110th CONGRESS
1st Session
S. 237
To improve agricultural job opportunities, benefits, and security
for aliens in the United States and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 10, 2007
Mrs. FEINSTEIN (for herself, Mr. CRAIG, Mr. KENNEDY, Mr. MARTINEZ, Mrs.
BOXER, and Mr. VOINOVICH) introduced the following bill; which was read
twice and referred to the Committee on the Judiciary
A BILL
To improve agricultural job opportunities, benefits, and security
for aliens in the United States 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 Opportunities,
Benefits, and Security Act of 2007' or the `AgJOBS Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title, table of contents.
TITLE I--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL WORKERS
Subtitle A--Blue Card Status
Sec. 101. Requirements for blue card status.
Sec. 102. Treatment of aliens granted blue card status.
Sec. 103. Adjustment to permanent residence.
Sec. 105. Waiver of numerical limitations and certain grounds for inadmissibility.
Sec. 106. Administrative and judicial review.
Sec. 107. Use of information.
Sec. 108. Regulations, effective date, authorization of appropriations.
Subtitle B--Correction of Social Security Records
Sec. 111. 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. 303. Reports to Congress.
Sec. 304. Effective date.
SEC. 2. DEFINITIONS.
(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 or the
performance of agricultural labor or services 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) BLUE CARD STATUS- The term `blue card status' means the status of
an alien who has been lawfully admitted into the United States for temporary
residence under section 101(a).
(3) DEPARTMENT- The term `Department' means the Department of Homeland
Security.
(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) SECRETARY- Except as otherwise provided, the term `Secretary' means
the Secretary of Homeland Security.
(6) TEMPORARY- A worker is employed on a `temporary' basis when the employment
is intended not to exceed 10 months.
(7) WORK DAY- The term `work day' means any day in which the individual
is employed 5.75 or more hours in agricultural employment.
TITLE I--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL WORKERS
Subtitle A--Blue Card Status
SEC. 101. REQUIREMENTS FOR BLUE CARD STATUS.
(a) Requirement To Grant Blue Card Status- Notwithstanding any other provision
of law, the Secretary shall, pursuant to the requirements of this section,
grant blue card status to an alien who qualifies under this section if the
Secretary determines that the alien--
(1) has performed agricultural employment in the United States for at
least 863 hours or 150 work days during the 24-month period ending on
December 31, 2006;
(2) applied for such status during the 18-month application period beginning
on the first day of the seventh month that begins after the date of enactment
of this Act;
(3) 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 section 105(b); and
(4) has not been convicted of any felony or a misdemeanor, an element
of which involves bodily injury, threat of serious bodily injury, or harm
to property in excess of $500.
(b) Authorized Travel- An alien who is granted blue card status is authorized
to travel outside the United States (including commuting to the United States
from a residence in a foreign country) in the same manner as an alien lawfully
admitted for permanent residence.
(c) Authorized Employment- The Secretary shall provide an alien who is granted
blue card status an employment authorized endorsement or other appropriate
work permit, in the same manner as an alien lawfully admitted for permanent
residence.
(d) Termination of Blue Card Status-
(1) IN GENERAL- The Secretary may terminate blue card status granted to
an alien under this section only if the Secretary determines that the
alien is deportable.
(2) GROUNDS FOR TERMINATION OF BLUE CARD STATUS- Before any alien becomes
eligible for adjustment of status under section 103, the Secretary may
deny adjustment to permanent resident status and provide for termination
of the blue card status granted such alien under paragraph (1) if--
(A) the Secretary finds, by a preponderance of the evidence, that the
adjustment to blue card 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
(i) commits an act that makes the alien inadmissible to the United
States as an immigrant, except as provided under section 105(b);
(ii) is convicted of a felony or 3 or more misdemeanors committed
in the United States;
(iii) is convicted of an offense, an element of which involves bodily
injury, threat of serious bodily injury, or harm to property in excess
of $500; or
(iv) fails to perform the agricultural employment required under section
103(a)(1)(A) unless the alien was unable to work in agricultural employment
due to the extraordinary circumstances described in section 103(a)(3).
(e) Record of Employment-
(1) IN GENERAL- Each employer of an alien granted blue card status under
this section shall annually--
(A) provide a written record of employment to the alien; and
(B) provide a copy of such record to the Secretary.
(2) SUNSET- The obligation under paragraph (1) shall terminate on the
date that is 6 years after the date of the enactment of this Act.
