109th CONGRESS
1st Session
S. 2087
To amend the Immigration and Nationality Act to provide for the
employment of foreign agricultural workers, and for other purposes.
IN THE SENATE OF THE UNITED STATES
December 13, 2005
Mr. CHAMBLISS 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 provide for the
employment of foreign 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 Employment and
Workforce Protection Act of 2005'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--BORDER SECURITY
Sec. 101. Comprehensive plan to control the borders of the United States.
Sec. 102. Use of Department of Defense equipment for surveillance of international
land borders of the United States.
Sec. 103. Ports of entry.
Sec. 104. Additional customs and border protection officers.
Sec. 105. Interior enforcement.
Sec. 106. Expanding category of inadmissible aliens.
TITLE II--TEMPORARY H-2A WORKERS
Sec. 202. Admission of temporary H-2A workers.
Sec. 203. Legal assistance from the Legal Services Corporation.
TITLE III--BLUE CARD PROGRAM
Sec. 301. Admission of necessary agricultural workers.
Sec. 302. Effective date.
TITLE I--BORDER SECURITY
SEC. 101. COMPREHENSIVE PLAN TO CONTROL THE BORDERS OF THE UNITED STATES.
(a) In General- The Secretary of Homeland Security shall prepare and submit
to Congress, at the earliest practicable date, a comprehensive plan to--
(1) establish operational control of the borders of the United States;
and
(2) effectively enforce the immigration laws of the United States in the
interior of the United States.
(b) Contents- The plan described in subsection (a) shall include--
(2) time lines for implementation; and
(3) cost estimates for such activities.
(c) Interim Plan- The mandates contained in this title shall serve as an
interim plan until Congress enacts legislation to implement the comprehensive
plan submitted by the Secretary of Homeland Security under subsection (a).
SEC. 102. USE OF DEPARTMENT OF DEFENSE EQUIPMENT FOR SURVEILLANCE OF INTERNATIONAL
LAND BORDERS OF THE UNITED STATES.
(a) Availability of Equipment- The Secretary of Homeland Security, in collaboration
with the Secretary of Defense, shall develop and implement a plan to provide
military support to civilian law enforcement agencies, including the use
of unmanned aerial vehicles, other surveillance equipment, and other equipment
of the Department of Defense, to assist the surveillance activities of the
Department of Homeland Security at and near the international land borders
of the United States.
(1) INITIAL REPORT- Not later than 6 months after the date of enactment
of this Act, the Secretary of Homeland Security and the Secretary of Defense
shall submit a joint report to Congress, which describes the use of Department
of Defense equipment to assist the surveillance efforts of the Department
of Homeland Security and to support the plan developed under subsection
(a).
(2) ANNUAL REPORTS- Not later than 1 year after the date of enactment
of this Act, and annually thereafter until the Secretary of Homeland Security
can procure the equipment necessary to achieve operational control of
the international land borders of the United States, the Secretary of
Homeland Security and the Secretary of Defense shall submit joint reports
to Congress that describe--
(A) the types of equipment and other support utilized for border security;
and
(B) the effectiveness of such equipment and support.
(c) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 103. PORTS OF ENTRY.
(a) Construction Authorized- The Secretary of Homeland Security may construct
not more than 30 additional land ports of entry along the northern and southern
international land borders of the United States at locations to be determined
by the Secretary if such construction will enhance the border security of
the United States.
(b) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out subsection (a).
SEC. 104. ADDITIONAL CUSTOMS AND BORDER PROTECTION OFFICERS.
In addition to the positions authorized by section 5202 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (Public Law 108-458; 118 Stat.
3734), the Secretary of Homeland Security shall, for each of the fiscal
years between fiscal year 2007 and 2011, increase by no less than 250 the
number of positions for full-time active duty Customs and Border Protection
Officers.
SEC. 105. INTERIOR ENFORCEMENT.
(a) State and Local Immigration Law Enforcement-
(1) IN GENERAL- Notwithstanding any other provision of law, appropriately
trained law enforcement personnel of a State or a unit of local government
are authorized to investigate, identify, apprehend, arrest, detain, or
transfer to Federal custody aliens in the United States (including the
transportation of such aliens across State lines to detention centers),
for the purpose of assisting in the enforcement of the immigration laws
of the United States in the normal course of carrying out the law enforcement
duties of such personnel.
(2) REIMBURSEMENT OF COSTS- The Secretary of Homeland Security shall reimburse
States and units of local government for all reasonable costs incurred
by that State or local government to carry out the activities described
in paragraph (1).
(b) Federal Custody of Illegal Aliens Apprehended by State or Local Law
Enforcement- Title II of the Immigration and Nationality Act is amended
by adding after section 240C the following:
`TRANSFER OF ILLEGAL ALIENS FROM STATE TO FEDERAL CUSTODY
`SEC. 240D. (a) In General- If the head of a law enforcement entity of a
State, or a political subdivision of a State, requests the Secretary of
Homeland Security to take an illegal alien into Federal custody, the Secretary
shall--
`(1) not later than 72 hours after such request is received from the State,
take such alien into the custody of the Federal Government and incarcerate
the alien; or
`(2) request the relevant State or local law enforcement agency to temporarily
detain or transport the illegal alien to a location for transfer to Federal
custody.
`(b) Designated Incarceration Facility- The Secretary of Homeland Security
shall designate not less than 1 Federal, State, or local prison or jail
or a private contracted prison or detention facility within each State as
the central facility for that State to transfer custody of criminal or illegal
aliens to the Department of Homeland Security.
`(c) Reimbursement to States and Local Governments- The Department of Homeland
Security shall reimburse each State or a political subdivision of a State
for all reasonable expenses incurred by the State or political subdivision
in the detention and transportation of a criminal or illegal alien.'.
(c) Immigration and Customs Enforcement Investigative Personnel-
(1) ADDITIONAL POSITIONS AUTHORIZED- In addition to the positions authorized
by section 5203 of the Intelligence Reform and Terrorism Prevention Act
of 2004 (Public Law 108-458; 118 Stat. 3734), the Secretary of Homeland
Security shall, for each of fiscal years 2007 through 2011, increase by
not less than 400 the number of investigative personnel within the Department
of Homeland Security responsible for investigating immigration status
violations.
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
for each of fiscal years 2007 through 2011 such sums as may be necessary
to carry out this subsection.
(d) Listing of Immigration Violators in the National Crime Information Center
Database-
(1) IN GENERAL- Not later than 180 days after the date of enactment of
this Act, the Secretary of Homeland Security shall provide the National
Crime Information Center of the Federal Bureau of Investigation (referred
to in this section as the `NCIC') with information related to--
(A) any alien against whom a final order of removal has been issued;
(B) any alien who is subject to a voluntary departure agreement that
has become invalid under section 240B(a)(2) of the Immigration and Nationality
Act (8 U.S.C. 1229c(a)(2)); and
(C) any alien whose visa has been revoked.
(2) REQUIREMENT TO PROVIDE AND USE INFORMATION- The information provided
to the NCIC under paragraph (1) shall be entered into the Immigration
Violators File of the NCIC database if a name and date of birth are available
for the individual, regardless of whether the alien received notice of
a final order of removal or the alien has already been removed.
