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S 1161 IS

107th CONGRESS

1st Session

S. 1161

To amend the Immigration and Nationality Act to streamline procedures for the admission and extension of stay of nonimmigrant agricultural workers; to provide a stable, legal, agricultural workforce; to extend basic legal protections and better working conditions to more workers; to provide for a system of one-time, earned adjustment to legal status for certain agricultural workers; and for other purposes.

IN THE SENATE OF THE UNITED STATES

July 10, 2001

Mr. CRAIG (for himself, Mr. MCCONNELL, Mr. COCHRAN, Mr. ENZI, Mr. BURNS, Mr. FRIST, and Mr. HUTCHINSON) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To amend the Immigration and Nationality Act to streamline procedures for the admission and extension of stay of nonimmigrant agricultural workers; to provide a stable, legal, agricultural workforce; to extend basic legal protections and better working conditions to more workers; to provide for a system of one-time, earned adjustment to legal status for certain agricultural workers; and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) SHORT TITLE- This Act may be cited as the `Agricultural Job Opportunity Benefits and Security Act of 2001'.

    (b) TABLE OF CONTENTS- The table of contents for this division 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 division:

      (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) DISPLACE- In the case of an application with respect to one or more H-2A workers by an employer, the employer is considered to `displace' a United States worker from a job if the employer lays off the worker from a job for which the H-2A worker or workers is or are sought.

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

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

      (5) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

      (6) 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.

      (7) LAYS OFF-

        (A) IN GENERAL- The term `lays off', with respect to a worker--

          (i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218A(b)(4)(D) of the Immigration and Nationality Act, as added by section 201 of this division), temporary layoffs due to weather, markets, or other temporary conditions; but

          (ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218(b)(2)(E) of the Immigration and Nationality Act, as added by section 201 of this division, with either employer described in such section 218(b)(2)(E)) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.

        (B) STATUTORY CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.

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

      (9) TEMPORARY- A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.

      (10) 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)).

      (11) WORK DAY- The term `work day' means any day in which the individual is employed one 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 Attorney General shall adjust the status of an alien who qualifies under this subsection to that of an alien lawfully admitted for temporary residence if the Attorney General 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 900 hours or 150 work days, whichever is less, during any 12 consecutive months during the 18-month period ending on July 4, 2001.

        (B) APPLICATION PERIOD- The alien must apply for such adjustment during the 18-month application period beginning on the 1st day of the 7th month that begins after the date of the 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 Attorney General may terminate such status only upon a determination under this division that the alien is deportable.

      (5) RECORD OF EMPLOYMENT-

        (A) IN GENERAL- Each employer of a worker whose status is adjusted under this subsection annually shall--

          (i) provide a written record of employment to the alien; and

          (ii) provide a copy of such record to the Immigration and Naturalization Service.

        (B) SUNSET- The obligation under subparagraph (A) terminates on October 31, 2008.

    (b) RIGHTS OF ALIENS GRANTED TEMPORARY RESIDENT STATUS-

      (1) IN GENERAL- Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under subsection (a), such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

      (2) TERMS OF EMPLOYMENT RESPECTING ALIENS ADMITTED UNDER THIS SECTION-

        (A) PROHIBITION- No alien whose status is adjusted 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 Attorney General 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 Attorney General determines that the complaint was filed not later than 6 months after the date of the termination.

          (ii) INITIATION OF ARBITRATION- If the Attorney General 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 Attorney General shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint a mutual arbitrator from the roster of arbitrators maintained by such Service for the geographical area in which the employer is located. The procedure and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney General 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 Attorney General. 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 Attorney General receives a finding of an arbitrator that an employer has terminated an alien granted temporary resident status under subsection (a) without just cause, the Attorney General 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 ATTORNEYS' FEES- The parties shall bear the cost of their own attorneys' 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 Attorney General 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 Attorney General 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 a worker whose status has been adjusted 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 Attorney General shall adjust the status of any alien granted lawful temporary resident status under subsection (a) to that of an alien lawfully admitted for permanent residence if the Attorney General determines that the following requirements are satisfied:

          (i) QUALIFYING AGRICULTURAL EMPLOYMENT- The alien has performed at least 900 hours or 150 work days, whichever is less, of agricultural employment in the United States in each of 4 years during the 6-year period beginning on November 1, 2001.