(f) Required Features of Identity Card- The Secretary shall provide each
alien granted blue card status, and the spouse and any child of each such
alien residing in the United States, with a card that contains--
(1) an encrypted, machine-readable, electronic identification strip that
is unique to the alien to whom the card is issued;
(2) biometric identifiers, including fingerprints and a digital photograph;
and
(3) physical security features designed to prevent tampering, counterfeiting,
or duplication of the card for fraudulent purposes.
(g) Fine- An alien granted blue card status shall pay a fine of $100 to
the Secretary.
(h) Maximum Number- The Secretary may not issue more than 1,500,000 blue
cards during the 5-year period beginning on the date of the enactment of
this Act.
SEC. 102. TREATMENT OF ALIENS GRANTED BLUE CARD STATUS.
(a) In General- Except as otherwise provided under this section, an alien
granted blue card status 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.).
(b) Delayed Eligibility for Certain Federal Public Benefits- An alien granted
blue card status shall not be eligible, by reason of such status, for any
form of assistance or benefit described in section 403(a) of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C.
1613(a)) until 5 years after the date on which the alien is granted an adjustment
of status under section 103.
(1) PROHIBITION- No alien granted blue card status may be terminated from
employment by any employer during the period of blue card status except
for just cause.
(2) TREATMENT OF COMPLAINTS-
(A) ESTABLISHMENT OF PROCESS- The Secretary shall establish a process
for the receipt, initial review, and disposition of complaints by aliens
granted blue card status who allege that they have been terminated without
just cause. No proceeding shall be conducted under this paragraph with
respect to a termination unless the Secretary determines that the complaint
was filed not later than 6 months after the date of the termination.
(B) INITIATION OF ARBITRATION- If the Secretary finds that an alien
has filed a complaint in accordance with subparagraph (A) and there
is reasonable cause to believe that the alien was terminated from employment
without just cause, the Secretary shall initiate binding arbitration
proceedings by requesting the Federal Mediation and Conciliation Service
to appoint a mutually agreeable arbitrator from the roster of arbitrators
maintained by such Service for the geographical area in which the employer
is located. The procedures and rules of such Service shall be applicable
to the selection of such arbitrator and to such arbitration proceedings.
The Secretary shall pay the fee and expenses of the arbitrator, subject
to the availability of appropriations for such purpose.
(C) ARBITRATION PROCEEDINGS- The arbitrator shall conduct the proceeding
under this paragraph 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 reinstatement,
back pay, or front pay to the affected employee. Not later than 30 days
after the date of the conclusion of the arbitration proceeding, the
arbitrator shall transmit the findings in the form of a written opinion
to the parties to the arbitration and the Secretary. Such findings shall
be final and conclusive, and no official or court of the United States
shall have the power or jurisdiction to review any such findings.
(D) EFFECT OF ARBITRATION FINDINGS- If the Secretary receives a finding
of an arbitrator that an employer has terminated the employment of an
alien who is granted blue card status without just cause, the Secretary
shall credit the alien for the number of days or hours of work not performed
during such period of termination for the purpose of determining if
the alien meets the qualifying employment requirement of section 103(a).
(E) TREATMENT OF ATTORNEY'S FEES- Each party to an arbitration under
this paragraph shall bear the cost of their own attorney's fees for
the arbitration.
(F) NONEXCLUSIVE REMEDY- The complaint process provided for in this
paragraph is in addition to any other rights an employee may have in
accordance with applicable law.
(G) EFFECT ON OTHER ACTIONS OR PROCEEDINGS- Any finding of fact or law,
judgment, conclusion, or final order made by an arbitrator in the proceeding
before the Secretary shall not be conclusive or binding in any separate
or subsequent action or proceeding between the employee and the employee's
current or prior employer brought before an arbitrator, administrative
agency, court, or judge of any State or the United States, regardless
of whether the prior action was between the same or related parties
or involved the same facts, except that the arbitrator's specific finding
of the number of days or hours of work lost by the employee as a result
of the employment termination may be referred to the Secretary pursuant
to subparagraph (D).
(A) IN GENERAL- If the Secretary finds, after notice and opportunity
for a hearing, that an employer of an alien granted blue card status
has failed to provide the record of employment required under section
101(e) 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.
(B) LIMITATION- The penalty applicable under subparagraph (A) for failure
to provide records shall not apply unless the alien has provided the
employer with evidence of employment authorization granted under this
section.