(3) REMOVAL OF INFORMATION- If an individual is granted cancellation of
removal under section 240A of the Immigration and Nationality Act (8 U.S.C.
1229b) or is granted permission to legally enter the United States after
a voluntary departure under section 240B of such Act (8 U.S.C. 1229c),
any information entered into the NCIC database in accordance with this
subsection shall be promptly removed.
(e) Increasing Federal Detention Space-
(1) CONSTRUCTION OR ACQUISITION OF DETENTION FACILITIES-
(A) IN GENERAL- In addition to facilities being used for the detention
of aliens as of the date of enactment of this Act, the Secretary of
Homeland Security shall construct or acquire 20 detention facilities
in the United States with sufficient capacity to detain a combined total
of not less than 200,000 individuals at any time. Such facilities shall
be used for aliens detained pending removal or a decision on removal
of such aliens from the United States.
(B) DETERMINATION OF LOCATION- The location of each detention facility
built or acquired pursuant to this paragraph shall--
(i) be determined by the senior officer responsible for detention
and removal operations of the Department of Homeland Security, subject
to the approval of the Secretary of Homeland Security; and
(ii) enable the Department to increase, to the maximum extent practicable,
the annual rate and level of removals of illegal aliens from the United
States.
(C) USE OF INSTALLATIONS UNDER BASE CLOSURE LAWS- In acquiring detention
facilities under this paragraph, the Secretary of Homeland Security
shall consider the transfer of appropriate portions of military installations
approved for closure or realignment under the Defense Base Closure and
Realignment Act of 1990 (part A of title XXIX of Public Law 101-510;
10 U.S.C. 2687 note) for use in accordance with subparagraph (A).
(2) TECHNICAL AND CONFORMING AMENDMENT- Section 241(g)(1) of the Immigration
and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by striking `may
expend' and inserting `shall expend'.
(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 106. EXPANDING CATEGORY OF INADMISSIBLE ALIENS.
(a) Criminal Street Gangs- Section 212(a)(2) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:
`(J) ALIENS WHO ARE MEMBERS OF CRIMINAL STREET GANGS- Any alien who
is a member of a criminal street gang (as defined in section 521(a)
of title 18, United States Code) is inadmissible.'.
(b) Deporting Criminal Street Gang Members- Section 237(a)(2) of the Immigration
and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end
the following:
`(F) ALIENS WHO ARE MEMBERS OF CRIMINAL STREET GANGS- Any alien who
is a member of a criminal street gang (as defined in section 521(a)
of title 18, United States Code) is deportable.'.
(c) Criminal Aliens- Any alien convicted of a felony or a misdemeanor in
the United States is ineligible to receive a visa and ineligible to be admitted
to the United States.
TITLE II--TEMPORARY H-2A WORKERS
SEC. 201. DEFINITION.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)) is amended--
(1) by striking `and including agricultural labor defined in section 3121(g)
of the Internal Revenue Code of 1954' and inserting `, which shall include
labor and services relating to commodities, livestock, dairy, forestry,
landscaping, fishing, and the processing of meat, poultry, and fish, and
agricultural labor (as defined in section 3121(g) of the Internal Revenue
Code of 1986),'; and
(2) by striking `, of a temporary or seasonal nature'.
SEC. 202. ADMISSION OF TEMPORARY H-2A WORKERS.
(a) Procedure for Admission-
(1) IN GENERAL- Section 218 of the Immigration and Nationality Act (8
U.S.C. 1188) is amended to read as follows:
`ADMISSION OF TEMPORARY H-2A WORKERS
`SEC. 218. (a) Definitions- In this section and section 218A:
`(1) AREA OF EMPLOYMENT- The term `area of employment' means the area
within normal commuting distance of the work site or physical location
where the work of the H-2A worker is or will be performed. If such work
site or location is within a Metropolitan Statistical Area, any place
within such area shall be considered to be within the area of employment.
`(2) DISPLACE- In the case of a petition with respect to an H-2A worker
filed by an employer, the employer `displaces' a United States worker
from a job if the employer lays off the worker from a job that is essentially
equivalent to the job for which the H-2A worker is sought. A job shall
not be considered to be essentially equivalent to another job unless the
job--
`(A) involves essentially the same responsibilities as the other job;
`(B) was held by a United States worker with substantially equivalent
qualifications and experience; and
`(C) is located in the same area of employment as the other job.
`(3) ELIGIBLE INDIVIDUAL- The term `eligible individual' means an individual
who is not an unauthorized alien (as defined in section 274A(h)(3)) with
respect to the employment of the individual.
`(4) EMPLOYER- The term `employer' means an employer who hires workers
to perform agricultural employment.
`(5) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described
in section 101(a)(15)(H)(ii)(a).
`(A) IN GENERAL- The term `lay off'--
`(i) means to cause a worker's loss of employment, other than through
a discharge for inadequate performance, violation of workplace rules,
cause, voluntary departure, voluntary retirement, or the expiration
of a grant or contract (other than a temporary employment contract
entered into in order to evade a condition described in paragraph
(3) or (7) of subsection (b)); and
`(ii) does not include any situation in which the worker is offered,
as an alternative to such loss of employment, a similar employment
opportunity with the same employer (or, in the case of a placement
of a worker with another employer under subsection (h)(2), with either
employer described in such subsection) at equivalent or higher compensation
and benefits than the position from which the employee was discharged,
regardless of whether or not the employee accepts the offer.
`(B) CONSTRUCTION- Nothing in this paragraph is intended to limit an
employee's rights under a collective bargaining agreement or other employment
contract.
`(7) LEVEL II H-2A WORKER- The term `Level II H-2A worker' means a nonimmigrant
described in section 101(a)(15)(H)(ii)(a) who--
`(A) has been employed as an H-2A worker for at least 3 years;
`(B) has not violated a material term or condition of employment as
an H-2A worker;
`(C) works in a supervisory capacity; and
`(D) meets minimum skill levels in the occupation in which they are
employed, as determined, by regulation, by the Secretary of Labor, based
on surveys conducted by State workforce agencies.
`(8) PREVAILING WAGE- The term `prevailing wage' means the wage rate 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.
`(9) UNITED STATES WORKER- The term `United States worker' means any worker
who is a national of the United States, an alien lawfully admitted for
permanent residence, and any other alien authorized to work in the relevant
job opportunity within the United States, except--
`(A) an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a);
and
`(B) an alien provided blue card status under section 218B.
`(b) Application- An alien may not be admitted as an H-2A worker unless
the employer has filed with the Secretary of Homeland Security a petition
attesting to the following:
`(1) TEMPORARY WORK OR SERVICES-
`(A) IN GENERAL- The employer is seeking to employ a specific number
of agricultural workers on a temporary basis and will provide compensation
to such workers at a specified wage rate and under specified conditions.
`(B) SKILLED WORKERS- If the worker is a Level II H-2A worker, the employer
will recruit the worker separately and the attestation will delineate
separate wage rate and conditions of employment for such worker.
