Agricultural Job Opportunity, Benefits, and Security Act of 2004 - Directs the Secretary of Homeland Security to grant qualifying alien agricultural workers (and their spouses and minor children) temporary resident status and subsequently lawful permanent resident status upon the fulfillment of specified agricultural work and residency requirements.
Sets forth provisions with respect to: (1) adjustment of status applications, including penalties for false statements; (2) the waiver of numerical limitations and certain grounds for inadmissibility; (3) the temporary stay of removal and work authorization; (4) administrative and judicial review; and (5) dissemination of program information.
Amends the Social Security Act to provide for the correction of such aliens' social security records.
Amends the Immigration and Nationality Act to set forth application requirements for H-2A (temporary agricultural worker) employers and employer associations, 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; and (3) respecting required wages and benefits and compliance with labor laws.
Sets forth employment requirements with respect to H-2A worker wages, housing, and transportation reimbursement. Establishes the Commission on Agricultural Wage Standards under the H-2A program.
Revises provisions respecting the admission and extension of stay of H-2A workers. Provides special rules for alien sheepherders.
Sets forth worker protection and labor standards enforcement provisions for such aliens.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2823 Placed on Calendar Senate (PCS)]
Calendar No. 711
108th CONGRESS
2d Session
S. 2823
To provide for the adjustment of status of certain foreign agricultural
workers, to amend the Immigration and Nationality Act to reform the H-
2A worker program under that Act, to provide a stable, legal
agricultural workforce, to extend basic legal protections and better
working conditions to more workers, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 21, 2004
Mr. Craig (for himself and Mr. Kennedy) introduced the following bill;
which was read the first time
September 22, 2004
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To provide for the adjustment of status of certain foreign agricultural
workers, to amend the Immigration and Nationality Act to reform the H-
2A worker program under that Act, to provide a stable, legal
agricultural workforce, to extend basic legal protections and better
working conditions to more 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Agricultural Job
Opportunity, Benefits, and Security Act of 2004''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--ADJUSTMENT TO LAWFUL STATUS
Sec. 101. Agricultural workers.
Sec. 102. Correction of Social Security records.
TITLE II--REFORM OF H-2A WORKER PROGRAM
Sec. 201. Amendment to the Immigration and Nationality Act.
TITLE III--MISCELLANEOUS PROVISIONS
Sec. 301. Determination and use of user fees.
Sec. 302. Regulations.
Sec. 303. Effective date.
SEC. 2. DEFINITIONS.
In this Act:
(1) Agricultural employment.--The term ``agricultural
employment'' means any service or activity that is considered
to be agricultural under section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor
under section 3121(g) of the Internal Revenue Code of 1986 (26
U.S.C. 3121(g)). For purposes of this paragraph, agricultural
employment includes employment under section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(ii)(a)).
(2) Employer.--The term ``employer'' means any person or
entity, including any farm labor contractor and any
agricultural association, that employs workers in agricultural
employment.
(3) Job opportunity.--The term ``job opportunity'' means a
job opening for temporary full-time employment at a place in
the United States to which United States workers can be
referred.
(4) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(5) Temporary.--A worker is employed on a ``temporary''
basis where the employment is intended not to exceed 10 months.
(6) United states worker.--The term ``United States
worker'' means any worker, whether a United States citizen or
national, a lawfully admitted permanent resident alien, or any
other alien, who is authorized to work in the job opportunity
within the United States, except an alien admitted or otherwise
provided status under section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(7) Work day.--The term ``work day'' means any day in which
the individual is employed 1 or more hours in agriculture
consistent with the definition of ``man-day'' under section
3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C.
203(u)).
TITLE I--ADJUSTMENT TO LAWFUL STATUS
SEC. 101. AGRICULTURAL WORKERS.
(a) Temporary Resident Status.--
(1) In general.--Notwithstanding any other provision of
law, the Secretary shall confer upon an alien who qualifies
under this subsection the status of an alien lawfully admitted
for temporary residence if the Secretary determines that the
following requirements are satisfied with respect to the alien:
(A) Performance of agricultural employment in the
united states.--The alien must establish that the
alien--
(i) entered the United States at least two
years before the date of the enactment of this
Act; and
(ii) has performed agricultural employment
in the United States for at least 575 hours or
100 work days, whichever is less, during any 12
consecutive months during the 18-month period
ending on August 31, 2003.
(B) Application period.--The alien must apply for
such status during the 18-month application period
beginning on the 1st day of the 7th month that begins
after the date of enactment of this Act.
(C) Admissible as immigrant.--The alien must
establish that the alien is otherwise admissible to the
United States under section 212 of the Immigration and
Nationality Act (8 U.S.C. 1182), except as otherwise
provided under subsection (e)(2).
(2) Authorized travel.--During the period an alien is in
lawful temporary resident status granted under this subsection,
the alien has the right to travel abroad (including commutation
from a residence abroad) in the same manner as an alien
lawfully admitted for permanent residence.
(3) Authorized employment.--During the period an alien is
in lawful temporary resident status granted under this
subsection, the alien shall be provided an ``employment
authorized'' endorsement or other appropriate work permit, in
the same manner as an alien lawfully admitted for permanent
residence.
(4) Termination of temporary resident status.--During the
period of temporary resident status granted an alien under this
subsection, the Secretary may terminate such status only upon a
determination under this Act that the alien is deportable.
(5) Record of employment.--
(A) In general.--Each employer of a worker granted
status under this subsection shall annually--
(i) provide a written record of employment
to the alien; and
(ii) provide a copy of such record to the
Secretary.
(B) Sunset.--The obligation under subparagraph (A)
terminates on August 31, 2009.
(b) Rights of Aliens Granted Temporary Resident Status.--
(1) In general.--Except as otherwise provided in this
subsection, an alien who acquires the status of an alien
lawfully admitted for temporary residence under subsection (a),
such status not having changed, shall be considered to be an
alien lawfully admitted for permanent residence for purposes of
any law other than any provision of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
(2) Delayed eligibility for certain federal public
benefits.--An alien who acquires the status of an alien
lawfully admitted for temporary residence under subsection (a)
as described in paragraph (1) shall not be eligible, by reason
of such acquisition of that status, for any form of assistance
or benefit described in section 403(a) of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(8 U.S.C. 1613(a)) until 5 years after the date on which the
Secretary confers permanent resident status upon that alien
under subsection (a).
(3) Terms of employment respecting aliens admitted under
this section.--
(A) Prohibition.--No alien granted status under
subsection (a) may be terminated from employment by any
employer during the period of temporary resident status
except for just cause.
(B) Treatment of complaints.--
(i) Establishment of process.--The
Secretary shall establish a process for the
receipt, initial review, and disposition in
accordance with this subparagraph of complaints
by aliens granted temporary resident status
under subsection (a) who allege that they have
been terminated without just cause. No
proceeding shall be conducted under this
subparagraph with respect to a termination
unless the Secretary determines that the
complaint was filed not later than 6 months
after the date of the termination.
(ii) Initiation of arbitration.--If the
Secretary finds that a complaint has been filed
in accordance with clause (i) and there is
reasonable cause to believe that the
complainant was terminated without just cause,
the Secretary shall initiate binding
arbitration proceedings by requesting the
Federal Mediation and Conciliation Service to
appoint a mutually agreeable arbitrator from
the roster of arbitrators maintained by such
Service for the geographical area in which the
employer is located. The procedures and rules
of such Service shall be applicable to the
selection of such arbitrator and to such
arbitration proceedings. The Secretary shall
pay the fee and expenses of the arbitrator,
subject to the availability of appropriations
for such purpose.
(iii) Arbitration proceedings.--The
arbitrator shall conduct the proceeding in
accordance with the policies and procedures
promulgated by the American Arbitration
Association applicable to private arbitration
of employment disputes. The arbitrator shall
make findings respecting whether the
termination was for just cause. The arbitrator
may not find that the termination was for just
cause unless the employer so demonstrates by a
preponderance of the evidence. If the
arbitrator finds that the termination was not
for just cause, the arbitrator shall make a
specific finding of the number of days or hours
of work lost by the employee as a result of the
termination. The arbitrator shall have no
authority to order any other remedy, including,
but not limited to, reinstatement, back pay, or
front pay to the affected employee. Within 30
days from the conclusion of the arbitration
proceeding, the arbitrator shall transmit the
findings in the form of a written opinion to
the parties to the arbitration and the
Secretary. Such findings shall be final and
conclusive, and no official or court of the United States shall have
the power or jurisdiction to review any such findings.
(iv) Effect of arbitration findings.--If
the Secretary receives a finding of an
arbitrator that an employer has terminated an
alien granted temporary resident status under
subsection (a) without just cause, the
Secretary shall credit the alien for the number
of days or hours of work lost for purposes of
the requirement of subsection (c)(1).
(v) Treatment of attorney's fees.--The
parties shall bear the cost of their own
attorney's fees involved in the litigation of
the complaint.
(vi) Nonexclusive remedy.--The complaint
process provided for in this subparagraph is in
addition to any other rights an employee may
have in accordance with applicable law.
(vii) Effect on other actions or
proceedings.--Any finding of fact or law,
judgment, conclusion, or final order made by an
arbitrator in the proceeding before the
Secretary shall not be conclusive or binding in
any separate or subsequent action or proceeding
between the employee and the employee's current
or prior employer brought before an arbitrator,
administrative agency, court, or judge of any
State or the United States, regardless of
whether the prior action was between the same
or related parties or involved the same facts,
except that the arbitrator's specific finding
of the number of days or hours of work lost by
the employee as a result of the employment
termination may be referred to the Secretary
pursuant to clause (iv).
