) in connection with the
application, the worker tenders the
identification and employment
authorization card issued to the worker
pursuant to subsection (h)(1)(F) and
establishes that the worker is
identified as the person to whom the
card was issued based on the biometric
identification information contained on
the card.
``(4) Administrative expenses and emergency medical
expenses.--The amounts paid into the Trust Fund and
held pursuant to paragraph (2)(A)(ii), and interest
earned thereon, shall be paid by the Attorney General
as follows:
``(A) Administrative expenses.--First, to the
Attorney General, the Secretary of Labor, and
the Secretary of State in amounts equivalent to
the expenses incurred by such officials in the
administration of section 101(a)(15)(H)(ii)(b)
and this section.
``(B) Reimbursement of emergency medical
services.--Any remaining amounts shall be
available on an annual basis to reimburse
hospitals for emergency medical services
furnished to H-2B aliens as provided in
subsection (k)(2).
``(5) Regulations.--The Attorney General shall
prescribe regulations to carry out this subsection.
``(j) Investment of Trust Fund.--
``(1) In general.--It shall be the duty of the
Secretary of the Treasury to invest such portion of the
Trust Fund as is not, in the Secretary's judgement,
required to meet current withdrawals. Such investments
may be made only in interest-bearing obligations of the
United States or in obligations guaranteed as to both
principal and interest by the United States. For such
purpose, such obligations may be acquired--
``(A) on original issue at the price; or
``(B) by purchase of outstanding obligations
at the market price.
The purposes for which obligations of the United States
may be issued under chapter 31 of title 31, United
States Code, are hereby extended to authorize the
issuance at par of special obligations exclusively to
the Trust Fund. Such special obligations shall bear
interest at a rate equal to the average rate of
interest, computed as to the end of the calendar month
next preceding the date of such issue, borne by all
marketable interest-bearing obligations of the United
States then forming a part of the public debt, except
that where such average rate is not a multiple of one-
eighth of 1 percent next lower than such average rate.
Such special obligations shall be issued only if the
Secretary of the Treasury determines that the purchase
of other interest-bearing obligations of the United
States, or of obligations guaranteed as to both
principal and interest by the United States on original
issue or at the market price, is not in the public
interest.
``(2) Sale of obligation.--Any obligation acquired by
the Trust Fund (except special obligations issued
exclusively to the Trust Fund) may be sold by the
Secretary of the Treasury at the market price, and such
special obligations may be redeemed at par plus accrued
interest.
``(3) Credits to trust fund.--The interest on, and
the proceeds from the sale or redemption of, any
obligations held in the Trust Fund shall be credited to
and form a part of the Trust Fund.
``(4) Report to congress.--It shall be the duty of
the Secretary of the Treasury to hold the Trust Fund,
and (after consultation with the Attorney General) to
report to the Congress each year on the financial
condition and the results of the operations of the
Trust Fund during the preceding fiscal year and on its
expected condition and operations during the next
fiscal year. Such report shall be printed as both a
House and a Senate document of the session of the
Congress to which the report is made.
``(k) Reimbursement of Cost of Emergency Medical Services.--
``(1) In general.--The Attorney General shall
establish procedures for reimbursement of hospitals
operated by a State or by a unit of local government
(or corporation owned or controlled by the State or
unit) for the reasonable cost of providing emergency
medical services (as defined by the Attorney General in
consultation with the Secretary of Health and Human
Services) in the United States to H-2B aliens for which
payment has not been otherwise reimbursed.
``(2) Source of funds for reimbursement.--Funds for
reimbursement of hospitals pursuant to paragraph (1)
shall be drawn--
``(A) first under subsection (i)(4)(B), from
amounts deposited in the Trust Fund under
subsection (i)(2)(A)(ii) after reimbursement of
certain administrative expenses; and
``(B) then under subsection (i)(3)(A), to the
extent that funds described in subparagraph (A)
are insufficient to meet valid claims, from
amounts deposited in the Trust Fund under
subsection (i)(2)(A)(i).
``(l) Miscellaneous Provisions.--
``(1) Applicability of labor laws.--Except as
provided in paragraphs (2), (3), and (4), all Federal,
State, and local labor laws (including laws affecting
migrant farm workers) applicable to United States
workers shall also apply to H-2B aliens.
``(2) Limitation of written disclosure imposed upon
recruiters.--Any disclosure required of recruiters
under section of 201(a) of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1821(a))
need not be given to H-2B aliens prior to the time
their visa is issued permitted entry into the United
States.
``(3) Exemption from fica and futa taxes.--The wages
paid to H-2B aliens shall be excluded from wages
subject to taxation under the Federal Unemployment Tax
Act and under the Federal Insurance Contributions Act.
``(4) Ineligibility for certain public benefits
programs.--
``(A) In general.--Notwithstanding any other
provision of law and except as provided in
subparagraph (B), any alien provided status as
an H-2B alien shall not be eligible for any
Federal or State or local means-tested public
benefit program.
``(B) Exceptions.--Subparagraph (A) shall not
apply to the following:
``(i) Emergency medical services.--
The provision of emergency medical
services (as defined by the Attorney
General in consultation with the
Secretary of Health and Human
Services).
``(ii) Public health immunizations.--
Public health assistance for
immunizations with respect to
immunizable diseases and for testing
and treatment for communicable
diseases.
``(iii) Short-term emergency disaster
relief.--The provision of non-cash, in-
kind, short-term emergency disaster
relief.
``(m) Consultation on Regulations.--
``(1) Regulations of the secretary.--The Secretary
shall consult with the Secretary of Agriculture, and
the Attorney General shall approve, all regulations
dealing with the approval of labor condition
attestations for H-2B aliens or enforcement of the
requirements for employing H-2B aliens under an
approved attestation.
``(2) Regulations of the attorney general.--The
Attorney General shall consult with the Secretary of
Agriculture on all regulations dealing with the
approval of petitions for admission or extension of
stay of H-2B aliens or the requirements for employing
H-2B aliens or the enforcement of such requirements.
``(n) Definitions.--For the purpose of this section:
``(1) Agricultural association.--The term
`agricultural association' means any nonprofit or
cooperative association of farmers, growers, or
ranchers incorporated or qualified under applicable
State law, which recruits, solicits, hires, employs,
furnishes, or transports any agricultural workers.
``(2) Agricultural employment.--The term
`agricultural employment' means any service or activity
included within the provisions of section 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or
section 3121(g) of the Internal Revenue Code of 1986
and the handling, planting, drying, packing, packaging,
processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural commodity
in its unmanufactured state.
``(3) Employer.--The term `employer' means any person
or entity, including any independent contractor and any
agricultural association, that employs workers.
``(4) H-2B alien.--The term `H-2B alien' means an
alien admitted to the United States or provided status
as a nonimmigrant under section 101(a)(15)(H)(ii)(b).
``(5) Qualified state employment security agency.--
The term `qualified State employment security agency'
means a State employment security agency in a State in
which the Secretary has determined that the State
operates a job service that actively seeks to match
agricultural workers with jobs and participates in a
multi-State job service program in States where
significant supplies of farm labor exist.
``(6) Secretary.--The term `Secretary' means the
Secretary of Labor.
``(7) United states worker.--The term `United States
worker' means any worker, whether a United States
citizen, a United States national, or an alien, who is
legally permitted to work in the job opportunity within
the United States other than aliens admitted pursuant
to this section.''
(b) Clerical Amendment.--The table of contents is amended by
inserting after the item relating to section 218 the following
new item:
``Sec. 218A. Alternative agricultural worker program.''.
Page 147, after line 5, insert the following:
(J)(i) Section 214(l)(2), as added by section
822(c), is amended by striking ``241(a)(1)(C)''
and inserting ``237(a)(1)(C)''.
(ii) Section 218A(c)(8)(B), as inserted by
section 823(a), is amended by striking
``deportation under section 241(a)(1)(C)(i)''
and inserting ``removal under section
237(a)(1)(C)(i)''.
Brief Summary
The Committee on Agriculture added a subtitle B to title
VIII of H.R. 2202. Subtitle B will modify the current temporary
agriculture worker program, commonly known as H-2A, by creating
an alternative program to be known as H-2B.
The new H-2B program will be a pilot program authorized for
the same three-year period as the verification system provided
for under section 274A of the Immigration and Nationality Act
(as amended by this Act). If Congress extends the verification
system, Congress shall also extend the H-2B pilot program for
the same period of time. No more than 250,000 aliens may be
admitted as H-2B workers in the first year of this program.
Each year thereafter, this limit shall be decreased by 25,000.
The new H-2B program will differ from H-2A in several key
areas.
Unlike H-2A, which requires a detailed and lengthy
application process, the H-2B program will require the employer
to file a Labor Condition Attestation with the State Employment
Security Agency in the area of intended employment. To be
accepted by the State Employment Security Agency, the
attestation must contain the following:
(a) The wage rate--the H-2B worker must be paid the
prevailing wage for similarly employed workers in the
area of employment;
(b) The H-2B worker will not adversely affect the
working conditions of similarly employed workers in the
area of employment;
(c) The job is seasonal or temporary, or will not
last more than 10 months in any 12-month period;
(d) The H-2B worker will not take a job that is
vacant because of a strike, lockout, or work stoppage;
(e) The employer has provided notice of the
attestation to domestic workers employed in the
occupation in which the H-2B worker will be employed;
(f) The employer will file a job order for the
occupation covered by the attestation no later than the
date on which the employer first employs any H-2B
worker; and
(g) The employer will give preference to any able,
willing, and qualified U.S. worker who applies and is
available the later of the first 25 days after the
filing of the job order or until 5 days before the date
the H-2B worker begins.
Under the current H-2A program the employer must pay the
higher of the prevailing wage or the ``Adverse Effect Wage
Rate.'' This rate is the average for all field and livestock
worker occupations in a particular region. Because it includes
all occupations, this wage often overstates the wage for many
occupations.
Under the H-2B program, the employer must pay the
prevailing wage. The prevailing wage will be determined by the
State Employment Security Agency if the employer requests.
Alternatively, the employer may determine the prevailing wage
by use of some other method which meets the criteria
established by the Secretary of Labor, such as an employer
generated wage survey. The prevailing wage may not be lower
than the minimum wage.
Under the current H-2A program, the employer must provide
housing for all workers needed, whether or not they all need
such housing.
Under the H-2B program, the employer must offer the H-2B
and U.S. workers recruited from beyond normal recruiting
distances housing if it is the prevailing practice in the
occupation and the area of intended employment.
If the employer must offer housing, the employer may do so
by offering the H-2B and U.S. workers a reasonable housing
allowance.
Under the current H-2A program, the employer must reimburse
the alien worker for transportation costs from the point of
hire to the workplace if the worker completes 50% of the
contract period.
Under the H-2B program, if the employer provides
transportation arrangements or assistance to H-2B workers, the
employer must provide similar assistance to U.S. workers in the
same occupation who were recruited from beyond a normal
commuting distance.
The Secretary of Labor is responsible for investigating and
acting on all complaints. An employer who submits false
information on an attestation or fails to pay the required
wages may be ordered to pay back wages or assessed a civil
penalty of up to $1000 for each failure. A second violation may
result in disqualification for up to 3 years, and a third
violation will result in permanent disqualification from the
program.
The employer shall withhold 25% of the H-2B worker's wages.
The withheld funds will be placed in a trust fund administered
by the Attorney General that can be accessed by the alien only
upon the alien's return to his or her home country.
Additionally, the employer shall pay to the trust fund an
amount equal to the Federal Unemployment Tax and the Federal
Insurance Contributions Act for the H-2B worker. These funds
will be used to reimburse the Attorney General, Secretary of
Labor, and the Secretary of State for the costs of
administering the H-2B program.
Each H-2B worker will be issued an identification card
which will contain a picture, identifying information, and
other biometric information, such as encrypted finger prints.