SEC. 103. ADJUSTMENT TO PERMANENT RESIDENCE.
(a) In General- Except as provided in subsection (b), the Secretary shall
adjust the status of an alien granted blue card status to that of an alien
lawfully admitted for permanent residence if the Secretary determines that
the following requirements are satisfied:
(1) QUALIFYING EMPLOYMENT-
(A) IN GENERAL- Subject to subparagraph (B), the alien has performed
at least--
(i) 5 years of agricultural employment in the United States for at
least 100 work days per year, during the 5-year period beginning on
the date of the enactment of this Act; or
(ii) 3 years of agricultural employment in the United States for at
least 150 work days per year, during the 3-year period beginning on
the date of the enactment of this Act.
(B) 4-year PERIOD OF EMPLOYMENT- An alien shall be considered to meet
the requirements of subparagraph (A) if the alien has performed 4 years
of agricultural employment in the United States for at least 150 work
days during 3 years of those 4 years and at least 100 work days during
the remaining year, during the 4-year period beginning on the date of
the enactment of this Act.
(2) PROOF- An alien may demonstrate compliance with the requirement under
paragraph (1) by submitting--
(A) the record of employment described in section 101(e); or
(B) such documentation as may be submitted under section 104(c).
(3) EXTRAORDINARY CIRCUMSTANCES- In determining whether an alien has met
the requirement of paragraph (1)(A), the Secretary may credit the alien
with not more than 12 additional months to meet the requirement of that
subparagraph if the alien was unable to work in agricultural employment
due to--
(A) pregnancy, injury, or disease, if the alien can establish such pregnancy,
disabling injury, or disease through medical records;
(B) illness, disease, or other special needs of a minor child, if the
alien can establish such illness, disease, or special needs through
medical records; or
(C) severe weather conditions that prevented the alien from engaging
in agricultural employment for a significant period of time.
(4) APPLICATION PERIOD- The alien applies for adjustment of status not
later than 7 years after the date of the enactment of this Act.
(5) FINE- The alien pays a fine of $400 to the Secretary.
(b) Grounds for Denial of Adjustment of Status- The Secretary may deny an
alien granted blue card status an adjustment of status under this section
and provide for termination of such blue card status if--
(1) the Secretary finds by a preponderance of the evidence that the adjustment
to blue card 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
(A) 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 section 105(b);
(B) is convicted of a felony or 3 or more misdemeanors committed in
the United States; or
(C) is convicted of an offense, an element of which involves bodily
injury, threat of serious bodily injury, or harm to property in excess
of $500.
(c) Grounds for Removal- Any alien granted blue card status who does not
apply for adjustment of status under this section before the expiration
of the application period described in subsection (a)(4) or who fails to
meet the other requirements of subsection (a) by the end of the application
period, is deportable and may be removed under section 240 of the Immigration
and Nationality Act (8 U.S.C. 1229a).
(1) IN GENERAL- Not later than the date on which an alien's status is
adjusted under this section, the alien shall establish that the alien
does not owe any applicable Federal tax liability by establishing that--
(A) no such tax liability exists;
(B) all such outstanding tax liabilities have been paid; or
(C) the alien has entered into an agreement for payment of all outstanding
liabilities with the Internal Revenue Service.
(2) APPLICABLE FEDERAL TAX LIABILITY- In paragraph (1) the term `applicable
Federal tax liability' means liability for Federal taxes, including penalties
and interest, owed for any year during the period of employment required
under subsection (a)(1) for which the statutory period for assessment
of any deficiency for such taxes has not expired.
(3) IRS COOPERATION- The Secretary of the Treasury shall establish rules
and procedures under which the Commissioner of Internal Revenue shall
provide documentation to an alien upon request to establish the payment
of all taxes required by this subsection.
(e) Spouses and Minor Children-
(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary
shall confer the status of lawful permanent resident on the spouse and
minor child of an alien granted any adjustment of status under subsection
(a), including any individual who was a minor child on the date such alien
was granted blue card status, if the spouse or minor child applies for
such status, or if the principal alien includes the spouse or minor child
in an application for adjustment of status to that of a lawful permanent
resident.