          (ii) ANNUAL RESIDENCY, IN GENERAL- The alien may not be present in the United States for more than an aggregate of 300 days in any calendar year.

          (iii) EXCEPTIONS- The 300-day-per-year limitation in clause (ii) shall not apply in the case of any alien who, under regulations established as necessary by the Attorney General--

            (I) has established a permanent residence in the United States and has a minor child who was born in the United States prior to the date of enactment of this Act who resides in the alien's household; or

            (II) remains in the United States to perform full-time agricultural or nonagricultural employment; or

            (III) is actively seeking employment; or

            (IV) is prevented from leaving the United States because of a serious medical condition.

          (iv) APPLICATION PERIOD- The alien applies for adjustment of status not later than October 31, 2008.

          (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 Attorney General shall credit the alien with any work days lost because the alien is unable to work due to injury or disease arising out of and in the course of the alien's employment during the qualifying period, if the alien can establish such disabling injury or disease through medical records.

        (B) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS- The Attorney General 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 Attorney General 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).

    (d) APPLICATIONS FOR ADJUSTMENT OF STATUS-

      (1) TO WHOM MAY BE MADE-

        (A) WITHIN THE UNITED STATES- The Attorney General shall provide that--

          (i) applications for adjustment of status under subsection (a) may be filed--

            (I) with the Attorney General, 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 Attorney General; and

          (ii) applications for adjustment of status under subsection (c) shall be filed directly with the Attorney General.

        (B) OUTSIDE THE UNITED STATES- The Attorney General, in cooperation with the Secretary of State, shall establish a procedure whereby an alien may apply for adjustment of 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 Attorney General 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 adjustment of status under subsection (a) at a designated port of entry on the southern land border of the United States. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this division.

          (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 agricultural worker status is credible.

        (D) TRAVEL DOCUMENTATION- The Attorney General shall provide each alien whose status is adjusted under this section with a counterfeit-resistant document of authorization to enter or reenter the United States.

      (2) DESIGNATION OF ENTITIES TO RECEIVE APPLICATIONS-

        (A) IN GENERAL- For purposes of receiving applications under subsection (a), the Attorney General--

          (i) shall designate qualified farm labor organizations and associations of employers; and

          (ii) may designate such other persons as the Attorney General 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)0 are referred to in this division 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 Attorney General 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 adjustment of 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 Attorney General.

        (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 Attorney General applications filed with it in accordance with paragraph (1)(A)(ii) but not to forward to the Attorney General 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 Attorney General. 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 Attorney General and the Immigration and Naturalization Service 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 Attorney General, nor any other official or employee of the Department of Justice, 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 Justice, 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 adjustment of 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 Attorney General shall provide for a schedule of fees that--

          (i) shall be charged for the filing of applications for adjustment 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 Attorney General until expended for processing applications for adjustment 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 admissibility 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 Attorney General 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 Attorney General 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), except subparagraph (E).

          `(iii) CONSTRUCTION- Nothing in this subparagraph shall be construed as affecting the authority of the Attorney General 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 adjustment of status under this section by reason of a ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act 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 the enactment of this Act, the Attorney General 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 to have the alien's status adjusted under subsection (a) (but for the fact that the alien may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, 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 Attorney General shall provide that, in the case of an alien who presents a nonfrivolous application for adjustment of 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 adjustment of status under

subsection (a) or (c) except in accordance with this subsection.

      (2) ADMINISTRATIVE REVIEW-

        (A) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Attorney General 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 denial 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 Attorney General, 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 Attorney General shall issue regulations to implement this section not later than the 1st day of the 7th month that begins after the date of the 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.

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), by striking `or' at the end of clause (ii);

      (2) in subparagraph (C), by inserting `or' at the end;

      (3) by inserting after subparagraph (C) the following:

      `(D) whose status is adjusted to that of lawful temporary resident under the Agricultural Job Opportunity, Benefits, and Security Act of 2001,'; 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 became lawfully admitted for temporary residence.'.

    (b) EFFECTIVE DATE- The amendment made by subsection (a) shall take effect on the 1st day of the 7th month that begins after the date of the 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-

      `(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 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 workers will be needed; and

        `(D) the number of job opportunities in which the employer seeks to employ 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) NO STRIKE OR LOCKOUT- The specific job opportunity for which the employer is requesting H-2A workers 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) NO STRIKE OR LOCKOUT- The specific job opportunity for which the employer is requesting H-2A workers 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 one 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; however, nothing in this paragraph shall limit the rights of a joint employer association under section 201(c).

