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106th CONGRESS

 2d Session

 H. R. 4548

To establish a pilot program creating a system of registries of temporary agricultural workers to provide for a sufficient supply of such workers, to amend the Immigration and Nationality Act to streamline procedures for the temporary admission and extension of stay of nonimmigrant agricultural workers under the pilot program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES

 May 25, 2000

Mr. POMBO (for himself, Mr. CHAMBLISS, Mr. HASTINGS of Washington, Mr. PITTS, Mr. CALVERT, Mr. WEXLER, Mr. MARTINEZ, Mr. RADANOVICH, Mr. NUSSLE, Mr. BOEHNER, Mr. MCCOLLUM, Mr. KINGSTON, Mr. DOOLITTLE, Mr. FOLEY, Mrs. CHENOWETH-HAGE, Mrs. BONO, and Mr. KOLBE) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

--------------------------------------------------------------------------------

A BILL

To establish a pilot program creating a system of registries of temporary agricultural workers to provide for a sufficient supply of such workers, to amend the Immigration and Nationality Act to streamline procedures for the temporary admission and extension of stay of nonimmigrant agricultural workers under the pilot program, and for other purposes.

 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

 (a) SHORT TITLE- This Act may be cited as the `Agricultural Opportunities Act'.

 (b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

 Sec. 1. Short title; table of contents.

 Sec. 2. Definitions.

 TITLE I--AGRICULTURAL WORKER REGISTRIES

 Sec. 101. Agricultural worker registries.

 TITLE II--H-2C PROGRAM

 Sec. 201. Employer applications and assurances.

 Sec. 202. Search of registry.

 Sec. 203. Issuance of visas and admission of aliens.

 Sec. 204. Employment requirements.

 Sec. 205. Program for the admission of temporary H-2C workers.

 TITLE III--MISCELLANEOUS PROVISIONS 

Sec. 301. Enhanced worker protections and labor standards enforcement. 

Sec. 302. Commission. 

Sec. 303. Regulations. 

Sec. 304. Determination and use of user fees.

 Sec. 305. Funding for startup costs.

 Sec. 306. Report to Congress.

 Sec. 307. Effective date.

 Sec. 308. Termination of program.

 SEC. 2. DEFINITIONS.

 In this Act:

 (1) ADVERSE EFFECT WAGE RATE-

 (A) IN GENERAL- Except as provided in subparagraph (B), the term `adverse effect wage rate' means the rate of pay for an agricultural occupation that is 5 percent above the prevailing rate of pay for that agricultural occupation in an area of intended employment, if the prevailing rate of pay for the occupation is less than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture, provided no adverse effect wage rate shall be more than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture.

 (B) EXCEPTION- If the prevailing rate of pay for an activity is a piece rate, task rate, or group rate, and the average hourly earnings of an employer's workers employed in that activity, taken as a group, are less than the prior year's average hourly earnings of field and livestock workers in the State (or region that includes the State), as determined by the Secretary of Agriculture, the term `adverse effect wage rate' means the prevailing piece rate, task rate, or group rate for the activity plus such an amount as is necessary to increase the average hourly earnings of the employer's workers employed in the activity, taken as a group, by 5 percent, or to the prior's years average hourly earnings for field and livestock workers for the State (or region that includes the State) determined by the Secretary of Agriculture, whichever is less.

 (2) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agriculture 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. For purposes of this paragraph, agricultural employment in the United States includes, but is not limited to, employment under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act). 

(3) ELIGIBLE- The term `eligible' means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)) with respect to that employment. 

(4) EMPLOYER- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers.

 (5) H-2C EMPLOYER- The term `H-2C employer' means an employer who seeks to hire one or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act).

(6) H-2C WORKER- The term `H-2C worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act).

 (7) JOB OPPORTUNITY- The term `job opportunity' means a specific period of employment provided by an employer to a worker in one or more agricultural activities.

 (8) PREVAILING WAGE- The term `prevailing wage' means with respect to an agricultural activity in an area of intended employment, the rate of wages that includes the 51st percentile of employees in that agricultural activity in the area of intended employment, expressed in terms of the prevailing method of pay for the agricultural activity in the area of intended employment.

 (9) REGISTERED WORKER- The term `registered worker' means an individual whose name appears in a registry. 

(10) REGISTRY- The term `registry' means an agricultural worker registry established under section 101(a).

 (11) SECRETARY- The term `Secretary' means the Secretary of Labor.

 (12) 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 other than an alien admitted pursuant to section 101(a)(15)(H)(ii)(c) or section 218A of the Immigration and Nationality Act, as in effect on the effective date of this Act.

TITLE I--AGRICULTURAL WORKER REGISTRIES

 SEC. 101. AGRICULTURAL WORKER REGISTRIES.

 (a) ESTABLISHMENT OF REGISTRIES-

 (1) IN GENERAL- The Secretary of Labor shall establish and maintain a system of registries containing a current database of eligible United States workers who seek agricultural employment and the employment status of such workers--

 (A) to ensure that eligible United States workers are informed about available agricultural job opportunities and have the right of first refusal for the agricultural jobs available through the registry; and

 (B) to provide timely referral of such workers to agricultural job opportunities in the United States.

 (2) GEOGRAPHIC COVERAGE-

 (A) SINGLE STATE- Each registry established under paragraph (1) shall include the job opportunities in a single State, except that, in the case of New England States, two or more such States may be represented by a single registry in lieu of multiple registries. 

(B) REQUESTS FOR INCLUSION- Each State having any group of agricultural producers seeking to utilize the registry shall be represented by a registry, except that, in the case of a New England State, the State shall be represented by the registry covering the group of States of which the State is a part.

 (3) COMPUTER DATABASE- The Secretary of Labor may establish the registries as part of the computer databases known as `America's Job Bank' and `America's Talent Bank'.

 (4) RELATION TO PROCESS FOR IMPORTING H-2C WORKERS- Notwithstanding section 218A of the Immigration and Nationality Act (as added by this Act), no petition to import an alien as an H-2C worker may be approved by the Attorney General unless the H-2C employer-- 

(A) has applied to the Secretary to conduct a search of the registry of the State in which the job opportunities for which H-2C workers are sought are located; and

 (B) has received a report or approved application described in section 203(a)(1).

 (b) REGISTRATION-

 (1) IN GENERAL- An eligible individual who seeks employment in agricultural work may apply to be included in the registry for the State in which the individual resides. Such application shall include-- 

(A) the name and address of the individual;

 (B) the period or periods of time (including beginning and ending dates) during which the individual will be available for agricultural work;

 (C) the registry or registries on which the individual desires to be included;

 (D) the specific qualifications and work experience possessed by the applicant;

 (E) the type or types of agricultural work the applicant is willing to perform;

 (F) such other information as the applicant wishes to be taken into account in referring the applicant to agricultural job opportunities; and

 

(G) such other information as may be required by the Secretary.

