Temporary Agricultural Labor Reform Act of 2003 - Amends the Immigration and Nationality Act to revise employer and employee association application requirements for admission of H-2A temporary agricultural workers, including assurances: (1) that the job opportunity is temporary or seasonal, and is not the result of a labor dispute; (2) that attempts have been made to hire U.S. workers; (3) respecting wages and benefits, and labor law compliance; (4) respecting nondisplacement of U.S. workers; and (5) respecting limitations on placement with other employers.
Revises related provisions respecting: (1) penalties; and (2) admissions and extensions of stay. Provides special provisions for alien sheepherders.
Amends the Consolidated Farm and Rural Development Act to: (1) authorize the Secretary of Agriculture to make grants to H-2A employers for the transportation costs of workers whose employment is cut short by natural disaster; and (2) direct the Secretary to establish an H-2A Worker Program Ombudsman within the Office of the Chief Economist of the Department of Agriculture.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3604 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 3604
To simplify the process for admitting temporary alien agricultural
workers under section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act, to increase access to such workers, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 21, 2003
Mr. Goodlatte (for himself, Mr. Stenholm, Mr. Lucas of Oklahoma, Mr.
Gutknecht, Mr. Blunt, Mr. Gallegly, Mr. Osborne, Mr. Burns, Mr.
Chocola, Mr. Nethercutt, Mr. Smith of Michigan, Mr. Kingston, Mr.
Bartlett of Maryland, Mr. Brown of South Carolina, Mr. Upton, Mr. Camp,
Mr. Young of Alaska, Mr. Collins, Mr. Baker, Mrs. Jo Ann Davis of
Virginia, Mr. Duncan, Mr. Forbes, Mr. Garrett of New Jersey, Mr.
Herger, Mr. Hoekstra, Mr. Janklow, Mr. Jones of North Carolina, Mr.
Keller, Mrs. Miller of Michigan, Mr. Oxley, Mr. Souder, Mr. Tiberi, and
Mr. Wicker) introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on
Agriculture, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To simplify the process for admitting temporary alien agricultural
workers under section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act, to increase access to such workers, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Temporary Agricultural Labor Reform
Act of 2003''.
SEC. 2. ADMISSION OF TEMPORARY H-2A WORKERS.
(a) In General.--Section 218 of the Immigration and Nationality Act
(8 U.S.C. 1188) is amended to read as follows:
``admission of temporary h-2a workers
``Sec. 218. (a) Application.--No alien may be admitted as an H-2A
worker (as defined in subsection (x)(2)) unless the employer has filed
with the Secretary of Labor an application stating the following:
``(1) Temporary or seasonal labor or services.--The
agricultural employment for which the H-2A worker or workers is
or are sought is temporary or seasonal, the number of workers
sought, and the wage rate and conditions under which they will
be employed.
``(2) Benefits, wage, and working conditions.--The employer
will provide, at a minimum, the benefits, wages, and working
conditions required by subsection (n) to all workers employed
in the jobs for which the H-2A worker or workers is or are
sought and to all other workers in the same occupation at the
place of employment.
``(3) Nondisplacement of united states workers.--The
employer did not displace and will not displace a United States
worker employed by the employer during the period of employment
and during a period of 30 days preceding the period of
employment in the occupation at the place of employment for
which the employer seeks approval to employ H-2A workers.
``(4) Positive recruitment.--The employer has made positive
recruitment efforts within a multi-state region of traditional
or expected labor supply. The obligation to engage in positive
recruitment under this paragraph shall terminate on the date
the H-2A workers depart for the employer's place of employment.
``(5) Offers to united states workers.--The employer has
offered or will offer the job for which the nonimmigrant is, or
the nonimmigrants are, sought to any eligible United States
worker who applies and is equally or better qualified for the
job and who will be available at the time and place of need.
``(6) 50 percent rule.--The employer will provide
employment to any qualified United States worker who applies to
the employer until 50 percent of the period of the work
contract under which the H-2A worker who is in the job was
hired has elapsed.
``(7) Provision of insurance.--If the job for which the
nonimmigrant is, or the nonimmigrants are, sought is not
covered by State workers' compensation law, the employer will
provide, at no cost to the worker, insurance covering injury
and disease arising out of, and in the course of, the worker's
employment which will provide benefits at least equal to those
provided under the State workers' compensation law for
comparable employment.