The alien must present this card and have his or her identity
verified before the alien can access the funds in the trust
account upon return to the alien's home country.
Purpose and Need
The week of March 19th, the House is expected to take up
consideration of comprehensive and sweeping immigration reform
legislation, H.R. 2202 ``The Immigration in the National
Interest Act of 1995''.
Earlier in the year, as the various committees began
consideration of H.R. 2202, the bill was additionally referred
to the House Committee on Agriculture as was the predecessor
bill, H.R. 1915. Many in the agriculture community believe it
is critically important that any immigration bill passed by the
Congress ensure a supply of temporary and seasonal workers for
American agriculture and that issue is addressed in subtitle B
of title VIII of H.R. 2202 as reported by the Committee.
A sizeable majority of the House Committee on Agriculture
acted to amend H.R. 2202 adding an enhancement to the current
H-2A guest worker program to be known as H-2B. Anticipating the
effects of H.R. 2202 on the agriculture labor supply the
committee cites the following justifications for reform of the
current agriculture guest worker program:
Hired labor is one of the most important and costly inputs
in farming. U.S. farmers spent $15 billion on hired labor
expenses in 1992--one of every eight dollars of farm production
expenses. For the labor intensive fruit, vegetable and
horticulture sector, labor accounts for 35 to 45 percent of
production costs.
The competitiveness of U.S. agriculture, especially the
fruit, vegetable and horticultural specialty sectors, depends
on the continued availability of hired labor at a reasonable
cost. U.S. farmers, including producers of labor intensive
perishable commodities, compete directly with producers in
other countries for market share in both U.S. and foreign
commodity markets.
The availability of adequate seasonal labor has enabled
U.S. producers to expand production and exports of labor
intensive commodities. This has created tens of thousands of
jobs for U.S. workers in ``upstream'' and ``downstream''
industries. Approximately three off-farm jobs depend directly
on each on-farm job.
Effective immigration control will significantly reduce the
supply of seasonal labor for U.S. agriculture, because many
seasonal agricultural workers currently employed in agriculture
are not legally entitled to work in the U.S., although they
possess documents employers are obligated to accept under
current law.
Employment of U.S. workers cannot be expanded to replace
the alien labor displaced by current immigration control
proposals. U.S. workers will always prefer regular over
seasonal employment, local over migratory work, and less
physically demanding, indoor work over more demanding manual
work in sometimes uncomfortable conditions.
U.S. farmworkers' wages will not be forced up by
eliminating alien labor, because growers' production costs are
capped by world market commodity prices. Instead, a reduction
in the work force available to agriculture will force U.S.
producers to reduce production to the level that can be
sustained by a smaller work force.
Reduced U.S. production of labor intensive agricultural
commodities will eliminate the jobs of U.S. workers in farming,
input production and services and product handling industries
that are dependent on the U.S. production.
The end result of failure to provide a legal temporary
alien worker program for U.S. agriculture will be to reduce
U.S. farm production and agribusiness employment, with little
or no change in domestic farmworker employment or wages.
Section-By-Section Analysis
section 821 short title
This Act may be cited as the ``Temporary Agriculture Worker
Amendments of 1996''.
section 822. new nonimmigrant h-2b category for temporary agricultural
workers
This section amends section 101 of the Immigration and
Nationality Act (INA) to divide the existing H-2A temporary
agricultural admission category into two categories: H-2A, the
current program, which is retained, and H-2B, the new program
established by this amendment. It redesignates the existing H-
2B temporary nonagricultural admission program as H-2C. The
section also excludes spouses and minor children of aliens
admitted under the newly created H-2B provisions from
derivative eligibility for admission. This section also
excludes aliens from participation in the program who are
convicted of ownership or operation of a motor vehicle in the
United States without insurance, and upon such a conviction of
an alien already in the United States, terminates the status of
the alien.
section 823. alternative temporary worker process using attestations
This section amends the INA by adding a new section 218A
establishing an alternative procedure for the admission of H-2
nonimmigrants to perform agricultural labor or services on a
temporary or seasonal basis, designated H-2B aliens.
Section 218A(a)--Condition for the employment of H-2B aliens
This subsection provides that an H-2B alien may not be
admitted unless the employment is covered by a Labor Condition
Attestation (LCA) filed by the employer or an association on
behalf of the employer for the occupation in which this alien
is to be employed. The attestation must be accepted by the
qualified State Employment Security Agency having jurisdiction
over the area of intended employment and must include the
statements specified in this subsection. The employer must not
have been disqualified from employing H-2B aliens. This section
lists the obligations to which an employer must attest on the
Labor Condition Application, which are spelled out more fully
in Subsection 218A(c). The H-2B program is a pilot program
authorized for the same three-year period as the verification
system provided for under section 274A of the Immigration and
Nationality Act (as amended by this Act). If Congress extends
the verification system, Congress shall also extend the H-2B
pilot program for the same period of time. No more than 250,000
aliens may be admitted as H-2B workers in the first year of
this program. Each year thereafter, this limit shall be
decreased by 25,000.
Section 218A(b)--Filing a labor condition attestation
This subsection sets out the process for filing and
withdrawing an LCA. Any employer in the U.S. is eligible to
file an LCA. Associations may file LCA's on behalf of employer
members who have agreed in writing to comply with the program
requirements. LCA's are filed with the qualified State
employment security agency having jurisdiction over the area of
intended employment of the H-2B alien. An LCA may be filed up
to 12 months prior to the employer's anticipated need for
workers and is valid for 12 months from the date it is accepted
by the qualified State employment security agency. LCA's may be
filed for a single occupation or multiple occupations.
Employers who file LCA's are required to maintain certain
documentation of their compliance with the program, and to make
this documentation available to the Secretary of Labor for
inspection. The attestation conditions apply from the time the
LCA is filed and continue through the period any persons are
employed in an occupation covered by an accepted LCA, unless
the LCA is withdrawn. An LCA may not be withdrawn while any H-
2B aliens are employed in an occupation covered by an LCA. Any
obligations incurred by an employer as a result of recruiting
U.S. workers under an offer of employment required by the LCA
are unaffected by withdrawal of an LCA.
Section 218A(c)--Employer responsibilities and requirements for
employing H-2B nonimmigrants
This subsection sets out the requirements for compliance
with the attestations set forth in subsection (a) and the
documentation the employer is required to maintain pursuant to
subsection (b).
Section 218A(c)(1) requires that employers pay at least the
prevailing wage in the occupation in the area of intended
employment in occupations covered by an LCA. Employers are not
required to pay all workers in the occupation the same way so
long as all workers are paid at least the prevailing wage.
Employers may request a prevailing wage determination from the
qualified State employment security agency, or may rely on a
wage survey, including an employer-generated survey, which
meets criteria specified by the Secretary of Labor. Employers
may utilize a different method of pay than that in which the
prevailing wage is expressed, but if an employer does so, the
burden of proof is on the employer to demonstrate that the
employer's method of pay is designed to produce earnings
equivalent to the earnings that would result from the
prevailing rate.
Section 218A(c)(2) requires that in complying with this
attestation the employer is required to offer housing or a
reasonable housing allowance to U.S. workers and H-2B aliens if
it is the prevailing practice in the occupation and area of
intended employment to offer housing or a housing allowance to
workers who are recruited from beyond normal commuting
distance. Housing provided may be either housing which meets
Federal farm labor housing standards or rental or other public
accommodation housing which meets applicable standards.
Employers may make a charge not greater than the employers'
actual cost for utilities and maintenance. Employers may
require a reasonable damage deposit, and an employer may
require occupants responsible for damage to reimburse the
employer the reasonable cost of repair.
This paragraph also requires employers to offer U.S.
workers the same transportation arrangements or assistance
(generally comparable in expense and scope) provided to H-2B
aliens.
This paragraph also requires employers whose employment is
not covered by a state workers' compensation law to provide
insurance covering work related injury and illness which
provides benefits at least equal to those provided under the
state workers' compensation law for comparable employment.
Section 218A(c)(3) requires that H-2B aliens be employed
only in job opportunities which are seasonal or temporary.
``Seasonal'' employment is of the kind exclusively performed at
certain seasons or periods of the year and which, from its
nature, may not be continuous or carried on throughout the
year. ``Temporary'' employment is employment not intended to
exceed 10 months.
Section 218A(c)(4) provides that no H-2B alien may be
employed in any job opportunity which is vacant because its
former occupant is involved in a strike, lockout, or work
stoppage in the course of a labor dispute in the occupation at
the place of employment.
Section 218A(c)(5) requires employers filing LCA's to
provide notice of the filing to the certified bargaining agent,
if any, or to post notice of the filing in conspicuous
locations where applications for employment are accepted.
Section 218A(c)(6) requires the employer to file the
information necessary to complete a local job order for each
occupation covered by an approved LCA with the local office of
the qualified State employment security agency having
jurisdiction over the area of intended employment of H-2B
aliens. The job order is required to be maintained on file for
25 calendar days or until 5 calendar days before the employers'
anticipated date of need for workers, whichever occurs later.
The job order must be filed no later than the day on which the
employer files a petition with the Immigration and
Naturalization Service (INS) for the admission or extension of
stay of H-2B aliens in the occupation.
Section 218A(c)(7) requires the employer to offer to employ
able, willing and qualified U.S. workers who apply to the
employer and who will be available at the time and place needed
for the job opportunities coved by an approved LCA for the
first 25 days after a job order for the occupation is filed or
until 5 days before the anticipated date of need for workers,
whichever occurs later. The employer may fill vacancies that
occur after the expiration of this U.S. worker preference
period without regard to the preference. The employer is not
required to employ or to continue the employment of a worker
who fails to meet lawful job-related employment requirements,
including a minimum productivity standard after a 3-day break-
in period.
Section 218A(c)(8) requires employers to notify the INS
within 7 days if an H-2B alien terminates employment and
provides that under such circumstances the alien will be deemed
out of status and subject to removal or deportation.
Section 218A(d)--Acceptance by qualified State employment security
agency
This subsection provides that the qualified Statement
employment security agency review LCA's only for completeness
and obvious inaccuracies and unless the application is
incomplete or obviously inaccurate the agency must mark it
``accepted'' and return a copy to the employer within 7 days of
filing.
Section 218A(e)--Public registry
This subsection requires the Secretary of Labor to maintain
a public registry of all accepted LCA's.
Section 218A(f)--Responsibilities of the qualified State employment
security agency
This subsection requires the Secretary of Labor to direct
the qualified State employment Security agency to disseminate
non-employer-specific information about potential labor needs
based on accepted LCA's without requiring filing of intra- or
interstate job orders. The subsection also authorizes the
qualified State employment Security agency to refer any able,
willing and qualified eligible job applicant, including H-2B
aliens whose eligibility to remain in the United States has not
expired, on job orders filed by holders of accepted LCA's.
Section 218A(g)--Enforcement and penalties
This subsection requires the Secretary of Labor to
establish a process for the receipt, investigation and
disposition of complaints respecting an employer's failure to
comply with a condition of the H-2B program. Complaints may be
filed by any aggrieved person or organization, including
bargaining representatives. The Secretary is required to
investigate complaints for which there is reasonable cause to
believe that a violation occurred. The Subsection also provides
for penalties upon a final determination that a violation has
occurred. Penalties include back wages, civil money penalties
and/or debarment from the program for up to one year. An
employer who commits a second violation of willfully failing to
pay required wages will be disqualified from the program for 3
years. An employer who commits a third violation of willfully
failing to pay the required wage will be permanently debarred
from participation in the program. If an employer who is a
member of an association is determined to have committed a
violation, the penalty applies to the employer. If an
association which employs workers directly is determined to
have committed a violation, the penalty applies to the
association. However if the association is disqualified from
employing H-2B aliens, no member of the association may be the
beneficiary of the services of an H-2B alien unless the
employer files an LCA individually or through an association
with which the employer has an agreement that the employer will
comply with the requirements of the program.