(C) Civil penalties.--
(i) In general.--If the Secretary finds,
after notice and opportunity for a hearing,
that an employer of an alien granted temporary
resident status under subsection (a) has failed
to provide the record of employment required
under subsection (a)(5) or has provided a false
statement of material fact in such a record,
the employer shall be subject to a civil money
penalty in an amount not to exceed $1,000 per
violation.
(ii) Limitation.--The penalty applicable
under clause (i) for failure to provide records
shall not apply unless the alien has provided
the employer with evidence of employment
authorization granted under this section.
(c) Adjustment to Permanent Residence.--
(1) Agricultural workers.--
(A) In general.--Except as provided in subparagraph
(B), the Secretary shall adjust the status of an alien
granted lawful temporary resident status under
subsection (a) to that of an alien lawfully admitted
for permanent residence if the Secretary determines
that the following requirements are satisfied:
(i) Qualifying employment.--The alien has
performed at least 360 work days or 2,060
hours, but in no case less than 2,060 hours, of
agricultural employment in the United States,
during the period beginning on September 1,
2003, and ending on August 31, 2009.
(ii) Qualifying years.--The alien has
performed at least 75 work days or 430 hours,
but in no case less than 430 hours, of
agricultural employment in the United States in
at least 3 nonoverlapping periods of 12
consecutive months during the period beginning
on September 1, 2003, and ending on August 31,
2009. Qualifying periods under this clause may
include nonconsecutive 12-month periods.
(iii) Qualifying work in first 3 years.--
The alien has performed at least 240 work days
or 1,380 hours, but in no case less than 1,380
hours, of agricultural employment during the
period beginning on September 1, 2003, and
ending on August 31, 2006.
(iv) Application period.--The alien applies
for adjustment of status not later than August
31, 2010.
(v) Proof.--In meeting the requirements of
clauses (i), (ii), and (iii), an alien may
submit the record of employment described in
subsection (a)(5) or such documentation as may
be submitted under subsection (d)(3).
(vi) Disability.--In determining whether an
alien has met the requirements of clauses (i),
(ii), and (iii), the Secretary shall credit the
alien with any work days lost because the alien
was unable to work in agricultural employment
due to injury or disease arising out of and in
the course of the alien's agricultural
employment, if the alien can establish such
disabling injury or disease through medical
records.
(B) Grounds for denial of adjustment of status.--
The Secretary may deny an alien adjustment to permanent
resident status, and provide for termination of the
temporary resident status granted such alien under
subsection (a), if--
(i) the Secretary finds by a preponderance
of the evidence that the adjustment to
temporary resident status was the result of
fraud or willful misrepresentation, as
described in section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(6)(C)(i)); or
(ii) the alien--
(I) commits an act that makes the
alien inadmissible to the United States
under section 212 of the Immigration
and Nationality Act (8 U.S.C. 1182),
except as provided under subsection
(e)(2); or
(II) is convicted of a felony or 3
or more misdemeanors committed in the
United States.
(C) Grounds for removal.--Any alien granted
temporary resident status under subsection (a) who does
not apply for adjustment of status under this
subsection before the expiration of the application
period described in subparagraph (A)(iv), or who fails
to meet the other requirements of subparagraph (A) by
the end of the applicable period, is deportable and may
be removed under section 240 of the Immigration and
Nationality Act (8 U.S.C. 1229a). The Secretary shall
issue regulations establishing grounds to waive
subparagraph (A)(iii) with respect to an alien who has
completed at least 200 days of the work requirement
specified in such subparagraph in the event of a
natural disaster which substantially limits the
availability of agricultural employment or a personal
emergency that prevents compliance with such
subparagraph.
(2) Spouses and minor children.--
(A) In general.--Notwithstanding any other
provision of law, the Secretary shall confer the status
of lawful permanent resident on the spouse and minor
child of an alien granted status under paragraph (1),
including any individual who was a minor child on the
date such alien was granted temporary resident status,
if the spouse or minor child applies for such status,
or if the principal alien includes the spouse or minor
child in an application for adjustment of status to
that of a lawful permanent resident.
(B) Treatment of spouses and minor children prior
to adjustment of status.--A spouse and minor child of
an alien granted temporary resident status under
subsection (a) may not be--
(i) removed while such alien maintains such
status; and
(ii) granted authorization to engage in
employment in the United States or be provided
an ``employment authorized'' endorsement or
other work permit, unless such employment
authorization is granted under another
provision of law.
(d) Applications.--
(1) To whom may be made.--
(A) Within the united states.--The Secretary shall
provide that--
(i) applications for temporary resident
status under subsection (a) may be filed--
(I) with the Secretary, but only if
the applicant is represented by an
attorney; or
(II) with a qualified designated
entity (designated under paragraph
(2)), but only if the applicant
consents to the forwarding of the
application to the Secretary; and
(ii) applications for adjustment of status
under subsection (c) shall be filed directly
with the Secretary.
(B) Outside the united states.--The Secretary, in
cooperation with the Secretary of State, shall
establish a procedure whereby an alien may apply for
temporary resident status under subsection (a) at an
appropriate consular office outside the United States.
(C) Preliminary applications.--
(i) In general.--During the application
period described in subsection (a)(1)(B), the
Secretary may grant admission to the United
States as a temporary resident and provide an
``employment authorized'' endorsement or other
appropriate work permit to any alien who
presents a preliminary application for such
status under subsection (a) at a designated
port of entry on the southern land border of
the United States. An alien who does not enter
through a port of entry is subject to
deportation and removal as otherwise provided
in this Act.
(ii) Definition.--For purposes of clause
(i), the term ``preliminary application'' means
a fully completed and signed application which
contains specific information concerning the
performance of qualifying employment in the
United States, together with the payment of the
appropriate fee and the submission of
photographs and the documentary evidence which
the applicant intends to submit as proof of
such employment.
(iii) Eligibility.--An applicant under
clause (i) must be otherwise admissible to the
United States under subsection (e)(2) and must
establish to the satisfaction of the examining
officer during an interview that the
applicant's claim to eligibility for temporary
resident status is credible.
(D) Travel documentation.--The Secretary shall
provide each alien granted status under this section
with a counterfeit-resistant document of authorization
to enter or reenter the United States that meets the
requirements established by the Secretary.
(2) Designation of entities to receive applications.--
(A) In general.--For purposes of receiving
applications under subsection (a), the Secretary--
(i) shall designate qualified farm labor
organizations and associations of employers;
and
(ii) may designate such other persons as
the Secretary determines are qualified and have
substantial experience, demonstrate competence,
and have traditional long-term involvement in
the preparation and submittal of applications
for adjustment of status under section 209,
210, or 245 of the Immigration and Nationality
Act, Public Law 89-732, Public Law 95-145, or
the Immigration Reform and Control Act of 1986.
(B) References.--Organizations, associations, and
persons designated under subparagraph (A) are referred
to in this Act as ``qualified designated entities''.
(3) Proof of eligibility.--
(A) In general.--An alien may establish that the
alien meets the requirement of subsection (a)(1)(A) or
subsection (c)(1)(A) through government employment
records or records supplied by employers or collective
bargaining organizations, and other reliable
documentation as the alien may provide. The Secretary
shall establish special procedures to properly credit
work in cases in which an alien was employed under an
assumed name.
(B) Documentation of work history.--(i) An alien
applying for status under subsection (a)(1) or
subsection (c)(1) has the burden of proving by a
preponderance of the evidence that the alien has worked
the requisite number of hours or days (as required
under subsection (a)(1)(A) or subsection (c)(1)(A)).
(ii) If an employer or farm labor contractor
employing such an alien has kept proper and adequate
records respecting such employment, the alien's burden
of proof under clause (i) may be met by securing timely
production of those records under regulations to be
promulgated by the Secretary.
(iii) An alien can meet such burden of proof if the
alien establishes that the alien has in fact performed
the work described in subsection (a)(1)(A) or
subsection (c)(1)(A) by producing sufficient evidence
to show the extent of that employment as a matter of
just and reasonable inference.
(4) Treatment of applications by qualified designated
entities.--Each qualified designated entity must agree to
forward to the Secretary applications filed with it in
accordance with paragraph (1)(A)(i)(II) but not to forward to
the Secretary applications filed with it unless the applicant
has consented to such forwarding. No such entity may make a
determination required by this section to be made by the
Secretary. Upon the request of the alien, a qualified
designated entity shall assist the alien in obtaining
documentation of the work history of the alien.
(5) Limitation on access to information.--Files and records
prepared for purposes of this subsection by qualified
designated entities operating under this subsection are
confidential and the Secretary shall not have access to such
files or records relating to an alien without the consent of
the alien, except as allowed by a court order issued pursuant
to paragraph (6).
(6) Confidentiality of information.--
(A) In general.--Except as otherwise provided in
this subsection, neither the Secretary, nor any other
official or employee of the Department of Homeland
Security, or bureau or agency thereof, may--
(i) use the information furnished by the
applicant pursuant to an application filed
under this section, the information provided to
the applicant by a person designated under
paragraph (2)(A), or any information provided
by an employer or former employer, for any
purpose other than to make a determination on
the application, or for enforcement of
paragraph (7);
(ii) make any publication whereby the
information furnished by any particular
individual can be identified; or
(iii) permit anyone other than the sworn
officers and employees of the Department of
Homeland Security, or bureau or agency thereof,
or, with respect to applications filed with a
qualified designated entity, that qualified
designated entity, to examine individual
applications.
(B) Crime.--Whoever knowingly uses, publishes, or
permits information to be examined in violation of this
paragraph shall be fined not more than $10,000.