``(8) Requirements for placement of h-2a workers with other
employers.--The employer will not place the nonimmigrant with
another employer unless--
``(A) the nonimmigrant performs duties in whole or
in part at 1 or more work sites owned, operated, or
controlled by such other employer;
``(B) there are indicia of an employment
relationship between the nonimmigrant and such other
employer; and
``(C) the employer has inquired of the other
employer as to whether, and has no actual knowledge or
notice that, during the period of employment and for a
period of 30 days preceding the period of employment,
the other employer has displaced or intends to displace
a United States worker employed by the other employer
in the occupation at the place of employment for which the employer
seeks approval to employ H-2A workers.
``(9) Strike or lockout.--There is not a strike or lockout
in the course of a labor dispute which, under regulations
promulgated by the Secretary of Labor, precludes the provision
of the certification described in section 101(a)(15)(H)(ii)(a).
``(10) Previous violations.--The employer has not, during
the previous two-year period, employed H-2A workers and
substantially violated a material term or condition of approval
with respect to the employment of domestic or nonimmigrant
workers, as determined by the Secretary of Labor after notice
and opportunity for a hearing.
``(b) Statement of Liability.--The application form shall include a
clear statement explaining the liability under this section of a
employer who places an H-2A worker with another employer if the other
employer displaces a United States worker in violation of the condition
described in subsection (a)(8).
``(c) Publication.--The employer shall make available for public
examination, within one working day after the date on which an
application under this paragraph is filed, at the employer's principal
place of business or worksite, a copy of each such application (and
such accompanying documents as are necessary).
``(d) List.--The Secretary shall compile, on a current basis, a
list (by employer) of the applications filed under subsection (a). Such
list shall include the wage rate, number of aliens sought, period of
intended employment, and date of need. The Secretary shall make such
list available for public examination in Washington, DC.
``(e) Special Rules for Consideration of Applications.--The
following rules shall apply in the case of the filing and consideration
of an application under subsection (a):
``(1) Deadline for filing applications.--The Secretary of
Labor may not require that the application be filed more than
45 days before the first date the employer requires the labor
or services of the H-2A worker or workers.
``(2) Review.--The Secretary of Labor shall review such an
application only for completeness and obvious inaccuracies.
``(3) Issuance of approval.--Unless the Secretary finds
that the application is incomplete or obviously inaccurate, the
Secretary shall provide the certification described in section
101(a)(15)(H)(ii)(a) within 7 days of the date of the filing of
the application.
``(f) Roles of Agricultural Associations.--
``(1) Permitting filing by agricultural associations.--An
application to import an alien as a temporary agricultural
worker may be filed by an association of agricultural producers
which use agricultural services.
``(2) Treatment of associations acting as employers.--If an
association is a joint or sole employer of temporary
agricultural workers, such workers may be transferred among its
producer members to perform agricultural services of a
temporary or seasonal nature for which the application was
approved.
``(3) Treatment of violations.--
``(A) Member's violation does not necessarily
disqualify association or other members.--If an
individual producer member of a joint employer
association is determined to have committed an act that
is in violation of the conditions for approval with
respect to the member's application, the denial shall
apply only to that member of the association unless the
Secretary determines that the association or other
member participated in, had knowledge of, or reason to
know of, the violation.
``(B) Association's violation does not necessarily
disqualify members.--
``(i) If an association representing
agricultural producers as a joint employer is
determined to have committed an act that is in
violation of the conditions for approval with
respect to the association's application, the
denial shall apply only to the association and
does not apply to any individual producer
member of the association unless the Secretary
determines that the member participated in, had
knowledge of, or reason to know of, the
violation.
``(ii) If an association of agricultural
producers approved as a sole employer is
determined to have committed an act that is in
violation of the conditions for approval with
respect to the association's application, no
individual producer member of such association
may be the beneficiary of the services of
temporary alien agricultural workers admitted
under this section in the commodity and
occupation in which such aliens were employed
by the association which was denied approval
during the period such denial is in force,
unless such producer member employs such aliens
in the commodity and occupation in question
directly or through an association which is a
joint employer of such workers with the
producer member.
``(g) Expedited Administrative Appeals of Certain Determinations.--
Regulations shall provide for an expedited procedure for the review of
a denial of approval under this section, or at the applicant's request,
for a de novo administrative hearing respecting the denial.