Section 218A(h)--Procedures for admission or extension of H-2B aliens
This subsection provides that petitions for admission of H-
2B aliens are filled with the District Director of the INS
having jurisdiction over the location where the aliens will be
employed. Petitions may be for named or unnamed beneficiaries.
If the petition is correctly filled out and the employer is not
ineligible to employ H-2B aliens, the District Director must
approve the petition within 3 working days. A copy of the
approved petition is transmitted to the visa issuing consulate
and the port of entry. The petitioning employer must approve
the issuance of visas to aliens who are unnamed beneficiaries
of petitions. Aliens must be admissible under the INA and must
not be debarred from participating in the H-2B program. Aliens
are admitted for the period requested by the petitioner, but
not to exceed 10 months or the remaining validity period of the
petition's LCA, whichever is less, plus an additional 14 days
during which the alien may make himself available for
additional authorized H-2B employment. H-2B aliens must be
issued a tamper- and counterfeit-resistant identification and
employment authorization card. An employer may employ an H-2B
alien who is already in the U.S. and who has completed his
previous authorized period of employment and who is eligible to
remain in the U.S. by filing a request for an extension of stay
with the INS. The maximum continuous period of stay for an H-2B
alien is 2 years.
Section 218A(i)--Trust fund to assure worker return
This subsection requires employers to withhold 25 percent
of the wages of H-2B aliens to be paid into a trust fund. H-2B
aliens may apply for the amount held in the trust fund on their
behalf by establishing that the worker complied with the terms
and conditions of the program and tendering the worker's
identity and employment authorization card. Claims by public
hospitals for reimbursement of emergency medical services in
excess of those reimbursed by the user-fee trust fund
(described in the paragraph below) would also be paid out of
the wage withholding trust fund. Employers are also required to
pay into the trust fund an amount equivalent to the Federal tax
on the wages paid to H-2B aliens that the employer would be
obligated to pay under the Federal Unemployment Tax Act (FUTA)
and the Federal Insurance Contributions Act (FICA). Payments
out of this trust fund will be made to the Attorney General,
the Secretary of Labor and the Secretary of State, for
reimbursement of expenses incurred in the administration of the
program. Remaining funds are available for the Attorney General
to reimburse public hospitals for unreimbursed costs of
providing emergency medical services to H-2B aliens.
Section 218A(j)--Investment of trust fund
This subsection prescribes how the funds in the trust fund
established by subsection (i) shall be invested and requires
the Secretary of the Treasury to report annually to the
Congress on the financial condition of the fund and the results
of the previous year's operation.
Section 218A(k)--Reimbursement of cost of emergency medical services
This subsection provides that the Attorney General shall
establish procedures for reimbursement of public hospitals for
the reasonable cost of providing emergency medical services to
H-2B aliens for which payment has not been otherwise made.
Funds for the reimbursement will be drawn from those remaining
in the user-fee trust fund after reimbursement of
administrative costs of the program. To the extent that
sufficient funds are not available from the user-fee trust
fund, reimbursements will be made from the wage withholding
trust fund.
Section 218A(l)--Miscellaneous provisions
This subsection provides: (1) That all Federal, State and
local labor laws applicable to U.S. workers shall be applicable
to H-2B aliens; (2) provides that written disclosures required
to be provided by the Migrant and Seasonal Agricultural Worker
Protection Act may be made to aliens under this program at the
time their visa is issued prior to entry into the United
States; (3) exempts the wages paid to H-2B aliens from taxation
under the FICA and the FUTA; and (4) makes H-2B aliens
ineligible for any Federal, State or local means-tested public
benefit program except noncash, in-kind emergency assistance
(including emergency medical services), and public health
immunizations.
Section 218A(m)--Consultation on regulations
This subsection provides that the Secretary of Labor shall
consult with the Secretary of Agriculture and that the Attorney
General shall approve all regulations dealing with approval of
LCA's for H-2B aliens or enforcement of the requirements for
employing H-2B aliens. It also provides that the Attorney
General shall consult with the Secretary of Agriculture on all
regulations dealing with the approval of petitions for
admission or extension of stay of H-2B aliens or the
requirements for employing H-2B aliens or for the enforcement
of such requirements.
Section 218A(n)--Definitions
This subsection defines terms used in the Act.
Committee Consideration
I. Hearings
On December 14, 1995, the Full Committee on Agriculture and
the Subcommittee on Risk Management and Specialty Crops held a
joint hearing with the Subcommittee on Immigration and Claims
of the Committee on the Judiciary.
Chairman Roberts called the joint meeting to order for the
purpose of reviewing the agriculture guest worker programs to
assure that agricultural producers can secure the services of a
sufficient number of seasonal workers during critical harvest
times.
There was a great deal of interest expressed by the Members
of the Committee on this issue and their prepared opening
statements can be found printed in Hearing Serial No. 104-24.
Shortly after opening statements, Chairman Roberts
adjourned the Full Committee so that the joint hearing between
the Subcommittee on Risk Management and Specialty Crops and the
Judiciary Subcommittee on Immigration and Claims could begin
with the prepared testimony and questioning of witnesses.
The Subcommittees received testimony from the following
witnesses: Dr. Keith J. Collins, USDA; Mr. C. Stan Eury,
President, North Carolina Growers Association on behalf of the
American Association of Nurserymen and National Council of
Agricultural Employers; Mr. Bruce Goldstein, Attorney,
Farmworker Justice Fund; Dr. James S. Holt, Senior Economist,
McGuiness & Williams on behalf of the National Council of
Agricultural Employers; Ms. Delores Huerta, First Vice
President, United Farm Workers Union; Dr. Mark J. Miller,
Department of Political Science and International Relations,
University of Delaware; Mr. Russell L. Williams, Agricultural
Producers; Mr. Steve Appel, Washington State Farm Bureau on
behalf of the American Farm Bureau Federation; Mr. Israel Baez,
Manager of Employee Relations, A. Duda and Sons, Inc.; Mr.
Robert Dasher on behalf of Vidalia Onion Business Council; Mr.
John R. Hancock, former Chief of Agricultural Labor
Certification, U.S. Department of Labor; and Mr. Chandler Keys,
Senior Director Congressional Relations, National Cattlemen's
Association.
II. Full Committee Consideration
The Committee on Agriculture met, pursuant to notice, on
March 5, 1996, the matter having been held at the Full
Committee, a quorum being present, to consider the bill H.R.
2202, the ``Immigration in the National Interest Act of 1995.''
The Chairman called the meeting to order at 2:15 p.m. and
after giving Members permission to submit statements for the
record, stated that the Committee would consider an amendment
being offered by Mr. Pombo, which would add a Subtitle B to
Title VIII of H.R. 2202 regarding temporary agricultural guest
workers, and that it would be considered as original text for
purposes of amendment.
The Chairman also stressed the need for the Committee to
take action on agricultural issues relevant to immigration
reform. It was further noted that H.R. 2202 has been reported
by the Committee on the Judiciary and was scheduled for House
Floor consideration on March 19, 1996.
Without objection, the amendment offered by Mr. Pombo was
laid before the Committee and was considered as original text
for purposes of amendment. A section-by-section analysis of the
amendment was also made available to each Member at the
rostrum.
Thereafter, Mr. Volkmer made a motion that the Committee
postpone indefinitely consideration of the Pombo amendment, and
requested a show-of-hands vote on the motion. The Chairman
reiterated the need for the Committee to claim its jurisdiction
on the measure and the need to report the measure in order that
the bill H.R. 2202 could be considered on the House Floor by
March 19. Discussion occurred and by a show of hands, 16 years
to 22 nays, the Volkmer motion was not agreed to.
Mr. Goodlatte was then recognized to offer and explain an
amendment that would convert the Pombo guest worker amendment
into a three-year program designed to last as long as the
employment eligibility confirmation telephone verification
system which is implemented by H.R. 2202.
Discussion continued on the Goodlatte amendment with Mr.
Pombo offering a verbal amendment which would tie the
reauthorization of the pilot program to the reauthorization of
the verification number, and the H-2B program would be
authorized for the length of time that the verification number
as noted in the preceding paragraph would be authorized. Mr.
Goodlatte indicated that he would accept the Pombo verbal
amendment, which without objection, it was adopted.
Further discussion occurred on the Goodlatte amendment and
without objection, the Goodlatte amendment, as amended by the
verbal Pombo amendment, was adopted.
Mr. Goodlatte then offered and explained an amendment that
would place a cap on the number of alien guest workers who can
come into the country at 250,000 in the first year, with a
reduction of 25,000 in each subsequent year. Discussion
occurred and by a recorded vote of 24 yeas to 13 nays, with 1
voting present, the amendment was adopted. See Rollcall Vote
No. 1.
Mr. Farr was then recognized to offer and explain an
amendment regarding State farm worker guarantees of minimum
labor standards. Lengthy discussion occurred on the amendment
with Mr. Gunderson pointing out that there appeared to be an
error in the provision concerning overtime pay and that the
words ``per day'' should be inserted after the word ``hours''.
Mr. Farr then requested by unanimous consent that the amendment
be changed and without objection, the amendment was corrected.
Further discussion and questions occurred on the Farr
amendment with Mr. Latham, Mr. Pomeroy and Mr. Condit making
inquiries concerning the amendment. Mr. Pomeroy expressed his
opinion that with respect to the question of unfunded mandates
issues that it is nonexistent with respect to the Farr
amendment because it is part of a program that a State may opt
into or out of. Mr. Farr, noting that he hoped his amendment
and its discussion brought to light some problems with the bill
as regards below minimum standards for farm workers addressed
by his amendment, and the amendment was withdrawn.
Mr. Farr then offered and explained an amendment regarding
multi-State recruitment in States which operate a job service
program to insure that domestic workers are considered first
for the jobs before bringing in guest workers. Mr. Pombo noted
that the amendment would require participating agricultural
employers to file job orders with the local Job Service and
would require the Department of Labor to designate nonemployer-
specific information about potential labor needs. Mr. Pombo
further stated that the amendment would not severely change any
of the provisions of the underlying amendment and by a voice
vote the Farr amendment was adopted.
Mr. Combest was then recognized and moved that H.R. 2202,
as amended, be adopted and reported favorably to the House with
the recommendation that it do pass. Mr. Volkmer requested a
rollcall vote, but before the rollcall vote had been completed,
the Chairman noted a parliamentary oversight that had occurred
because a motion had not been made to approve the Pombo
amendment, as amended. The Chairman then requested by unanimous
consent to vacate the rollcall vote, then in progress, and to
proceed by approving the Pombo amendment, as amended. Without
objection, the vote as vacated.
The Chairman then asked for a voice vote on the Pombo
amendment, as amended. Mr. Volkmer requested a rollcall vote
and by a recorded vote of 25 yeas and 14 nays, with 1 voting
present, the Pombo amendment was adopted. See Rollcall Vote No.
2.
Without objection, it was agreed to record Messrs. Minge
and Combest as they were recorded on the aforementioned vacated
vote.
Mr. Roberts then moved that the bill H.R. 2202, as amended,
be adopted and reported favorably to the House. By a recorded
vote of 28 yeas to 11 nays, with 1 voting present, and in the
presence of a quorum, H.R. 2202, as amended, was ordered
favorably reported to the House. See Rollcall Vote No. 2.
Mr. Minge was then recognized and requested unanimous
consent that the record show that he initially voted against
the Pombo amendment and that was his position on the revote as
well. Without objection, Mr. Minge and Mr. Combest were
recorded on the vote of the Pombo amendment as they were
recorded on the vacated vote.
Mr. Roberts then made a motion to authorize the Chairman to
offer such motions as may be necessary in the House to go to
conference with the Senate on H.R. 2202 or a similar Senate
bill.