(7) Penalties for false statements in applications.--
(A) Criminal penalty.--Whoever--
(i) files an application for status under
subsection (a) or (c) and knowingly and
willfully falsifies, conceals, or covers up a
material fact or makes any false, fictitious,
or fraudulent statements or representations, or
makes or uses any false writing or document
knowing the same to contain any false,
fictitious, or fraudulent statement or entry;
or
(ii) creates or supplies a false writing or
document for use in making such an application;
shall be fined in accordance with title 18, United
States Code, or imprisoned not more than 5 years, or
both.
(B) Inadmissibility.--An alien who is convicted of
a crime under subparagraph (A) shall be considered to
be inadmissible to the United States on the ground
described in section 212(a)(6)(C)(i) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(8) Eligibility for legal services.--Section 504(a)(11) of
Public Law 104-134 (110 Stat. 1321-53 et seq.) shall not be
construed to prevent a recipient of funds under the Legal
Services Corporation Act (42 U.S.C. 2996 et seq.) from
providing legal assistance directly related to an application
for adjustment of status under this section.
(9) Application fees.--
(A) Fee schedule.--The Secretary shall provide for
a schedule of fees that--
(i) shall be charged for the filing of
applications for status under subsections (a)
and (c); and
(ii) may be charged by qualified designated
entities to help defray the costs of services
provided to such applicants.
(B) Prohibition on excess fees by qualified
designated entities.--A qualified designated entity may
not charge any fee in excess of, or in addition to, the
fees authorized under subparagraph (A)(ii) for services
provided to applicants.
(C) Disposition of fees.--
(i) In general.--There is established in
the general fund of the Treasury a separate
account, which shall be known as the
``Agricultural Worker Immigration Status
Adjustment Account''. Notwithstanding any other
provision of law, there shall be deposited as
offsetting receipts into the account all fees
collected under subparagraph (A)(i).
(ii) Use of fees for application
processing.--Amounts deposited in the
``Agricultural Worker Immigration Status
Adjustment Account'' shall remain available to
the Secretary until expended for processing
applications for status under subsections (a)
and (c).
(e) Waiver of Numerical Limitations and Certain Grounds for
Inadmissibility.--
(1) Numerical limitations do not apply.--The numerical
limitations of sections 201 and 202 of the Immigration and
Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the
adjustment of aliens to lawful permanent resident status under
this section.
(2) Waiver of certain grounds of inadmissibility.--In the
determination of an alien's eligibility for status under
subsection (a)(1)(C) or an alien's eligibility for adjustment
of status under subsection (c)(1)(B)(ii)(I), the following
rules shall apply:
(A) Grounds of exclusion not applicable.--The
provisions of paragraphs (5), (6)(A), (7)(A), and
(9)(B) of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)) shall not apply.
(B) Waiver of other grounds.--
(i) In general.--Except as provided in
clause (ii), the Secretary may waive any other
provision of such section 212(a) in the case of
individual aliens for humanitarian purposes, to
ensure family unity, or when it is otherwise in
the public interest.
(ii) Grounds that may not be waived.--The
following provisions of such section 212(a) may
not be waived by the Secretary under clause
(i):
(I) Subparagraphs (A) and (B) of
paragraph (2) (relating to criminals).
(II) Paragraph (4) (relating to
aliens likely to become public
charges).
(III) Paragraph (2)(C) (relating to
drug offenses).
(IV) Paragraph (3) (relating to
security and related grounds).
(iii) Construction.--Nothing in this
subparagraph shall be construed as affecting
the authority of the Secretary other than under
this subparagraph to waive provisions of such
section 212(a).
(C) Special rule for determination of public
charge.--An alien is not ineligible for status under
this section by reason of a ground of inadmissibility
under section 212(a)(4) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(4)) if the alien
demonstrates a history of employment in the United
States evidencing self-support without reliance on
public cash assistance.
(f) Temporary Stay of Removal and Work Authorization for Certain
Applicants.--
(1) Before application period.--Effective on the date of
enactment of this Act, the Secretary shall provide that, in the
case of an alien who is apprehended before the beginning of the
application period described in subsection (a)(1)(B) and who
can establish a nonfrivolous case of eligibility for temporary
resident status under subsection (a) (but for the fact that the
alien may not apply for such status until the beginning of such
period), until the alien has had the opportunity during the
first 30 days of the application period to complete the filing
of an application for temporary resident status, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in
employment in the United States and be provided an
``employment authorized'' endorsement or other
appropriate work permit for such purpose.
(2) During application period.--The Secretary shall provide
that, in the case of an alien who presents a nonfrivolous
application for temporary resident status under subsection (a)
during the application period described in subsection
(a)(1)(B), including an alien who files such an application
within 30 days of the alien's apprehension, and until a final
determination on the application has been made in accordance
with this section, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in
employment in the United States and be provided an
``employment authorized'' endorsement or other
appropriate work permit for such purpose.
(g) Administrative and Judicial Review.--
(1) In general.--There shall be no administrative or
judicial review of a determination respecting an application
for status under subsection (a) or (c) except in accordance
with this subsection.
(2) Administrative review.--
(A) Single level of administrative appellate
review.--The Secretary shall establish an appellate
authority to provide for a single level of
administrative appellate review of such a
determination.
(B) Standard for review.--Such administrative
appellate review shall be based solely upon the
administrative record established at the time of the
determination on the application and upon such
additional or newly discovered evidence as may not have
been available at the time of the determination.
(3) Judicial review.--
(A) Limitation to review of removal.--There shall
be judicial review of such a determination only in the
judicial review of an order of removal under section
242 of the Immigration and Nationality Act (8 U.S.C.
1252).
(B) Standard for judicial review.--Such judicial
review shall be based solely upon the administrative
record established at the time of the review by the
appellate authority and the findings of fact and
determinations contained in such record shall be
conclusive unless the applicant can establish abuse of
discretion or that the findings are directly contrary
to clear and convincing facts contained in the record
considered as a whole.
(h) Dissemination of Information on Adjustment Program.--Beginning
not later than the 1st day of the application period described in
subsection (a)(1)(B), the Secretary, in cooperation with qualified
designated entities, shall broadly disseminate information respecting
the benefits that aliens may receive under this section and the
requirements to be satisfied to obtain such benefits.
(i) Regulations.--The Secretary shall issue regulations to
implement this section not later than the 1st day of the 7th month that
begins after the date of enactment of this Act.
(j) Effective Date.--This section shall take effect on the date
that regulations are issued implementing this section on an interim or
other basis.
(k) Authorization of Appropriations.--There is hereby authorized to
be appropriated to the Secretary to carry out this section $40,000,000
for each of fiscal years 2005 through 2008.
SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(d)(1) of the Social Security Act (42
U.S.C. 408(d)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted status as a lawful temporary resident
under the Agricultural Job Opportunity, Benefits, and Security
Act of 2004,''; and
(4) by striking ``1990.'' and inserting ``1990, or in the
case of an alien described in subparagraph (D), if such conduct
is alleged to have occurred prior to the date on which the
alien was granted lawful temporary resident status.''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the 1st day of the 7th month that begins after the date
of enactment of this Act.
TITLE II--REFORM OF H-2A WORKER PROGRAM
SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General.--The Immigration and Nationality Act is amended by
striking section 218 (8 U.S.C. 1188) and inserting the following:
``h-2a employer applications
``Sec. 218. (a) Applications to the Secretary of Labor.--
``(1) In general.--No alien may be admitted to the United
States as an H-2A worker, or otherwise provided status as an H-
2A worker, unless the employer has filed with the Secretary of
Labor an application containing--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of
the work to be performed;
``(C) the anticipated period (expected beginning
and ending dates) for which the workers will be needed;
and
``(D) the number of job opportunities in which the
employer seeks to employ the workers.
``(2) Accompanied by job offer.--Each application filed
under paragraph (1) shall be accompanied by a copy of the job
offer describing the wages and other terms and conditions of
employment and the bona fide occupational qualifications that
must be possessed by a worker to be employed in the job
opportunity in question.
``(b) Assurances for Inclusion in Applications.--The assurances
referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining
agreements.--With respect to a job opportunity that is covered
under a collective bargaining agreement:
``(A) Union contract described.--The job
opportunity is covered by a union contract which was
negotiated at arm's length between a bona fide union
and the employer.
``(B) Strike or lockout.--The specific job
opportunity for which the employer is requesting an H-
2A worker is not vacant because the former occupant is
on strike or being locked out in the course of a labor
dispute.
``(C) Notification of bargaining representatives.--
The employer, at the time of filing the application,
has provided notice of the filing under this paragraph
to the bargaining representative of the employer's
employees in the occupational classification at the
place or places of employment for which aliens are
sought.
``(D) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(E) Offers to united states workers.--The
employer has offered or will offer the job to any
eligible United States worker who applies and is
equally or better qualified for the job for which the
nonimmigrant is, or the nonimmigrants are, sought and
who will be available at the time and place of need.
``(F) Provision of insurance.--If the job
opportunity is not covered by the State workers'
compensation law, the employer will provide, at no cost to the worker,
insurance covering injury and disease arising out of, and in the course
of, the worker's employment which will provide benefits at least equal
to those provided under the State's workers' compensation law for
comparable employment.
``(2) Job opportunities not covered by collective
bargaining agreements.--With respect to a job opportunity that
is not covered under a collective bargaining agreement:
``(A) Strike or lockout.--The specific job
opportunity for which the employer is requesting an H-
2A worker is not vacant because the former occupant is
on strike or being locked out in the course of a labor
dispute.