 

(2) VALIDATION OF EMPLOYMENT AUTHORIZATION- No person may be included on any registry unless the Secretary of Labor has requested and obtained from the Attorney General a certification that the person is authorized to be employed in the United States.

 

(3) EMPLOYMENT VERIFICATION SYSTEM- The Attorney General shall establish a reliable automated employment eligibility verification system to ensure that an employer who hires an H-2C worker does not hire for employment in the United States an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act).

 

(4) UNITED STATES WORKERS- United States workers shall have preference in referral by the registry, and may be referred to any job opportunity nationwide for which they are qualified and make a commitment to be available at the time and place needed.

 

(5) USE OF REGISTRY- Any United States agricultural employer may use the registry.

 

(6) DISCRETIONARY USE FOR NEW HIRES- An agricultural employer may require prospective employees to register with a registry as a means of assuring that its workers are eligible to be employed in the United States.

 

(7) WORKERS REFERRED TO JOB OPPORTUNITIES- The name of each registered worker who is referred and accepts employment with an employer shall be classified as inactive on each registry on which the worker is included during the period of employment involved in the job to which the worker was referred, unless the worker reports to the Secretary that the worker is no longer employed and is available for referral to another job opportunity. A registered worker classified as inactive shall not be referred.

 

(8) REMOVAL OF NAMES FROM A REGISTRY- The Secretary shall remove from the appropriate registry the name of any registered worker who, on

3 separate occasions within a 3-month period, is referred to a job opportunity pursuant to this section, and who declines such referral or fails to report to work in a timely manner.

 

 

(9) VOLUNTARY REMOVAL- A registered worker may request that the worker's name be removed from a registry.

 

(10) REMOVAL BY EXPIRATION- The application of a registered worker shall expire, and the Secretary shall remove the name of such worker from the appropriate registry if the worker has not accepted a job opportunity pursuant to this section within the preceding 12-month period.

 

(11) REINSTATEMENT- A worker whose name is removed from a registry pursuant to paragraph (8), (9), or (10) may apply to the Secretary for reinstatement to such registry at any time.

 

(c) CONFIDENTIALITY OF REGISTRIES- The Secretary shall maintain the confidentiality of the registries established pursuant to this section, and the information in such registries shall not be used for any purposes other than those authorized in this Act.

 

(d) ADVERTISING OF REGISTRIES- The Secretary shall widely disseminate, through advertising and other means, the existence of the registries for the purpose of encouraging eligible United States workers seeking agricultural job opportunities to register. The Secretary of Labor shall ensure that the information about the registry is made available to eligible workers through all appropriate means, including appropriate State agencies, groups representing farm workers, and nongovernmental organizations, and shall ensure that the registry is accessible to growers and farm workers.

 

TITLE II--H-2C PROGRAM

 

SEC. 201. EMPLOYER APPLICATIONS AND ASSURANCES.

 

(a) APPLICATIONS TO THE SECRETARY-

 

(1) IN GENERAL- Not later than 28 days prior to the date on which an H-2C employer desires to employ an H-2C worker in a temporary or seasonal agricultural job opportunity, the employer shall, before petitioning for the admission of such a worker, apply to the Secretary for the referral of a United States worker or nonimmigrant agricultural worker through a search of the appropriate registry, in accordance with section 202. Such application shall--

 

(A) describe the nature and location of the work to be performed;

 

(B) list the anticipated period (expected beginning and ending dates) for which workers will be needed;

 

(C) indicate the number of job opportunities in which the employer seeks to employ workers from the registry;

 

(D) describe the bona fide occupational qualifications that must be possessed by a worker to be employed in the job opportunity in question;

 

(E) describe the wages and other terms and conditions of employment the employer will offer, which shall not be less (and are not required to be more) than those required by this section;

 

(F) contain the assurances required by subsection (c);

 

(G) specify the foreign country or region thereof from which alien workers should be admitted in the case of a failure to refer United States workers under this Act; and

 

(H) be accompanied by the payment of a registry user fee determined under section 304(b)(1)(A) for each job opportunity indicated under subparagraph (C).

 

(2) APPLICATIONS BY ASSOCIATIONS ON BEHALF OF EMPLOYER MEMBERS-

 

(A) IN GENERAL- An agricultural association may file an application under paragraph (1) for registered workers on behalf of its employer members.

 

(B) EMPLOYERS- An application under subparagraph (A) shall cover those employer members of the association that the association certifies in its application have agreed in writing to comply with the requirements of this Act.

 

(b) AMENDMENT OF APPLICATIONS- Prior to receiving a referral of workers from a registry, an employer may amend an application under this subsection if the employer's need for workers changes. If an employer makes a material amendment to an application on a date which is later than 28 days prior to the date on which the workers on the amended application are sought to be employed, the Secretary may delay issuance of the report described in section 202(b) by the number of days by which the filing of the amended application is later than 28 days before the date on which the employer desires to employ workers.

 

(c) ASSURANCES- The assurances referred to in subsection (a)(1)(F) are the following:

 

(1) ASSURANCE THAT THE JOB OPPORTUNITY IS NOT A RESULT OF A LABOR DISPUTE- The employer shall assure that the job opportunity for

which the employer requests a registered worker is not vacant because a worker is involved in a strike, lockout, or work stoppage in the course of a labor dispute involving the job opportunity at the place of employment.

 

 

(2) ASSURANCE THAT THE JOB OPPORTUNITY IS TEMPORARY OR SEASONAL-

 

(A) REQUIRED ASSURANCE- The employer shall assure that the job opportunity for which the employer requests a registered worker is temporary or seasonal.

 

(B) SEASONAL BASIS- For purposes of this Act, labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year.

 

(C) TEMPORARY BASIS- For purposes of this Act, a worker is employed on a temporary basis where the employment is intended not to exceed 10 months.

 

(3) ASSURANCE OF PROVISION OF REQUIRED WAGES AND BENEFITS- The employer shall assure that the employer will provide the wages and benefits required by subsections (a), (b), and (c) of section 204 to all workers employed in 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, and in no case 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.

 

(4) ASSURANCE OF EMPLOYMENT- The employer shall assure that the employer will not refuse to employ qualified individuals referred under section 202, and will terminate qualified individuals employed pursuant to this Act only for lawful job-related reasons, including lack of work.

 

(5) ASSURANCE OF COMPLIANCE WITH LABOR LAWS-

 

(A) IN GENERAL- An employer who requests registered workers shall assure that, except as otherwise provided in this Act, 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.