(2) TREATMENT OF SPOUSES AND MINOR CHILDREN-
(A) GRANTING OF STATUS AND REMOVAL- The Secretary may grant derivative
status to the alien spouse and any minor child residing in the United
States of an alien granted blue card status and shall not remove such
derivative spouse or child during the period that the alien granted
blue card status maintains such status, except as provided in paragraph
(3). A grant of derivative status to such a spouse or child under this
subparagraph shall not decrease the number of aliens who may receive
blue card status under subsection (h) of section 101.
(B) TRAVEL- The derivative spouse and any minor child of an alien granted
blue card status may travel outside the United States in the same manner
as an alien lawfully admitted for permanent residence.
(C) EMPLOYMENT- The derivative spouse of an alien granted blue card
status may apply to the Secretary for a work permit to authorize such
spouse to engage in any lawful employment in the United States while
such alien maintains blue card status.
(3) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS AND REMOVAL- The Secretary
may deny an alien spouse or child adjustment of status under paragraph
(1) and may remove such spouse or child under section 240 of the Immigration
and Nationality Act (8 U.S.C. 1229a) if the spouse or child--
(A) commits an act that makes the alien spouse or child inadmissible
to the United States under section 212 of such Act (8 U.S.C. 1182),
except as provided under section 105(b);
(B) is convicted of a felony or 3 or more misdemeanors committed in
the United States; or
(C) is convicted of an offense, an element of which involves bodily
injury, threat of serious bodily injury, or harm to property in excess
of $500.
SEC. 104. APPLICATIONS.
(a) Submission- The Secretary shall provide that--
(1) applications for blue card status under section 101 may be submitted--
(A) to the Secretary if the applicant is represented by an attorney
or a nonprofit religious, charitable, social service, or similar organization
recognized by the Board of Immigration Appeals under section 292.2 of
title 8, Code of Federal Regulations; or
(B) to a qualified designated entity if the applicant consents to the
forwarding of the application to the Secretary; and
(2) applications for adjustment of status under section 103 shall be filed
directly with the Secretary.
(b) Qualified Designated Entity Defined- In this section, the term `qualified
designated entity' means--
(1) a qualified farm labor organization or an association of employers
designated by the Secretary; or
(2) any such other person designated by the Secretary if that Secretary
determines such person is qualified and has substantial experience, demonstrated
competence, and has a history of long-term involvement in the preparation
and submission of applications for adjustment of status under section
209, 210, or 245 of the Immigration and Nationality Act (8 U.S.C. 1159,
1160, and 1255), the Act entitled `An Act to adjust the status of Cuban
refugees to that of lawful permanent residents of the United States, and
for other purposes', approved November 2, 1966 (Public Law 89-732; 8 U.S.C.
1255 note), Public Law 95-145 (8 U.S.C. 1255 note), or the Immigration
Reform and Control Act of 1986 (Public Law 99-603; 100 Stat. 3359) or
any amendment made by that Act.
(c) Proof of Eligibility-
(1) IN GENERAL- An alien may establish that the alien meets the requirement
of section 101(a)(1) or 103(a)(1) through government employment records
or records supplied by employers or collective bargaining organizations,
and other reliable documentation as the alien may provide. The Secretary
shall establish special procedures to properly credit work in cases in
which an alien was employed under an assumed name.
(2) DOCUMENTATION OF WORK HISTORY-
(A) BURDEN OF PROOF- An alien applying for status under section 101(a)
or 103(a) has the burden of proving by a preponderance of the evidence
that the alien has worked the requisite number of hours or days required
under section 101(a)(1) or 103(a)(1), as applicable.
(B) TIMELY PRODUCTION OF RECORDS- 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 subparagraph (A)
may be met by securing timely production of those records under regulations
to be promulgated by the Secretary.
(C) SUFFICIENT EVIDENCE- An alien may meet the burden of proof under
subparagraph (A) to establish that the alien has performed the days
or hours of work required by section 101(a)(1) or 103(a)(1) by producing
sufficient evidence to show the extent of that employment as a matter
of just and reasonable inference.
(d) Applications Submitted to Qualified Designated Entities-
(1) REQUIREMENTS- Each qualified designated entity shall agree--
(A) to forward to the Secretary an application submitted to that entity
pursuant to subsection (a)(1)(B) if the applicant has consented to such
forwarding;
(B) not to forward to the Secretary any such application if the applicant
has not consented to such forwarding; and
(C) to assist an alien in obtaining documentation of the alien's work
history, if the alien requests such assistance.