``(B) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(C) Benefit, wage, and working conditions.--The
employer will provide, at a minimum, the benefits,
wages, and working conditions required by section 218A
to all workers employed in the job opportunities for
which the employer has applied under subsection (a) and
to all other workers in the same occupation at the
place of employment.
``(D) Nondisplacement of united states workers.--
The employer did not displace and will not displace a
United States worker employed by the employer during
the period of employment and for a period of 30 days
preceding the period of employment in the occupation at
the place of employment for which the employer seeks
approval to employ H-2A workers.
``(E) Requirements for placement of nonimmigrant
with other employers.--The employer will not place the
nonimmigrant with another employer unless--
``(i) the nonimmigrant performs duties in
whole or in part at 1 or more work sites owned,
operated, or controlled by such other employer;
``(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer; and
``(iii) the employer has inquired of the
other employer as to whether, and has no actual
knowledge or notice that, during the period of
employment and for a period of 30 days
preceding the period of employment, the other
employer has displaced or intends to displace a
United States worker employed by the other
employer in the occupation at the place of
employment for which the employer seeks
approval to employ H-2A workers.
``(F) Statement of liability.--The application form
shall include a clear statement explaining the
liability under subparagraph (E) of an employer if the
other employer described in such subparagraph displaces
a United States worker as described in such
subparagraph.
``(G) Provision of insurance.--If the job
opportunity is not covered by the State workers'
compensation law, the employer will provide, at no cost
to the worker, insurance covering injury and disease
arising out of and in the course of the worker's
employment which will provide benefits at least equal
to those provided under the State's workers'
compensation law for comparable employment.
``(H) Employment of united states workers.--
``(i) Recruitment.--The employer has taken
or will take the following steps to recruit
United States workers for the job opportunities
for which the H-2A nonimmigrant is, or H-2A
nonimmigrants are, sought:
``(I) Contacting former workers.--
The employer shall make reasonable
efforts through the sending of a letter
by United States Postal Service mail,
or otherwise, to contact any United
States worker the employer employed
during the previous season in the
occupation at the place of intended
employment for which the employer is
applying for workers and has made the
availability of the employer's job
opportunities in the occupation at the
place of intended employment known to
such previous workers, unless the
worker was terminated from employment
by the employer for a lawful job-
related reason or abandoned the job
before the worker completed the period
of employment of the job opportunity
for which the worker was hired.
``(II) Filing a job offer with the
local office of the state employment
security agency.--Not later than 28
days prior to the date on which the
employer desires to employ an H-2A
worker in a temporary or seasonal
agricultural job opportunity, the
employer shall submit a copy of the job
offer described in subsection (a)(2) to
the local office of the State
employment security agency which serves
the area of intended employment and
authorize the posting of the job
opportunity on `America's Job Bank' or
other electronic job registry, except
that nothing in this subclause shall
require the employer to file an
interstate job order under section 653
of title 20, Code of Federal
Regulations.
``(III) Advertising of job
opportunities.--Not later than 14 days
prior to the date on which the employer
desires to employ an H-2A worker in a temporary or seasonal
agricultural job opportunity, the employer shall advertise the
availability of the job opportunities for which the employer is seeking
workers in a publication in the local labor market that is likely to be
patronized by potential farm workers.
``(IV) Emergency procedures.--The
Secretary of Labor shall, by
regulation, provide a procedure for
acceptance and approval of applications
in which the employer has not complied
with the provisions of this
subparagraph because the employer's
need for H-2A workers could not
reasonably have been foreseen.
``(ii) Job offers.--The employer has
offered or will offer the job to any eligible
United States worker who applies and is equally
or better qualified for the job for which the
nonimmigrant is, or nonimmigrants are, sought
and who will be available at the time and place
of need.
``(iii) Period of employment.--The employer
will provide employment to any qualified United
States worker who applies to the employer
during the period beginning on the date on
which the foreign worker departs for the
employer's place of employment and ending on
the date on which 50 percent of the period of
employment for which the foreign worker who is
in the job was hired has elapsed, subject to
the following requirements:
``(I) Prohibition.--No person or
entity shall willfully and knowingly
withhold United States workers prior to
the arrival of H-2A workers in order to
force the hiring of United States
workers under this clause.
``(II) Complaints.--Upon receipt of
a complaint by an employer that a
violation of subclause (I) has
occurred, the Secretary of Labor shall
immediately investigate. The Secretary
of Labor shall, within 36 hours of the
receipt of the complaint, issue
findings concerning the alleged
violation. If the Secretary of Labor
finds that a violation has occurred,
the Secretary of Labor shall
immediately suspend the application of
this clause with respect to that
certification for that date of need.
``(III) Placement of united states
workers.--Prior to referring a United
States worker to an employer during the
period described in the matter
preceding subclause (I), the Secretary
of Labor shall make all reasonable
efforts to place the United States
worker in an open job acceptable to the
worker, if there are other job offers
pending with the job service that offer
similar job opportunities in the area
of intended employment.
``(iv) Statutory construction.--Nothing in
this subparagraph shall be construed to
prohibit an employer from using such legitimate
selection criteria relevant to the type of job
that are normal or customary to the type of job
involved so long as such criteria are not
applied in a discriminatory manner.
``(c) Applications by Associations on Behalf of Employer Members.--
``(1) In general.--An agricultural association may file an
application under subsection (a) on behalf of 1 or more of its
employer members that the association certifies in its
application has or have agreed in writing to comply with the
requirements of this section and sections 218A through 218C.
``(2) Treatment of associations acting as employers.--If an
association filing an application under paragraph (1) is a
joint or sole employer of the temporary or seasonal
agricultural workers requested on the application, the
certifications granted under subsection (e)(2)(B) to the
association may be used for the certified job opportunities of
any of its producer members named on the application, and such
workers may be transferred among such producer members to
perform the agricultural services of a temporary or seasonal
nature for which the certifications were granted.
``(d) Withdrawal of Applications.--
``(1) In general.--An employer may withdraw an application
filed pursuant to subsection (a), except that if the employer
is an agricultural association, the association may withdraw an
application filed pursuant to subsection (a) with respect to 1
or more of its members. To withdraw an application, the
employer or association shall notify the Secretary of Labor in
writing, and the Secretary of Labor shall acknowledge in
writing the receipt of such withdrawal notice. An employer who
withdraws an application under subsection (a), or on whose
behalf an application is withdrawn, is relieved of the
obligations undertaken in the application.
``(2) Limitation.--An application may not be withdrawn
while any alien provided status under section
101(a)(15)(H)(ii)(a) pursuant to such application is employed
by the employer.
``(3) Obligations under other statutes.--Any obligation
incurred by an employer under any other law or regulation as a
result of the recruitment of United States workers or H-2A
workers under an offer of terms and conditions of employment
required as a result of making an application under subsection
(a) is unaffected by withdrawal of such application.
``(e) Review and Approval of Applications.--
``(1) Responsibility of employers.--The employer shall make
available for public examination, within 1 working day after
the date on which an application under subsection (a) is filed,
at the employer's principal place of business or work site, a
copy of each such application (and such accompanying documents
as are necessary).
``(2) Responsibility of the secretary of labor.--
``(A) Compilation of list.--The Secretary of Labor
shall compile, on a current basis, a list (by employer
and by occupational classification) of the applications
filed under this subsection. Such list shall include
the wage rate, number of workers sought, period of
intended employment, and date of need. The Secretary of
Labor shall make such list available for examination in
the District of Columbia.
``(B) Review of applications.--The Secretary of
Labor shall review such an application only for
completeness and obvious inaccuracies. Unless the
Secretary of Labor finds that the application is
incomplete or obviously inaccurate, the Secretary of
Labor shall certify that the intending employer has
filed with the Secretary of Labor an application as
described in subsection (a). Such certification shall
be provided within 7 days of the filing of the
application.
``h-2a employment requirements
``Sec. 218A. (a) Preferential Treatment of Aliens Prohibited.--
Employers seeking to hire United States workers shall offer the United
States workers no less than the same benefits, wages, and working
conditions that the employer is offering, intends to offer, or will
provide to H-2A workers. Conversely, no job offer may impose on United
States workers any restrictions or obligations which will not be
imposed on the employer's H-2A workers.
``(b) Minimum Benefits, Wages, and Working Conditions.--Except in
cases where higher benefits, wages, or working conditions are required
by the provisions of subsection (a), in order to protect similarly
employed United States workers from adverse effects with respect to
benefits, wages, and working conditions, every job offer which must
accompany an application under section 218(b)(2) shall include each of
the following benefit, wage, and working condition provisions:
``(1) Requirement to provide housing or a housing
allowance.--
``(A) In general.--An employer applying under
section 218(a) for H-2A workers shall offer to provide
housing at no cost to all workers in job opportunities
for which the employer has applied under that section
and to all other workers in the same occupation at the
place of employment, whose place of residence is beyond
normal commuting distance.
``(B) Type of housing.--In complying with
subparagraph (A), an employer may, at the employer's
election, provide housing that meets applicable Federal
standards for temporary labor camps or secure housing
that meets applicable local standards for rental or
public accommodation housing or other substantially
similar class of habitation, or in the absence of
applicable local standards, State standards for rental
or public accommodation housing or other substantially
similar class of habitation. In the absence of
applicable local or State standards, Federal temporary
labor camp standards shall apply.
``(C) Family housing.--When it is the prevailing
practice in the occupation and area of intended
employment to provide family housing, family housing
shall be provided to workers with families who request
it.
``(D) Workers engaged in the range production of
livestock.--The Secretary of Labor shall issue
regulations that address the specific requirements for
the provision of housing to workers engaged in the
range production of livestock.