 

(B) LIMITATIONS- The disclosure required under section 201(a) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1821(a)) may be made at any time prior to the time the alien is issued a visa permitting entry into the United States.

 

(6) ASSURANCE OF ADVERTISING OF THE REGISTRY- The employer shall assure that, from the day an application for workers is submitted under subsection (a), and continuing throughout the period of employment of any job opportunity for which the employer has applied for a worker from the registry, post in a conspicuous place a poster to be provided by the Secretary advertising the availability of the registry.

 

(7) ASSURANCE OF ADVERTISING OF JOB OPPORTUNITIES- The employer shall assure that not later than 14 days after submitting an application to a registry for workers under subsection (a) the employer will advertise the availability of the job opportunities for which the employer is seeking workers from the registry in a publication in the local labor market that is likely to be patronized by potential farmworkers, if any, and refer interested workers to register with the registry.

 

(8) ASSURANCE OF CONTACTING FORMER WORKERS- The employer shall assure that the employer has made reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any eligible worker the employer employed during the previous season in the

occupation at the place of intended employment for which the employer is applying for registered 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 worker, 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.

 

 

(9) ASSURANCE OF PROVISION OF WORKERS COMPENSATION- The employer shall assure that if the job opportunity is not covered by the State workers' compensation law, that the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.

 

(10) ASSURANCE OF PAYMENT OF ALIEN EMPLOYMENT USER FEE- The employer shall assure that if the employer receives a notice of insufficient workers under section 202(c), such employer shall promptly pay the alien employment user fee determined under section 304(b)(1)(B) for each job opportunity to be filled by an eligible alien as required under such section.

 

(d) WITHDRAWAL OF APPLICATIONS-

 

(1) IN GENERAL- An employer may withdraw an application under subsection (a), except that, if the employer is an agricultural association, the association may withdraw an application under subsection (a) with respect to one or more of its members. To withdraw an application, the employer shall notify the Secretary in writing, and the Secretary 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 this

Act 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 recruitment of United States 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 OF APPLICATION-

 

(1) IN GENERAL- Promptly upon receipt of an application by an employer under subsection (a), the Secretary shall review the application for compliance with the requirements of such subsection.

 

(2) APPROVAL OF APPLICATIONS- If the Secretary determines that an application meets the requirements of subsection (a), and the employer is not ineligible to apply under paragraph (2), (3), or (4) of section 301(b), the Secretary shall, not later than 7 days after the receipt of such application, approve the application and so notify the employer.

 

(3) REJECTION OF APPLICATIONS- If the Secretary determines that an application fails to meet 1 or more of the requirements of subsection (a), the Secretary, as expeditiously as possible, but in no case later than 7 days after the receipt of such application, shall--

 

(A) notify the employer of the rejection of the application and the reasons for such rejection, and provide the opportunity for the prompt resubmission of an amended application; and

 

(B) offer the applicant an opportunity to request an expedited administrative review or a de novo administrative hearing before an administrative law judge of the rejection of the application.

 

(4) REJECTION FOR PROGRAM VIOLATIONS- The Secretary shall reject the application of an employer under this section if--

 

(A) the employer has been determined to be ineligible to employ workers under section 301(b); or

 

(B) the employer during the previous two-year period employed H-2C workers or registered workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the assurances made with respect to the employment of United States workers or nonimmigrant workers.

 

No employer may have applications under this section rejected for more than 3 years for any violation described in this paragraph.

 

SEC. 202. SEARCH OF REGISTRY.

 

(a) SEARCH PROCESS AND REFERRAL TO THE EMPLOYER- Upon the approval of an application under section 201(e), the Secretary shall promptly begin a search of the registry of the State (or States) in which the work is to be performed to identify registered United States workers with the qualifications requested by the employer. The Secretary shall contact such qualified registered workers and determine, in each instance, whether the worker is ready, willing, and able to accept the employer's job opportunity and will make the affirmative commitment to work for the employer at the time and place needed. The Secretary shall provide to each worker who commits to work for the employer the employer's name, address, telephone number, the location where the employer has requested that employees report for employment, and a statement disclosing the terms and conditions of employment.

 

(b) DEADLINE FOR COMPLETING SEARCH PROCESS; REFERRAL OF WORKERS- As expeditiously as possible, but not later than 7 days before the date on which an employer desires work to begin, the Secretary shall complete the search under subsection (a) and shall transmit to the employer a report containing the name, address, and social security account number of each registered worker who has made the affirmative commitment described in subsection (a) to work for the employer on the date needed, together with sufficient information to enable the employer to establish contact with the worker. The identification of such registered workers in a report shall constitute a referral of workers under this section.

 

(c) ACCEPTANCE OF REFERRALS- H-2C employers shall accept all qualified United States worker referrals who make a commitment to report to work at the time and place needed and to complete the full period of employment offered, on the registry of the State in which the intended employment is located, and the immediately contiguous States. An employer shall not be required to accept more referrals than the number of job opportunities for which the employer applied to the registry.

 

(d) NOTICE OF INSUFFICIENT WORKERS- If the report provided to the employer under subsection (b) does not include referral of a sufficient number of registered workers to fill all of the employer's job opportunities in the occupation for which the employer applied under section 201(a), the Secretary shall indicate in the report the number of job opportunities for which registered workers could not be referred, and shall promptly transmit a copy of the report to the Attorney General and the Secretary of State, by electronic or other means ensuring next day delivery.

 

(e) USER FEE FOR CERTIFICATION TO EMPLOY ALIEN WORKERS- With respect to each job opportunity for which a notice of insufficient workers is made, the Secretary shall require the payment of an alien employment user fee determined under section 304(b)(1)(B).

 

SEC. 203. ISSUANCE OF VISAS AND ADMISSION OF ALIENS.

 

(a) IN GENERAL-

 

(1) NUMBER OF ADMISSIONS- Subject to paragraph (2), the Secretary of State shall promptly issue visas to, and the Attorney General shall admit, as nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act a sufficient number of eligible aliens designated by the employer to fill the job opportunities of the employer--

 

(A) upon receipt of a copy of the report described in section 202(b);

 

(B) upon approval of an application (or copy of an application under subsection (b));

 

(C) upon receipt of the report required by subsection (c)(1)(B); or

 

(D) upon receipt of a report under subsection (d).

 

(2) PROCEDURES- The admission of aliens under paragraph (1) shall be subject to the procedures of section 218A of the Immigration and Nationality Act, as added by this Act.