Mr. Hilliard requested a rollcall on the motion, but there
was an insufficient number of Members in favor of a rollcall
vote.
Mr. de la Garza was then recognized and gave notice of the
intent of the Minority to file additional minority, or
supplementing views.
Without objection, staff was given permission to make such
technical, clarifying, or conforming changes as are appropriate
without changing the substance of the legislation.
The Chairman then thanked the Members and adjourned the
meeting subject to the call of the chair.
rollcall votes
In compliance with clause 2(l)(2)(B) of rule XI of the
House of Representatives, the Committee sets forth the record
of the following rollcall votes taken with respect to H.R.
2202:
Rollcall No. 1
Summary: Cap on the number of alien guest workers who can
come into the country at 250,000 in the first year with a
reduction of 25,000 in each subsequent year.
Offered By: Mr. Goodlatte.
Results: Adopted to rollcall vote: 24 yeas/13 nays/1
present/10 not voting.
Yeas: Cong. Combest, Cong. Allard, Cong. Barrett, Cong.
Ewing, Cong. Goodlatte, Cong. Canady, Cong. Smith, Cong. Lucas,
Cong. Hostettler, Cong. Bryant, Cong. Latham, Cong. Foley,
Cong. Stenholm, Cong. Volkmer, Cong. Clayton, Cong. Minge,
Cong. Hilliard, Cong. Pomeroy, Cong. Thurman, Cong. Bishop,
Cong. Thompson, Cong. Farr, Cong. Pastor, and Cong. Baldacci.
Nays: Cong. Gunderson, Cong. Doolittle, Cong. Pombo, Cong.
Everett, Cong. Lewis, Cong. Baker, Cong. Calvert, Cong. Cooley,
Cong. Chambliss, Cong. LaHood, Cong. Condit, Cong. Dooley, and
Cong. Roberts, Chairman.
Present: Cong. de la Garza.
Not voting: Cong. Emerson, Cong. Boehner, Cong. Crapo,
Cong. Chenoweth, Cong. Brown, Cong. Rose, Cong. Johnson, Cong.
Peterson, Cong. Holden, and Cong. Baesler.
Rollcall No. 2
Summary: Adding a Subtitle B to Title VII regarding
temporary agricultural guest workers. The Pombo amendment, as
amended.
Offered By: Mr. Pombo.
Results: Adopted by a rollcall vote: 25 yeas/14 nays/1
present/8 not voting.
Yeas: Cong. Gunderson, Cong. Allard, Cong. Barrett, Cong.
Boehner, Cong. Ewing, Cong. Doolittle, Cong. Pombo, Cong.
Canady, Cong. Smith, Cong. Everett, Cong. Lucas, Cong. Lewis,
Cong. Baker, Cong. Crapo, Cong. Calvert, Cong. Bryant, Cong.
Latham, Cong. Cooley, Cong. Foley, Cong. Chambliss, Cong.
LaHood, Cong. Condit, Cong. Dooley, Cong. Bishop, and Cong.
Roberts, Chairman.
Nays: Cong. Goodlatte, Cong. Hostettler, Cong. de la Garza,
Cong. Stenholm, Cong. Volkmer, Cong. Peterson, Cong. Clayton,
Cong. Minge, Cong. Hilliard, Cong. Pomeroy, Cong. Thompson,
Cong. Farr, Cong. Pastor, and Cong. Baldacci.
Present: Cong. Thurman.
Not voting: Cong. Emerson, Cong. Combest, Cong. Chenoweth,
Cong. Brown, Cong. Rose, Cong. Johnson, Cong. Holden, and Cong.
Baesler.
Rollcall No. 3
Summary: Final Passage H.R. 2202, as amended.
Offered By: Mr. Roberts.
Results: Adopted by a rollcall vote: 28 yeas/11 nays/1
present/8 not voting.
Yeas: Cong. Gunderson, Cong. Allard, Cong. Barrett, Cong.
Boehner, Cong. Ewing, Cong. Doolittle, Cong. Goodlatte, Cong.
Pombo, Cong. Canady, Cong. Smith, Cong. Everett, Cong. Lucas,
Cong. Lewis, Cong. Baker, Cong. Crapo, Cong. Calvert, Cong.
Bryant, Cong. Latham, Cong. Cooley, Cong. Foley, Cong.
Chambliss, Cong. LaHood, Cong. Stenholm, Cong. Condit, Cong.
Peterson, Cong. Minge, Cong. Baldacci, and Cong. Roberts,
Chairman.
Nays: Cong. de la Garza, Cong. Volkmer, Cong. Dooley, Cong.
Clayton, Cong. Hilliard, Cong. Pomeroy, Cong. Thurman, Cong.
Bishop, Cong. Thompson, Cong. Farr, and Cong. Pastor.
Present: Cong. Hostettler.
Not voting: Cong. Emerson, Cong. Combest, Cong. Chenoweth,
Cong. Brown, Cong. Rose, Cong. Johnson, Cong. Holden, and Cong.
Baesler.
Budget Act Compliance (Section 308 and Section 403)
The provisions of clause 2(l)(3)(B) of rule XI of the Rules
of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 (relating to estimates of new
budget authority, new spending authority, or new credit
authority, or increased or decreased revenues or tax
expenditures) are not considered applicable. The estimate and
comparison required to be prepared by the Director of the
Congressional Budget Office under clause 2(l)(3)(C) of rule XI
of the Rules of the House of Representatives and section 403 of
the Congressional Budget Act of 1974 were not received by the
Committee prior to the filing of this report and is not
included herein.
However, on March 7, 1996, and without objection, the
Committee on Agriculture received permission to file a
supplemental report containing such estimate by a unanimous
consent request obtained on the House Floor. It is the
Committee's intent to include in a supplemental report the
Congressional Budget Office cost estimate on H.R. 2202, as
amended.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that
enactment of H.R. 2202, as amended, will have no inflationary
impact on the national economy.
Oversight Statement
No summary of oversight findings and recommendations made
by the Committee on Government Reform and Oversight under
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives was available to the Committee with reference
to the subject matter specifically addressed by H.R. 2202, as
amended.
No specific oversight activities other than the hearings
detailed in this report were conducted by the Committee within
the definition of clause 2(b)(1) of rule X of the Rules of the
House of Representatives.
Changes in Existing Law Made by the Bill, as Reported
The bill was referred to this committee for consideration of
such provisions of the bill as fall within the jurisdiction of
this committee pursuant to clause 1(a) of Rule X of the Rules
of the House of Representatives. The changes made to existing
law by the amendment reported by the Committee on the Judiciary
are shown in the report filed by that committee (Rept. 104-469,
Part 1).
For the information of the Members of the House of
Representatives, changes made by the amendment made by this
committee to existing law are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
TABLE OF CONTENTS
* * * * * * *
Title II--Immigration
* * * * * * *
chapter 2--qualifications for admission of aliens; travel control of
citizens and aliens
Sec. 211. Documentary requirements.
Sec. 212. General classes of aliens ineligible to receive visas and
excluded from admission; waivers of inadmissibility.
Sec. 213. Admission of certain aliens on giving bond.
* * * * * * *
Sec. 218A. Alternative agricultural worker program.
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(15) The term ``immigrant'' means every alien except an alien
who is within one of the following classes of nonimmigrant
aliens--
(A) * * *
* * * * * * *
(H) an alien (i)(a) who is coming temporarily to the
United States to perform services as a registered
nurse, who meets the qualifications described in
section 212(m)(1), and with respect to whom the
Secretary of Labor determines and certifies to the
Attorney General that an unexpired attestation is on
file and in effect under section 212(m)(2) for each
facility (which facility shall include the petitioner
and each worksite, other than a private household
worksite, if the worksite is not the alien's employer
or controlled by the employer) for which the alien will
perform the services, or (b) subject to section
212(j)(2), who is coming temporarily to the United
States to perform services (other than services
described in subclause (a) during the period in which
such subclause applies and other than services
described in subclause (ii)(a) or in subparagraph (O)
or (P)) in a specialty occupation described in section
214(i)(1) or as a fashion model, who meets the
requirements for the occupation specified in section
214(i)(2) or, in the case of a fashion model, is of
distinguished merit and ability, and with respect to
whom the Secretary of Labor determines and certifies to
the Attorney General that the intending employer has
filed with the Secretary an application under section
212(n)(1); or (ii)(a) having a residence in a foreign
country which he has no intention of abandoning who is
coming temporarily to the United States to perform
agricultural labor or services, as defined by the
Secretary of Labor in regulations and including
agricultural labor defined in section 3121(g) of the
Internal Revenue Code of 1954 and agriculture as
defined in section 3(f) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal
nature, [or (b)] (b) having a residence in a foreign
country which he has no intention of abandoning who is
coming temporarily to the United States pursuant to
section 218A to perform such agricultural labor or
services of a temporary or seasonal nature, or (c)
having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to
the United States to perform other temporary service or
labor if unemployed persons capable of performing such
service or labor cannot be found in this country, but
this clause shall not apply to graduates of medical
schools coming to the United States to perform services
as members of the medical profession; or (iii) having a
residence in a foreign country which he has no
intention of abandoning who is coming temporarily to
the United States as a trainee, other than to receive
graduate medical education or training, in a training
program that is not designed primarily to provide
productive employment; and the alien spouse and minor
children of any such alien [specified in this
paragraph] specified in this subparagraph (other than
in clause (ii)(b)) if accompanying him or following to
join him;
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
admission of nonimmigrants
Sec. 214. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(5)(A) In the case of an alien who is provided
nonimmigrant status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(H)(ii)[(b)](c) and who is dismissed from employment
by the employer before the end of the period of authorized
admission, the employer shall be liable for the reasonable
costs of return transportation of the alien abroad.
* * * * * * *
(g)(1) The total number of aliens who may be issued visas
or otherwise provided nonimmigrant status during any fiscal
year (beginning with fiscal year 1992)--
(A) under section 101(a)(15)(H)(i)(b) may not exceed
65,000, or
(B) under section 101(a)(15)(H)(ii)[(b)](c) may not
exceed 66,000.
* * * * * * *
(l)(1) An alien may not be admitted (or provided status) as a
temporary worker under section 101(a)(15)(H)(ii)(b) if the
alien (after the date of the enactment of this subsection) has
been convicted of owning (or knowingly operating) a motor
vehicle in the United States without having liability insurance
that meets applicable insurance requirements of the State in
which the alien is employed or in which the vehicle is
registered.
(2) An alien who is admitted or provided status as such a
worker who is so convicted shall be considered, on and after
the date of the conviction and for purposes of section
237(a)(1)(C), to have failed to comply with a condition for the
maintenance of status under section 101(a)(15)(H)(ii)(b).
* * * * * * *
alternative agricultural temporary worker program
Sec. 218A. (a) Condition for the Employment of H-2B Aliens.--
(1) In general.--No alien may be admitted or provided
status as an H-2B alien (as defined in subsection
(n)(4)) unless--
(A) the employment of the alien is covered by
a currently valid labor condition attestation
which--
(i) is filed by the employer, or by
an association on behalf of the
employer, for the occupation in which
the alien will be employed;
(ii) has been accepted by the
qualified State employment security
agency having jurisdiction over the
area of intended employment; and
(iii) states each of the items
described in paragraph (2) and includes
information identifying the employer or
association and agricultural job
opportunities involved; and
(B) the employer is not disqualified from
employing H-2B aliens pursuant to subsection
(g).
(2) Contents of labor condition attestation.--Each
labor condition attestation filed by or on behalf of,
an employer shall include the following:
(A) Wage rate.--The employer will pay H-2B
aliens and all other workers in the occupation
not less than the prevailing wage for similarly
employed workers in the area of employment, and
not less than the applicable Federal, State or
local statutory minimum wage.