``(E) Limitation.--Nothing in this paragraph shall
be construed to require an employer to provide or
secure housing for persons who were not entitled to
such housing under the temporary labor certification
regulations in effect on June 1, 1986.
``(F) Charges for housing.--
``(i) Charges for public housing.--If
public housing provided for migrant
agricultural workers under the auspices of a
local, county, or State government is secured
by an employer, and use of the public housing
unit normally requires charges from migrant
workers, such charges shall be paid by the
employer directly to the appropriate individual
or entity affiliated with the housing's
management.
``(ii) Deposit charges.--Charges in the
form of deposits for bedding or other similar
incidentals related to housing shall not be
levied upon workers by employers who provide
housing for their workers. However, an employer
may require a worker found to have been
responsible for damage to such housing which is
not the result of normal wear and tear related
to habitation to reimburse the employer for the
reasonable cost of repair of such damage.
``(G) Housing allowance as alternative.--
``(i) In general.--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.
``(2) Reimbursement of transportation.--
``(A) To place of employment.--A worker who
completes 50 percent of the period of employment of the
job opportunity for which the worker was hired shall be
reimbursed by the employer for the cost of the worker's
transportation and subsistence from the place from
which the worker came to work for the employer (or
place of last employment, if the worker traveled from
such place) to the place of employment.
``(B) From place of employment.--A worker who
completes the period of employment for the job
opportunity involved shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the place of employment to the
place from which the worker, disregarding intervening
employment, came to work for the employer, or to the
place of next employment, if the worker has contracted
with a subsequent employer who has not agreed to
provide or pay for the worker's transportation and
subsistence to such subsequent employer's place of
employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as
provided in clause (ii), the amount of
reimbursement provided under subparagraph (A)
or (B) to a worker or alien shall not exceed
the lesser of--
``(I) the actual cost to the worker
or alien of the transportation and
subsistence involved; or
``(II) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
``(ii) Distance traveled.--No reimbursement
under subparagraph (A) or (B) shall be required
if the distance traveled is 100 miles or less,
or the worker is not residing in employer-
provided housing or housing secured through an
allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off
or employment is terminated for contract impossibility
(as described in paragraph (4)(D)) before the
anticipated ending date of employment, the employer
shall provide the transportation and subsistence
required by subparagraph (B) and, notwithstanding
whether the worker has completed 50 percent of the
period of employment, shall provide the transportation
reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and
work site.--The employer shall provide transportation
between the worker's living quarters (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.
``(3) Required wages.--
``(A) In general.--An employer applying for workers
under section 218(a) shall offer to pay, and shall pay,
all workers in the occupation for which the employer
has applied for workers, not less (and is not required
to pay more) than the greater of the prevailing wage in
the occupation in the area of intended employment or
the adverse effect wage rate. No worker shall be paid
less than the greater of the hourly wage prescribed
under section 6(a)(1) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(a)(1)) or the applicable State
minimum wage.
``(B) Limitation.--Effective on the date of
enactment of the Agricultural Job Opportunity,
Benefits, and Security Act of 2004 and continuing for 3
years thereafter, no adverse effect wage rate for a
State may be more than the adverse effect wage rate for
that State in effect on January 1, 2003, as established
by section 655.107 of title 20, Code of Federal
Regulations.
``(C) Required wages after 3-year freeze.--
``(i) First adjustment.--Unless Congress
acts to set a new wage standard applicable to
this section, effective on December 1, 2006,
the adverse effect wage rate then in effect
shall be adjusted by the 12 month percentage change in the Consumer
Price Index for All Urban Consumers between December of the preceding
year and December of the second preceding year, except that such
adjustment shall not exceed 4 percent.
``(ii) Subsequent annual adjustments.--
Effective on March 1, 2007, and each March 1
thereafter, the adverse effect wage rate then
in effect shall be adjusted in accordance with
the requirements of clause (i).
``(D) Deductions.--The employer shall make only
those deductions from the worker's wages that are
authorized by law or are reasonable and customary in
the occupation and area of employment. The job offer
shall specify all deductions not required by law which
the employer will make from the worker's wages.
``(E) Frequency of pay.--The employer shall pay the
worker not less frequently than twice monthly, or in
accordance with the prevailing practice in the area of
employment, whichever is more frequent.
``(F) Hours and earnings statements.--The employer
shall furnish to the worker, on or before each payday,
in one or more written statements the following
information:
``(i) The worker's total earnings for the
pay period.
``(ii) The worker's hourly rate of pay,
piece rate of pay, or both.
``(iii) The hours of employment which have
been offered to the worker (broken out by hours
offered in accordance with and over and above
the three-quarters guarantee described in
paragraph (4)).
``(iv) The hours actually worked by the
worker.
``(v) An itemization of the deductions made
from the worker's wages.
``(vi) If piece rates of pay are used, the
units produced daily.
``(G) Report on wage protections.--Not later than
June 1, 2007, the Resources, Community and Economic
Development Division, and the Health, Education and
Human Services Division, of the General Accounting
Office shall jointly prepare and transmit to the
Secretary of Labor and to the Committees on the
Judiciary of the House of Representatives and the
Senate a report which shall address--
``(i) whether the employment of H-2A or
unauthorized aliens in the United States
agricultural work force has depressed United
States farm worker wages below the levels that
would otherwise have prevailed if alien farm
workers had not been employed in the United
States;
``(ii) whether an adverse effect wage rate
is necessary to prevent wages of United States
farm workers in occupations in which H-2A
workers are employed from falling below the
wage levels that would have prevailed in the
absence of the employment of H-2A workers in
those occupations;
``(iii) whether alternative wage standards,
such as a prevailing wage standard, would be
sufficient to prevent wages in occupations in
which H-2A workers are employed from falling
below the wage level that would have prevailed in the absence of H-2A
employment;
``(iv) whether any changes are warranted in
the current methodologies for calculating the
adverse effect wage rate and the prevailing
wage; and
``(v) recommendations for future wage
protection under this section.
``(H) Commission on wage standards.--
``(i) Establishment.--There is established
the Commission on Agricultural Wage Standards
under the H-2A program (in this subparagraph
referred to as the `Commission').
``(ii) Composition.--The Commission shall
consist of 10 members as follows:
``(I) 4 representatives of
agricultural employers and 1
representative of the Department of
Agriculture, each appointed by the
Secretary of Agriculture.
``(II) 4 representatives of
agricultural workers and 1
representative of the Department of
Labor, each appointed by the Secretary
of Labor.
``(iii) Functions.--The Commission shall
conduct a study that shall address--
``(I) whether the employment of H-
2A or unauthorized aliens in the United
States agricultural workforce has
depressed United States farm worker
wages below the levels that would
otherwise have prevailed if alien farm
workers had not been employed in the
United States;
``(II) whether an adverse effect
wage rate is necessary to prevent wages
of United States farm workers in
occupations in which H-2A workers are
employed from falling below the wage
levels that would have prevailed in the
absence of the employment of H-2A
workers in those occupations;
``(III) whether alternative wage
standards, such as a prevailing wage
standard, would be sufficient to
prevent wages in occupations in which
H-2A workers are employed from falling
below the wage level that would have
prevailed in the absence of H-2A
employment;
``(IV) whether any changes are
warranted in the current methodologies
for calculating the adverse effect wage
rate and the prevailing wage rate; and
``(V) recommendations for future
wage protection under this section.
``(iv) Final report.--Not later than June
1, 2007, the Commission shall submit a report
to the Congress setting forth the findings of
the study conducted under clause (iii).
``(v) Termination date.--The Commission
shall terminate upon submitting its final
report.
``(4) Guarantee of employment.--
``(A) Offer to worker.--The employer shall
guarantee to offer the worker employment for the hourly
equivalent of at least three-fourths of the work days
of the total period of employment, beginning with the
first work day after the arrival of the worker at the
place of employment and ending on the expiration date
specified in the job offer. For purposes of this
subparagraph, the hourly equivalent means the number of
hours in the work days as stated in the job offer and
shall exclude the worker's Sabbath and Federal
holidays. If the employer affords the United States or
H-2A worker less employment than that required under
this paragraph, the employer shall pay such worker the
amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of
hours.
``(B) Failure to work.--Any hours which the worker
fails to work, up to a maximum of the number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for
cause.--If the worker voluntarily abandons employment
before the end of the contract period, or is terminated
for cause, the worker is not entitled to the `three-
fourths guarantee' described in subparagraph (A).
``(D) Contract impossibility.--If, before the
expiration of the period of employment specified in the
job offer, the services of the worker are no longer
required for reasons beyond the control of the employer
due to any form of natural disaster, including but not
limited to a flood, hurricane, freeze, earthquake,
fire, drought, plant or animal disease or pest
infestation, or regulatory drought, before the
guarantee in subparagraph (A) is fulfilled, the
employer may terminate the worker's employment. In the
event of such termination, the employer shall fulfill
the employment guarantee in subparagraph (A) for the
work days that have elapsed from the first work day
after the arrival of the worker to the termination of
employment. In such cases, the employer will make
efforts to transfer the United States worker to other
comparable employment acceptable to the worker. If such
transfer is not effected, the employer shall provide
the return transportation required in paragraph (2)(D).
``(5) Motor vehicle safety.--
``(A) Mode of transportation subject to coverage.--
``(i) In general.--Except as provided in
clauses (iii) and (iv), this subsection applies
to any H-2A employer that uses or causes to be
used any vehicle to transport an H-2A worker
within the United States.