 

(b) DIRECT APPLICATION UPON FAILURE TO ACT-

 

(1) APPLICATION TO THE SECRETARY OF STATE- If the employer has not received a referral of sufficient workers pursuant to section 202(b) or a report of insufficient workers pursuant to section 202(d), by the date that is 7 days before the date on which the work is anticipated to begin, the employer may submit an application for alien workers directly to the Secretary of State, with a copy of the application provided to the Attorney General, seeking the issuance of visas to and the admission of aliens for employment in the job opportunities for which the employer has not received referral of registered workers. Such an application shall include a copy of the employer's application under section 201(a), together with evidence of its timely submission. The Secretary of State may consult with the Secretary of Labor in carrying out this paragraph.

 

(2) EXPEDITED CONSIDERATION BY SECRETARY OF STATE- The Secretary of State shall, as expeditiously as possible, but not later than 5 days after the employer files an application under paragraph (1), issue visas to, and the Attorney General shall admit, a sufficient number of eligible aliens designated by the employer to fill the job opportunities for which the employer has applied under that paragraph, if the employer has met the requirements of sections 201 and 202. The employer shall be subject to the alien employment user fee determined under section 304(b)(1)(B) with respect to each job opportunity for which the Secretary of State authorizes the issuance of a visa pursuant to paragraph (2).

 

(c) REDETERMINATION OF NEED-

 

(1) REQUESTS FOR REDETERMINATION-

 

(A) IN GENERAL- An employer may file a request for a redetermination by the Secretary of the employer's need for workers if a worker referred from the registry--

 

(i) is not at the place of employment on the date of need shown on the application, or the date the work for which the worker is needed has begun, whichever is later;

 

(ii) is not ready, willing, able, or qualified to perform the work required; or

 

(iii) abandons the employment or is terminated for a lawful job-related reason.

 

(B) ADDITIONAL AUTHORIZATION OF ADMISSIONS- The Secretary shall expeditiously, but in no case later than 72 hours after a redetermination is requested under subparagraph (A), submit a report to the Secretary of State and the Attorney General providing notice of a need for workers under this subsection, if the employer has met the requirements of sections 201 and 202 and the conditions described in subparagraph (A).

 

(2) JOB-RELATED REQUIREMENTS- An employer shall not be required to initially employ a worker who fails to meet lawful job-related employment criteria, nor to continue the employment of a worker who fails to meet lawful, job-related standards of conduct and performance, including failure to meet minimum production standards after a 3-day break-in period.

 

(d) EMERGENCY APPLICATIONS- Notwithstanding subsections (b) and (c), the Secretary may promptly transmit a report to the Attorney General and Secretary of State providing notice of a need for workers under this subsection for an employer--

 

(1) who has not employed aliens under this Act in the occupation in question in the prior year's agricultural season;

 

(2) who faces an unforeseen need for workers (as determined by the Secretary); and

 

(3) with respect to whom the Secretary cannot refer able, willing, and qualified workers from the registry who will commit to be at the employer's place of employment and ready for work within 72 hours or on the date the work for which the worker is needed has begun, whichever is later.

 

The employer shall be subject to the alien employment user fee determined under section 304(b)(1)(B) with respect to each job opportunity for which a notice of insufficient workers is made pursuant to this subsection.

 

(e) REGULATIONS- The Secretary of State shall prescribe regulations to provide for the designation of aliens under this section.

 

SEC. 204. EMPLOYMENT REQUIREMENTS.

 

(a) REQUIRED WAGES-

 

(1) IN GENERAL- An employer applying under section 201(a) for workers shall offer to pay, and shall pay, all workers in the occupation or occupations for which the employer has applied for workers from the registry, 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.

 

(2) PAYMENT OF PREVAILING WAGE DETERMINED BY A STATE EMPLOYMENT SECURITY AGENCY SUFFICIENT- In complying with paragraph (1), an employer may request and obtain a prevailing wage determination from the State employment security agency. If the employer requests such a determination, and pays the wage required by paragraph (1) based upon such a determination, such payment shall be considered sufficient to meet the requirement of paragraph (1).

 

(3) RELIANCE ON WAGE SURVEY- In lieu of the procedure of paragraph (2), an employer may rely on other information, such as an employer-generated prevailing wage survey that the Secretary determines meets criteria specified by the Secretary in regulations.

 

(4) ALTERNATIVE METHODS OF PAYMENT PERMITTED-

 

(A) IN GENERAL- A prevailing wage may be expressed as an hourly wage, a piece rate, a task rate, or other incentive payment method, including a group rate. The requirement to pay at least the prevailing wage in the occupation and area of intended employment does not require an employer to pay by the method of pay in which the prevailing rate is expressed, except that, if the employer adopts a method of pay other than the prevailing rate, the burden of proof is on the employer to demonstrate that the employer's method of pay is designed to produce earnings equivalent to the earnings that would result from payment of the prevailing rate.

 

(B) COMPLIANCE WHEN PAYING AN INCENTIVE RATE- In the case of an employer that pays a piece rate or task rate or uses any other incentive payment method, including a group rate, the employer shall be considered to be in compliance with any applicable hourly wage requirement if the average of the hourly earnings of the workers, taken as a group, in the activity for which a piece rate, task rate, or other incentive payment, including a group rate, is paid, for the pay period, is at least equal to the required hourly wage, except that no worker shall be paid less than 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.

 

(C) TASK RATE- For purposes of this paragraph, the term `task rate' means an incentive payment method based on a unit of work performed such that the incentive rate varies with the level of effort required to perform individual units of work.

 

(D) GROUP RATE- For purposes of this paragraph, the term `group rate' means an incentive payment method in which the payment is shared among a group of workers working together to perform the task.

 

(b) REQUIREMENT TO PROVIDE HOUSING-

 

(1) IN GENERAL-

 

(A) REQUIREMENT- An employer applying under section 201(a) for registered workers shall offer to provide housing at no cost (except for charges permitted by paragraph (5)) to all

workers employed in job opportunities to 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) LIABILITY- An employer not complying with subparagraph (A) shall be liable to a registered worker for the costs of housing equivalent to the type of housing required to be provided under that subparagraph and shall not be liable for any employment-related obligation solely by reason of such noncompliance.

 

(2) TYPE OF HOUSING- In complying with paragraph (1), 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.

 

(3) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK- The Secretary shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.

 

(4) LIMITATION- Nothing in this subsection 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.

 

(5) CHARGES FOR HOUSING-

 

(A) UTILITIES AND MAINTENANCE- An employer who provides housing to a worker pursuant to paragraph (1) may charge an amount equal to the fair market value (but not greater than the employer's actual cost) for maintenance and utilities, or such lesser amount as permitted by law.