        `(F) STATEMENT OF LIABILITY- The application form shall include a clear statement explaining the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph.

        `(G) PROVISION OF INSURANCE- If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.

        `(H) EMPLOYMENT OF UNITED STATES WORKERS-

          `(i) RECRUITMENT- The employer has taken or will take the following steps to recruit United States workers for the job opportunities for which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:

            `(I) CONTACTING FORMER WORKERS- The employer shall make reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for workers and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous workers, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.

            `(II) FILING A JOB OFFER WITH THE LOCAL OFFICE OF THE STATE EMPLOYMENT SECURITY AGENCY- Not later than 28 days prior to the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State employment security agency which serves the area of intended employment and authorize the posting of the job opportunity on `America's Job Bank' or other electronic job registry, except that nothing in this subclause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.

            `(III) ADVERTISING OF JOB OPPORTUNITIES- Not later than 14 days prior to the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall advertise the availability of the job opportunities for which the employer is seeking workers in a publication in the local labor market that is likely to be patronized by potential farm workers.

            `(IV) EMERGENCY PROCEDURES- The Secretary 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 eligible United States workers who apply and are equally or better qualified for the job for which nonimmigrants are sought, and who will be available at the time and place of need.

          `(iii) PERIOD OF EMPLOYMENT- The employer will continue to offer the job to eligible United States workers who are equally or better qualified for the jobs for which nonimmigrants are sought during the period begining 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 shall immediately investigate. The Secretary shall, within 36 hours of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary finds that a violation has occurred, the Secretary 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 shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker, if there are similarr job opportunities pending with the job service 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 one 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 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 or association 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 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-

        `(A) COMPILATION OF LIST- The Secretary 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 shall make such list available for examination in the District of Columbia.

        `(B) REVIEW OF APPLICATIONS- The Secretary shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall certify that the intending employer has filed with the Secretary 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 shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.

        `(E) LIMITATION- Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.

        `(F) CHARGES FOR HOUSING-

          `(i) CHARGES FOR PUBLIC HOUSING- If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing's management.

          `(ii) DEPOSIT CHARGES- Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. However, an employer may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.

        `(G) HOUSING ALLOWANCE AS ALTERNATIVE-

          `(i) IN GENERAL- In lieu of offering housing pursuant to subparagraph (A), the employer may provide a reasonable housing allowance, but only if the requirement of clause (ii) is satisfied. Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of providing such housing allowance. However, no housing allowance may be used for housing which is owned or controlled by the employer.

          `(ii) CERTIFICATION- The requirement of this clause is satisfied if the Governor of the State certifies to the Secretary 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 offer to 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 for seasonal agricultural workers in the occupation in the area of intended employment or 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) In complying with the requirement of subparagraph (A), an employer or the employer's agent may request and obtain a prevailing wage determination from the State employment security agency. An employer who obtains such a determination and pays the wage determined to be prevailing, shall be considered to have met the requirement of subparagraph (A).

        `(C) In lieu of the procedure of paragraph (B), an employer may rely on other wage information, including a survey of the prevailing wages of workers in the occupation in the area of intended employment that has been conducted or funded by the employer or a group of employers, that meet criteria specified by the Secretary in regulations.

        `(D) If the prevailing wage described in subparagraph (A)(i) is an hourly wage, the employer may pay workers in the occupation by an incentive method of pay such as a piece rate, task rate, group incentive rate, or other incentive method: Provided, That the average hourly earnings of the employer's workers paid by such incentive method, taken as a group, are at least equal to the payment method, after making any additions to any workers pay required to comply with the requirement of subparagraph (A)(ii).

        `(E) DEDUCTIONS- The employer shall make only those deductions from the worker's paycheck which 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 paycheck.

      `(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).

    `(c) RANGE PRODUCTION OF LIVESTOCK- Nothing in this section, section 218, section 218B, or section 218C shall preclude the Secretary of Labor and the Attorney General 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 Attorney General. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary under section 218(e)(2)(B) covering the petitioner.

    `(b) EXPEDITED ADJUDICATION BY THE ATTORNEY GENERAL- The Attorney General shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.

