[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.

                                

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