`(C) DEFINITION- For purposes of this paragraph, a worker is employed
on a temporary basis if the employer intends to employ the worker for
an 11-month contract period.
`(2) BENEFITS, WAGES, AND WORKING CONDITIONS- The employer will provide,
at a minimum, the benefits, wages, and working conditions required by
subsection (k) to all workers employed in the jobs for which the H-2A
worker is sought and to all other temporary workers in the same occupation
at the place of employment.
`(3) NONDISPLACEMENT OF UNITED STATES WORKERS- The employer did not displace
and will not displace a United States worker employed by the employer
during the period of employment of the H-2A worker and during the 30-day
period immediately preceding such period of employment in the occupation
at the place of employment for which the employer seeks approval to employ
H-2A workers.
`(A) IN GENERAL- The employer--
`(i) conducted adequate recruitment in the area of employment before
filing the attestation; and
`(ii) was unsuccessful in locating a qualified United States worker
for the job opportunity for which the H-2A worker is sought.
`(B) OTHER REQUIREMENTS- The adequate recruitment requirement under
subparagraph (A) is satisfied if the employer places--
`(i) a job order with the America's Job Bank Program of the Department
of Labor; and
`(ii) a Sunday advertisement in a newspaper of general circulation
that is likely to be patronized by a potential worker in the area
of intended employment.
`(C) ADVERTISEMENT REQUIREMENT- The advertisement requirement under
subparagraph (B)(ii) is satisfied if the advertisement--
`(ii) directs applicants to report or send resumes, as appropriate
for the occupation, to the employer;
`(iii) provides a description of the vacancy that is specific enough
to apprise United States workers of the job opportunity for which
certification is sought;
`(iv) describes the geographic area with enough specificity to apprise
applicants of any travel requirements and where applicants will likely
have to reside to perform the job;
`(v) states the rate of pay, which shall not be less than the wage
paid for the occupation in the area of intended employment; and
`(vi) offers wages, terms, and conditions of employment, which are
at least as favorable to those offered to the alien.
`(D) END OF RECRUITMENT REQUIREMENT- The requirement to recruit United
States workers shall terminate on the first day of the contract period
that work begins.
`(5) OFFERS TO UNITED STATES WORKERS- The employer has offered or will
offer the job for which the nonimmigrant is sought to any eligible United
States worker who--
`(B) is at least as qualified for the job as the nonimmigrant; and
`(C) will be available at the time and place of need.
`(6) PROVISION OF INSURANCE- If the job for which the H-2A worker is sought
is not covered by State workers' compensation law, the employer will provide,
at no cost to the worker, insurance covering injury and disease arising
out of, and in the course of, the worker's employment, which will provide
benefits at least equal to those provided under the State workers' compensation
law for comparable employment.
`(7) STRIKE OR LOCKOUT- There is not a strike or lockout in the course
of a labor dispute which, under regulations promulgated by the Secretary
of Labor, precludes the hiring of H-2A workers.
`(8) PREVIOUS VIOLATIONS- The employer has not, during the previous 5-year
period, employed H-2A workers and knowingly violated a material term or
condition of approval with respect to the employment of domestic or nonimmigrant
workers, as determined by the Secretary of Labor after notice and opportunity
for a hearing.
`(c) Public Examination- Not later than 1 working day after the date on
which a petition under this section is filed, the employer shall make a
copy of each such petition (and any necessary accompanying documents) available
for public examination, at the employer's principal place of business or
worksite.
`(1) IN GENERAL- The Secretary of Homeland Security shall maintain a list
of the petitions filed under subsection (b), which shall--
`(A) be sorted by employer; and
`(B) include the number of H-2A workers sought, the wage rate, the period
of intended employment, and the date of need for each alien.
`(2) AVAILABILITY- The Secretary of Homeland Security shall, at least
monthly, submit a copy of the list described in paragraph (1) to the Secretary
of Labor, who shall make the list available for public examination.
`(e) Petitioning for Admission-
`(1) IN GENERAL- 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 shall file with the Secretary of Homeland Security
a petition that includes the attestations described in subsection (b).
`(2) CONSIDERATION OF PETITIONS- For each petition filed and considered
under this subsection--
`(A) the Secretary of Homeland Security may not require such petition
to be filed more than 28 days before the first date the employer requires
the labor or services of the H-2A worker; and
`(B) unless the Secretary of Homeland Security determines that the petition
is incomplete or obviously inaccurate, the Secretary, not later than
7 days after the date on which such petition was filed, shall either
approve or deny the petition.
`(3) EXPEDITED ADJUDICATION- The Secretary of Homeland Security shall--
`(A) establish a procedure for expedited adjudication of petitions filed
under this subsection; and
`(B) not later than 7 working days after such filing, transmit, by fax,
cable, or other means assuring expedited delivery, a copy of notice
of action on the petition--
`(i) in the case of approved petitions, to the petitioner, the Secretary
of Labor, and to the appropriate immigration officer at the port of
entry or United States consulate where the petitioner has indicated
that the alien beneficiary or beneficiaries will apply for a visa
or admission to the United States;
`(ii) in the case of denied petitions, to the petitioner, including
reasons for the denial and instructions on how to appeal such denial.
`(4) PETITION AGREEMENTS- By filing an H-2A petition, a petitioner and
each employer consents to allow access to the site where the labor is
being performed for the purpose of determining compliance with H-2A requirements.
`(f) Roles of Agricultural Associations-
`(1) PERMITTING FILING BY AGRICULTURAL ASSOCIATIONS- A petition to hire
an alien as a temporary agricultural worker may be filed by an association
of agricultural employers which use agricultural services.
`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If an association
is a joint or sole employer of temporary agricultural workers, such workers
may be transferred among its members to perform agricultural services
of a temporary nature for which the petition was approved.
`(3) STATEMENT OF LIABILITY- The petition shall include a clear statement
explaining the liability under this section of an employer who places
an H-2A worker with another employer authorized to employ H-2A workers
if the other employer displaces a United States worker in violation of
this section.
`(4) TREATMENT OF VIOLATIONS-
`(A) INDIVIDUAL MEMBER- If an individual member of a joint employer
association violates any condition for approval with respect to the
member's petition, the Secretary of Homeland Security shall deny such
petition only with respect to that member of the association unless
the Secretary of Labor determines that the association or other member
participated in, had knowledge of, or had reason to know of the violation.
`(B) ASSOCIATION OF AGRICULTURAL EMPLOYERS-
`(i) JOINT EMPLOYER- If an association representing agricultural employers
as a joint employer violates any condition for approval with respect
to the association's petition, the Secretary of Homeland Security
shall deny such petition only with respect to the association and
may not apply the denial to any individual member of the association,
unless the Secretary of Labor determines that the member participated
in, had knowledge of, or had reason to know of the violation.
`(ii) SOLE EMPLOYER- If an association of agricultural employers approved
as a sole employer violates any condition for approval with respect
to the association's petition, no individual member of such association
may be the beneficiary of the services of temporary alien agricultural
workers admitted under this section in the occupation in which such
aliens were employed by the association which was denied approval
during the period such denial is in force, unless such member employs
such aliens in the occupation in question directly or through an association
which is a joint employer of such workers with the member.