``(h) Miscellaneous Provisions.--
``(1) Withholding of domestic workers.--No person or entity
shall willfully and knowingly withhold domestic workers prior
to the arrival of H-2A workers in order to force the hiring of
domestic workers under subsection (a)(6).
``(2) Endorsement of documents.--The Secretary of Homeland
Security shall provide for the endorsement of entry and exit
documents of nonimmigrants described in section
101(a)(15)(H)(ii)(a) as may be necessary to carry out this
section and to provide notice for purposes of section 274A.
``(3) Preemption of state laws.--The provisions of
subsections (a) and (c) of section 214 and the provisions of
this section preempt any State or local law regulating
admissibility of nonimmigrant workers.
``(4) Fees.--The Secretary of Labor may require by
regulation, as a condition of approving the application, the
payment of a fee to recover the reasonable costs of processing
applications.
``(i) Failures To Meet Conditions.--If the Secretary of Labor
finds, after notice and opportunity for a hearing, a failure to meet a
condition of subsection (a), or a material misrepresentation of fact in
an application under subsection (a)--
``(1) the Secretary of Labor shall notify the Secretary of
such finding and may, in addition, impose such other
administrative remedies (including civil money penalties in an
amount not to exceed $1,000 per violation) as the Secretary of
Labor determines to be appropriate; and
``(2) the Secretary may disqualify the employer from the
employment of H-2A workers for a period of 1 year.
``(j) Willful Failures and Willful Misrepresentations.--If the
Secretary of Labor finds, after notice and opportunity for hearing, a
willful failure to meet a condition of subsection (a), or a willful
misrepresentation of a material fact in an application under subsection
(a), or a violation of subsection (h)(1)--
``(1) the Secretary of Labor shall notify the Secretary of
such finding and may, in addition, impose such other
administrative remedies (including civil money penalties in an
amount not to exceed $5,000 per violation) as the Secretary of
Labor determines to be appropriate;
``(2) the Secretary of Labor may seek appropriate legal or
equitable relief to effectuate the purposes of subsection
(h)(1); and
``(3) the Secretary may disqualify the employer from the
employment of H-2A workers for a period of 2 years.
``(k) Displacement of United States Workers.--If the Secretary of
Labor finds, after notice and opportunity for hearing, a willful
failure to meet a condition of subsection (a) or a willful
misrepresentation of a material fact in an application under subsection
(a), in the course of which failure or misrepresentation the employer
displaced a United States worker employed by the employer during the
period of employment on the employer's application under subsection (a)
or during the period of 30 days preceding such period of employment--
``(1) the Secretary of Labor shall notify the Secretary of
such finding and may, in addition, impose such other
administrative remedies (including civil money penalties in an
amount not to exceed $15,000 per violation) as the Secretary of
Labor determines to be appropriate; and
``(2) the Secretary may disqualify the employer from the
employment of H-2A workers for a period of 3 years.
``(l) Limitations on Civil Money Penalties.--The Secretary of Labor
shall not impose total civil money penalties with respect to an
application under subsection (a) in excess of $90,000.
``(m) Failures To Pay Wages or Required Benefits.--If the Secretary
of Labor finds, after notice and opportunity for a hearing, that the
employer has failed to pay the wages, or provide the housing allowance,
transportation, subsistence reimbursement, or guarantee of employment,
required under subsection (a)(2) the Secretary of Labor shall assess
payment of back wages, or other required benefits, due any United
States worker or H-2A worker employed by the employer in the specific
employment in question. The back wages or other required benefits under
section subsection (a)(2) shall be equal to the difference between the
amount that should have been paid and the amount that actually was paid
to such worker.
``(n) Minimum Benefits, Wages, and Working Conditions.--
``(1) Preferential treatment of aliens prohibited.--
Employers seeking to hire United States workers shall offer the
United States workers no less than the same benefits, wages,
and working conditions that the employer is offering, intends
to offer, or will provide to H-2A workers. Conversely, no job
offer may impose on United States workers any restrictions or
obligations which will not be imposed on the employer's H-2A
workers.
``(2) Required wages.--
``(A) An employer applying for workers under
subsection (a) shall offer to pay, and shall pay, all
workers in the occupation for which the employer has
applied for workers, not less than the prevailing wage.
``(B) In complying with subparagraph (A), an
employer may request and obtain a prevailing wage
determination from the State employment security
agency.
