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[Congressional Record: September 23, 2003 (Senate)]
[Page S11833-S11859]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr23se03-182]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
[ ... ]
By Mr. CRAIG (for himself, Mr. Kennedy, Mr. Smith, Mr. Graham of
Florida, Mr. Cochran, Mr. Schumer, Mr. Gregg, Mr. Lieberman,
Mr. McCain, Mr. Kerry, Mr. Hagel, Ms. Cantwell, Mr. Voinovich,
Mr. Wyden, Mr. Coleman, Mrs. Clinton, Mr. DeWine, Mrs. Boxer,
and Mrs. Murray):
S. 1645. 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;
to the Committee on the Judiciary.
Mr. CRAIG. Mr. President, I am pleased to announce today the
introduction of bipartisan farmworker reform legislation with a
bipartisan group of Members in both the Senate and the House of
Representatives. Our leading sponsors include Senator Ted Kennedy,
Congressman Howard Berman, and Congressman Chris Cannon.
The name of the bill says it all--``AgJOBS.'' That stands for the
``Agricultural Job Opportunity, Benefits, and Security Act of 2003.''
We are introducing this bill today because Members of Congress realize
our Nation is facing a growing crisis--for farm workers, growers, and
the wider public. We want and need a stable, predictable, legal work
force in American agriculture.
Willing American workers deserve a system that puts them first in
line for available jobs with fair market wages. We want all workers to
receive decent treatment and protection of fundamental legal rights.
Consumers deserve a safe, stable, domestic food supply. American
citizens and taxpayers deserve secure borders and a government that
works.
Yet Americans are being threatened on all these counts, because
agriculture, more than any other sector of the economy, has become
dependent for its existence on the labor of immigrants who are here
without legal documentation. The only program currently in place to
respond to a lack of legal domestic workers, the H-2A Guest Workers
Program, is profoundly broken. Outside of H-2A, farm employers have no
effective, reliable assurance that their employees are legal. Our own
government has estimated that half of the total 1.6 million
agricultural work force are not legally authorized to work in this
country, based, astoundingly, on self-disclosure in worker surveys.
Responsible private estimates run to 85 percent.
Several more times in recent months, we have read of the senseless
and inhuman deaths of farmworkers being smuggled illegally into the
United States. Those who survive to work in the fields are among the
most vulnerable persons in this country, unable to assert the most
basic legal rights and protections. This situation never was
acceptable. It has become intolerable. Immigrants not legally
authorized to work in this country know they must work in hiding. They
have been known to pay ``coyotes''--labor smugglers--thousands of
dollars to be smuggled into this country. They cannot even claim basic
legal rights and protections. They are vulnerable to predation and
exploitation. They sometimes have been stuffed inhumanly into
dangerously enclosed truck trailers and car trunks, in order to be
transported, hidden from the view of the law. We heard with horror of
the young girl who died this summer when a labor smuggler abandoned her
entire family in the desert in the Southwest.
In contrast, legal workers have legal protections. They can assert
wage, safety, and other legal protections. They can bargain openly and
join unions. H-2A workers, in fact, are guaranteed housing and
transportation. Time is running out for American agriculture,
farmworkers, and consumers. What was a problem years ago is a crisis
today and will be a catastrophe if we do not act immediately. A growing
number of family farms simply are going out of business as growers try
to, but cannot, secure a legal work force. All Americans face the
danger of losing more and more of our safe, domestic food supply to
imports.
Many farmers have seen recently hired workers scattered unpredictably
by a government letter or random raid. As enforcement of our
immigration and employment documentation laws has been stepped up--
sporadically and haphazardly--workers are rarely deported,
[[Page S11835]]
but the workplace is frequently and widely disrupted. Between
computerized checking by the Social Security Administration and audits
and raids by the Immigration and Naturalization Service, more and more
employers have discovered they have undocumented employees. More and
more workers here illegally are being discovered and evicted from their
jobs. The larger the so-called ``underground economy,'' the harder it
is to knowledgeably and effectively provide for our homeland security
needs.