`(g) Expedited Administrative Appeals- The Secretary of Homeland Security
shall issue regulations to provide for an expedited procedure--
`(1) for the review of a denial of a petition under this section by the
Secretary; or
`(2) at the applicant's request, for a de novo administrative hearing
respecting the denial.
`(h) Miscellaneous Provisions-
`(1) REQUIREMENTS FOR PLACEMENT OF H-2A WORKERS WITH OTHER EMPLOYERS-
A nonimmigrant who is admitted into the United States as an H-2A worker
may be transferred to another employer that has attested to the Secretary
of Homeland Security that the employer has filed a petition under this
section and is in compliance with this section. The Secretary of Homeland
Security and the Secretary of State shall issue regulations to establish
a process for the approval and reissuance of visas for transferred H-2A
workers, as necessary.
`(2) ENDORSEMENT OF DOCUMENTS- The Secretary of Homeland Security shall
provide for the endorsement of entry and exit documents of H-2A workers
as may be necessary to carry out this section and to provide notice for
purposes of section 274A.
`(3) PREEMPTION OF STATE LAWS- The provisions of subsection (a) and (c)
of section 214 and the provisions of this section preempt any State or
local law regulating admissibility of nonimmigrant workers.
`(A) IN GENERAL- The Secretary of Homeland Security may require, as
a condition of approving the petition, the payment of a fee, in accordance
with subparagraph (B), to recover the reasonable cost of processing
petitions.
`(B) FEE BY TYPE OF EMPLOYEE-
`(i) SINGLE EMPLOYER- An employer whose petition for temporary alien
agricultural workers is approved shall, for each approved petition,
pay a fee that--
`(I) subject to subclause (II), is equal to $100 plus $10 for each
approved H-2A worker; and
`(II) does not exceed $1,000.
`(ii) ASSOCIATION- Each employer-member of a joint employer association
whose petition for temporary agricultural aliens is approved shall,
for each such approved petition, pay a fee that--
`(I) subject to subclause (II), is equal to $100 plus $10 for each
approved H-2A worker; and
`(II) does not exceed $1,000.
`(iii) LIMITATION ON ASSOCIATION FEES- A joint employer association
under clause (ii) shall not be charged a separate fee.
`(C) METHOD OF PAYMENT- The fees collected under this paragraph shall
be paid by check or money order to the Department of Homeland Security.
In the case of employers of H-2A workers that are members of a joint
employer association applying on their behalf, the aggregate fees for
all employers of H-2A workers under the petition may be paid by 1 check
or money order.
`(D) INCREASE IN FEES- For calendar year 2007 and each subsequent calendar
year, the dollar amounts in subparagraph (B) may be increased by an
amount equal to--
`(i) such dollar amount; multiplied by
`(ii) the percentage by which the average of the Consumer Price Index
for all urban consumers (United States city average) for the 12-month
period ending with August of the preceding calendar year exceeds such
average for the 12-month period ending with August 2005.
`(5) EMPLOYMENT VERIFICATION PROGRAM-
`(A) IN GENERAL- Not later than 12 months after the date of enactment
of this paragraph, the Secretary of Homeland Security shall establish
a mandatory employment verification program for all employers of H-2A
workers to verify the eligibility of all individuals hired by each such
employer, including those who present an H-2A visa to work in the United
States.
`(B) EMPLOYER COMPLIANCE- Each employer of an H-2A worker shall comply
with the requirements promulgated by the Secretary of Homeland Security
to verify the identity and employment eligibility of all individuals
hired.
`(C) REGULATIONS- In carrying out the program under this paragraph,
the Secretary of Homeland Security shall promulgate regulations to require
each employer to verify the employment eligibility of each employee
hired through--
`(i) a secure Internet site;
`(ii) a machine capable of reading the H-2A visa, which shall serve
as the identification and employment eligibility document for each
H-2A alien; or
`(iii) a toll-free telephone number to check the accuracy of any social
security number presented to the employer.
`(6) EMPLOYER-BASED APPLICATION FOR PERMANENT RESIDENCE-
`(A) IN GENERAL- The employer of a Level II H-2A worker who has been
employed in such status for not less than 5 years may file an application
for an employment-based adjustment of status under section 245(k) for
such worker.
`(B) EFFECT OF APPLICATION- A Level II H-2A worker for whom an application
is filed under subparagraph (A) may continue to be employed in such
status until--
`(i) such application has been adjudicated; or
`(ii) such worker has violated any provision of this section.
`(i) Failure to Meet Conditions-
`(1) IN GENERAL- The Secretary of Labor shall be responsible for conducting
investigations and random audits of employer work sites to ensure compliance
with the requirements of the H-2A program and all other requirements under
this Act. All monetary fines levied against violating employers shall
be paid to the Department of Labor and used to enhance the Department
of Labor's investigatory and auditing power.
`(2) PENALTIES FOR FAILURE TO MEET CONDITIONS- If the Secretary of Labor
finds, after notice and opportunity for a hearing, a failure to meet any
condition under subsection (b), or a material misrepresentation of fact
in a petition under subsection (b)--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding;
and
`(ii) may impose such other administrative remedies, including civil
money penalties in an amount not to exceed $1,000 per violation, as
the Secretary of Labor determines to be appropriate; and
`(B) the Secretary of Homeland Security may disqualify the employer
from the employment of H-2A workers for a period of 1 year.
`(3) PENALTIES FOR WILLFUL FAILURE- If the Secretary of Labor finds, after
notice and opportunity for a hearing, a willful failure to meet a material
condition of subsection (b) or a willful misrepresentation of a material
fact in a petition under subsection (b)--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding;
and
`(ii) may impose such other administrative remedies, including civil
money penalties in an amount not to exceed $5,000 per violation, as
the Secretary of Labor determines to be appropriate; and
`(B) the Secretary of Homeland Security may--
`(i) disqualify the employer from the employment of H-2A workers for
a period of 2 years;
`(ii) for a second violation, disqualify the employer from the employment
of H-2A workers for a period of 5 years; and
`(iii) for a third violation, permanently disqualify the employer
from the employment of H-2A workers.
`(4) PENALTIES FOR DISPLACEMENT OF UNITED STATES WORKERS- If the Secretary
of Labor finds, after notice and opportunity for a hearing, a willful
failure to meet a material condition of subsection (b) or a willful misrepresentation
of a material fact in a petition under subsection (b), 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 petition under subsection (b), or during the period of 30 days
preceding such period of employment--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding;
and
`(ii) may impose such other administrative remedies, including civil
money penalties in an amount not to exceed $15,000 per violation,
as the Secretary of Labor determines to be appropriate; and
`(B) the Secretary of Homeland Security may--
`(i) disqualify the employer from the employment of H-2A workers for
a period of 5 years; and
`(ii) for a second violation, permanently disqualify the employer
from the employment of H-2A workers.