``(ii) Uses or causes to be used.--(I) In
this subsection, the term `uses or causes to be
used' applies only to transportation provided
by an H-2A employer to an H-2A worker, or by a
farm labor contractor to an H-2A worker at the
request or direction of an H-2A employer.
``(II) The term `uses or causes to be used'
does not apply to--
``(aa) transportation provided, or
transportation arrangements made, by an
H-2A worker himself or herself, unless
the employer specifically requested or arranged such transportation; or
``(bb) carpooling arrangements made
by H-2A workers themselves, using one
of the workers' own vehicles, unless
specifically requested by the employer
directly or through a farm labor
contractor.
``(III) The mere providing of a job offer
by an employer to an H-2A worker that causes
the worker to travel to or from the place of
employment, or the payment or reimbursement of
the transportation costs of an H-2A worker by
an H-2A employer, shall not constitute an
arrangement of, or participation in, such
transportation.
``(iii) Agricultural machinery and
equipment excluded.--This subsection does not
apply to the transportation of an H-2A worker
on a tractor, combine, harvester, picker, or
other similar machinery or equipment while such
worker is actually engaged in the planting,
cultivating, or harvesting of agricultural
commodities or the care of livestock or poultry
or engaged in transportation incidental
thereto.
``(iv) Common carriers excluded.--This
subsection does not apply to common carrier
motor vehicle transportation in which the
provider holds itself out to the general public
as engaging in the transportation of passengers
for hire and holds a valid certification of
authorization for such purposes from an
appropriate Federal, State, or local agency.
``(B) Applicability of standards, licensing, and
insurance requirements.--
``(i) In general.--When using, or causing
to be used, any vehicle for the purpose of
providing transportation to which this
subparagraph applies, each employer shall--
``(I) ensure that each such vehicle
conforms to the standards prescribed by
the Secretary of Labor under section
401(b) of the Migrant and Seasonal
Agricultural Worker Protection Act (29
U.S.C. 1841(b)) and other applicable
Federal and State safety standards;
``(II) ensure that each driver has
a valid and appropriate license, as
provided by State law, to operate the
vehicle; and
``(III) have an insurance policy or
a liability bond that is in effect
which insures the employer against
liability for damage to persons or
property arising from the ownership,
operation, or causing to be operated,
of any vehicle used to transport any H-
2A worker.
``(ii) Amount of insurance required.--The
level of insurance required shall be determined
by the Secretary of Labor pursuant to
regulations to be issued under this subsection.
``(iii) Effect of workers' compensation
coverage.--If the employer of any H-2A worker
provides workers' compensation coverage for
such worker in the case of bodily injury or
death as provided by State law, the following
adjustments in the requirements of subparagraph
(B)(i)(III) relating to having an insurance
policy or liability bond apply:
``(I) No insurance policy or
liability bond shall be required of the
employer, if such workers are
transported only under circumstances
for which there is coverage under such
State law.
``(II) An insurance policy or
liability bond shall be required of the
employer for circumstances under which
coverage for the transportation of such
workers is not provided under such
State law.
``(c) Compliance With Labor Laws.--An employer shall assure that,
except as otherwise provided in this section, the employer will comply
with all applicable Federal, State, and local labor laws, including
laws affecting migrant and seasonal agricultural workers, with respect
to all United States workers and alien workers employed by the
employer, except that a violation of this assurance shall not
constitute a violation of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1801 et seq.).
``(d) Copy of Job Offer.--The employer shall provide to the worker,
not later than the day the work commences, a copy of the employer's
application and job offer described in section 218(a), or, if the
employer will require the worker to enter into a separate employment
contract covering the employment in question, such separate employment
contract.
``(e) Range Production of Livestock.--Nothing in this section or
sections 218 or 218B shall preclude the Secretary of Labor and the
Secretary from continuing to apply special procedures and requirements
to the admission and employment of aliens in occupations involving the
range production of livestock.
``procedure for admission and extension of stay of h-2a workers
``Sec. 218B. (a) Petitioning for Admission.--An employer, or an
association acting as an agent or joint employer for its members, that
seeks the admission into the United States of an H-2A worker may file a
petition with the Secretary. The petition shall be accompanied by an
accepted and currently valid certification provided by the Secretary of
Labor under section 218(e)(2)(B) covering the petitioner.
``(b) Expedited Adjudication by the Secretary.--The Secretary shall
establish a procedure for expedited adjudication of petitions filed
under subsection (a) and within 7 working days shall, by fax, cable, or
other means assuring expedited delivery, transmit a copy of notice of
action on the petition to the petitioner and, in the case of approved
petitions, to the appropriate immigration officer at the port of entry
or United States consulate (as the case may be) where the petitioner
has indicated that the alien beneficiary (or beneficiaries) will apply
for a visa or admission to the United States.
``(c) Criteria for Admissibility.--
``(1) In general.--An H-2A worker shall be considered
admissible to the United States if the alien is otherwise
admissible under this section, section 218, and section 218A,
and the alien is not ineligible under paragraph (2).
``(2) Disqualification.--An alien shall be considered
inadmissible to the United States and ineligible for
nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the
alien has, at any time during the past 5 years--
``(A) violated a material provision of this
section, including the requirement to promptly depart
the United States when the alien's authorized period of
admission under this section has expired; or
``(B) otherwise violated a term or condition of
admission into the United States as a nonimmigrant,
including overstaying the period of authorized
admission as such a nonimmigrant.
``(3) Waiver of ineligibility for unlawful presence.--
``(A) In general.--An alien who has not previously
been admitted into the United States pursuant to this
section, and who is otherwise eligible for admission in
accordance with paragraphs (1) and (2), shall not be
deemed inadmissible by virtue of section 212(a)(9)(B).
If an alien described in the preceding sentence is
present in the United States, the alien may apply from
abroad for H-2A status, but may not be granted that
status in the United States.
``(B) Maintenance of waiver.--An alien provided an
initial waiver of ineligibility pursuant to
subparagraph (A) shall remain eligible for such waiver
unless the alien violates the terms of this section or
again becomes ineligible under section 212(a)(9)(B) by
virtue of unlawful presence in the United States after
the date of the initial waiver of ineligibility
pursuant to subparagraph (A).
``(d) Period of Admission.--
``(1) In general.--The alien shall be admitted for the
period of employment in the application certified by the
Secretary of Labor pursuant to section 218(e)(2)(B), not to
exceed 10 months, supplemented by a period of 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.
``(e) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)(15)(H)(ii)(a) who abandons the employment
which was the basis for such admission or status shall be
considered to have failed to maintain nonimmigrant status as an
H-2A worker and shall depart the United States or be subject to
removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer (or association
acting as agent for the employer) shall notify the Secretary
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.
``(f) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the
Secretary required by subsection (e)(2), the Secretary of State
shall promptly issue a visa to, and the Secretary shall admit
into the United States, an eligible alien designated by the
employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates
employment; or
``(B) whose employment is terminated after a United
States worker is employed pursuant to section
218(b)(2)(H)(iii), if the United States worker
voluntarily departs before the end of the period of
intended employment or if the employment termination is
for a lawful job-related reason.
``(2) Construction.--Nothing in this subsection is intended
to limit any preference required to be accorded United States
workers under any other provision of this Act.
``(g) Identification Document.--
``(1) In general.--Each alien authorized to be admitted
under section 101(a)(15)(H)(ii)(a) shall be provided an
identification and employment eligibility document to verify
eligibility for employment in the United States and verify such
person's proper identity.
``(2) Requirements.--No identification and employment
eligibility document may be issued which does not meet the
following requirements:
``(A) The document shall be capable of reliably
determining whether--
``(i) the individual with the
identification and employment eligibility
document whose eligibility is being verified is
in fact eligible for employment;
``(ii) the individual whose eligibility is
being verified is claiming the identity of
another person; and
``(iii) the individual whose eligibility is
being verified is authorized to be admitted
into, and employed in, the United States as an
H-2A worker.
``(B) The document shall be in a form that is
resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of
the Secretary for the purpose of excluding
aliens from benefits for which they are not
eligible and determining whether the alien is
unlawfully present in the United States; and
``(ii) be compatible with law enforcement
databases to determine if the alien has been
convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an H-2A alien who is lawfully present in the United
States, the petition filed by the employer or an association
pursuant to subsection (a), shall request an extension of the
alien's stay and a change in the alien's employment.
``(2) Limitation on filing a petition for extension of
stay.--A petition may not be filed for an extension of an
alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 3 years after the
date of the alien's last admission to the United States
under this section.
``(3) Work authorization upon filing a petition for
extension of stay.--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 employment authorization of aliens
without valid identification and employment eligibility
document.--An expired identification and employment eligibility
document, together with a copy of a petition for extension of
stay or change in the alien's authorized employment that
complies with the requirements of paragraph (1), shall
constitute a valid work authorization document for a period of
not more than 60 days beginning on the date on which such
petition is filed, after which time only a currently valid
identification and employment eligibility document shall be
acceptable.
``(5) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous
period of authorized status as an H-2A worker
(including any extensions) is 3 years.
``(B) Requirement to remain outside the united
states.--
``(i) In general.--Subject to clause (ii),
in the case of an alien outside the United
States whose period of authorized status as an
H-2A worker (including any extensions) has
expired, the alien may not again apply for
admission to the United States as an H-2A
worker unless the alien has remained outside
the United States for a continuous period equal
to at least \1/5\ the duration of the alien's
previous period of authorized status as an H-2A
worker (including any extensions).
``(ii) Exception.--Clause (i) shall not
apply in the case of an alien if the alien's
period of authorized status as an H-2A worker
(including any extensions) was for a period of
not more than 10 months and such alien has been
outside the United States for at least 2 months
during the 12 months preceding the date the
alien again is applying for admission to the
United States as an H-2A worker.