The H-2A status quo is complicated and legalistic. The Department of
Labor's compliance manual alone is more than 300 pages long. A General
Accounting Office study found that DOL missed deadlines in processing
H-2A applications 40 percent of the time. For workers and growers
alike, the H-2A status quo is slow, bureaucratic, and inflexible. It
does nothing to recognize the uncertainties farmers face, from changes
in the weather to global market demands. The current H-2A process is so
hard to use, it will place only about 40,000 legal guest workers this
year--2 to 3 percent of the total agricultural work force.
The answer is AgJOBS. This farmworker reform legislation builds upon
some six years of discussion and ideas from among growers, farmworker
advocates, Latino and immigration issue groups, Members of both parties
in both Houses of Congress, and others. The coming together of all
these diverse viewpoints and interests makes AgJOBS truly an historic
piece of legislation. Our AgJOBS bill offers a thoughtful, two-step
solution. On a one-time basis, experienced, trusted workers with a
significant work history in American agriculture would be allowed to
stay here legally and earn adjustment to legal status. For workers and
growers using the H-2A legal guest worker program, that program would
be overhauled and made more streamlined, practical, and secure. AgJOBS
takes a win-win-win approach for our nation, workers, and farmers.
AgJOBS may be no one's idea of perfect labor and immigration
legislation in an ideal world. However, for the imperfect world we live
in, it is a balanced, practical, and achievable approach to resolving
urgent problems that require immediate attention. The broad bipartism
support for this approach is reflected already in the cosponsorship of
a number of our colleagues. Among others, I am happy we are joined by
Senators Gordon Smith and Bob Graham as original cosponsors, both of
whom have invested years of work in this issue. Supporters of this
legislation include the United Farm Workers of America, the National
Council of La Raza, and the AFL-CIO, all of whom participated in a
press conference the principal sponsors held earlier today, as well as
the U.S. Chamber of Commerce. This bill has overwhelming support in the
agriculture community, including the National Council of Agricultural
Employers, the American Nursery and Landscape Association, and the
American Farm Bureau Federation.
I ask unanimous consent to print in the Record a list from the
Agriculture Coalition for Immigration Reform that includes a large
number of agricultural groups around the country who support this bill.
I also ask unanimous consent to print a technical summary of the bill;
a side-by-side comparison with current law; an open letter to Congress
from our former Secretary of Agriculture, Ambassador Clayton Yeutter;
and the next of the AgJOBS bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Agriculture Coalition for Immigration Reform
national co-chairs
American Nursery & Landscape Association; National Council
of Agricultural Employers; New England Apple Council.
association members and supporters
Agricultural Affiliates; American Farm Bureau Federation;
American Frozen Foods Institute; American Horse Council;
American Mushroom Institute; CoBank-Northeast Farm Credit
Regional Council; Council of Northeast Farmer Cooperatives;
National Association of State Departments of Agriculture;
National Cattleman's Beef Association; National Chicken
Council; National Christmas Tree Association; National Cotton
Council; National Council of Farmer Cooperatives; National
Potato Council; National Watermelon Association, Inc.; Nisei
Farmers League; Northeast Dairy Coops; Northern Christmas
Tree Growers; Northern Ohio Growers Association; Northwest
Horticultural Council.
Society of American Florists; United Egg Association;
United Egg Producers; United Fresh Fruit & Vegetable
Association; U.S. Apple Association; U.S. Custom Harvesters
Association; Western Growers Association; Agricultural
Council of California; Alabama Farmers Federation; Alabama
Nursery Association; Arizona Nursery Associations; Arkansas
Green Industry Association; Associated Landscape Contractors
of Colorado; Associated Landscape Contractors of
Massachusetts; California Association of Nurserymen;
California Citrus Mutual; California Farm Bureau; California
Grape and Tree Fruit League; Nursery Growers Association
(CA); Colorado Nursery Association.