``(C) In lieu of the procedure described in
subparagraph (B), an employer may rely on other wage
information, including a survey of the prevailing wages
of workers in the occupation in the area of intended
employment that has been conducted or funded by the
employer or a group of employers, that meets criteria
specified by the Secretary of Labor in regulations.
``(D) An employer who obtains such prevailing wage
determination, or who relies on a qualifying survey of
prevailing wages, and who pays the wage determined to
be prevailing, shall be considered to have complied
with the requirement of subparagraph (A).
``(E) No worker shall be paid less than the greater
of the prevailing wage or the applicable State minimum
wage.
``(3) Requirement to provide housing or a housing
allowance.--
``(A) In general.--An employer applying for workers
under subsection (a) shall offer to provide housing at
no cost to all workers in job opportunities for which
the employer has applied under that section and to all
other workers in the same occupation at the place of
employment, whose place of residence is beyond normal
commuting distance.
``(B) Type of housing.--In complying with
subparagraph (A), an employer may, at the employer's
election, provide housing that meets applicable Federal
standards for temporary labor camps or secure housing
that meets applicable local standards for rental or
public accommodation housing or other substantially
similar class of habitation, or in the absence of
applicable local standards, State standards for rental
or public accommodation housing or other substantially
similar class of habitation. In the absence of
applicable local or State standards, Federal temporary
labor camp standards shall apply.
``(C) Workers engaged in the range production of
livestock.--The Secretary of Labor shall issue
regulations that address the specific requirements for
the provision of housing to workers engaged in the
range production of livestock.
``(D) Limitation.--Nothing in this paragraph shall
be construed to require an employer to provide or
secure housing for persons who were not entitled to such housing under
the temporary labor certification regulations in effect on June 1,
1986.
``(E) Housing allowance as alternative.--
``(i) In general.--In lieu of offering
housing pursuant to subparagraph (A), the
employer may provide a reasonable housing
allowance, but only if the requirement of
clause (ii) is satisfied. Upon the request of a
worker seeking assistance in locating housing,
the employer shall [make a good faith effort
to] assist the worker in identifying and
locating housing in the area of intended
employment. An employer who offers a housing
allowance to a worker, or assists a worker in
locating housing which the worker occupies,
pursuant to this clause shall not be deemed a
housing provider under section 203 of the
Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1823) solely by
virtue of providing such housing allowance.
However, no housing allowance may be used for
housing which is owned or controlled by the
employer.
``(ii) Certification.--The requirement of
this clause is satisfied if the Governor of the
State certifies to the Secretary of Labor that
there is adequate housing available in the area
of intended employment for migrant farm
workers, and H-2A workers, who are seeking
temporary housing while employed at farm work.
Such certification shall expire after 3 years
unless renewed by the Governor of the State.
``(iii) Amount of allowance.--
``(I) Nonmetropolitan counties.--If
the place of employment of the workers
provided an allowance under this
subparagraph is a nonmetropolitan
county, the amount of the housing
allowance under this subparagraph shall
be equal to the statewide average fair
market rental for existing housing for
nonmetropolitan counties for the State,
as established by the Secretary of
Housing and Urban Development pursuant
to section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(II) Metropolitan counties.--If
the place of employment of the workers
provided an allowance under this
paragraph is in a metropolitan county,
the amount of the housing allowance
under this subparagraph shall be equal
to the statewide average fair market
rental for existing housing for
metropolitan counties for the State, as
established by the Secretary of Housing
and Urban Development pursuant to
section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(4) Reimbursement of transportation.--
``(A) To place of employment.--A worker shall be
reimbursed by the employer for the cost of the worker's
transportation and subsistence from the place from
which the worker came to work for the employer (or
place of last employment, if the worker traveled from
such place) to the place of employment.
``(B) From place of employment.--A worker who
completes the period of employment for the job
opportunity involved shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the place of employment to the
place from which the worker, disregarding intervening
employment, came to work for the employer, or to the
place of next employment, if the worker has contracted
with a subsequent employer who has not agreed to
provide or pay for the worker's transportation and
subsistence to such subsequent employer's place of
employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as
provided in clause (ii), the amount of
reimbursement provided under subparagraph (A)
or (B) to a worker or alien shall not exceed
the lesser of--
``(I) the actual cost to the worker
or alien of the transportation and
subsistence involved; or
``(II) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
``(ii) Distance traveled.--No reimbursement
under subparagraph (A) or (B) shall be required
if the distance traveled is 100 miles or less,
or the worker is not residing in employer-
provided housing or housing secured through an
allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off
or employment is terminated for contract impossibility
(as described in paragraph (5)(D)) before the
anticipated ending date of employment, the employer
shall provide the transportation and subsistence
required by subparagraph (B) and, notwithstanding
whether the worker has completed 50 percent of the
period of employment, shall provide the transportation
reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and
work site.--The employer shall provide transportation
between the worker's living quarters (i.e., housing
provided by the employer pursuant to paragraph (1),
including housing provided through a housing allowance)
and the employer's work site without cost to the
worker, and such transportation will be in accordance
with applicable laws and regulations.