    `(c) CRITERIA FOR ADMISSIBILITY-

      `(1) IN GENERAL- An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218, and section 218A, and the alien is not ineligible under paragraph (2).

      `(2) DISQUALIFICATION- An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--

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

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

      `(3) WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE-

        `(A) IN GENERAL- An alien who has not previously been admitted into the United States pursuant to this section, and who is otherwise eligible for admission in accordance with paragraphs (1) and (2), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described in the preceding sentence is present in the United States, the alien may apply from abroad for H-2A worker status, but may not be granted that status by adjustment 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 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 Attorney General's authority 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 Attorney General within 7 days of an H-2A worker's having prematurely abandoned employment.

      `(3) REMOVAL BY THE ATTORNEY GENERAL- The Attorney General 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 Attorney General required by subsection (e)(2), the Secretary of State shall promptly issue a visa to, and the Attorney General 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, 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.

      `(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 Attorney General 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 aliean in H-2A status who is lawfully present in the United States pursuant to this division of pursuant to sec. 101(a)(15)(H)(ii) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)), 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 the 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, by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of sending 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 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 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 an 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 UNITED STATES-

          `(i) IN GENERAL- Subject to clause (ii), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least 1/5

the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).

          `(ii) EXCEPTION- Clause (i) shall not apply in the case of an alien if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.

    `(i) SPECIAL RULES FOR ALIENS EMPLOYED AS SHEEPHERDERS- Notwithstanding any other provision of this section, aliens admitted under section 101(a)(15)(H)(ii)(a) for employment as sheepherders--

      `(1) may be admitted for a period of 12 months;

      `(2) may be extended for a continuous period of up to 3 years; and

      `(3) shall not be subject to the requirements of subsection (h)(5) relating to periods of absence from the United States.

`WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT

    `SEC. 218C. (a) ENFORCEMENT AUTHORITY-

      `(1) INVESTIGATION OF COMPLAINTS-

        `(A) AGGRIEVED PERSON OR THIRD-PARTY COMPLAINTS- The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in section 218(b), or an employer's misrepresentation of material facts in an application under section 218(a). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

        `(B) DETERMINATION ON COMPLAINT- Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (F). If the Secretary determines that such a reasonable basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the Secretary shall make a finding concerning the matter not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary may consolidate the hearings under this subparagraph on such complaints.

        `(C) FAILURES TO MEET CONDITIONS- If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(A), (1)(B), (1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218(b), a substantial failure to meet a condition of paragraph (1)(C) or (E), or paragraph (2)(C), (2)(D), (2)(E), or (2)(H) of section 218(b), or a material misrepresentation of fact in an application under section 218(a)--

          `(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate; and

          `(ii) the Attorney General may disqualify the employer from the employment of aliens described in section 101(A)(15)(H)(ii)(a) for a period of 1 year.

        `(D) WILLFUL FAILURES AND WILLFUL MISREPRESENTATIONS- If the Secretary finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b), a willful misrepresentation of a material fact in an application under section 218(a), or a violation of subsection (b)--

          `(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative

remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary determines to be appropriate; and

          `(ii) the Attorney General may disqualify the employer from the employment of H-2A workers for a period of 2 years.

        `(E) DISPLACEMENT OF UNITED STATES WORKERS- If the Secretary finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b) or a willful misrepresentation of a material fact in an application under section 218(a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under section 218(a) or during the period of 30 days preceding such period of employment--

          `(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary determines to be appropriate; and

          `(ii) the Attorney General may disqualify the employer from the employment of H-2A workers for a period of 3 years.

        `(F) LIMITATIONS ON CIVIL MONEY PENALTIES- The Secretary shall not impose total civil money penalties with respect to an application under section 218(a) in excess of $90,000.

        `(G) FAILURES TO PAY WAGES OR REQUIRED BENEFITS- If the Secretary finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment, required under section 218A(b), the Secretary shall assess payment of back wages, or other required benefits, due any United States worker or H-2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under section 218A(b) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

      `(2) STATUTORY CONSTRUCTION- Nothing in this section shall be construed as limiting the authority of the Secretary to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section, under section 218 or 218A.

    `(b) DISCRIMINATION PROHIBITED- It is a violation of this subsection for an employer who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section 218 or 218A or any rule or regulation pertaining to section 218 or 218A, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of section 218 or 218A or any rule or regulation pertaining to either of such sections.