`(5) LIMITATIONS ON CIVIL MONEY PENALTIES- The Secretary of Labor may
not impose total civil money penalties with respect to a petition under
subsection (b) in excess of $90,000.
`(j) Failure to Pay Wages or Required Benefits-
`(1) IN GENERAL- The Secretary of Labor shall be responsible for conducting
investigations and random audits of employer work sites to ensure compliance
with the requirements of the H-2A program.
`(2) ASSESSMENT- If the Secretary of Labor finds, after notice and opportunity
for a hearing, that the employer has failed to pay the wages or provide
the housing allowance, transportation, subsistence reimbursement, or guarantee
of employment attested by the employer under subsection (b)(2), the Secretary
of Labor shall assess payment of back wages, or other required benefits,
due any United States worker or H-2A worker employed by the employer in
the specific employment in question.
`(3) AMOUNT- The back wages or other required benefits described in paragraph
(2)--
`(A) shall be equal to the difference between the amount that should
have been paid and the amount that was paid to such worker; and
`(B) shall be distributed to the worker to whom such wages are due.
`(k) Minimum Wages, Benefits, and Working Conditions-
`(1) PREFERENTIAL TREATMENT OF ALIENS PROHIBITED-
`(A) IN GENERAL- Each employer seeking to hire United States workers
shall offer such workers not less than the same benefits, wages, and
working conditions that the employer is offering, intends to offer,
or will provide to H-2A workers. 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. The benefits, wages, and other terms and
conditions of employment described in this subsection shall be provided
in connection with employment under this section.
`(B) INTERPRETATION- Every interpretation and determination made under
this section or under any other law, regulation, or interpretative provision
regarding the nature, scope, and timing of the provision of these and
any other benefits, wages, and other terms and conditions of employment
shall be made so that--
`(i) the services of workers to their employers and the employment
opportunities afforded to workers by the employers, including those
employment opportunities that require United States workers or H-2A
workers to travel or relocate in order to accept or perform employment--
`(I) mutually benefit such workers, as well as their families, and
employers; and
`(II) principally benefit neither employer nor employee; and
`(ii) employment opportunities within the United States benefit the
United States economy.
`(A) IN GENERAL- Each employer applying for workers under subsection
(b) shall pay not less than the greater of--
`(i) the prevailing wage to all workers in the occupation for which
the employer has applied for workers; or
`(ii) the applicable State minimum wage.
`(B) WAGES FOR LEVEL II H-2A WORKERS- Each employer applying for Level
II H-2A workers under subsection (b) shall pay such workers not less
than the prevailing wage, as determined by the Secretary of Labor.
`(C) DETERMINATION OF WAGES- An employer seeking to comply with subparagraph
(A) may--
`(i) request and obtain a prevailing wage determination from the State
employment agency; or
`(ii) rely on other wage information, including a survey of the prevailing
wages of workers in the occupation in the area of employment that
has been conducted or funded by the employer or a group of employers,
using the methodology used by the Secretary of Labor to establish
Occupational Employment and Wage estimate, and any other criteria
specified in regulations issued by the Secretary of Labor.
`(D) COMPLIANCE- An employer shall be considered to have complied with
the requirement under subparagraph (A) if the employer--
`(i)(I) obtains a prevailing wage determination under subparagraph
(C)(i); or
`(II) relies on a qualifying survey of prevailing wages; and
`(ii) pays such prevailing wage.
`(3) HOUSING REQUIREMENT-
`(A) IN GENERAL- Except as provided under subparagraph (F), each employer
applying for workers under subsection (b) shall offer to provide housing
at no cost to--
`(i) all workers in job opportunities for which the employer has applied
under subsection (b); and
`(ii) all other workers in the same occupation at the same place of
employment, whose place of residence is beyond normal commuting distance.
`(B) COMPLIANCE- An employer meets the requirement under subparagraph
(A) if the employer--
`(i) provides the workers with housing that meets applicable Federal
standards for temporary labor camps; or
`(ii) secures housing for the workers that--
`(I) meets applicable local standards for rental or public accommodation
housing, or other substantially similar class of habitation; or
`(II) in the absence of applicable local standards, meets State
standards for rental or public accommodation housing or other substantially
similar class of habitation.
`(C) INSPECTION- The employer may request a certificate of inspection
by an approved Federal or State agency to the Secretary of Labor not
later than 28 days before a worker is scheduled to occupy housing described
in subparagraph (B). Such an inspection, and any necessary follow up,
including at least 1 follow up visit, shall be performed by the Wage
and Hour Division of the Department of Labor in a timely manner not
later than 28 days after such a request.
`(D) RULEMAKING- The Secretary of Labor shall issue regulations that
address the specific requirements for the provision of housing to workers
engaged in the range production of livestock.
`(E) CONSTRUCTION- 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.
`(i) AUTHORITY- If the Governor of a State certifies to the Secretary
of Labor that there is adequate housing available in the area of intended
employment for migrant farm workers, and H-2A workers, who are seeking
temporary housing while employed in agricultural work, an employer
in such State may, in lieu of offering housing pursuant to subparagraph
(A), provide a reasonable housing allowance. An employer who provides
a housing allowance to a worker shall not be required to reserve housing
accommodations for the worker.
`(ii) ASSISTANCE IN LOCATING HOUSING- Upon the request of a worker
seeking assistance in locating housing, an employer providing a housing
allowance under clause (i) shall make a good faith effort to assist
the worker in identifying and locating housing in the area of intended
employment.
`(iii) LIMITATION- A housing allowance may not be used for housing
that is owned or controlled by the employer. 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 Protect Act (29 U.S.C. 1823) solely by virtue of providing
such housing allowance.
`(iv) OTHER REQUIREMENTS-
`(I) NONMETROPOLITAN COUNTY- 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 state-wide 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 COUNTY- If the place of employment of the workers
provided an allowance under this subparagraph 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.
`(v) INFORMATION- If the employer provides a housing allowance to
H-2A employees, the employer shall provide a list to the Secretary
of Homeland Security and the Secretary of Labor of the names and local
addresses of such workers.
`(4) REIMBURSEMENT OF TRANSPORTATION COSTS-
`(A) REQUIREMENT FOR REIMBURSEMENT- A worker who completes 50 percent
of the period of employment of the job for which the worker was hired,
beginning on the first day of such employment, shall be reimbursed by
the employer for the cost of the worker's transportation and subsistence
from--
`(i) the place from which the worker was approved to enter the United
States to the location at which the work for the employer is performed;
or
`(ii) if the worker traveled from a place in the United States at
which the worker was last employed, from such place of last employment
to the location at which the work for the employer is performed.
`(B) TIMING OF REIMBURSEMENT- Reimbursement to the worker of expenses
for the cost of the worker's transportation and subsistence to the place
of employment under subparagraph (A) shall be considered timely if such
reimbursement is made not later than the worker's first regular payday
after a worker completes 50 percent of the period of employment of the
job opportunity as provided under this paragraph.
`(C) ADDITIONAL REIMBURSEMENT- 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 work site to the place where the worker was approved to enter
the United States to work for the employer. If the worker has contracted
with a subsequent employer, the previous and subsequent employer shall
share the cost of the worker's transportation and subsistence from work
site to work site.