 

(B) SECURITY DEPOSIT- An employer who provides housing to workers pursuant to paragraph (1) may require, as a condition for providing such housing, a deposit not to exceed $50 from workers occupying such housing to

protect against gross negligence or willful destruction of property.

 

 

(C) DAMAGES- An employer who provides housing to workers pursuant to paragraph (1) 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.

 

(6) HOUSING ALLOWANCE AS ALTERNATIVE-

 

(A) IN GENERAL- In lieu of offering housing pursuant to paragraph (1), the employer may provide a reasonable housing allowance during the 3-year period beginning on the effective date of this Act. After the expiration of that period such allowance may be provided only if the requirement of subparagraph (B) is satisfied or, in the case of a certification under subparagraph (B) that is expired, the requirement of subparagraph (C) 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 subparagraph, shall not be deemed to be a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of providing such housing allowance.

 

(B) CERTIFICATION- The requirement of this subparagraph is satisfied if the Governor of the State certifies to the Secretary that there is adequate housing available in an area of intended employment for migrant farm workers, and nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act, 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.

 

(C) EFFECT OF CERTIFICATION- Notwithstanding the expiration of a certification under subparagraph (B) with respect to an area of intended employment, a housing allowance described in subparagraph (A) may be offered for up to one year after the date of expiration.

 

(D) AMOUNT OF ALLOWANCE- The amount of a housing allowance under this paragraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State in which the employment occurs, 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.

 

(c) REIMBURSEMENT OF TRANSPORTATION-

 

(1) TO PLACE OF EMPLOYMENT- A worker who is referred to a job opportunity under section 202(a), or an alien employed pursuant to this Act, 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 worker's permanent place of residence (or place of last employment, if the worker traveled from such place) to the place of employment to which the worker was referred under section 202(a).

 

(2) FROM PLACE OF EMPLOYMENT- A worker who is referred to a job opportunity under section 202(a), or an alien employed pursuant to this Act, 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 worker's place of residence, 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.

 

 

(3) LIMITATION-

 

(A) AMOUNT OF REIMBURSEMENT- Except as provided in subparagraph (B), the amount of reimbursement provided under paragraph (1) or (2) 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.

 

(B) DISTANCE TRAVELED- No reimbursement under paragraph (1) or (2) 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 a housing allowance as provided in subsection (b)(6).

 

(C) PLACE OF RECRUITMENT- For the purpose of the reimbursement required under paragraph (1) or (2) to aliens admitted pursuant to this Act, the alien's place of residence shall be deemed to be the place where the alien was issued the visa authorizing admission to the United States or, if no visa was required, the place from which the alien departed the foreign country to travel to the United States.

 

(d) CONTINUING OBLIGATION TO EMPLOY UNITED STATES WORKERS-

 

(1) IN GENERAL- An employer that applies for registered workers under section 201(a) shall, as a condition for the approval of such application, continue to offer employment to qualified, eligible United States workers who are referred under section 202(b) after the employer receives the report described in section 202(b).

 

(2) LIMITATION- An employer shall not be obligated to comply with paragraph (1)--

 

(A) after 50 percent of the anticipated period of employment shown on the employer's application under section 201(a) has elapsed; or

 

(B) during any period in which the employer is employing no H-2C workers in the occupation for which the United States worker was referred; or

 

(C) during any period when the Secretary is conducting a search of a registry for workers in the occupation and area of intended employment to which the worker has been referred, or in other occupations in the area of intended employment for which the worker that has been referred is qualified and that offer substantially similar terms and conditions of employment.

 

(3) LIMITATION ON REQUIREMENT TO PROVIDE HOUSING- Notwithstanding any other provision of this Act, an employer to whom a registered worker is referred pursuant to paragraph (1) may provide a reasonable housing allowance to such referred worker in lieu of providing housing if the employer does not have sufficient housing to accommodate the referred worker and all other workers for whom the employer is providing housing or has committed to provide housing.

 

(4) REFERRAL OF WORKERS DURING 50-PERCENT PERIOD- The Secretary shall make all reasonable efforts to place a registered worker in an open job acceptable to the worker, including available jobs not listed on the registry, before referring such worker to an employer for a job opportunity already filled by, or committed to, an alien admitted pursuant to this Act.

 

SEC. 205. PROGRAM FOR THE ADMISSION OF TEMPORARY H-2C WORKERS.

 

(a) ESTABLISHMENT OF NEW NONIMMIGRANT CATEGORY FOR PILOT PROGRAM AGRICULTURAL WORKERS- Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended--

 

(1) by striking `or (b)' and inserting `(b)'; and

 

(2) by adding at the end the following:

 

` or (c) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States pursuant to section 218A to perform such agricultural labor or services of a temporary or seasonal nature;'.

 

(b) NO FAMILY MEMBERS PERMITTED- Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking `specified in this paragraph' and inserting `specified in this subparagraph (other than in clause (ii)(c))'.

 

(c) ALTERNATIVE AGRICULTURAL TEMPORARY WORKER PROGRAM-

 

(1) IN GENERAL- The Immigration and Nationality Act is amended by inserting after section 218 the following:

 

`ALTERNATIVE AGRICULTURAL TEMPORARY WORKER PROGRAM

 

`SEC. 218A. (a) PROCEDURE FOR ADMISSION OF ALIENS WHO ARE OUTSIDE THE UNITED STATES-

 

`(1) CRITERIA FOR ADMISSIBILITY-

 

`(A) IN GENERAL- An alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act shall be admissible under this section if the alien is designated pursuant to section 203 of the Agricultural Opportunities Act, otherwise admissible under this Act, and the alien is not ineligible under subparagraph (B) or (C).

 

`(B) DISQUALIFICATION- An alien shall be ineligible for admission to the United States or being provided status under this section if the alien has, at any time during the past 5 years--

 

`(i) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or

 

`(ii) otherwise violated a term or condition of admission to the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.

 

`(C) FOREIGN RESIDENCE REQUIREMENT- No person admitted under section 101(a)(15)(H)(ii)(c) or acquiring such status after admission shall be eligible to apply for another nonimmigrant visa under such section until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least 2 months following departure from the United States.

 

`(D) BURDEN OF PROOF ON UNLAWFUL PRESENCE- Notwithstanding section 291, in the case of an alien who has not previously been admitted to the United States under this section, is not ineligible under subparagraph (B) or (C), is described in subparagraph (A), and is seeking admission under this section, the alien shall not be considered inadmissible under section 212(a)(9)(B) unless the alien's inadmissibility is established by a preponderance of the evidence.

 

`(2) PERIOD OF ADMISSION- The alien shall be admitted for the period requested by the employer not to exceed 10 months, or the ending date of the anticipated period of employment on the employer's application for registered workers, whichever is less.