(B) Working conditions.--The employment of H-
2B aliens will not adversely affect the working
conditions with respect to housing and
transportation of similarly employed workers in
the area of employment.
(C) Limitation on employment.--An H-2B alien
will not be employed in any job opportunity
which is not temporary or seasonal, and will
not be employed by the employer in any job
opportunity for more than 10 months in any 12-
consecutive-month period.
(D) No labor dispute.--No H-2B alien will be
employed in any job opportunity which is vacant
because its former occupant is involved in a
strike, lockout or work stoppage in the course
of a labor dispute in the occupation at the
place of employment.
(E) Notice.--The employer, at the time of
filing the attestation, has provided notice of
the attestation to workers employed in the
occupation in which H-2B aliens will be
employed.
(F) Job orders.--The employer will file one
or more job orders for the occupation (or
occupations) covered by the attestation with
the qualified State employment security agency
no later than the day on which the employer
first employs any H-2B aliens in the
occupation.
(G) Preference to domestic workers.--The
employer will give preference to able, willing
and qualified United States workers who apply
to the employer and are available at the time
and place needed, for the first 25 days after
the filing of the job order in an occupation or
until 5 days before the date employment of
workers in the occupation begins, whichever
occurs later.
(3) Establishment as pilot program; restriction of
admissions to pilot program period.--
(A) In general.--The program under this
section is deemed to be a pilot program and no
alien may be admitted or provided status as an
H-2B alien under this section except during the
pilot program period specified in subparagraph
(B).
(B) Pilot program period.--
(i) In general.--Subject to clause
(ii), the pilot program period under
this subparagraph is the period (ending
on October 1, 1999) during which the
employment eligibility verification
system is in effect under section
274A(b)(7) (as amended by the
Immigration in the National Interest
Act of 1995).
(ii) Consideration of extension.--If
Congress extends such verification
system, Congress shall also extend the
pilot program period under this
subparagraph for the same period of
time.
(C) Annual reports.--The Comptroller General
shall submit to Congress annual reports on the
operation of the pilot program under this
section during the pilot program period. Such
reports shall include an assessment of the
program and of the need for foreign workers to
perform temporary agricultural employment in
the United States.
(4) Limitations on number of visas.--
(A) In general.--In no case may the number of
aliens who are admitted or provided status as
an H-2B alien in a fiscal year exceed the
numerical limitation specified under
subparagraph (B) for that fiscal year.
(B) Numerical limitation.--The numerical
limitation specified in this subparagraph for--
(i) the first fiscal year in which
this section is applied is 250,000; and
(ii) any subsequent fiscal year is
the numerical limitation specified in
this subparagraph for the previous
fiscal year decreased by 25,000.
(b) Filing a Labor Condition Attestation.--
(1) Filing by employers--Any employer in the United
States is eligible to file a labor condition
attestation.
(2) Filing by associations on behalf of employer
members.--An agricultural association may file a labor
condition attestation as an agent on behalf of its
members. Such an attestation filed by an agricultural
association acting as an agent for its members, when
accepted, shall apply to those employer members of the
association that the association certifies to the
qualified State employment security agency are members
of the association and have agreed in writing to comply
with the requirements of this section.
(3) Period of validity.--A labor condition
attestation is valid from the date on which it is
accepted by the qualified State employment security
agency for the period of time requested by the
employer, but not to exceed 12 months.
(4) Where to file.--A labor condition attestation
shall be filed with such agency having jurisdiction
over the area of intended employment of the workers
covered by the attestation. If an employer, or the
members of an association of employers, will be
employing workers in an area or areas covered by more
than one such agency, the attestation shall be filed
with each such agency having jurisdiction over an area
where the workers will be employed.
(5) Deadline for filing.--An employer may file a
labor condition attestation at any time up to 12 months
prior to the date of the employer's anticipated need
for workers in the occupation (or occupations) covered
by the attestation.
(6) Filing for multiple occupations.--A labor
condition attestation may be filed for one or more
occupations and cover one or more periods of
employment.
(7) Maintaining required documentation.--
(A) By employers.--Each employer covered by
an accepted labor condition attestation must
maintain a file of the documentation required
in subsection (c) for each occupation included
in an accepted attestation covering the
employer. The documentation shall be retained
for a period of one year following the
expiration of an accepted attestation. The
employer shall make the documentation available
to representatives of the Secretary during
normal business hours.
(B) By associations.--In complying with
subparagraph (A), documentation maintained by
an association filing a labor condition
attestation on behalf of an employer shall be
deemed to be maintained by the employer.
(8) Withdrawal.--
(A) Compliance with attestation
obligations.--An employer covered by an
accepted labor condition attestation for an
occupation shall comply with the terms and
conditions of the attestation from the date the
attestation is accepted and continuing
throughout the period any persons are employed
in an occupation covered by such an accepted
attestation, whether or not H-2B aliens are
employed in the occupation, unless the
attestation is withdrawn.
(B) Termination of obligations.--An employer
may withdraw a labor condition attestation in
total, or with respect to a particular
occupation covered by the attestation. An
association may withdraw such an attestation
with respect to one or more of its members. To
withdraw an attestation the employer or
association must notify in writing the
qualified State employment security agency
office with which the attestation was filed of
the withdrawal of the attestation. An employer
who withdraws an attestation, or on whose
behalf an attestation is withdrawn by an
association, is relieved of the obligations
undertaken in the attestation with respect to
the occupation (or occupations) with respect to
which the attestation was withdrawn, upon
acknowledgement by the appropriate qualified
State employment security agency of receipt of
the withdrawal notice. An attestation may not
be withdrawn with respect to any occupation
while any H-2B aliens covered by that
attestation are employed in the occupation.
(C) Obligations under other statutes.--Any
obligation incurred by the employer under any
other law or regulation as a result of
recruitment of United States workers under an
offer of terms and conditions of employment
required by the H-2B program is unaffected by
withdrawal of a labor condition attestation.
(c) Employer Responsibilities and Requirements For Employing
H-2B Nonimmigrants.--
(1) Requirement to pay the prevailing wage.--
(A) Effect of the attestation.--Employers
shall pay each worker in an occupation covered
by an accepted labor condition attestation at
least the prevailing wage in the occupation in
the area of intended employment. The preceding
sentence does not require employers to pay all
workers in the occupation the same wage. The
employer may, in the sole discretion of the
employer, maintain pay differentials based on
experience, tenure with the employer, skill, or
any other work-related factor, if the
differential is not based on a criterion for
which discrimination is prohibited by the law
and all workers in the covered occupation
receive at least the prevailing wage.
(B) Payment of qualified state employment
security agency determined wage sufficient.--
The employer may request and obtain a
prevailing wage determination from the
qualified State employment security agency. If
the employer requests such a determination, and
pays the wage determined, such payment shall be
considered sufficient to meet the requirement
of this paragraph if the H-2B workers--
(i) are employed in the occupation
for which the employer possesses an
accepted labor condition attestation,
and for which the employer or
association possesses a prevailing wage
determination by the qualified State
employment security agency, and
(ii) are being paid at least the
prevailing wage so determined.
(C) Reliance on wage survey.--In lieu of the
procedures of subparagraph (B), an employer may
rely on other information, such as an employer
generated prevailing wage survey and
determination, which meets criteria specified
by the Secretary by regulation. In the event of
a complaint that the employer has failed to pay
the required wage, the Secretary shall
investigate to determine if the information
upon which the employer relied complied with
the criteria for prevailing wage
determinations.
(D) Alternate methods of payment permitted.--
(i) In general.--A prevailing wage
may be expressed as an hourly wage, a
piece rate, a task rate (described in
clause (ii)), or other incentive pay
system, including a group rate
(described in clause (iii)). The
requirement to pay at least the
prevailing wage in the occupation and
area of intended employment does not
require an employer to pay by the
method of pay in which the prevailing
rate is expressed. However, if the
employer adopts a method of pay other
than the prevailing rate, the burden of
proof is on the employer to demonstrate
that the employer's method of pay is
designed to produce earnings equivalent
to the earnings that would result from
payment of the prevailing rate.
(ii) Task rate.--For purposes of this
subparagraph, a task rate is an
incentive payment based on a unit of
work performed such that the incentive
rate varies with the level of effort
required to perform individual units of
work.
(iii) Group rate.--For purposes of
this subparagraph, a group rate is an
incentive payment system in which the
payment is shared among a group of
workers working together to perform the
task.
(E) Required documentation.--The employer or
association shall document compliance with this
paragraph by retaining on file the employer or
association's request for a determination by a
qualified State employment security agency and
the prevailing wage determination received from
such agency or other information upon which the
employer or association relied to assure
compliance with the prevailing wage
requirement.
(2) Requirement to provide housing and
transportation.--
(A) Effect of the attestation.--The
employment of H-2B aliens shall not adversely
affect the working conditions of United States
workers similarly employed in the area of
intended employment. The employer's obligation
not to adversely affect working conditions
shall continue for the duration of the period
of employment by the employer of any H-2B
aliens in the occupation and area of intended
employment. An employer will be deemed to be in
compliance with this attestation if the
employer offers at least the benefits required
by subparagraphs (B) through (D). The previous
sentence does not require an employer to offer
more than such benefits.
(B) Housing required.--
(i) Housing offer.--The employer must
offer to H-2B aliens and United States
workers recruited from beyond normal
recruiting distance housing, or a
housing allowance, if it is prevailing
practice in the occupation and area of
intended employment to offer housing or
a housing allowance to workers who are
recruited from beyond normal commuting
distance.
(ii) Housing standards.--If the
employer offers housing to such
workers, the housing shall meet (at the
option of the employer) applicable
Federal farm labor housing standards or
applicable local or State standards for
rental, public accommodation, or other
substantially similar class of
habitation.
(iii) Charges for housing.--An
employer who offers housing to such
workers may charge an amount equal to
the fair market value (but not greater
than the employer's actual cost) for
utilities and maintenance, or such
lesser amount as permitted by law.
(iv) Housing allowance as
alternative.--In lieu of offering
housing to such workers, at the
employer's sole discretion on an
individual basis, the employer may
provide a reasonable housing allowance.
An employer who offers a housing
allowance to such a worker under this
subparagraph shall not be deemed to be
a housing provider under section 203 of
the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1823)
merely by virtue of providing such
housing allowance.
(v) Security deposit.--The
requirement, if any, to offer housing
to such a worker under this
subparagraph shall not preclude an
employer from requiring a reasonable
deposit to protect against gross
negligence or willful destruction of
property, as a condition for providing
such housing.
(vi) Damages.--An employer who offers
housing to such a worker shall not be
precluded from requiring a worker found
to have been responsible for damage to
such housing which is not the result of
normal wear and tear related to
habitation to reimburse the employer
for the reasonable cost of repair of
such damage.
(C) Transportation.--If the employer provides
transportation arrangements or assistance to H-
2B aliens, the employer must offer to provide
the same transportation arrangements or
assistance (generally comparable in expense and
scope) for other individuals employed by the
employer in the occupation at the place of
employment who were recruited from beyond
normal commuting distance.
(D) Workers' compensation.--If the employment
covered by a labor condition attestation is not
covered by the State workers' compensation law,
the employer must provide, at no cost to the
worker, insurance covering injury and disease
arising out of and in the course of the
workers' employment which will provide benefits
at least equal to those provided under the
State workers' compensation law for comparable
employment.
(E) Required documentation.--
(i) Housing and transportation.--No
specific documentation is required to
be maintained to evidence compliance
with the requirements of subparagraphs
(B) and (C). In the event of a
complaint alleging a failure to comply
with such a requirement, the burden of
proof shall be on the employer to show
that the employer offered the required
benefit to the complainant, or that the
employer was not required by the terms
of this paragraph to offer such benefit
to the complainant.
(ii) Workers' compensation.--The
employer shall maintain copies of
certificates of insurance evidencing
compliance with subparagraph (D)
throughout the period of validity of
the labor condition attestation.