`(D) AMOUNT OF REIMBURSEMENT- The amount of reimbursement provided to
a worker or alien under this paragraph shall be equal to 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.
`(E) REIMBURSEMENT FOR LAID OFF WORKERS- If the worker is laid off or
employment is terminated for contract impossibility (as described in
paragraph (5)(D)) before the anticipated ending date of employment,
the employer shall provide--
`(i) the transportation and subsistence required under subparagraph
(C); and
`(ii) notwithstanding whether the worker has completed 50 percent
of the period of employment, the transportation reimbursement required
under subparagraph (A).
`(F) TRANSPORTATION- The employer shall provide transportation between
the worker's living quarters and the employer's work site without cost
to the worker in accordance with applicable laws and regulations.
`(G) CONSTRUCTION- Nothing in this paragraph shall be construed to require
an employer to reimburse visa, passport, consular, or international
border-crossing fees incurred by the worker or any other fees associated
with the worker's lawful admission into the United States to perform
employment.
`(5) EMPLOYMENT GUARANTEE-
`(i) REQUIREMENT- Each employer applying for workers under subsection
(b) shall guarantee to offer the worker employment for the hourly
equivalent of not less than 75 percent of the work hours during the
total anticipated 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.
`(ii) FAILURE TO MEET GUARANTEE- If the employer affords the United
States worker or the H-2A worker less employment than that required
under this subparagraph, the employer shall pay such worker the amount
which the worker would have earned if the worker had worked for the
guaranteed number of hours.
`(iii) PERIOD OF EMPLOYMENT- For purposes of this subparagraph, the
term `period of employment' means the total number of anticipated
work hours and work days described in the job offer and shall exclude
the worker's Sabbath and Federal holidays.
`(B) CALCULATION OF HOURS- 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) LIMITATION- 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 75 percent guarantee described in subparagraph
(A).
`(D) TERMINATION OF EMPLOYMENT-
`(i) IN GENERAL- If, before the expiration of the period of employment
specified in the job offer, the services of the worker are no longer
required due to any form of natural disaster, including flood, hurricane,
freeze, earthquake, fire, drought, plant or animal disease, pest infestation,
regulatory action, or any other reason beyond the control of the employer
before the employment guarantee in subparagraph (A) is fulfilled,
the employer may terminate the worker's employment.
`(ii) REQUIREMENTS- If a worker's employment is terminated under clause
(i), the employer shall--
`(I) fulfill the employment guarantee in subparagraph (A) for the
work days that have elapsed during the period beginning on the first
work day after the arrival of the worker and ending on the date
on which such employment is terminated; and
`(II) make efforts to transfer the United States worker to other
comparable employment acceptable to the worker.
`(1) IN GENERAL- Subject to paragraph (2), an alien shall be considered
inadmissible to the United States and ineligible for nonimmigrant status
under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during
the previous 5 years, violated a term or condition of admission into the
United States as a nonimmigrant, including overstaying the period of authorized
admission.
`(A) IN GENERAL- An alien seeking admission under section 101(a)(15)(H)(ii)(a)
while outside of the United States shall not be deemed inadmissible
under such section by reason of--
`(ii) section 212(a)(6)(C), if such alien has previously falsely represented
himself or herself to be a citizen of the United States for the purpose
of agricultural employment; or
`(iii) section 212(a)(9)(B), unless such alien was deported from the
United States.
`(B) EFFECTIVE PERIOD OF WAIVER- If an alien is admitted to the United
States as a result of a waiver under subparagraph (A), such waiver shall
remain in effect until the alien subsequently violates--
`(i) a material provision of this section; or
`(ii) a term or condition of admission into the United States as a
nonimmigrant.
`(m) Period of Admission-
`(1) IN GENERAL- An H-2A alien shall be admitted for an 11-month period
of employment, excluding--
`(A) a period of not more than 7 days before the beginning of the period
of employment for the purpose of travel to the work site; and
`(B) a period of not more than 14 days after the period of employment
for the purpose of departure or extension based on a subsequent offer
of employment.
`(2) EMPLOYMENT LIMITATION- An alien may not be employed during the 14-day
period described in paragraph (1)(B) except in the employment for which
the alien was previously authorized.
`(3) CONSTRUCTION- Nothing in this subsection shall limit the authority
of the Secretary of Homeland Security to extend the stay of an alien under
any other provision of this Act.
`(n) 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--
`(A) shall have failed to maintain nonimmigrant status as an H-2A worker;
and
`(B) shall depart the United States or be subject to removal under section
237(a)(1)(C)(i).
`(2) REPORT BY EMPLOYER- Not later than 24 hours after the premature abandonment
of employment by an H-2A worker, the employer or association acting as
an agent for the employer shall notify the Secretary of Homeland Security
of such abandonment.
`(3) REMOVAL- The Secretary of Homeland Security shall ensure the prompt
removal from the United States of 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 the alien's employment if the alien promptly departs
the United States upon termination of such employment.
`(o) Replacement of Alien-
`(1) IN GENERAL- Upon notification under subsection (n)(2)--
`(A) the Secretary of State shall promptly issue a visa to an eligible
alien designated by the employer to replace an H-2A worker who abandons
or prematurely terminates employment; and
`(B) the Secretary of Homeland Security shall admit such alien into
the United States.
`(2) CONSTRUCTION- Nothing in this subsection shall limit any preference
for which United States workers are eligible under this Act.
`(p) Identification Document-
`(1) IN GENERAL- The Secretary of Homeland Security shall provide each
alien authorized to be an H-2A worker with a single machine-readable,
tamper-resistant, and counterfeit-resistant document that--
`(A) authorizes the alien's entry into the United States;
`(B) serves, for the appropriate period, as an employment eligibility
document; and
`(C) verifies the identity of the alien through the use of at least
1 biometric identifier.
`(2) REQUIREMENTS- The document required for all aliens authorized to
be an H-2A worker--
`(A) shall be capable of reliably determining whether--
`(i) the individual with the document is in fact eligible for employment
as an H-2A worker;
`(ii) the individual with the document is not claiming the identity
of another person; and
`(iii) the individual with the document is authorized to be admitted
into the United States; and
`(B) shall be compatible with--
`(i) other databases of the Secretary of Homeland Security to prevent
an alien from obtaining benefits for which the alien is not eligible
and determining whether the alien is unlawfully present in the United
States; and
`(ii) law enforcement databases to determine if the alien has been
convicted of criminal offenses.
`(q) Extension of Stay of H-2A Workers in the United States-
`(A) AUTHORITY- An employer may petition to extend an H-2A worker's
stay for up to 2 consecutive contract periods before the alien is required
to return to the alien's country of nationality or country of last residence.
`(B) REQUEST AN EXTENSION- If an employer seeks to employ, or continue
to employ, an H-2A worker who is lawfully present in the United States,
the employer or association shall request an extension of the alien's
stay not later than 14 days before the expiration of the period of authorized
employment.