(2) NO AUTHORITY TO MAKE DETERMINATIONS- No qualified designated entity
may make a determination required by this subtitle to be made by the Secretary.
(e) Limitation on Access to Information- Files and records collected or
compiled by a qualified designated entity for the purposes of this section
are confidential and the Secretary shall not have access to such a file
or record relating to an alien without the consent of the alien, except
as allowed by a court order issued pursuant to subsection (f).
(f) Confidentiality of Information-
(1) IN GENERAL- Except as otherwise provided in this section, the Secretary
or any other official or employee of the Department or a bureau or agency
of the Department is prohibited from--
(A) using information furnished by the applicant pursuant to an application
filed under this title, the information provided by an applicant to
a qualified designated entity, or any information provided by an employer
or former employer for any purpose other than to make a determination
on the application or for imposing the penalties described in subsection
(g);
(B) making any publication in which the information furnished by any
particular individual can be identified; or
(C) permitting a person other than a sworn officer or employee of the
Department or a bureau or agency of the Department or, with respect
to applications filed with a qualified designated entity, that qualified
designated entity, to examine individual applications.
(2) REQUIRED DISCLOSURES- The Secretary shall provide the information
furnished under this title or any other information derived from such
furnished information to--
(A) a duly recognized law enforcement entity in connection with a criminal
investigation or prosecution, if such information is requested in writing
by such entity; or
(B) an official coroner, for purposes of affirmatively identifying a
deceased individual, whether or not the death of such individual resulted
from a crime.
(A) IN GENERAL- Nothing in this subsection shall be construed to limit
the use, or release, for immigration enforcement purposes or law enforcement
purposes, of information contained in files or records of the Department
pertaining to an application filed under this section, other than information
furnished by an applicant pursuant to the application, or any other
information derived from the application, that is not available from
any other source.
(B) CRIMINAL CONVICTIONS- Notwithstanding any other provision of this
subsection, information concerning whether the alien applying for blue
card status under section 101 or an adjustment of status under section
103 has been convicted of a crime at any time may be used or released
for immigration enforcement or law enforcement purposes.
(4) CRIME- Any person who knowingly uses, publishes, or permits information
to be examined in violation of this subsection shall be subject to a fine
in an amount not to exceed $10,000.
(g) Penalties for False Statements in Applications-
(1) CRIMINAL PENALTY- Any person who--
(A) files an application for blue card status under section 101 or an
adjustment of status under section 103 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
(B) 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, imprisoned
not more than 5 years, or both.
(2) INADMISSIBILITY- An alien who is convicted of a crime under paragraph
(1) 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)).
(h) 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 blue
card status under section 101 or an adjustment of status under section 103.
(1) FEE SCHEDULE- The Secretary shall provide for a schedule of fees that--
(A) shall be charged for the filing of an application for blue card
status under section 101 or for an adjustment of status under section
103; and
(B) may be charged by qualified designated entities to help defray the
costs of services provided to such applicants.
(2) 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 paragraph (1)(B) for services provided to
applicants.
(A) 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 paragraph (1)(A).
(B) USE OF FEES FOR APPLICATION PROCESSING- Amounts deposited in the
`Agricultural Worker Immigration Status Adjustment Account' shall remain
available to the Secretary until expended for processing applications
for blue card status under section 101 or an adjustment of status under
section 103.
SEC. 105. WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR INADMISSIBILITY.
(a) 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 section 103.
(b) Waiver of Certain Grounds of Inadmissibility- In the determination of
an alien's eligibility for status under section 101(a) or an alien's eligibility
for adjustment of status under section 103(b)(2)(A) the following rules
shall apply:
(1) GROUNDS OF EXCLUSION NOT APPLICABLE- The provisions of paragraphs
(5), (6)(A), (7), and (9) of section 212(a) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)) shall not apply.
(2) WAIVER OF OTHER GROUNDS-
(A) IN GENERAL- Except as provided in subparagraph (B), the Secretary
may waive any other provision of such section 212(a) in the case of
individual aliens for humanitarian purposes, to ensure family unity,
or if otherwise in the public interest.
(B) GROUNDS THAT MAY NOT BE WAIVED- Paragraphs (2)(A), (2)(B), (2)(C),
(3), and (4) of such section 212(a) may not be waived by the Secretary
under subparagraph (A).
(C) CONSTRUCTION- Nothing in this paragraph shall be construed as affecting
the authority of the Secretary other than under this subparagraph to
waive provisions of such section 212(a).