    `(c) AUTHORIZATION TO SEEK OTHER APPROPRIATE EMPLOYMENT- The Secretary and the Attorney General shall establish a process under which an H-2A worker who files a complaint regarding a violation of subsection (b) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.

    `(d) ROLE OF ASSOCIATIONS-

      `(1) VIOLATION BY A MEMBER OF AN ASSOCIATION- An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of sections 218 and 218A, as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary determines that the association or other member participated in, had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association or other association member as well.

      `(2) VIOLATIONS BY AN ASSOCIATION ACTING AS AN EMPLOYER- If an association filing an application as a sole or joint employer is determined to

have committed a violation under this section, the penalty for such violation shall apply only to the association unless the Secretary determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.

`DEFINITIONS

    `SEC. 218D. For purposes of sections 218 through 218C:

      `(1) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)). For purposes of this paragraph, agricultural employment includes employment under section 101(a)(15)(H)(ii)(a).

      `(2) BONA FIDE UNION- The term `bona fide union' means any organization in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of work for agricultural employees. Such term does not include an organization formed, created, administered, supported, dominated, financed, or controlled by an employer or employer association or its agents or representatives.

      `(3) DISPLACE- In the case of an application with respect to one or more H-2A workers by an employer, the employer is considered to `displace' a United States worker from a job if the employer lays off the worker from a job for which the H-2A worker or workers is or are sought.

      `(4) ELIGIBLE- The term `eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A(h)(3)).

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

      `(6) H-2A EMPLOYER- The term `H-2A employer' means an employer who seeks to hire one or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a).

      `(7) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).

      `(8) JOB OPPORTUNITY- The term `job opportunity' means a job opening for temporary full-time employment at a place in the United States to which United States workers can be referred.

      `(9) LAYS OFF-

        `(A) IN GENERAL- The term `lays off', with respect to a worker--

          `(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218A(b)(4)(D)), or temporary layoffs due to weather, markets, or other temporary conditions; but

          `(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218(b)(2)(E), with either employer described in such section) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.

        `(B) STATUTORY CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.

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

      `(11) REGULATORY DROUGHT- The term `regulatory drought' means a decision subsequent to the filing of the application under section 218 by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to product an agricultural commodity, thereby reducing the need for labor.

      `(12) SEASONAL- Labor is performed on a `seasonal' basis if--

        (A) ordinarily, it pertains to or is of the kind exclusively performed at certain seasons or periods of the year; and

        (B) from its nature, it may not be continuous or carried on throughout the year.

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

      `(14) TEMPORARY- A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.

      `(15) UNITED STATES WORKER- The term `United States worker' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).'.

    (b) TABLE OF CONTENTS- The table of contents of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the item relating to section 218 and inserting the following:

      `Sec. 218. H-2A employer applications.

      `Sec. 218A. H-2A employment requirements.

      `Sec. 218B. Procedure for admission and extension of stay of H-2A workers.

      `Sec. 218C. Worker protections and labor standards enforcement.

      `Sec. 218D. Definitions.'.

TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. DETERMINATION AND USE OF USER FEES.

    (a) SCHEDULE OF FEES- The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens under this division, and a collection process for such fees from employers participating in the program provided under this division. Such fees shall be the only fees chargeable to employers for services provided under this division.

    (b) DETERMINATION OF SCHEDULE-

      (1) IN GENERAL- The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218 of the Immigration and Nationality Act, as added by section 201 of this division, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ eligible aliens pursuant to this division, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.

      (2) PROCEDURE-

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

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

    (c) USE OF PROCEEDS- Notwithstanding any other provision of law, all proceeds resulting from the payment of the alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Attorney General for the costs of carrying out section 218 of the Immigration and Nationality Act, as added by section 201 of this division, and the provisions of this division.

SEC. 302. REGULATIONS.

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

    (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 division.

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

    (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 under this title and the amendments made by sections 201 and 301 shall take effect on the effective date of such title and amendments and shall be issued not later than 1 year after the date of the enactment of this Act.

SEC. 303. EFFECTIVE DATE.

    (a) IN GENERAL- Except as otherwise provided, this title and the amendments made by sections 201 and 301 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 the Congress a report that describes the measures being taken and the progress made in implementing this division.


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