`(C) LIMITATIONS- An extension of stay under this subsection--
`(i) may only commence upon the termination of the H-2A worker's contract
with an employer;
`(ii) may be effective immediately following the termination of a
prior contract; and
`(iii) may not exceed 11 months, excluding the 14-day period provided
for travel or extension due to subsequent employment.
`(D) RETURN TO FOREIGN COUNTRY-
`(i) REQUIREMENT TO RETURN- At the conclusion of 3 contract periods
authorized under this section, the alien so employed may not be employed
in the United States as an H-2A worker until the alien has returned
to the alien's country of nationality or country of last residence
for a period of not less than 6 months.
`(ii) REENTRY- The alien may become eligible for reentry into the
United States as an H-2A worker after working in the United States
for 2 contract periods and remaining the alien's country of nationality
or country of last residence for not less than 4 months. The alien
may also be eligible for re-entry to the United States as an H-2A
worker after working in the United States for 1 contract period and
remaining in the alien's country of nationality or country of last
residence for not less than 2 months.
`(A) IN GENERAL- An alien who is lawfully present in the United States
on the date of the filing of a petition to extend the stay of the alien
may commence or continue the employment described in a petition under
paragraph (1). The employer shall provide a copy of the employer's petition
for extension of stay to the alien. The alien 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.
`(B) EMPLOYMENT ELIGIBILITY DOCUMENT- Upon approval of a petition for
an extension of stay or change in the alien's authorized employment,
the Secretary of Homeland Security 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.
`(C) FILE DEFINED- In this paragraph, the term `file' means sending
the petition by certified mail via the United States Postal Service,
return receipt requested, or delivering by guaranteed commercial delivery
which will provide the employer with a documented acknowledgment of
the date of receipt of the petition for an extension of stay.
`(r) Special Rule for Aliens Employed as Livestock Workers- Notwithstanding
any other provision of this section, an alien admitted as an H-2A worker
for employment as a sheepherder, goatherder, livestock worker, or dairy
worker may be admitted for a period of up to 2 years.
`ADMISSION OF CROSS-BORDER H-2AA WORKERS
`SEC. 218A. (a) Definition- In this section, the term `H-2AA worker' means
a nonimmigrant described in section 101(a)(15)(H)(ii)(a) who participates
in the cross-border worker program established under this section.
`(b) Incorporation by Reference-
`(1) IN GENERAL- Except as specifically provided under paragraph (2),
the provisions under section 218 shall apply to H-2AA workers.
`(2) EXCEPTIONS- The provisions under subsections (b)(1)(B), (k)(2)(B),
(k)(3), (k)(4) (except for subparagraph (G)), and (r) of section 218 shall
not apply to H-2AA workers.
`(c) Mandatory Entry and Exit- An H-2AA worker who complies with the provisions
of this section--
`(1) may enter the United States each scheduled work day, in accordance
with regulations promulgated by the Secretary of Homeland Security; and
`(2) shall exit the United States before the end of each day of such entrance.'.
(2) CLERICAL AMENDMENT- The table of contents of the Immigration and Nationality
Act is adding after the item relating to section 218 the following:
`Sec. 218A. Admission of cross-border H-2AA workers.'.
(1) ISSUANCE OF VISAS- Not later than 180 days after the date of enactment
of this Act, the Secretary of State shall promulgate regulations, in accordance
with the notice and comment provisions of section 553 of title 5, United
States Code, to provide for uniform procedures for the issuance of visas
by United States consulates and consular officials to nonimmigrants 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)).
(2) H-2AA border crossings- The Secretary of Homeland Security shall promulgate
regulations to establish a process for workers authorized to work in the
United States under section 218A of the Immigration and Nationality Act,
as added by subsection (a), to ensure that such workers expeditiously
enter and exit the United States during each work day.
(c) Effective Date- The amendment made by this section shall take effect
on the date that is 180 days after the date of enactment of this Act.
SEC. 203. LEGAL ASSISTANCE FROM THE LEGAL SERVICES CORPORATION.
Section 504 of the Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1854) is amended--
(1) by striking subsection (b) and inserting the following:
`(b) Legal Assistance- (1) Upon application by a complainant and in such
circumstances as the court may deem just, the court may appoint an attorney
for such complainant and may authorize the commencement of the action.
`(2) The Legal Services Corporation may not provide legal assistance for
or on behalf of any alien, and may not provide financial assistance to any
person or entity that provides legal assistance for or on behalf of any
alien, unless the alien--
`(A) is described in subsection (a); and
`(B) is present in the United States at the time the legal assistance
is provided.
`(3)(A) No party may bring a civil action for damages or other complaint
on behalf of 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)) unless--
`(i) the party makes a request to the Federal Mediation and Conciliation
Service or an equivalent State program (as defined by the Secretary of
Labor) not later than 90 days before bringing the action to assist the
parties in reaching a satisfactory resolution of all issues involving
parties to the dispute; and
`(ii) the parties to the dispute have attempted, in good faith, mediation
or other non-binding dispute resolution of all issues involving all such
parties.
`(B) If the mediator finds that an agricultural employer, agricultural association,
or farm labor contractor has corrected a violation of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1854) or of a regulation under
such Act not later than 14 days after the date on which such agricultural
employer, agricultural association, or farm labor contractor was notified
in writing of such violation, no action may be brought under such Act with
respect to such violation.
`(C) Any settlement reached through the mediation process described in subparagraph
(A) shall preclude any right of action arising out of the same facts between
the parties in any Federal or State court or administrative proceeding.
`(4) An employer of 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))
shall not be required to permit any recipient of grants or contracts under
section 1007 of the Legal Services Corporation Act (42 U.S.C. 2996f), or
any employee of such recipient, to enter upon the employer's property unless
such recipient or employee has a prearranged appointment with a particular
worker.
`(5) The employer of 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))
shall post the contact information of the Legal Services Corporation in
the dwelling and at the work site of each nonimmigrant employee.
`(6) There are authorized to be appropriated for each fiscal year such sums
as may be necessary to carry out this subsection.'; and
(2) by adding at the end the following:
`(g)(1) If a defendant prevails in an action under this section in which
the plaintiff is represented by an attorney who is employed by the Legal
Services Corporation or any entity receiving funds from the Legal Services
Corporation, such entity or the Legal Services Corporation shall award to
the prevailing defendant fees and other expenses incurred by the defendant
in connection with the action.
`(2) As used in this subsection, the term `fees and other expenses' has
the meaning given the term in section 504(b)(1)(A) of title 5, United States
Code.
`(3) The court shall take whatever steps necessary, including the imposition
of sanctions, to ensure compliance with this subsection.'.
TITLE III--BLUE CARD PROGRAM
SEC. 301. ADMISSION OF NECESSARY AGRICULTURAL WORKERS.