 

`(3) ABANDONMENT OF EMPLOYMENT-

 

`(A) IN GENERAL- An alien admitted or provided status under this section 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 alien described in section 101(a)(15)(H)(ii)(c) and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).

 

`(B) REPORT BY EMPLOYER- The employer (or association acting as agent for the

employer) shall notify the Attorney General within 7 days of an alien admitted or provided status under this Act pursuant to an application to the Secretary of Labor under section 201 of the Agricultural Opportunities Act who prematurely abandons the alien's employment.

 

 

`(C) REMOVAL BY THE ATTORNEY GENERAL- The Attorney General shall promptly remove from the United States aliens admitted pursuant to section 101(a)(15)(H)(ii)(c) who have failed to maintain nonimmigrant status or who have otherwise violated the terms of a visa issued under this title.

 

`(D) VOLUNTARY TERMINATION- Notwithstanding the provisions of subparagraph (A), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.

 

`(E) REPLACEMENT OF ALIEN- Upon presentation of the notice to the attorney General required by subparagraph (B), the Secretary of State shall promptly issue a visa to, and the Attorney General shall admit, an eligible alien designated by the employer to replace an alien who abandons or prematurely terminates employment.

 

`(4) IDENTIFICATION DOCUMENT AND IDENTIFICATION SYSTEM-

 

`(A) IN GENERAL- Each alien admitted under this section shall, upon receipt of a visa, be given an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.

 

`(B) REQUIREMENTS- No identification and employment eligibility document may be issued and no identification system may be implemented which does not meet the following requirements:

 

`(i) The document and system 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 has been properly admitted under this section.

 

`(ii) The document shall be in the form that is resistant to counterfeiting and to tampering.

 

`(iii) The document and system shall--

 

`(I) be compatible with other Immigration and Naturalization Service databases and other Federal government databases for the purpose of excluding aliens from benefits for which they are not eligible and to determine whether the alien is illegally present in the United States, and

 

`(II) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.

 

`(b) EXTENSION OF STAY OF ALIENS IN THE UNITED STATES-

 

`(1) EXTENSION OF STAY- If an employer with respect to whom a report or application described in section 203(a)(1) of the Agricultural Opportunities Act has been submitted seeks to employ an alien who has acquired status under this section and who is lawfully present in the United States, the employer shall file with the Attorney General an application for an extension of the alien's stay or a change in the alien's authorized employment. The application shall be accompanied by a copy of the appropriate report or application described in section 203 of the Agricultural Opportunities Act.

 

`(2) LIMITATION ON FILING AN APPLICATION FOR EXTENSION OF STAY- An application may not be filed to extend an alien's stay if the granting of the application would permit the alien's period of physical presence in the United States, under the authority of the most recent nonimmigrant visa (or other document providing nonimmigrant status) issued under section 101(a)(15)(H)(ii)(c), to exceed 12 months (disregarding any period of continuous physical absence from the United States exceeding 2 months during which the alien appears before a consular officer outside of the United States for the purpose of verifying the alien's identity by presenting the identification and employment eligibility document provided under subsection (a)(4)).

 

`(3) WORK AUTHORIZATION UPON FILING AN APPLICATION FOR EXTENSION OF STAY- An employer may begin employing an alien who is present in the United States who has acquired status under this Act on the day the employer files an application for extension of stay. For the purpose of this requirement, the term `filing' means sending the application by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of sending and receipt of the application. The employer shall provide a copy of the employer's application to the alien, who shall keep the application with the alien's identification and employment eligibility document as evidence that the application has been filed and that the alien is authorized to work in the United States. Upon approval of an application for an extension of stay or change in the alien's authorized employment, the Attorney General 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 application.

 

`(4) LIMITATION ON EMPLOYMENT AUTHORIZATION OF ALIENS WITHOUT VALID IDENTIFICATION AND EMPLOYMENT ELIGIBILITY CARD- An expired identification and employment eligibility document, together with a copy of an application 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 from the date of application for the extension of stay, after which time only a currently valid identification and employment eligibility document shall be acceptable.

 

`(5) LIMITATION ON AN INDIVIDUAL'S STAY IN STATUS- In the case of a nonimmigrant granted an extension of stay under this section, such extension may not permit the alien's total period of physical presence in the United States, under the authority of the nonimmigrant visa (or other document providing nonimmigrant status) to which the extension applies, to exceed 12 months (disregarding any period of continuous physical absence from the United States exceeding 2 months during which the alien

appears before a consular officer outside of the United States for the purpose of verifying the alien's identity by presenting the identification and employment eligibility document provided under subsection (a)(4)).'.

 

 

(2) CLERICAL AMENDMENT- The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 218 the following new item:

 

`Sec. 218A. Alternative agricultural temporary worker program.'.

 

(d) RANGE PRODUCTION OF LIVESTOCK- Nothing in this title shall preclude the Secretary of Labor and the Attorney General from continuing to apply special procedures to the employment, admission, and extension of aliens in the range production of livestock.

 

(e) VERIFICATION OF RETURN OF WORKERS TO COUNTRY OF ORIGIN- The Attorney General shall establish a program to verify that H-2C workers are departing from the United States after the expiration of their authorized period of stay in the United States.

 

TITLE III--MISCELLANEOUS PROVISIONS

 

SEC. 301. ENHANCED WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.

 

(a) ENFORCEMENT AUTHORITY-

 

(1) INVESTIGATION OF COMPLAINTS-

 

(A) AGGRIEVED PERSON OR THIRD PARTY COMPLAINTS- The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting an employer's failure to meet a condition specified in section 201 or an employer's misrepresentation of material facts in an application under that section, or violation of the provisions described in subparagraph (B). Complaints may be filed by any aggrieved person or any organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, as the case may be. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

 

(B) EXPEDITED INVESTIGATION OF SERIOUS CHILD LABOR, WAGE, AND HOUSING VIOLATIONS- The Secretary shall complete an investigation and issue a written determination as to whether or not a violation has been committed within 10 days of the receipt of a complaint pursuant to subparagraph (A) if there is reasonable cause to believe that any of the following serious violations have occurred:

 

(i) A violation of section 12(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 212(c)).

 

(ii) A failure to make a wage payment, except that complaints alleging that an amount less than the wages due has been paid shall be handled pursuant to subparagraph (A).

 

(iii) A failure to provide the housing allowance required under section 204(b)(6).

 

(iv) Providing housing pursuant to section 204(b)(1) that fails to comply with standards under section 204(b)(2) and which poses an immediate threat of serious bodily injury or death to workers.

 

(C) STATUTORY CONSTRUCTION- Nothing in this Act limits the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers or, in the absence of a complaint under this paragraph, under this Act.