(3) Requirement to employ aliens in temporary or
seasonal agricultural job opportunities.--
(A) Limitations.--
(i) In general.--The employer may
employ H-2B aliens only in agricultural
employment which is temporary or
seasonal.
(ii) Seasonal basis.--For purposes of
this section, labor is performed on a
seasonal basis where, ordinarily, the
employment pertains to or is of the
kind exclusively performed at certain
seasons or periods of the year and
which, from its nature, may not be
continuous or carried on throughout the
year.
(iii) Temporary basis.--For purposes
of this section, a worker is employed
on a temporary basis where the
employment is intended not to exceed 10
months.
(B) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirement of subparagraph
(A). In the event of a complaint, the burden of
proof shall fall on the employer to show that
the employment meets such requirement.
(4) Requirement not to employ aliens in job
opportunities vacant because of a labor dispute.--
(A) In general.--No H-2B alien may be
employed in any job opportunity which is vacant
because its former occupant is involved in a
strike, lockout, or work stoppage in the course
of a labor dispute in the occupation at the
place of employment.
(B) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirement of subparagraph
(A). In the event of a complaint, the burden of
proof shall fall on the employer to show that
the job opportunity in which the H-2B alien was
employed was not vacant because the former
occupant was on strike, locked out, or
participating in a work stoppage in the course
of a labor dispute in the occupation at the
place of employment.
(5) Notice of filing of attestation and supporting
documentation.--
(A) In general.--The employer shall--
(i) provide notice of the filing of a
labor condition attestation to the
appropriate certified bargaining agent
(if any) which represents workers of
the employer in the occupation (or
occupations) at the place of employment
covered by the attestation; or
(ii) in the case where no appropriate
bargaining agent exists, post notice of
the filing of such an attestation in at
least two conspicuous locations where
applications for employment are
accepted.
(B) Period for posting.--The requirement for
a posting under subparagraph (A)(ii) begins on
the day the attestation is filed, and continues
through the period during which the employer's
job order is required to remain active pursuant
to paragraph (6)(A).
(C) Required documentation.--The employer
shall maintain a copy of the notice provided to
the bargaining agent (if any), together with
evidence that the notice was provided (such as
a signed receipt of evidence of attempt to send
the notice by certified or registered mail). In
the case where no appropriate certified
bargaining agent exists, the employer shall
retain a copy of the posted notice, together
with information as to the dates and locations
where the notice was displayed.
(6) Requirement to file a job order.--
(A) Effect of the attestation.--The employer,
or an association acting as agent for its
members, shall file the information necessary
to complete a local job order for each
occupation covered by an accepted labor
condition attestation with the appropriate
local office of the qualified State employment
security agency having jurisdiction over the
area of intended employment, or with the State
office of such an agency if workers will be
employed in an area within the jurisdiction of
more than one local office of such an agency.
The job orders shall remain on file for 25
calendar days or until 5 calendar days before
the anticipated date of need for workers in the
occupation covered by the job order, whichever
occurs later. The job order shall provide at
least the minimum terms and conditions of
employment required for participation in the H-
2B program.
(B) Deadline for filing.--A job order shall
be filed under subparagraph (A) no later than
the date on which the employer files a petition
with the Attorney General for admission or
extension of stay for aliens to be employed in
the occupation for which the order is filed.
(C) Required documentation.--The office of
the qualified State employment security agency
which the employer or association provides with
information necessary to file a local job order
shall provide the employer with evidence that
the information was provided in a timely manner
as required by this paragraph, and the employer
or association shall retain such evidence for
each occupation in which H-2B aliens are
employed.
(7) Requirement to give preference to qualified
united states workers.--
(A) Filing 30 days or more before date of
need.--If a job order is filed 30 days or more
before the anticipated date of need for workers
in an occupation covered by a labor condition
attestation and for which the job order has
been filed, the employer shall offer to employ
able, willing, and qualified United States
workers who apply to the employer and who will
be available at the time and place needed for
the job opportunities covered by the
attestation until 5 calendar days before the
anticipated date of need for workers in the
occupation, or until the employer's job
opportunities in the occupation are filled with
qualified United States workers, if that occurs
more than 5 days before the anticipated date of
need for workers in the occupation.
(B) Filling fewer than 30 days before date of
need.--If a job order is filed fewer than 30
days before the anticipated date of need for
workers in an occupation covered by such an
attestation and for which a job order has been
filed, the employer shall offer to employ able,
willing, and qualified United States workers
who are or will be available at the time and
place needed during the first 25 days after the
job order is filed or until the employer's job
opportunities in the occupation are filled with
United States workers, regardless of whether
any of the job opportunities may already be
occupied by H-2B aliens.
(C) Filing vacancies.--An employer may fill a
job opportunity in an occupation covered by an
accepted attestation which remains or becomes
vacant after expiration of the required
preference period specified in subparagraph (A)
or (B) of paragraph (6) without regard to such
preference.
(D) Job-related requirements.--No employer
shall be required to initially employ a worker
who fails to meet lawful job-related employment
criteria, nor to continue the employment of a
worker who fails to meet lawful job-related
standards of conduct and performance, including
failure to meet minimum productivity standards
after a 3-day break-in period.
(E) Required documentation.--No specific
documentation is required to demonstrate
compliance with the requirements of this
paragraph. In the event of a complaint, the
burden of proof shall be on the complainant to
show that the complainant applied for the job
and was available at the time and place needed.
If the complainant makes such a showing, the
burden of proof shall be on the employer to
show that the complainant was not qualified or
that the preference period had expired.
(8) Requirements of notice of certain breaks in
employment.--
(A) In general.--The employer (or an
association in relation to an H-2B alien) shall
notify the Service within 7 days if an H-2B
alien prematurely abandons the alien's
employment.
(B) Out-of-status.--An H-2B alien who
abandons the alien's employment shall be
considered to have failed to maintain
nonimmigrant status as an alien described in
section 101(a)(15)(H)(ii)(b) and shall leave
the United States or be subject to removal
under section 237(a)(1)(C)(i).
(d) Acceptance By Qualified State Employment Security
Agency.--The qualified State employment security agency shall
review labor condition attestations submitted by employers or
associations only for completeness and obvious inaccuracies.
Unless such an agency finds that the application is incomplete
or obviously inaccurate, the agency shall accept the
attestation within 7 days of the date of filing of the
attestation, and return a copy to the applicant marked
``accepted''.
(e) Public Registry.--The Secretary shall maintain a registry
of all accepted labor condition attestations and make such
registry available for public inspection.
(f) Responsibilities of the Qualified State Employment
Security Agencies.--
(1) Dissemination of labor market information.--The
Secretary shall direct qualified State employment
security agencies to disseminate nonemployer-specific
information about potential labor needs based on
accepted attestations filed by employers. Such
dissemination shall be separate from the clearance of
job orders through the Interstate and Intrastate
Clearance Systems, and shall create no obligations for
employers except as provided in this section.
(2) Referral of workers on qualified state employment
security agency job orders.--Such agencies holding job
orders filed by employers covered by approved labor
condition attestations shall be authorized to refer any
able, willing, and qualified eligible job applicant who
will be available at the time and place needed and who
is authorized to work in the united States, including
H-2B aliens who are seeking additional work in the
United States and whose eligibility to remain in the
United States pursuant to subsection (h) has not
expired, on job orders filed by holders of accepted
attestations.
(g) Enforcement and Penalties.--
(1) Enforcement authority.--
(A) Investigation of complaints.--The
Secretary shall establish a process for the
receipt, investigation, and disposition of
complaints respecting an employer's failure to
meet a condition specified in subsection (a) or
an employer's misrepresentation of material
facts in such an application. Complaints may be
filed by any aggrieved person or organizations
(including bargaining representatives). No
investigation or hearing shall be conducted on
a complaint concerning such a failure or
misrepresentation unless the complaint was
filed not later than 12 months after the date
of the failure or misrepresentation,
respectively. The Secretary shall conduct an
investigation under this subparagraph if there
is reasonable cause to believe that such a
failure or misrepresentation has occurred.
(B) Written notice of findings and
opportunity for appeal.--After an investigation
has been conducted, the Secretary shall issue a
written determination as to whether or not any
violation described in paragraph (2) has been
committed. The Secretary's determination shall
be served on the complainant and the employer,
and shall provide an opportunity for an appeal
of the Secretary's decision to an
administrative law judge, who may conduct a de
novo hearing.
(2) Remedies.--
(A) Back wages.--Upon a final determination
that the employer has failed to pay wages as
required under this section, the Secretary may
assess payment of back wages due to any United
States worker or H-2B alien employed by the
employer in the specific employment in
question. The back wages shall be equal to the
difference between the amount that should have
been paid and the amount that actually was paid
to such worker.
(B) Failure to pay wages.--Upon a final
determination that the employer has failed to
pay the wages required under this section, the
Secretary may assess a civil money penalty up
to $1,000 for each failure, and may recommend
to the Attorney General the disqualification of
the employer from the employment of H-2B aliens
for a period of time determined by the
Secretary not to exceed 1 year.
(C) Other violations.--If the Secretary, as a
result of an investigation pursuant to a
complaint, determines that an employer covered
by an accepted labor condition attestation
has--
(i) filed an attestation which
misrepresents a material fact; or
(ii) failed to meet a condition
specified in subsection (a),
the Secretary may assess a civil money penalty
not to exceed $1,000 for each violation. In
determining the amount of civil money penalty
to be assessed, the Secretary shall consider
the seriousness of the violation, the good
faith of the employer, the size of the business
of the employer being charged, the history of
previous violations by the employer, whether
the employer obtained a financial gain from the
violation, whether the violation was willful,
and other relevant factors.
(D) Program disqualification.--
(i) 3-years for second violation.--
Upon a second final determination that
an employer has failed to pay the wages
required under this section, the
Secretary shall report such
determination to the Attorney General
and the Attorney General shall
disqualify the employer from the
employment of H-2B aliens for a period
of 3 years.
(ii) Permanent for third violation.--
Upon a third final determination that
an employer has failed to pay the wages
required under this section, the
Secretary shall report such
determination to the Attorney General
and the Attorney General shall
disqualify the employer from any
subsequent employment of H-2B aliens.
(3) Role of associations.--
(A) Violation by a member of an
association.--An employer on whose behalf a
labor condition attestation is filed by an
association acting as its agent is fully
responsible for such attestation, and for
complying with the terms and conditions of this
section, as though the employer had filed the
attestation itself. If such an employer is
determined to have violated a requirement of
this section, the penalty for such violation
shall be assessed against the employer who
committed the violation and not against the
association or other members of the
association.
(B) Violation by an association acting as an
employer.--If an association filing a labor
condition attestation on its own behalf as an
employer is determined to have committed a
violation under this subsection which results
in disqualification from the program under
paragraph (2)(D), no individual member of such
association may be the beneficiary of the
services of an H-2B alien in an occupation in
which such alien was employed by the
association during the period such
disqualification is in effect, unless such
member files a labor condition attestation as
an individual employer or such an attestation
is filed on the employer's behalf by an
association with which the employer has an
agreement that the employer will comply with
the requirements of this section.
(h) Procedure for Admission or Extension of H-2B Aliens.--
(1) Aliens who are outside the united states.--
(A) Petitioning for admission.--An employer
or an association acting as agent for its
members who seeks the admission into the United
States of H-2B aliens may file a petition with
the District Director of the Service having
jurisdiction over the location where the aliens
will be employed. The petition shall be
accompanied by an accepted and currently valid
labor condition attestation covering the
petitioner. The petition may be for named or
unnamed individual or multiple beneficiaries.