``(i) Special Rules for Aliens Employed as Sheepherders.--
Notwithstanding any other provision of the Agricultural Job
Opportunity, Benefits, and Security Act of 2004, aliens admitted under
section 101(a)(15)(H)(ii)(a) for employment as sheepherders--
``(1) may be admitted for a period of 12 months;
``(2) may be extended for a continuous period of up to 3
years; and
``(3) shall not be subject to the requirements of
subsection (h)(5) relating to periods of absence from the
United States.
``worker protections and labor standards enforcement
``Sec. 218C. (a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(A) Aggrieved person or third-party complaints.--
The Secretary of Labor shall establish a process for
the receipt, investigation, and disposition of
complaints respecting a petitioner's failure to meet a
condition specified in section 218(b), or an employer's
misrepresentation of material facts in an application
under section 218(a). Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not
later than 12 months after the date of the failure, or
misrepresentation, respectively. The Secretary of Labor
shall conduct an investigation under this subparagraph
if there is reasonable cause to believe that such a
failure or misrepresentation has occurred.
``(B) Determination on complaint.--Under such
process, the Secretary of Labor shall provide, within
30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis
exists to make a finding described in subparagraph (C),
(D), (E), or (H). If the Secretary of Labor determines
that such a reasonable basis exists, the Secretary of
Labor shall provide for notice of such determination to
the interested parties and an opportunity for a hearing
on the complaint, in accordance with section 556 of
title 5, United States Code, within 60 days after the
date of the determination. If such a hearing is
requested, the Secretary of Labor shall make a finding
concerning the matter not later than 60 days after the
date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor
may consolidate the hearings under this subparagraph on
such complaints.
``(C) Failures to meet conditions.--If the
Secretary of Labor finds, after notice and opportunity
for a hearing, a failure to meet a condition of
paragraph (1)(A), (1)(B), (1)(D), (1)(F), (2)(A),
(2)(B), or (2)(G) of section 218(b), a substantial
failure to meet a condition of paragraph (1)(C),
(1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section
218(b), or a material misrepresentation of fact in an
application under section 218(a)--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $1,000 per violation) as
the Secretary of Labor determines to be
appropriate; and
``(ii) the Secretary may disqualify the
employer from the employment of aliens
described in section 101(a)(15)(H)(ii)(a) for a
period of 1 year.
``(D) Willful failures and willful
misrepresentations.--If the Secretary of Labor finds,
after notice and opportunity for hearing, a willful
failure to meet a condition of section 218(b), a
willful misrepresentation of a material fact in an
application under section 218(a), or a violation of
subsection (d)(1)--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $5,000 per violation) as
the Secretary of Labor determines to be
appropriate;
``(ii) the Secretary of Labor may seek
appropriate legal or equitable relief to
effectuate the purposes of subsection (d)(1);
and
``(iii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 2 years.
``(E) Displacement of united states workers.--If
the Secretary of Labor finds, after notice and
opportunity for hearing, a willful failure to meet a
condition of section 218(b) or a willful
misrepresentation of a material fact in an application
under section 218(a), in the course of which failure or
misrepresentation the employer displaced a United
States worker employed by the employer during the
period of employment on the employer's application
under section 218(a) or during the period of 30 days
preceding such period of employment--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $15,000 per violation) as
the Secretary of Labor determines to be
appropriate; and
``(ii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 3 years.
``(F) Limitations on civil money penalties.--The
Secretary of Labor shall not impose total civil money
penalties with respect to an application under section
218(a) in excess of $90,000.
``(G) Failures to pay wages or required benefits.--
If the Secretary of Labor finds, after notice and
opportunity for a hearing, that the employer has failed
to pay the wages, or provide the housing allowance,
transportation, subsistence reimbursement, or guarantee
of employment, required under section 218A(b), the
Secretary of Labor shall assess payment of back wages,
or other required benefits, due any United States
worker or H-2A worker employed by the employer in the
specific employment in question. The back wages
or other required benefits under section 218A(b) shall be equal to the
difference between the amount that should have been paid and the amount
that actually was paid to such worker.
``(2) Statutory construction.--Nothing in this section
shall be construed as limiting the authority of the Secretary
of Labor to conduct any compliance investigation under any
other labor law, including any law affecting migrant and
seasonal agricultural workers, or, in the absence of a
complaint under this section, under section 218 or 218A.
``(b) Rights Enforceable by Private Right of Action.--H-2A workers
may enforce the following rights through the private right of action
provided in subsection (c), and no other right of action shall exist
under Federal or State law to enforce such rights:
``(1) The providing of housing or a housing allowance as
required under section 218A(b)(1).
``(2) The reimbursement of transportation as required under
section 218A(b)(2).
``(3) The payment of wages required under section
218A(b)(3) when due.
``(4) The benefits and material terms and conditions of
employment expressly provided in the job offer described in
section 218(a)(2), not including the assurance to comply with
other Federal, State, and local labor laws described in section
218A(c), compliance with which shall be governed by the
provisions of such laws.
``(5) The guarantee of employment required under section
218A(b)(4).
``(6) The motor vehicle safety requirements under section
218A(b)(5).
``(7) The prohibition of discrimination under subsection
(d)(2).
``(c) Private Right of Action.--
``(1) Mediation.--Upon the filing of a complaint by an H-2A
worker aggrieved by a violation of rights enforceable under
subsection (b), and within 60 days of the filing of proof of
service of the complaint, a party to the action may file a
request with the Federal Mediation and Conciliation Service to
assist the parties in reaching a satisfactory resolution of all
issues involving all parties to the dispute. Upon a filing of
such request and giving of notice to the parties, the parties
shall attempt mediation within the period specified in
subparagraph (B).
``(A) Mediation services.--The Federal Mediation
and Conciliation Service shall be available to assist
in resolving disputes arising under subsection (b)
between H-2A workers and agricultural employers without
charge to the parties.
``(B) 90-day limit.--The Federal Mediation and
Conciliation Service may conduct mediation or other
non-binding dispute resolution activities for a period
not to exceed 90 days beginning on the date on which
the Federal Mediation and Conciliation Service receives
the request for assistance unless the parties agree to
an extension of this period of time.
``(C) Authorization.--There is hereby authorized to
be appropriated annually not to exceed $500,000 to the
Federal Mediation and Conciliation Service to carry out
this section, provided that, any contrary provision of
law notwithstanding, the Director of the Federal
Mediation and Conciliation Service is authorized to
conduct the mediation or other dispute resolution
activities from any other appropriated funds available
to the Director and to reimburse such appropriated
funds when the funds are appropriated pursuant to this
authorization, such reimbursement to be credited to
appropriations currently available at the time of
receipt thereof.
``(2) Maintenance of civil action in district court by
aggrieved person.--An H-2A worker aggrieved by a violation of
rights enforceable under subsection (b) by an agricultural
employer or other person may file suit in any district court of
the United States having jurisdiction of the parties, without
regard to the amount in controversy, without regard to the
citizenship of the parties, and without regard to the
exhaustion of any alternative administrative remedies under
this Act, not later than 3 years after the date the violation
occurs.
``(3) Election.--An H-2A worker who has filed an
administrative complaint with the Secretary of Labor may not
maintain a civil action under paragraph (2) unless a complaint
based on the same violation filed with the Secretary of Labor
under subsection (a)(1) is withdrawn prior to the filing of
such action, in which case the rights and remedies available
under this subsection shall be exclusive.
``(4) Preemption of state contract rights.--Nothing in this
Act shall be construed to diminish the rights and remedies of
an H-2A worker under any other Federal or State law or
regulation or under any collective bargaining agreement, except
that no court or administrative action shall be available under
any State contract law to enforce the rights created by this
Act.
``(5) Waiver of rights prohibited.--Agreements by employees
purporting to waive or modify their rights under this Act shall
be void as contrary to public policy, except that a waiver or
modification of the rights or obligations in favor of the
Secretary of Labor shall be valid for purposes of the
enforcement of this Act. The preceding sentence may not be
construed to prohibit agreements to settle private disputes or
litigation.
``(6) Award of damages or other equitable relief.--
``(A) If the court finds that the respondent has
intentionally violated any of the rights enforceable
under subsection (b), it shall award actual damages, if
any, or equitable relief.
``(B) Any civil action brought under this section
shall be subject to appeal as provided in chapter 83 of
title 28, United States Code.
``(7) Workers' compensation benefits; exclusive remedy.--
``(A) Notwithstanding any other provision of this
section, where a State's workers' compensation law is
applicable and coverage is provided for an H-2A worker,
the workers' compensation benefits shall be the
exclusive remedy for the loss of such worker under this
section in the case of bodily injury or death in
accordance with such State's workers' compensation law.
``(B) The exclusive remedy prescribed in
subparagraph (A) precludes the recovery under paragraph
(6) of actual damages for loss from an injury or death
but does not preclude other equitable relief, except
that such relief shall not include back or front pay or
in any manner, directly or indirectly, expand or
otherwise alter or affect--
``(i) a recovery under a State workers'
compensation law; or
``(ii) rights conferred under a State
workers' compensation law.
``(8) Tolling of statute of limitations.--If it is
determined under a State workers' compensation law that the
workers' compensation law is not applicable to a claim for
bodily injury or death of an H-2A worker, the statute of
limitations for bringing an action for actual damages for such
injury or death under subsection (c) shall be tolled for the
period during which the claim for such injury or death under
such State workers' compensation law was pending. The statute
of limitations for an action for actual damages or other
equitable relief arising out of the same transaction or
occurrence as the injury or death of the H-2A worker shall be
tolled for the period during which the claim for such injury or
death was pending under the State workers' compensation law.