Connecticut Nursery & Landscape Association; Florida Citrus
Mutual; Florida Farm Bureau Federation; Florida Nurserymen &
Growers Association; Florida Fruit and Vegetable
Association; Georgia Green Industry Association; Gulf
Citrus Growers, Association; Idaho Nursery Association:
Illinois Landscape Contractors Association; Illinois
Nurserymen's Association; Illinois Specialty Growers
Association; Indiana Nursery & Landscape Association; Iowa
Nursery and Landscape Association; Kansas Nursery and
Landscape Association; Kentucky Nursery & Landscape
Association; Louisiana Nursery & Landscape Association;
Massachusetts Nursery & Landscape Association; Michigan
Nursery and Landscape Association; Minnesota Nursery &
Landscape Association; Mississippi Nursery Association.
Missouri Landscape & Nursery Association; New England
Nursery Association; New Jersey Nursery & Landscape
Association; New York State Nursery & Landscape Association;
New York State Vegetable Growers Association; North Carolina
Association of Nurserymen; Northern California Growers
Association; Nursery Growers of Lake County Ohio, Inc.; Ohio
Nursery & Landscape Association; Oregon Association of
Nurserymen; Oregon Farm Bureau Federation; Pacific Tomato
Growers; Pennsylvania Landscape & Nursery Association; Rhode
Island Nursery and Landscape Association; Senseny South
Corporation; Snake River Farmers Association; South Carolina
Nursery Association; Southern Nursery Association; State
Horticultural Association of Pennsylvania; Tennessee Nursery
& Landscape Association.
Texas Nursery & Landscape Association; Texas Produce
Association; Turfgrass Producers International; Ventura
County Agriculture Association; Virginia Agricultural Growers
Association; Virginia Nursery and Landscape Association;
Wasco County Fruit & Produce League; Washington Growers
Clearing House Association, Inc.; Washington Growers League;
Washington Potato & Onion Association; Washington State
Nursery & Landscape Association; Western Grower Law Group;
West Virginia Nursery and Landscape Association; Wisconsin
Nursery Association; Wisconsin Landscape Federation;
Wisconsin Christmas Tree Producers.
____
Agricultural Job Opportunity, Benefits, and Security Act of 2003--
Summary of Significant Provisions--September 2003
title i--adjustment of agricultural workers to temporary and permanent
resident status
Title I establishes a program whereby agricultural workers
in the United States who lack authorized immigration status
but who can demonstrate that they have worked 100 or more
days in a 12 consecutive month period during the 18-month
period ending on August 31, 2003 can apply for adjustment of
status. Eligible applicants would be granted temporary
resident status. If the farmworker performs at least 360 work
days of agricultural employment during the 6-year period
ending on August 31, 2009, including at least 240 work days
during the first 3 years following adjustment, and at least
75 days of agricultural work during each of three 12-month
periods in the 6-years following adjustment to temporary
resident status, the farmworker may apply for permanent
resident status.
During the period of temporary resident status the
farmworker is employment authorized, and can travel abroad
and re-enter the United States. Workers adjusting to
temporary resident status may work in non-agricultural
occupations, as long as their agricultural work requirements
are met. While in temporary resident status, workers may
select their employers and may switch employers. During the
period of temporary resident status, the farmworker's spouse
and minor children who are residing in the United States may
remain in the United States, but are not employment
authorized. The spouse and minor children may adjust to
permanent resident status once the farmworker adjusts to
permanent resident status. Unauthorized workers who do not
apply or are not qualified for adjustment to temporary
resident status are subject to removal. Temporary residents
under this program who do not fulfill the agricultural work
requirement or are inadmissible under immigration law or
commit a felony or three or more misdemeanors as temporary
residents are denied adjustment to permanent resident status
and are subject to removal. The adjustment program is funded
through application fees.