(B) Expedited adjudication by district
director.--If an employer's petition for
admission of H-2B aliens is correctly filled
out, and the employer is not ineligible to
employ H-2B aliens, the District Director (or
the Director's designee) shall approve the
petition within 3 working days of receipt of
the petition and accepted labor condition
attestation and immediately (by fax, cable, or
other means assuring expedited delivery)
transmit a copy of the approved petition to the
petitioner and to the appropriate immigration
officer at the port of entry or United States
consulate (as the case may be) where the
petitioner has indicated that the alien
beneficiary (or beneficiaries) will apply for a
visa or admission to the United States.
(C) Unnamed beneficiaries selected by
petitioner.--The petitioning employer or
association or its representative shall approve
the issuance of visas to beneficiaries who are
unnamed on a petition for admission granted to
the employer or association.
(D) Criteria for admissibility.--
(i) In general.--An alien shall be
admissible under this section if the
alien is otherwise admissible under
this Act and the alien is not debarred
pursuant to the provisions of clause
(ii).
(ii) Disqualification.--An alien
shall be debarred from admission or
being provided status as an H-2B alien
under this section if the alien has, at
any time--
(I) violated a material
provision of this section,
including the requirement to
promptly depart the United
States when the alien's
authorized period of admission
under this section has expired;
or
(II) has otherwise violated
a term or condition of
admission to the United States
as a nonimmigrant, including
overstaying the period of
authorized admission as such a
nonimmigrant.
(E) Period of admission.--The alien shall be
admitted for the period requested by the
petitioner not to exceed 10 months, or the
remaining validity period of the petitioner's
approved labor condition attestation, whichever
is shorter, plus an additional period of 14
days, during which the alien shall seek
authorized employment in the United States.
During the 14-day period following the
expiration of the alien's work authorization,
the alien is not authorized to be employed
unless the original petitioner or a subsequent
petitioner has filed an extension of stay on
behalf of the alien.
(F) Issuance of identification and employment
eligibility document.--
(i) In general.--The Attorney General
shall cause to be issued to each H-2B
alien a card in a form which is
resistant to counterfeiting and
tampering for the purpose of providing
proof of identity and employment
eligibility under section 274A.
(ii) Design of card.--Each card
issued pursuant to clause (i) shall be
designed in such a manner and contain a
photograph and other identifying
information (such as date of birth,
sex, and distinguishing marks) that
would allow an employer to determine
with reasonable certainty that the
bearer is not claiming the identity of
another individual, and shall--
(I) contain a fingerprint or
other biometric identifying
data (or both);
(II) specify the date of the
aliens authorization as an H-2B
alien;
(III) specify the expiration
date of the alien's work
authorization; and
(IV) specify the alien's
admission number or alien file
number.
(2) Extension of stay.--
(A) Application for extension of stay.--If a
petitioner seeks to employ an H-2B alien
already in the United States, the petitioner
shall file an application for an extension of
stay. The application for extension of stay
shall be accompanied by a currently valid labor
condition attestation.
(B) Limitation on filing an application for
extension of stay.--An application may not be
filed for an extension of an alien's stay for a
period of more than 10 months, or later than a
date which is 2 years from the date of the
alien's last admission to the United States as
a H-2B alien, whichever occurs first. An
application for extension of stay may not be
filed during the pendency of an alien's
previous authorized period of admission, nor
after the alien's authorized stay in the United
States has expired.
(C) Work authorization upon filing an
application for extension of stay.--An employer
may begin employing an alien already in the
United States in H-2B status on the day the
employer files its application for extension of
stay with the Service. For the purpose of this
requirement, the term ``filing'' means sending
the application by certified mail via the
United States Postal Service, return receipt
requested, or delivered by guaranteed
commercial delivery which will provide the
employer with a documented acknowledgment of
receipt of the application. The employer shall
provide a copy of the employer's application
for extension of stay to the alien, who shall
keep the application with the alien's
identification and employment eligibility card
as evidence that the extension has been filed
and that the alien is authorized to work in the
United States. Upon approval of an application
for extension of stay, the Service shall
provide a new employment document to the alien
indicating a new validity date, after which the
alien is not required to retain a copy of the
application for extension of stay.
(D) Limitation on employment authorization of
h-2b aliens without valid identification and
employment eligibility card.--An expired
identification and employment eligibility card,
together with a copy of an application for
extension of stay, shall constitute a valid
work authorization document for a period of not
more than 60 days from the date of application
for the extension of stay, after which time
only a currently valid identification and
employment eligibility card shall be
acceptable.
(3) Limitation on an individual's stay in h-2b
status.--An alien having status as an H-2B alien may
not have the status extended for a continuous period
longer than 2 years unless the alien remains outside
the United States for an uninterrupted period of 6
months. An absence from the United States may break the
continuity of the period for which an H-2B visa is
valid. If the alien has resided in the United States 10
months or less, an absence breaks the continuity of the
period if its lasts for at least 2 months. If the alien
has resided in the United States 10 months or more, an
absence breaks the continuity of the period if it lasts
for at least one-fifth the duration of the stay.
(i) Trust Fund to Assure Worker Return.--
(1) Establishment.--There is established in the
Treasury of the United States a trust fund (in this
section referred to as the ``Trust Fund'') for the
purpose of providing a monetary incentive for H-2B
aliens to return to their country of origin upon
expiration of their visas under this section.
(2) Withholding of wages; payment into the trust
fund.--
(A) In general.--Employers of H-2B aliens
shall--
(i) withhold from the wages of their
H-2B alien workers an amount equivalent
to 25 percent of the wages of each H-2B
alien worker and pay such withheld
amount into the Trust Fund in
accordance paragraph (3); and
(ii) pay to the Trust Fund an amount
equivalent to the Federal tax on the
wages paid to H-2B aliens that the
employer would be obligated to pay
under the Federal Unemployment Tax Act
and the Federal Insurance Contributions
Act.
Amounts withheld under clause (i) shall be
maintained in such interest bearing account
with such a financial institution as the
Attorney General shall specify.
(3) Distribution of funds.--The amounts paid into the
Trust Fund and held pursuant to paragraph (2)(A)(i),
and interest earned thereon, shall be paid by the
Attorney General as follows:
(A) Reimbursement of emergency medical
expenses.--To reimburse valid claims for
reimbursement of emergency medical services
furnished to H-2B aliens, to the extent that
sufficient funds are not available on an annual
basis from the Trust Fund pursuant to
paragraphs (2)(A)(ii) and (4)(B).
(B) Payments to workers.--Amounts paid into
the Trust Fund on behalf of a worker, and
interest earned thereon, less a pro rata
reduction for any payments made pursuant to
subparagraph (A), shall be paid by the Attorney
General to the worker if--
(i) the worker applies to the
Attorney General (or the designee of
the Attorney General) for payment
within 30 days of the expiration of the
alien's last authorized stay in the
United States as a H-2B alien;
(ii) in such application the worker
establishes that the worker has
complied with the terms and conditions
of this section; and
(iii) in connection with the
application, the worker tenders the
identification and employment
authorization card issued to the worker
pursuant to subsection (h)(1)(F) and
establishes that the worker is
identified as the person to whom the
card was issued based on the biometric
identification information contained on
the card.
(4) Administrative expenses and emergency medical
expenses.--The amounts paid into the Trust Fund and
held pursuant to paragraph (2)(A)(ii), and interest
earned thereon, shall be paid by the Attorney General
as follows:
(A) Administrative expenses.--First, to the
Attorney General, the Secretary of Labor, and
the Secretary of State in amounts equivalent to
the expenses incurred by such officials in the
administration of section 101(a)(15)(H)(ii)(b)
and this section.
(B) Reimbursement of emergency medical
services.--Any remaining amounts shall be
available on an annual basis to reimburse
hospitals for emergency medical services
furnished to H-2B aliens as provided in
subsection (k)(2).
(5) Regulations.--The Attorney General shall
prescribe regulations to carry out this subsection.
(j) Investment of Trust Fund.--
(1) In general.--It shall be the duty of the
Secretary of the Treasury to invest such portion of the
Trust Fund as is not, in the Secretary's judgement,
required to meet current withdrawals. Such investments
may be made only in interest-bearing obligations of the
United States or in obligations guaranteed as to both
principal and interest by the United States. For such
purpose, such obligations may be acquired--
(A) on original issue at the price; or
(B) by purchase of outstanding obligations at
the market price.
The purposes for which obligations of the United States
may be issued under chapter 31 of title 31, United
States Code, are hereby extended to authorize the
issuance at par of special obligations exclusively to
the Trust Fund. Such special obligations shall bear
interest at a rate equal to the average rate of
interest, computed as to the end of the calendar month
next preceding the date of such issue, borne by all
marketable interest-bearing obligations of the United
States then forming a part of the public debt, except
that where such average rate is not a multiple of one-
eighth of 1 percent next lower than such average rate.
Such special obligations shall be issued only if the
Secretary of the Treasury determines that the purchase
of other interest-bearing obligations of the United
States, or of obligations guaranteed as to both
principal and interest by the United States on original
issue or at the market price, is not in the public
interest.
(2) Sale of obligation.--Any obligation acquired by
the Trust Fund (except special obligations issued
exclusively to the Trust Fund) may be sold by the
Secretary of the Treasury at the market price, and such
special obligations may be redeemed at par plus accrued
interest.
(3) Credits to trust fund.--The interest on, and the
proceeds from the sale or redemption of, any
obligations held in the Trust Fund shall be credited to
and form a part of the Trust Fund.
(4) Report to congress.--It shall be the duty of the
Secretary of the Treasury to hold the Trust Fund, and
(after consultation with the Attorney General) to
report to the Congress each year on the financial
condition and the results of the operations of the
Trust Fund during the preceding fiscal year and on its
expected condition and operations during the next
fiscal year. Such report shall be printed as both a
House and a Senate document of the session of the
Congress to which the report is made.
(k) Reimbursement of Cost of Emergency Medical Services.--
(1) In general.--The Attorney General shall establish
procedures for reimbursement of hospitals operated by a
State or by a unit of local government (or corporation
owned or controlled by the State or unit) for the
reasonable cost of providing emergency medical services
(as defined by the Attorney General in consultation
with the Secretary of Health and Human Services) in the
United States to H-2B aliens for which payment has not
been otherwise reimbursed.
(2) Source of funds for reimbursement.--Funds for
reimbursement of hospitals pursuant to paragraph (1)
shall be drawn--
(A) first under subsection (i)(4)(B), from
amounts deposited in the Trust Fund under
subsection (i)(2)(A)(ii) after reimbursement of
certain administrative expenses; and
(B) then under subsection (i)(3)(A), to the
extent that funds described in subparagraph (A)
are insufficient to meet valid claims, from
amounts deposited in the Trust Fund under
subsection (i)(2)(A)(i).
(l) Miscellaneous Provisions.--
(1) Applicability of labor laws.--Except as provided
in paragraphs (2), (3), and (4), all Federal, State,
and local labor laws (including laws affecting migrant
farm workers) applicable to United States workers shall
also apply to H-2B aliens.
(2) Limitation of written disclosure imposed upon
recruiters.--Any disclosure required of recruiters
under section of 201(a) of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1821(a))
need not be given to H-2B aliens prior to the time
their visa is issued permitted entry into the United
States.
(3) Exemption from fica and futa taxes.--The wages
paid to H-2B aliens shall be excluded from wages
subject to taxation under the Federal Unemployment Tax
Act and under the Federal Insurance Contributions Act.
(4) Ineligibility for certain public benefits
programs.--
(A) In general.--Notwithstanding any other
provision of law and except as provided in
subparagraph (B), any alien provided status as
an H-2B alien shall not be eligible for any
Federal or State or local means-tested public
benefit program.
(B) Exceptions.--Subparagraph (A) shall not
apply to the following:
(i) Emergency medical services.--The
provision of emergency medical services
(as defined by the Attorney General in
consultation with the Secretary of
Health and Human Services).