 

(2) WRITTEN NOTICE OF FINDING AND OPPORTUNITY FOR APPEAL- After an investigation has been conducted, the Secretary shall issue a written determination as to whether or not any violation described in subsection (b) has been committed. The Secretary's determination shall be served on the complainant and the employer, and shall provide an

opportunity for an appeal of the Secretary's decision to an administrative law judge, who may conduct a de novo hearing.

 

 

(3) ABILITY OF ALIEN WORKERS TO CHANGE EMPLOYERS-

 

(A) IN GENERAL- Pending the completion of an investigation pursuant to paragraph (1)(A), the Secretary may permit the transfer of an aggrieved person who has filed a complaint under such paragraph to an employer that--

 

(i) has been approved to employ workers under this Act; and

 

(ii) agrees to accept the person for employment.

 

(B) REPLACEMENT WORKER- An aggrieved person may not be transferred under subparagraph (A) until such time as the employer from whom the person is to be transferred receives a requested replacement worker referred by a registry pursuant to section 202 of this Act or provided status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.

 

(C) LIMITATION- An employer from whom an aggrieved person has been transferred under this paragraph shall have no obligation to reimburse the person for the cost of transportation prior to the completion of the period of employment referred to in section 204(c).

 

(D) VOLUNTARY TRANSFER- Notwithstanding this paragraph, an employer may voluntarily agree to transfer a worker to another employer that--

 

(i) has been approved to employ workers under this Act; and

 

(ii) agrees to accept the person for employment.

 

(b) REMEDIES-

 

(1) BACK WAGES- Upon a final determination that the employer has failed to pay wages as required under this section, the Secretary may assess payment of back wages due to any United States worker or alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act employed by the employer in the specific employment in question. The back wages shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

 

(2) FAILURE TO PAY WAGES- Upon a final determination that the employer has failed to pay the wages required under this Act, the Secretary may assess a civil money penalty up to $1,000 for each person for whom the employer failed to pay the required wage, and may recommend to the Attorney General the disqualification of the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year.

 

(3) OTHER VIOLATIONS- If the Secretary, as a result of an investigation pursuant to a complaint, determines that an employer covered by an application under section 201(a) has--

 

(A) filed an application that misrepresents a material fact;

 

(B) failed to meet a condition specified in section 201; or

 

(C) committed a serious violation of subsection (a)(1)(B),

 

the Secretary may seek a cease and desist order and assess a civil money penalty not to exceed $1,000 for each violation and may recommend to the Attorney General the disqualification of the employer if the Secretary finds it to be a substantial misrepresentation or violation of the requirements for the employment of any United States workers or aliens described in section 101(a)(15)(ii)(c) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year. In determining the amount of civil money penalty to be assessed or whether to recommend disqualification of the employer, the Secretary shall consider the seriousness of the violation, the good faith of the employer, the size of the business of the employer being charged, the history of previous violations by the employer, whether the employer obtained a financial gain from the violation, whether the violation was willful, and other relevant factors.

 

(4) EXPANDED PROGRAM DISQUALIFICATION-

 

(A) 3 YEARS FOR SECOND VIOLATION- Upon a second final determination that an employer has failed to pay the wages required under this Act, or a second final determination that the employer has committed another substantial violation under paragraph (3) in the same category of violations, with respect to the same alien, the Secretary shall report such determination to the Attorney General and the Attorney General shall disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act for a period of 3 years.

 

(B) PERMANENT FOR THIRD VIOLATION- Upon a third final determination that an employer has failed to pay the wages required under this section or committed other substantial violations under paragraph (3), the Secretary shall report such determination to the Attorney General, and the Attorney General shall disqualify the employer from any subsequent employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.

 

(c) ROLE OF ASSOCIATIONS-

 

(1) VIOLATION BY A MEMBER OF AN ASSOCIATION- An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of this Act, as though the employer had filed the application itself. If such an employer is determined to have violated a requirement of this section, the penalty for such violation shall be assessed against the employer who committed the violation and not against the association or other members of the association.

 

(2) VIOLATION BY AN ASSOCIATION ACTING AS AN EMPLOYER- If an association filing an application on its own behalf as an employer is determined to have committed a violation under this subsection which results in disqualification from the program under subsection (b), no individual member of such association may be the beneficiary of the services of an alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act in an occupation in which such alien was employed by the association during the period such disqualification is in effect, unless such member files an application as an individual employer or such application is filed on the employer's behalf by an association with which the employer has an agreement that the employer will comply with the requirements of this Act.

 

(d) STUDY OF AGRICULTURAL LABOR STANDARDS AND ENFORCEMENT-

 

(1) COMMISSION ON HOUSING MIGRANT AGRICULTURAL WORKERS-

 

(A) ESTABLISHMENT- There is established the Commission on Housing Migrant Agricultural Workers (in this paragraph referred to as the `Commission').

 

(B) COMPOSITION- The Commission shall consist of 12 members, as follows:

 

(i) Four representatives of agricultural employers and one representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.

 

(ii) Four representatives of agricultural workers and one representative of the Department of Labor, each appointed by the Secretary of Labor.

 

(iii) One State or local official knowledgeable about farmworker housing and

one representative of Housing and Urban Development, each appointed by the Secretary of Housing and Urban Development.

 

 

(C) FUNCTIONS- The Commission shall conduct a study of the problem of in-season housing for migrant agricultural workers.

 

(D) INTERIM REPORTS- The Commission may at any time submit interim reports to Congress describing the findings made up to that time with respect to the study conducted under subparagraph (C).

 

(E) FINAL REPORT- Not later than 3 years after the date of enactment of this Act, the Commission shall submit a report to Congress setting forth the findings of the study conducted under subparagraph (C).

 

(F) TERMINATION DATE- The Commission shall terminate upon filing its final report.

 

(2) STUDY OF RELATIONSHIP BETWEEN CHILD CARE AND CHILD LABOR- The Secretaries of Labor, Agriculture, and Health and Human Services shall jointly conduct a study of the issues relating to child care of migrant agricultural workers. Such study shall address issues related to the adequacy of educational and day care services for migrant children and the relationship, if any, of child care needs and child labor violations in agriculture. An evaluation of migrant and seasonal Head Start programs (as defined in section 637(12) of the Head Start Act) as they relate to these issues shall be included as a part of the study.

 

(3) STUDY OF FIELD SANITATION- The Secretary of Labor and the Secretary of Agriculture shall jointly conduct a study regarding current field sanitation standards in agriculture and evaluate alternative approaches and innovations that may further compliance with such standards.