``(5) Guarantee of employment.--
``(A) Offer to worker.--The employer shall
guarantee to offer the worker employment for the hourly
equivalent of at least three-fourths of the work days
of the total period of employment, beginning with the
first work day after the arrival of the worker at the
place of employment and ending on the expiration date
specified in the job offer. For purposes of this
subparagraph, the hourly equivalent means the number of
hours in the work days as stated in the job offer and
shall exclude the worker's Sabbath and Federal
holidays. If the employer affords the United States or
H-2A worker less employment than that required under
this paragraph, the employer shall pay such worker the
amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of
hours.
``(B) Failure to work.--Any hours which the worker
fails to work, up to a maximum of the number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for
cause.--If the worker voluntarily abandons employment
before the end of the contract period, or is terminated
for cause, the worker is not entitled to the `three-
fourths guarantee described in subparagraph (A).
``(D) Contract impossibility.--If, before the
expiration of the period of employment specified in the
job offer, the services of the worker are no longer
required for reasons beyond the control of the employer
due to any form of natural disaster, including but not
limited to a flood, hurricane, freeze, earthquake,
fire, drought, plant or animal disease or pest
infestation, or regulatory drought, before the
guarantee in subparagraph (A) is fulfilled, the
employer may terminate the worker's employment. In the
event of such termination, the employer shall fulfill
the employment guarantee in subparagraph (A) for the
work days that have elapsed from the first work day
after the arrival of the worker to the termination of
employment. In such cases, the employer will make
efforts to transfer the United States worker to other
comparable employment acceptable to the worker.
``(o) Petitioning for Admission.--An employer, or an association
acting as an agent or joint employer for its members, that seeks the
admission into the United States of an H-2A worker must file a petition
with the Secretary. The petition shall be accompanied by the
certification described in section 101(a)(15)(H)(ii)(a).
``(p) Expedited Adjudication by the Secretary.--The Secretary shall
establish a procedure for expedited adjudication of petitions filed
under subsection (o) and within 7 working days shall, by fax, cable, or
other means assuring expedited delivery, transmit a copy of notice of
action on the petition to the petitioner and, in the case of approved
petitions, to the appropriate immigration officer at the port of entry
or United States consulate (as the case may be) where the petitioner
has indicated that the alien beneficiary (or beneficiaries) will apply
for a visa or admission to the United States.
``(q) Disqualification.--
``(1) Subject to paragraph (2), an alien shall be
considered inadmissible to the United States and ineligible for
nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the
alien has, at any time during the past 5 years, violated a term
or condition of admission into the United States as a
nonimmigrant, including overstaying the period of authorized
admission.
``(2) Waivers.--
``(A) In general.--An alien outside the United
States, and seeking admission under section
101(a)(15)(H)(ii)(a) shall not be deemed inadmissible
under such section by reason of paragraph (1) or
section 212(a)(9)(B). A waiver under this subparagraph
may be granted only once to an individual alien.
``(B) Limitation.--In any case in which an alien is
admitted to the United States upon having a ground of
inadmissibility waived under subparagraph (A), such
waiver shall be considered to remain in effect unless
the alien again violates a material provision of this
section or otherwise violates a term or condition of
admission into the United States as a nonimmigrant, in
which case such waiver shall terminate.
``(r) Period of Admission.--
``(1) In general.--The alien shall be admitted for the
period of employment in the application under subsection (a),
not to exceed 10 months, supplemented by a period of up to 1
week before the beginning of the period of employment (to be
granted for the purpose of travel to the work site) and a
period of 14 days following the period of employment (to be
granted for the purpose of departure or extension based on a
subsequent offer of employment), except that--
``(A) the alien is not authorized to be employed
during such 14-day period except in the employment for
which the alien was previously authorized; and
``(B) the total period of employment, including
such 14-day period, may not exceed 10 months.