(a) In General- Chapter 2 of title II of the Immigration and Nationality
Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218A,
as added by section 202, the following:
`BLUE CARD PROGRAM
`SEC. 218B. (a) Definitions- As used in this section--
`(1) the term `agricultural employment' means any service or activity
that is considered agricultural under section 3(f) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(f)), agricultural labor under section 3121(g)
of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)), and labor and
services relating to commodities, livestock, dairy, forestry, landscaping,
fishing, and the processing of meat, poultry, and fish;
`(2) the term `blue card status' means the status of an alien who has
been--
`(A) lawfully admitted for a temporary period for agricultural employment
under subsection (b); and
`(B) issued a tamper-resistant, machine-readable document that--
`(i) serves as the alien's visa, employment authorization, and travel
documentation; and
`(ii) contains such biometrics as are required by the Secretary;
`(3) the term `employer' means any person or entity, including any farm
labor contractor and any agricultural association, that employs workers
in agricultural employment;
`(4) the term `Secretary' means the Secretary of Homeland Security; and
`(5) the term `United States worker' means any worker, including a national
of the United States, a lawfully admitted permanent resident alien, and
any other alien authorized to work in the relevant job opportunity within
the United States, except--
`(A) an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a);
`(B) an alien admitted or otherwise provided status as an H-2AA worker;
and
`(C) an alien provided status under this section.
`(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary
may confer blue card status upon an alien who qualifies under this subsection
if, not later than 6 months after the date of enactment of this section,
the petitioning employer attests and the Secretary determines that the
alien--
`(A) performed at least 1600 hours of agricultural employment in the
United States for that employer during 2005;
`(B) except as otherwise provided under paragraph (2), is otherwise
admissible to the United States under section 212; and
`(C) has never been convicted of a felony or a misdemeanor in the United
States.
`(2) DETERMINATION- In determining an alien's eligibility for Blue Card
status, the Secretary shall--
`(A) conduct a background investigation of the alien, including a review
of evidence submitted by the petitioning employer in support of the
attestation that the alien meets the minimum work requirements; and
`(B) interview the alien and require the alien to answer questions concerning
the alien's--
`(i) physical and mental health;
`(ii) criminal history and gang membership;
`(iii) immigration history;
`(iv) involvement with groups or individuals that have engaged in
terrorism, genocide, persecution, or who seek the overthrow of the
United States government;
`(v) voter registration history;
`(vi) claims to United States citizenship; and
`(3) WAIVER OF CERTAIN GROUNDS FOR INADMISSIBILITY- In determining an
alien's eligibility for blue card status under paragraph (1)(C)--
`(A) the provisions of paragraphs (5), (6)(A), (7)(A), and (9)(B) of
section 212(a) shall not apply;
`(B) the provisions of section 212(a)(6)(C) shall not apply with respect
to prior or current agricultural employment; and
`(C) the Secretary may not waive paragraph (1),(2), or (3) of section
212(a) unless such waiver is permitted under another provision of law.
`(A) IN GENERAL- An employer seeking blue card status under this section
for an alien employee shall file a named petition for blue card status
with the Secretary.
`(B) EMPLOYER PETITION- An employer filing a petition under subparagraph
(A) shall--
`(i) pay a registration fee of $3,000;
`(ii) pay a processing fee to cover the actual costs incurred in adjudicating
the petition;
`(iii) include an affidavit signed by the beneficiary of the petition--
`(I) that certifies, under penalty of perjury under the laws of
the United States, that the application and any evidence submitted
with it is true and correct and that authorizes the release of any
information contained in the petition and attached evidence for
law enforcement purposes; and
`(II) that includes a waiver of rights that explains to the alien
that, in exchange for the discretionary benefit of Blue Card status,
the alien agrees to waive any right to administrative or judicial
review or appeal of a determination by the Department of Homeland
Security regarding the alien's eligibility for Blue Card status;
and
`(iv) provide an attestation, valid for not less than 60 days, that
the employer--
`(I) conducted adequate recruitment in the area of intended employment
before filing the petition; and
`(II) was unsuccessful in locating qualified United States workers
for the job opportunity for which the certification is sought.
`(C) ADEQUATE RECRUITMENT-
`(i) MINIMUM REQUIREMENT- The adequate recruitment requirement under
subparagraph (B)(iii) is satisfied if the employer--
`(I) places a job order with the America's Job Bank Program of the
Department of Labor; and
`(II) places a Sunday advertisement in a newspaper of general circulation
that is likely to be patronized by a potential worker in the area
of intended employment.
`(ii) ADVERTISEMENT REQUIREMENT- An advertisement under clause (i)(II)
shall--
`(II) direct applicants to report or send resumes, as appropriate
for the occupation, to the employer;
`(III) provide a description of the vacancy that is specific enough
to apprise United States workers of the job opportunity for which
certification is sought;
`(IV) describe the geographic area with enough specificity to apprise
applicants of any travel requirements and where applicants will
likely have to reside to perform the job;
`(V) state the rate of pay, which must equal or exceed the wage
paid to the H-2A employees in the occupation in the area of intended
employment; and
`(VI) offer wages, terms, and conditions of employment, which are
at least as favorable as those offered to the alien.
`(D) ADJUDICATION OF PETITIONS- The Secretary of Homeland Security shall
ensure that--
`(i) the petitioning process is secure and incorporates anti-fraud
protections; and
`(ii) all petitions for Blue Card status are processed not later than
12 months after the date of enactment of this section.
`(E) NOTIFICATION OF ADJUDICATION- The Secretary shall provide notification
of an adjudication of a petition filed for an alien to the alien and
to the employer who filed such petition.
`(F) EFFECT OF DENIAL- If the Secretary denies a petition filed for
an alien, such alien shall return to the country of the alien's nationality
or last residence outside the United States.
`(i) ALL-IN-ONE CARD- The Secretary, in conjunction with the Secretary
of State, shall develop a single machine-readable, tamper-resistant
document that--
`(I) authorizes the alien's entry into the United States;
`(II) serves, during the period an alien is in blue card status,
as an employment authorized endorsement or other appropriate work
permit for agricultural employment; and
`(III) serves as an entry and exit document to be used in conjunction
with a proper visa or as a visa and as other appropriate travel
and entry documentation using biometric identifiers that meet the
biometric identifier standards jointly established by the Secretary
of State and the Secretary.
`(I) SUBMISSION OF IDENTIFIERS- After a petition is filed by an
employer and receipt of such petition is confirmed by the Secretary,
the alien, in order to further adjudicate the petition, shall submit
2 biometric identifiers (such as a fingerprint and a digital photograph),
as required by the Secretary, to an application support center,
which the Secretary shall establish in each State.
`(II) PROCESS- The Secretary shall prescribe a process for the submission
of a biometric identifier to be incorporated electronically into
an employer's prior electronic filing of a petition. The Secretary
shall prescribe an alternative process for employers to file a petition
in a manner other than electronic filing, as needed.
`(B) DOCUMENT REQUIREMENTS- The Secretary shall issue a blue card that
is--
`(i) capable of reliably determining if the individual with the blue
card whose eligibility is being verified is--
`(I) eligible for employment;
`(II) claiming the identity of another person; and
`(III) authorized to be admitted; and
`(I) other databases maintained by the Secretary to exclude aliens
from benefits for which the aliens are not eligible and determine
whether the alien is unlawfully present in the United States; and