``(9) Preclusive effect.--Any settlement by an H-2A worker
and H-2A employer reached through the mediation process
required under subsection (c)(1) shall preclude any right of
action arising out of the same facts between the parties in any
Federal or State court or administrative proceeding, unless
specifically provided otherwise in the settlement agreement.
``(10) Settlements.--Any settlement by the Secretary of
Labor with an H-2A employer on behalf of an H-2A worker of a
complaint filed with the Secretary of Labor under this section
or any finding by the Secretary of Labor under subsection
(a)(1)(B) shall preclude any right of action arising out of the
same facts between the parties under any Federal or State court
or administrative proceeding, unless specifically provided
otherwise in the settlement agreement.
``(d) Discrimination Prohibited.--
``(1) In general.--It is a violation of this subsection for
any person who has filed an application under section 218(a),
to intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any other manner discriminate against an
employee (which term, for purposes of this subsection, includes
a former employee and an applicant for employment) because the
employee has disclosed information to the employer, or to any
other person, that the employee reasonably believes evidences a
violation of section 218 or 218A or any rule or regulation
pertaining to section 218 or 218A, or because the employee
cooperates or seeks to cooperate in an investigation or other
proceeding concerning the employer's compliance with the
requirements of section 218 or 218A or any rule or regulation
pertaining to either of such sections.
``(2) Discrimination against h-2a workers.--It is a
violation of this subsection for any person who has filed an
application under section 218(a), to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any manner
discriminate against an H-2A employee because such worker has,
with just cause, filed a complaint with the Secretary of Labor
regarding a denial of the rights enumerated and enforceable
under subsection (b) or instituted, or caused to be instituted,
a private right of action under subsection (c) regarding the
denial of the rights enumerated under subsection (b), or has
testified or is about to testify in any court proceeding
brought under subsection (c).
``(e) Authorization To Seek Other Appropriate Employment.--The
Secretary of Labor and the Secretary shall establish a process under
which an H-2A worker who files a complaint regarding a violation of
subsection (d) and is otherwise eligible to remain and work in the
United States may be allowed to seek other appropriate employment in
the United States for a period not to exceed the maximum period of stay
authorized for such nonimmigrant classification.
``(f) Role of Associations.--
``(1) Violation by a member of an association.--An employer
on whose behalf an application is filed by an association
acting as its agent is fully responsible for such application,
and for complying with the terms and conditions of sections 218
and 218A, as though the employer had filed the application
itself. If such an employer is determined, under this section,
to have committed a violation, the penalty for such violation
shall apply only to that member of the association unless the
Secretary of Labor determines that the association or other
member participated in, had knowledge, or reason to know, of
the violation, in which case the penalty shall be invoked
against the association or other association member as well.
``(2) Violations by an association acting as an employer.--
If an association filing an application as a sole or joint
employer is determined to have committed a violation under this
section, the penalty for such violation shall apply only to the
association unless the Secretary of Labor determines that an
association member or members participated in or had knowledge,
or reason to know of the violation, in which case the penalty
shall be invoked against the association member or members as
well.
``definitions
``Sec. 218D. For purposes of sections 218 through 218C:
``(1) Agricultural employment.--The term `agricultural
employment' means any service or activity that is considered to
be agricultural under section 3(f) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under
section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C.
3121(g)). For purposes of this paragraph, agricultural
employment includes employment under section
101(a)(15)(H)(ii)(a).
``(2) Bona fide union.--The term `bona fide union' means
any organization in which employees participate and which
exists for the purpose of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of work for
agricultural employees. Such term does not include an
organization formed, created, administered, supported,
dominated, financed, or controlled by an employer or employer
association or its agents or representatives.
``(3) Displace.--In the case of an application with respect
to 1 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 for which the H-2A
worker or workers is or are sought.
``(4) Eligible.--The term `eligible', when used with
respect to an individual, means an individual who is not an
unauthorized alien (as defined in section 274A(h)(3)).
``(5) Employer.--The term `employer' means any person or
entity, including any farm labor contractor and any
agricultural association, that employs workers in agricultural
employment.
``(6) H-2A employer.--The term `H-2A employer' means an
employer who seeks to hire 1 or more nonimmigrant aliens
described in section 101(a)(15)(H)(ii)(a).
``(7) H-2A worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(8) Job opportunity.--The term `job opportunity' means a
job opening for temporary full-time employment at a place in
the United States to which United States workers can be
referred.
``(9) Lays off.--
``(A) In general.--The term `lays off', with
respect to a worker--
``(i) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, contract impossibility (as
described in section 218A(b)(4)(D)), or
temporary layoffs due to weather, markets, or
other temporary conditions; but
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under section
218(b)(2)(E), with either employer described in
such section) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
``(B) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
``(10) Regulatory drought.--The term `regulatory drought'
means a decision subsequent to the filing of the application
under section 218 by an entity not under the control of the
employer making such filing which restricts the employer's
access to water for irrigation purposes and reduces or limits
the employer's ability to produce an agricultural commodity,
thereby reducing the need for labor.
``(11) Seasonal.--Labor is performed on a `seasonal' basis
if--
(A) ordinarily, it pertains to or is of the kind
exclusively performed at certain seasons or periods of
the year; and
(B) from its nature, it may not be continuous or
carried on throughout the year.
``(12) Secretary.--The term `Secretary' means the Secretary
of Homeland Security.
``(13) Temporary.--A worker is employed on a `temporary'
basis where the employment is intended not to exceed 10 months.
``(14) United states worker.--The term `United States
worker' means any worker, whether a United States citizen or
national, a lawfully admitted permanent resident alien, or any
other alien, who is authorized to work in the job opportunity
within the United States, except an alien admitted or otherwise
provided status under section 101(a)(15)(H)(ii)(a).''.
(b) Table of Contents.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the
item relating to section 218 and inserting the following:
``Sec. 218. H-2A employer applications.
``Sec. 218A. H-2A employment requirements.
``Sec. 218B. Procedure for admission and extension of stay of H-2A
workers.
``Sec. 218C. Worker protections and labor standards enforcement.
``Sec. 218D. Definitions.''.
TITLE III--MISCELLANEOUS PROVISIONS
SEC. 301. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees.--The Secretary shall establish and
periodically adjust a schedule of fees for the employment of aliens
under this Act, and a collection process for such fees from employers
participating in the program provided under this Act. Such fees shall
be the only fees chargeable to employers for services provided under
this Act.
(b) Determination of Schedule.--
(1) In general.--The schedule under subsection (a) shall
reflect a fee rate based on the number of job opportunities
indicated in the employer's application under section 218 of
the Immigration and Nationality Act, as added by section 201 of
this Act, and sufficient to provide for the direct costs of
providing services related to an employer's authorization to
employ eligible aliens pursuant to this Act, to include the
certification of eligible employers, the issuance of
documentation, and the admission of eligible aliens.
(2) Procedure.--
(A) In general.--In establishing and adjusting such
a schedule, the Secretary shall comply with Federal
cost accounting and fee setting standards.
(B) Publication and comment.--The Secretary shall
publish in the Federal Register an initial fee schedule
and associated collection process and the cost data or
estimates upon which such fee schedule is based, and
any subsequent amendments thereto, pursuant to which
public comment shall be sought and a final rule issued.
(c) Use of Proceeds.--Notwithstanding any other provision of law,
all proceeds resulting from the payment of the alien employment user
fees shall be available without further appropriation and shall remain
available without fiscal year limitation to reimburse the Secretary,
the Secretary of State, and the Secretary of Labor for the costs of
carrying out sections 218 and 218B of the Immigration and Nationality
Act, as added by section 201 of this Act, and the provisions of this
Act.
SEC. 302. REGULATIONS.
(a) Regulations of the Secretary.--The Secretary shall consult with
the Secretary of Labor and the Secretary of Agriculture on all
regulations to implement the duties of the Secretary under this Act.
(b) Regulations of the Secretary of State.--The Secretary of State
shall consult with the Secretary, the Secretary of Labor, and the
Secretary of Agriculture on all regulations to implement the duties of
the Secretary of State under this Act.
(c) Regulations of the Secretary of Labor.--The Secretary of Labor
shall consult with the Secretary of Agriculture and the Secretary on
all regulations to implement the duties of the Secretary of Labor under
this Act.
(d) Deadline for Issuance of Regulations.--All regulations to
implement the duties of the Secretary, the Secretary of State, and the
Secretary of Labor created under sections 218, 218A, 218B, and 218C of
the Immigration and Nationality Act, as added by section 201, shall
take effect on the effective date of section 201 and shall be issued
not later than 1 year after the date of enactment of this Act.
SEC. 303. EFFECTIVE DATE.
(a) In General.--Except as otherwise provided, sections 201 and 301
shall take effect 1 year after the date of enactment of this Act.
(b) Report.--Not later than 180 days after the date of enactment of
this Act, the Secretary shall prepare and submit to the appropriate
committees of Congress a report that describes the measures being taken
and the progress made in implementing this Act.
Calendar No. 711
108th CONGRESS
2d Session
S. 2823
_______________________________________________________________________
A BILL
To provide for the adjustment of status of certain foreign agricultural
workers, to amend the Immigration and Nationality Act to reform the H-
2A worker program under that Act, to provide a stable, legal
agricultural workforce, to extend basic legal protections and better
working conditions to more workers, and for other purposes.
_______________________________________________________________________
September 22, 2004
Read the second time and placed on the calendar
Introduced in Senate
Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 711.
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