``(2) Construction.--Nothing in this subsection shall limit
the authority of the Secretary to extend the stay of the alien
under any other provision of this Act.
``(s) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)(15)(H)(ii)(a) who abandons the employment
which was the basis for such admission or status shall be
considered to have failed to maintain nonimmigrant status as an
H-2A worker and shall depart the United States or be subject to
removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer (or association
acting as agent for the employer) shall notify the Secretary
within 7 days of an H-2A worker's having prematurely abandoned
employment.
``(3) Removal by the secretary.--The Secretary shall
promptly remove from the United States any H-2A worker who
violates any term or condition of the worker's nonimmigrant
status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate his or her employment
if the alien promptly departs the United States upon
termination of such employment.
``(t) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the
Secretary required by subsection (q)(2), the Secretary of State
shall promptly issue a visa to, and the Secretary shall admit
into the United States, an eligible alien designated by the
employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates
employment; or
``(B) whose employment is terminated after a United
States worker is employed pursuant to subsection
(a)(6), if the United States worker voluntarily departs
before the end of the period of intended employment or
if the employment termination is for a lawful job-
related reason.
``(2) Construction.--Nothing in this subsection is intended
to limit any preference required to be accorded United States
workers under any other provision of this Act.
``(u) Identification Document.--
``(1) In general.--Each alien authorized to be admitted
under section 101(a)(15)(H)(ii)(a) shall be provided an
identification and employment eligibility document to verify
eligibility for employment in the United States and verify such
person's proper identity.
``(2) Requirements.--No identification and employment
eligibility document may be issued which does not meet the
following requirements:
``(A) The document shall be capable of reliably
determining whether--
``(i) the individual with the
identification and employment eligibility
document whose eligibility is being verified is
in fact eligible for employment;
``(ii) the individual whose eligibility is
being verified is claiming the identity of
another person; and
``(iii) the individual whose eligibility is
being verified is authorized to be admitted
into, and employed in, the United States as an
H-2A worker.
``(B) The document shall be in a form that is
resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of
the Secretary for the purpose of excluding
aliens from benefits for which they are not
eligible and determining whether the alien is
unlawfully present in the United States; and
``(ii) be compatible with law enforcement
databases to determine if the alien has been
convicted of criminal offenses.
``(v) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an H-2A alien who is lawfully present in the United
States, the petition filed by the employer or an association
pursuant to subsection (o) shall request an extension of the
alien's stay and a change in the alien's employment.
``(2) Limitation on filing petition for extension of
stay.--A petition may not be filed for an extension of an
alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 2 years after the
date of the alien's last admission to the United States
under this section.
``(3) Work authorization upon filing petition for extension
of stay.--In the case of an alien who is lawfully present in
the United States, the alien is authorized to commence the
employment described in a petition under paragraph (1) on the
date on which the petition is filed. For purposes of the
preceding sentence, the term `file' means sending the petition
by certified mail via the United States Postal Service, return
receipt requested, or delivered by guaranteed commercial
delivery which will provide the employer with a documented
acknowledgment of the date of receipt of the petition. The
employer shall provide a copy of the employer's petition to the
alien, who shall keep the petition with the alien's
identification and employment eligibility document as evidence
that the petition has been filed and that the alien is
authorized to work in the United States. Upon approval of a
petition for an extension of stay or change in the alien's
authorized employment, the Secretary shall provide a new or
updated employment eligibility document to the alien indicating
the new validity date, after which the alien is not required to
retain a copy of the petition.
``(4) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous
period of authorized status as an H-2A worker
(including any extensions) is 2 years.
``(B) Requirement to remain outside the united
states.--
``(i) In general.--Subject to clause (ii),
in the case of an alien outside the United
States whose period of authorized status as an
H-2A worker (including any extensions) has
expired, the alien may not again apply for
admission to the United States as an H-2A
worker unless the alien has remained outside
the United States for a continuous period equal
to at least \1/5\ the duration of the alien's
previous period of authorized status as an H-2A
worker (including any extensions).
``(ii) Exception.--Clause (i) shall not
apply in the case of an alien if the alien's
period of authorized status as an H-2A worker
(including any extensions) was for a period of
not more than 10 months and such alien has been
outside the United States for at least 2 months
during the 12 months preceding the date the
alien again is applying for admission to the
United States as an H-2A worker.