[[Page S11836]]
titles ii and iii--reform of the h-2a temporary and seasonal
agricultural worker program
This section modifies the existing H-2A temporary and
seasonal foreign agricultural worker program. Employers
desiring to employ H-2A foreign workers in seasonal jobs (10
months or less) will file an application and a job offer with
the Secretary of Labor. If the application and job offer
meets the requirements of the program and there are no
obvious deficiencies the Secretary must approve the
application. Employers must seek to employ qualified U.S.
workers prior to the arrival of H-2A foreign workers by
filing a job order with a local job service office at least
28 days prior to date of need and also authorizing the
posting of the job on an electronic job registry.
All workers in job opportunities covered by an H-2A
application must be provided with workers' compensation
insurance, and no job may be filled by an H-2A worker that is
vacant because the previous occupant is on strike or involved
in a labor dispute. If the job is covered by a collective
bargaining agreement, the employer must also notify the
bargaining agent of the filing of the application. If the
job opportunity is not covered by a collective bargaining
agreement, the employer is required to provide additional
benefits, as follows. The employer must provide housing at
no cost, or a monetary housing allowance where the
governor of a State has determined that there is
sufficient migrant housing available, to workers whose
place of residence is beyond normal commuting distance.
The employer must also reimburse inbound and return
transportation costs to workers who meet employment
requirements and who travel more than 100 miles to come to
work for the employer. The employer must also guarantee
employment for at least three quarters of the period of
employment, and assure at least the highest of the
applicable statutory minimum wage, the prevailing wage in
the occupation and area of intended employment, or a
reformed Adverse Effect Wage Rate (AEWR). If the AEWR
applies, it will not be higher than that existing on 1/01/
03 and if Congress fails to enact a new wage rate within 3
years, the AEWR will be indexed to the change in the
consumer price index, capped at 4 percent per year
beginning December 1, 2006. Employers must meet specific
motor vehicle safety standards.
H-2A foreign workers are admitted for the duration of the
initial job, not to exceed 10 months, and may extend their
stay if recruited for additional seasonal jobs, to a maximum
continuous stay of 3 years, after which the H-2A foreign
worker must depart the United States. H-2A foreign workers
are authorized to be employed only in the job opportunity and
by the employer for which they were admitted. Workers who
abandon their employment or are terminated for cause must be
reported by the employer, and are subject to removal. H-2A
foreign workers are provided with a counterfeit resistant
identity and employment authorization document.
The Secretary of Labor is required to provide a process for
filing, investigating and disposing of complaints, and may
order back wages and civil money penalties for program
violators. The Secretary of Homeland Security may order
debarment of violators for up to 2 years. H-2A workers are
provided with a limited Federal private right of action to
enforce the requirements of housing, transportation, wages,
the employment guarantee, motor vehicle safety, retaliation
and any other written promises in the employer's job offer.
Either party may request mediation after the filing of the
complaint. State contract claims seeking to enforce terms of
the H-2A program are preempted by the limited Federal right
of action. No other State law rights are preempted or
restricted.
The administration of the H-2A program is funded through a
user fee paid by agricultural employers.
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Text of Open Letter to Congress on Agricultural Labor Reform, August,
2003
The recent tragic truck-trailer deaths of Mexican workers
seeking illegal entry to the U.S. have raised once again the
wisdom and feasibility of our immigration policies at the
U.S./Mexico border. This is an issue that many of us in
American agriculture have tried to address over the years,
but few have listened. Perhaps our views can now be heard.
Many of the workers entering the U.S. from Mexico are
hoping for jobs on farms or in nurseries. As you know, such
jobs often await them, for thousands of American farmers
wonder every year whether they'll have dependable help at
harvest time. This is especially critical for our fruit and
vegetable industries, where the ``open window'' for harvest
can be very short-lived. But similar concerns are now
emerging in many other farm enterprises, ranging from dairy
to poultry to greenhouse crops to beef to Christmas trees.