 

(4) STUDY OF COORDINATED AND TARGETED LABOR STANDARDS ENFORCEMENT- The Secretary, in consultation with the Secretary of Agriculture, shall conduct a study of the most persistent and serious labor standards violations in agriculture and evaluate the most effective means of coordinating enforcement efforts between Federal and State officials. The study shall place primary emphasis on the means by which Federal and State authorities, in consultation with representatives of workers and agricultural employers, may develop more effective methods of targeting resources at repeated and egregious violators of labor standards. The study also shall consider ways of facilitating expanded education among agricultural employers and workers regarding compliance with labor standards and evaluate means of broadening such education on a cooperative basis among employers and workers.

 

(5) REPORT- Not later than 3 years after the date of enactment of this Act, with respect to each study required to be conducted under paragraphs (2) through (4), the Secretary or group of Secretaries required to conduct the study shall submit to Congress a report setting forth the findings of the study.

 

SEC. 302. COMMISSION.

 

The Attorney General is authorized and requested to establish a commission between the United States and each country not less than 10,000 nationals of which are nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)). Such commission shall provide a forum to the governments involved to discuss matters of mutual concern regarding the program for the admission of aliens under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.

 

SEC. 303. REGULATIONS.

 

(a) REGULATIONS OF THE ATTORNEY GENERAL- The Attorney General shall consult with the Secretary and the Secretary of Agriculture on all regulations to implement the duties of the Attorney General under this Act.

 

(b) REGULATIONS OF THE SECRETARY OF STATE- The Secretary of State shall consult with the Attorney General, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this Act.

 

(c) REGULATIONS OF THE SECRETARY OF LABOR- The Secretary shall consult with the Secretary of Agriculture and shall obtain the approval of the Attorney General on all regulations to implement the duties of the Secretary under this Act.

 

(d) DEADLINE FOR ISSUANCE OF REGULATIONS- All regulations to implement the duties of the Attorney General, the Secretary of State, and the Secretary of Labor shall take effect on the effective date of this Act.

 

SEC. 304. DETERMINATION AND USE OF USER FEES.

 

(a) SCHEDULE OF FEES- The Secretary of Labor shall establish and periodically adjust a schedule for the registry user fee and the alien employment user fee imposed under this Act, and a collection process for such fees from employers participating in the programs provided under this Act. Such fees shall be the only fees chargeable to employers for services provided under this Act.

 

(b) DETERMINATION OF SCHEDULE-

 

(1) IN GENERAL- The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in an employer's application under section 201(a)(1)(C) and sufficient to provide for the reimbursement of the direct costs of providing the following services:

 

(A) REGISTRY USER FEE- Services provided through the agricultural worker registries established under section 101(a), including registration, referral, and validation, but not including services that would otherwise be provided by the Secretary of Labor under related or similar programs if such registries had not been established.

 

(B) ALIEN EMPLOYMENT USER FEE- Services related to an employer's authorization to employ eligible aliens pursuant to this Act, including the establishment and certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.

 

(2) PROCEDURE-

 

(A) IN GENERAL- In establishing and adjusting such schedule, the Secretary of Labor shall comply with Federal cost accounting and fee setting standards.

 

(B) PUBLICATION AND COMMENT- The Secretary of Labor shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment will be sought and a final rule issued.

 

(c) USE OF PROCEEDS-

 

(1) IN GENERAL- All proceeds resulting from the payment of registry user fees and alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretaries of Labor, State, and Agriculture, and the Attorney General for the costs of carrying out section 218A of the Immigration and Nationality Act and the provisions of this Act.

 

(2) LIMITATION ON ENFORCEMENT COSTS- In making a determination of reimbursable costs under paragraph (1), the Secretary of Labor shall provide that reimbursement of the costs of enforcement under section 301 shall not exceed 10 percent of the direct costs of the Secretary described in subparagraphs (A) and (B) of subsection (b)(1).

 

SEC. 305. FUNDING FOR STARTUP COSTS.

 

If additional funds are necessary to pay the startup costs of the agricultural worker registries established under section 101(a), such costs may be paid out of amounts available to Federal or State governmental entities under the Wagner-Peyser Act (29 U.S.C. 49 et seq.). Proceeds described in section 304(c) may be used to reimburse the use of such available amounts.

 

SEC. 306. REPORT TO CONGRESS.

 

(a) REQUIREMENT- Not later than 4 years after the effective date under section 307, the Resources, Community and Economic Development Division, and the Health, Education and Human Services Division, of the Office of the Comptroller General of the United States shall jointly prepare and transmit to the Committee on the Judiciary and the Committee on Agriculture of the House of Representatives and the Committee on the Judiciary and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing the results of a review of the implementation of and compliance with this Act. The report shall address--

 

(1) whether the program has ensured an adequate and timely supply of qualified, eligible workers at the time and place needed by employers;

 

(2) whether the program has ensured that aliens admitted under this program are employed only in authorized employment, and that they timely depart the United States when their authorized stay ends;

 

(3) whether the program has ensured that participating employers comply with the requirements of the program with respect to the employment of United States workers and aliens admitted under this program;

 

(4) whether the program has ensured that aliens admitted under this program are not displacing eligible, qualified United States workers or diminishing the wages and other terms and conditions of employment of eligible United States workers;

 

(5) to the extent practicable, compare the wages and other terms of employment of eligible United States workers and aliens employed under this program with the wages and other terms of employment of agricultural workers who are not authorized to work in the United States;

 

(6) whether the housing provisions of this program ensure that adequate housing is available to workers employed under this program who are required to be provided housing or a housing allowance;

 

(7) recommendations for improving the operation of the program for the benefit of participating employers, eligible United States workers, participating aliens, and governmental agencies involved in administering the program; and

 

(8) recommendations for the continuation or termination of the program under this Act.

 

(b) ADVISORY BOARD- There shall be established an advisory board to be composed of--

 

(1) four representatives of agricultural employers to be appointed by the Secretary of Agriculture, including individuals who have experience with the H-2C program; and

 

(2) four representatives of agricultural workers to be appointed by the Secretary of Labor, including individuals who have experience with the H-2C program,

 

to provide advice to the Comptroller General in the preparation of the reports required under subsection (a).

 

SEC. 307. EFFECTIVE DATE.

 

(a) IN GENERAL- This Act and the amendments made by this Act shall take effect on the date that is 1 year after the date of the enactment of this Act.

 

(b) REPORT- Not later than 180 days after the date of the enactment of this Act, the Secretary shall prepare and submit to the appropriate committees of Congress a report that described the measures being taken and the progress made in implementing this Act.

 

SEC. 308. TERMINATION OF PROGRAM.

 

This Act, and the amendments made by this Act, shall cease to be effective on the date that is 3 years after the effective date under section 307(a).

END


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