(ii) Public health immunizations.--
Public health assistance for
immunizations with respect to
immunizable diseases and for testing
and treatment for communicable
diseases.
(iii) Short-term emergency disaster
relief.--The provision of non-cash, in-
kind, short-term emergency disaster
relief.
(m) Consultation on Regulations.--
(1) Regulations of the secretary.--The Secretary
shall consult with the Secretary of Agriculture, and
the Attorney General shall approve, all regulations
dealing with the approval of labor condition
attestations for H-2B aliens or enforcement of the
requirements for employing H-2B aliens under an
approved attestation.
(2) Regulations of the attorney general.--The
Attorney General shall consult with the Secretary of
Agriculture on all regulations dealing with the
approval of petitions for admission or extension of
stay of H-2B aliens or the requirements for employing
H-2B aliens or the enforcement of such requirements.
(n) Definitions.--For the purpose of this section:
(1) Agricultural association.--The term
``agricultural association'' means any nonprofit or
cooperative association of farmers, growers, or
ranchers incorporated or qualified under applicable
State law, which recruits, solicits, hires, employs,
furnishes, or transports any agricultural workers.
(2) Agricultural employment.--The term ``agricultural
employment'' means any service or activity included
within the provisions of section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)) or section
3121(g) of the Internal Revenue Code of 1986 and the
handling, planting, drying, packing, packaging,
processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural commodity
in its unmanufactured state.
(3) Employer.--The term ``employer'' means any person
or entity, including any independent contractor and any
agricultural association, that employs workers.
(4) H-2B alien.--The term ``H-2B alien'' means an
alien admitted to the United States or provided status
as a nonimmigrant under section 101(a)(15)(H)(ii)(b).
(5) Qualified state employment security agency.--The
term ``qualified State employment security agency''
means a State employment security agency in a State in
which the Secretary has determined that the State
operates a job service that actively seeks to match
agricultural workers with jobs and participates in a
multi-State job service program in States where
significant supplies of farm labor exist.
(6) Secretary.--The term ``Secretary'' means the
Secretary of Labor.
(7) United states worker.--The term ``United States
worker'' means any worker, whether a United States
citizen, a United States national, or an alien, who is
legally permitted to work in the job opportunity within
the United States other than aliens admitted pursuant
to this section.
* * * * * * *
MINORITY VIEWS
We oppose the committee's action to add authority for a new
agricultural guestworker program to H.R. 2202, the Immigration
in the National Interest Act of 1995. We recognize that H.R.
2202 will have an adverse impact on certain sectors of the food
and agriculture industries. Both proponents and opponents of a
new guestworker program agree that H.R. 2202 will reduce the
number of foreign workers available to the agricultural
producers. We also understand that the current agricultural
guestworker program is not working well for growers or for
foreign workers. The solution of the committee, to establish an
additional guestworker program, will decrease the number of
jobs available to domestic workers and provide inadequate
protection for foreign workers. A preferable solution is to
improve the current guestworker program.
Production of many crops is highly dependent on hand labor.
For example, the U.S. Department of Agriculture estimates that
89 percent of fruit production and 37 percent of vegetable
production in this country are hand-harvested. Typically, the
time window for harvesting these highly perishable crops is
exact and frequently very short, sometimes lasting only five to
seven days. The nature of the harvest work requires
particularized skill; determining when a product is ripe for
harvest and use of the most effective and efficient means of
harvesting comes from experience.
The current program to help farmers find these skilled
workers when domestic workers are unavailable is the so-called
``H-2A'' program, authorized under section 101(a)(15)(H)(2)(A)
of the Immigration and Nationality Act. It provides for the
temporary admission of foreign agricultural workers if domestic
workers are unavailable. This program requires an affirmative
search by a producer for available domestic workers, and a
determination that the admission of guestworkers will not
adversely affect the wages and working conditions of similarly
employed domestic workers. Employers must apply to the
Department of Labor for certification at least 60 days in
advance of the estimated date of need, and the final decision
to admit H-2A workers is made by the Immigration and
Naturalization Service. Producers using H-2A workers must
provide to all workers approved housing (for non-commuters)
without charge, assured employment for at least 75 percent of
the contract period, and reimbursed transportation costs for
every worker who completes the contract.
Unfortunately, the H-2A program, as it is currently
administered, is not fulfilling its promise to either growers
or guestworkers. The certification requirements are too
burdensome for most farmers and the guestworker protections are
not well enforced. As a result, H-2A is not widely used by
agricultural producers, and when it is used the allegations of
guestworker abuse challenge its integrity. Without an adequate
guestworker program, illegal immigrants fill the void. The
Department of Labor estimates that 25 percent of the 1.6
million agricultural workers are illegal aliens.
The committee has approved an amendment to H.R. 2202 that
will create a new guestworker program--the H-2B program. This
new program will not require that employers show the
unavailability of domestic workers, and it provides weaker
worker protections than required by the H-2A program.
Enforcement of the H-2B provisions will be complaint driven
only.
We are very concerned that enactment of this new program
will encourage producers to hire foreign workers rather than
domestic workers and will permit the living conditions of all
farmworkers to deteriorate. At a time when we are trying to
encourage welfare recipients to get jobs and become self-
sufficient, it makes little sense to encourage foreign workers
to take domestic jobs. At a time when the American people are
urging us to reform our immigration laws, it make little sense
to open a big new door to foreign workers. At a time when the
current guestworker program is criticized for not adequately
protecting guestworkers, it makes little sense to begin a new
program that offers fewer guestworker legal protections.
We believe that the better approach to resolving the
problem of an inadequate supply of farmworkers is to reform the
H-2A program so that it works more effectively for both
producer and worker, and to support efforts to improve where
necessary agricultural labor practices and to better match
domestic workers with agricultural jobs so that domestic
workers will be attracted to jobs in the agriculture sector.
This approach obviates the need for a new guestworker program
that will be perceived by most Americans as an open door to
foreign workers who will not return to their home countries. It
also reiterates the promise of worker protections for all
farmworkers.
We share the commitment of the majority to maintaining the
competitiveness of our agricultural and food industries. We
believe that this commitment is not in conflict with out
commitment to ensure the well-being of all of our farmworkers,
domestic and foreign. The H-2B program approved by the
Committee on Agriculture moves in the wrong direction, and we
oppose the committee's action.
E (Kika) de la Garza,
George E. Brown, Jr.,
Earl F. Hilliard,
Eva M. Clayton,
Harold L. Volkmer,
Sanford D. Bishop, Jr.,
Earl Pomeroy,
Sam Farr,
John Baldacci.
ADDITIONAL MINORITY VIEWS OF MR. POMEROY AND MR. FARR
During the mark-up of H.R. 2202 by the Committee on
Agriculture a question was presented to counsel by Mr. Latham
regarding an amendment offered by Mr. Farr. Mr. Farr's
amendment, which was ultimately withdrawn, would have provided
that no employer shall employ an H-2B worker in a State unless
the laws of that State guarantee farmworkers certain minimum
labor standards. Mr. Latham asked counsel if this amendment
would be subject to a point of order as an unfunded federal
mandate. Counsel's response was that the Farr amendment would
be an unfunded mandate on the states. Believing counsel's
position to be incorrect, Mr. Pomeroy requested that senior
counsel give his ruling on the question, and Mr. Latham also
asked for the opinion of senior counsel. Senior counsel
responded that he did not have a different view.
We wish to include at this point in the record the opinion
of the Congressional Research Service on this issue, an opinion
which supports our view that the Farr amendment is not an
unfunded mandate.
The Library of Congress,
Congressional Research Service,
Washington, DC, March 8, 1996.
To: House Committee on Agriculture. Attention: John Riley.
From: American Law Division.
Subject: Unfunded Mandate Reform Act Applicability to Amendment Offered
by Mr. Farr to H.R. 2202.
This memorandum responds to your request for a legal
analysis of the applicability of the Unfunded Mandates Reform
Act, P.L. 104-4 to an amendment offered by Mr. Farr to H.R.
2202. Mr. Farr's amendment would provide that an employer could
not employ certain categories of guest workers unless the state
has in effect certain labor laws regarding farm workers'
compensation, unemployment compensation, overtime pay, rights
to organize labor unions and the right to collective bargaining
between a labor union and an agricultural employer.
P.L. 104-4 provides in section 101 that the term ``Federal
intergovernmental mandate'' means ``any provision in
legislation, statute, or regulation that (i) would impose an
enforceable duty upon State, local, or tribal governments,
except * * * a duty arising from participation in a voluntary
Federal program''.
Mr. Farr's amendment does not appear to impose ``an
enforceable duty upon (a) state'' since the states are not
required to enact the labor laws applicable to farm workers,
nor is an enforcement mechanism specified in the amendment
regarding enactment of such state laws. Thus, the amendment
does not appear to contain a federal intergovernmental mandate
as defined in P.L. 104-4.
In addition, Mr. Farr's amendment does not appear to impose
an enforceable duty upon private sector employers which would
be recognized as a federal private sector mandate since a duty
which arises from participation in a voluntary federal program
is exempt from the provisions of that Act. It is our
understanding that participation by employers in the guest
worker program would be voluntary, so that requirements such as
payment of overtime pay would come under the Unfunded Mandates
Act exemption and not be considered to be an unfunded mandate
as defined in that Act.
Kathleen S. Swendiman, Legislative Attorney.
We trust that future opinions by the counsel of the
Committee on Agriculture on this matter will reflect the
informed view of the Congressional Research Service.
Earl Pomeroy,
Sam Farr.
ADDITIONAL MINORITY VIEWS OF MR. VOLKMER
The Committee on Agriculture's business meeting to mark-up
legislation to establish a new guest worker program is
reminiscent of the mark-up of the Freedom to Farm legislation
during which the majority followed a flawed procedure to the
point the legislative process was abused and irresponsible
lawmaking followed.
I raised a similar concern regarding the handling of the
legislation providing for a new guest worker program, entitled
H2B. No agriculture subcommittee hearings were held on the new
H2B-guest worker legislation before it came to the full
committee; however the ``concept'' of such a program was
discussed during a hearing. That is not a hearing on the bill.
To bring this proposal to the full committee without a hearing
and implore members that the legislation go forward or ``the
committee will lose jurisdiction'' or, ``the train is leaving
the station'' or, ``it's the only game in town'' begs the
question of where the committee has been on this issue for the
last year and are not legitimate reasons to abandon established
committee procedure in the development of good public policy or
law that citizens will respect and follow. For the most part,
legislation hastily made without public scrutiny, like this
proposed H2B Program, is rife with loopholes and invites
lawbreaking by the affected parties. H2B will not stem the flow
of immigrants, but will increase the flood of immigrants.
Frankly, this proposal is cross-wise with current efforts
to protect American farmworkers' jobs and to reform welfare.
What rational person seeking to reform welfare would argue that
we close our borders, build fences to keep out illegals to
protect jobs for Americans and for those who will be removed
from welfare and required to work, and legal aliens already
here and available for work, and at the same time propose a new
program to bring in more foreign workers. Plain and simple,
this is a program to create a surplus of labor.
There is no shortage of labor in America, the fact is there
is a surplus and this program insures an even larger surplus
which will be accompanied by downward pressure on wages,
benefits and working conditions for Americans and legal aliens.
In my mind the shortage in this program is Justice for American
workers, including those on welfare who are hoping for a better
life through finding a job and working, and those legal aliens
who are anxious and available to work.
The benefit of this program accrues solely to large
agribusiness firms who, due to an over-supply of farmworkers,
will be relieved of pressure from the free-market place of laws
of supply and demand to offer farmworkers better pay, longer
employment and more meaningful benefits.
The process has been flawed and the purpose of the H2B
Program is questionable. Public hearings on the effect of this
proposal should be held in order to correct the deficiencies of
the proposal before it moves forward.
Harold L. Volkmer, MC.