This has become a national problem, and a recurring nightmare
for our agricultural employers nationwide.
Government statistics and other evidence suggest that at
least 50% and perhaps 70% of the current agricultural
workforce is not in this country legally. The immediate
reaction of some is to say that these workers have broken the
law and should be deported, and that U.S. farmers and other
employers have brought this problem on themselves by not
doing a better job of detecting fraudulent documents.
That ``easy'' answer ignores the reality that few Americans
are drawn to highly seasonal and physically demanding work in
agriculture. At chaotic harvest times, a stable, dependable
workforce is essential. Instead, American farmers are in a
``damned if you do, damned if you don't'' situation where
they're required by law to be policemen, immigration
officials, and security experts while simultaneously trying
to get their crops harvested before they spoil.
My experience over many years tells me that agricultural
employers do not want to hire illegal immigrants. What they
want is a stable, viable program with integrity that will
meet their labor force needs in a timely, effective way. What
they do not want is a program with major shortcomings, for
which they will inevitably be blamed. Unfortunately, that is
what our laws have imposed upon them.
As a nation, we can and must do better--for agricultural
employers and for immigrant workers. Many of these workers
have come to the U.S. on a regular basis. Many have lived
here for years doing our toughest jobs, and some would like
to earn the privilege of living here permanently. Why not
permit them to do so, over a specified timeframe, thereby
keeping the best workers here? That has the additional
advantage of permitting our government to better focus its
limited monitoring/enforcement resources, particularly where
security may be a concern. Let's use entry/exit tracking,
tamper proof documentation, biometric identification, etc.
where it will truly pay security dividends, and let's stop
painting all immigrants with the same brush.
A limited, earned legalization for agriculture is nothing
like an amnesty program. It would apply only to immigrants
who are at work, paying taxes, and are willing to earn their
way to citizenship so that they can share in the American
dream. These workers form the foundation of much of our
nation's agricultural workforce. We need them!
Agricultural employers need an updated guest work program
to replace the antiquated ``H2A'' temporary worker system,
which is too expensive and too bureaucratic to be of
practical use. Necessary reforms include fair and stronger
security and identification measures, market-based wage
rates, and comprehensive application procedures.
The reform program I have outlined already has broad
bipartisan support, thanks to the good work and leadership of
Sens. Larry Craig, Gordon Smith, Ted Kennedy, and Bob Graham,
among others, and a bipartisan group of House colleagues.
Their work product deserves immediate and serious
consideration by the Congress. The status quo is simply
unacceptable. It puts both American employers and immigrant
workers in an untenable situation--with a high cost in
economic efficiency, respect for the law, and sometimes even
in human life. The reforms now being proposed are a practical
solution to a serious problem that is evolving into a
national crisis.
As President Bush has stated, we can and must do better to
match a willing and hardworking immigrant worker with
producers who are in desperate need of a lawful workforce. It
is time, and in our great country's interest, to enact these
reforms.
Sincerely,
Clayton Yeutter
(Former Agriculture Secretary and U.S. Trade Representative).
____
S. 1645
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
2003''.
(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.
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 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.).
[[Page S11846]]
(2) 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.
(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 2,060 hours or 360 work days, whichever is less, 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
430 hours or 75 work days, whichever is less, 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 1,380 hours or 240 work days, whichever is
less, 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
[[Page S11847]]
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
[[Page S11848]]
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) Funding.--There are hereby appropriated, out of any
money in the Treasury not otherwise appropriated, $40,000,000
for each of fiscal years 2004 through 2007 to the Secretary
to carry out this section.
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 2003,''; 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.
[[Page S11849]]
``(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 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.
[[Page S11850]]
``(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 2003 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:
[[Page S11851]]
``(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
[[Page S11852]]
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 mont |
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