``(w) Special Rules for Aliens Employed as Sheepherders.--
Notwithstanding any other provision of this section, aliens admitted
under section 101(a)(15)(H)(ii)(a) for employment as sheepherders--
``(1) may be admitted for a period of 12 months; and
``(2) shall not be subject to the requirements of
subsection (v)(4)(B).
``(x) Definitions.--For purposes of this section:
``(1) Area of employment.--The term `area of employment'
means the area within normal commuting distance of the worksite
or physical location where the work of the H-2A worker is or
will be performed. If such worksite or location is within a
Metropolitan Statistical Area, any place within such area is
deemed to be within the area of employment.
``(2) Eligible individual.--The term `eligible individual'
means, with respect to employment, an individual who is not an
unauthorized alien (as defined in section 274A(h)(3)) with
respect to that employment.
``(3) Displace.--In the case of an application with respect
to one or more H-2A workers by an employer, the employer is
considered to `displace' a United States worker from a job if
the employer lays off the worker from a job that is essentially
the equivalent of the job for which the H-2A worker or workers
is or are sought. A job shall not be considered to be
essentially equivalent of another job unless it involves
essentially the same responsibilities, was held by a United
States worker with substantially equivalent qualifications and
experience, and is located in the same area of employment as
the other job.
``(4) H-2A worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(5) Lays off.--
``(A) In general.--The term `lays off', with
respect to a worker--
``(i) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in paragraph (3) or (8) of
subsection (a); but
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under subsection (a)(8),
with either employer described in such
subsection) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
``(B) Construction.--Nothing in this paragraph is
intended to limit an employee's rights under a
collective bargaining agreement or other employment
contract.
``(6) Prevailing wage.--The term `prevailing wage' means,
with respect to an agricultural occupation in an area of
intended employment, the rate of wages that includes the 51st
percentile of employees with similar experience and
qualifications in the agricultural occupation in the area of
intended employment, expressed in terms of the prevailing
method of pay for the occupation in the area of intended
employment.
``(7) United states worker.--The term `United States
worker' means an employee who--
``(A) is a citizen or national of the United
States; or
``(B) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207, is granted asylum under section 208, or is
an immigrant otherwise authorized, by this Act or by
the Secretary of Homeland Security, to be employed.''.
(b) Conforming Amendment.--Section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is
amended by striking ``seasonal nature, or (b)'' and inserting
``seasonal nature, and with respect to whom the Secretary of Labor
determines and certifies to the Secretary of Homeland Security that the
intending employer has filed with the Secretary an application under
section 218(a), or (b)''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date that is 180 days after the date of the enactment of
this Act.
SEC. 3. EMERGENCY GRANTS TO ASSIST EMPLOYERS WITH H-2A TRANSPORTATION
COSTS.
Subtitle D of the Consolidated Farm and Rural Development Act (7
U.S.C. 1981 et seq.) is amended by adding at the end the following:
``SEC. 379E. EMERGENCY GRANTS TO ASSIST EMPLOYERS WITH H-2A
TRANSPORTATION COSTS.
``(a) In General.--The Secretary of Agriculture may make grants,
not to exceed $1,000,000 annually, to employers of H-2A workers for the
purpose of reimbursing the employers for the amounts paid to H-2A
workers under section 218(n)(4)(B) of the Immigration and Nationality
Act (8 U.S.C. 1188) if, before the expiration of the period of
employment specified in the job offer, the services of the worker are
no longer required for reasons beyond the control of the employer due
to any form of natural disaster, including but not limited to a flood,
hurricane, freeze, earthquake, fire, drought, plant or animal disease
or pest infestation, or regulatory drought.
``(b) Funding.--The grants described in subsection (a) shall be
made out of the funds, facilities and authorities of the Commodity
Credit Corporation to the extent that such funds are provided in
advance through an appropriations act.''.
SEC. 4. ESTABLISHMENT OF H-2A OMBUDSMAN.
Subtitle D of the Consolidated Farm and Rural Development Act (7
U.S.C. 1981 et seq.), as amended by section 3 of this Act, is amended
by adding at the end the following:
``SEC. 379F. ESTABLISHMENT OF H-2A OMBUDSMAN.
``Ombu
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Sponsor introductory remarks on measure. (CR E2449)
Executive Comment Requested from USDA.
Referred to the Subcommittee on Immigration, Border Security, and Claims.
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