(3) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not ineligible
for blue card status under section 101 or an adjustment of status under
section 103 by reason of a ground of inadmissibility under section 212(a)(4)
of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) if the alien
demonstrates a history of employment in the United States evidencing self-support
without reliance on public cash assistance.
(c) Temporary Stay of Removal and Work Authorization for Certain Applicants-
(1) BEFORE APPLICATION PERIOD- Effective on the date of enactment of this
Act, the Secretary shall provide that, in the case of an alien who is
apprehended before the beginning of the application period described in
section 101(a)(2) and who can establish a nonfrivolous case of eligibility
for blue card status (but for the fact that the alien may not apply for
such status until the beginning of such period), until the alien has had
the opportunity during the first 30 days of the application period to
complete the filing of an application for blue card status, the alien--
(A) may not be removed; and
(B) shall be granted authorization to engage in employment in the United
States and be provided an employment authorized endorsement or other
appropriate work permit for such purpose.
(2) DURING APPLICATION PERIOD- The Secretary shall provide that, in the
case of an alien who presents a nonfrivolous application for blue card
status during the application period described in section 101(a)(2), 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.
SEC. 106. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) In General- There shall be no administrative or judicial review of a
determination respecting an application for blue card status under section
101 or adjustment of status under section 103 except in accordance with
this section.
(b) Administrative Review-
(1) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Secretary shall
establish an appellate authority to provide for a single level of administrative
appellate review of such a determination.
(2) 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.
(1) LIMITATION TO REVIEW OF REMOVAL- There shall be judicial review of
such a determination only in the judicial review of an order of removal
under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
(2) 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.
SEC. 107. USE OF INFORMATION.
Beginning not later than the first day of the application period described
in section 101(a)(2), the Secretary, in cooperation with qualified designated
entities (as that term is defined in section 104(b)), shall broadly disseminate
information respecting the benefits that aliens may receive under this subtitle
and the requirements that an alien is required to meet to receive such benefits.
SEC. 108. REGULATIONS, EFFECTIVE DATE, AUTHORIZATION OF APPROPRIATIONS.
(a) Regulations- The Secretary shall issue regulations to implement this
subtitle not later than the first day of the seventh month that begins after
the date of enactment of this Act.
(b) Effective Date- This subtitle shall take effect on the date that regulations
required by subsection (a) are issued, regardless of whether such regulations
are issued on an interim basis or on any other basis.
(c) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary such sums as may be necessary to implement this subtitle,
including any sums needed for costs associated with the initiation of such
implementation, for fiscal years 2007 and 2008.
Subtitle B--Correction of Social Security Records
SEC. 111. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General- Section 208(e)(1) of the Social Security Act (42 U.S.C.
408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking `or' at the end;
(2) in subparagraph (C), by inserting `or' at the end;
(3) by inserting after subparagraph (C) the following:
`(D) who is granted blue card status under the Agricultural Job Opportunity,
Benefits, and Security Act of 2007,'; 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
before the date on which the alien was granted blue card status.'.
(b) Effective Date- The amendments made by subsection (a) shall take effect
on the first day of the seventh 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- Title II of the Immigration and Nationality Act (8 U.S.C.
1151 et seq.) is amended by striking section 218 and inserting the following:
`SEC. 218. H-2A EMPLOYER APPLICATIONS.
`(a) Applications to the Secretary of Labor-
`(1) IN GENERAL- No alien may be admitted to the United States as an H-2A
worker, or otherwise provided status as an H-2A worker, unless the employer
has filed with the Secretary of Labor an application containing--
`(A) the assurances described in subsection (b);
`(B) a description of the nature and location of the work to be performed;
`(C) the anticipated period (expected beginning and ending dates) for
which the workers will be needed; and
`(D) the number of job opportunities in which the employer seeks to
employ the workers.
`(2) ACCOMPANIED BY JOB OFFER- Each application filed under paragraph
(1) shall be accompanied by a copy of the job offer describing the wages
and other terms and conditions of employment and the bona fide occupational
qualifications that shall be possessed by a worker to be employed in the
job opportunity in question.
`(b) Assurances for Inclusion in Applications- The assurances referred to
in subsection (a)(1) are the following:
`(1) JOB OPPORTUNITIES COVERED BY COLLECTIVE BARGAINING AGREEMENTS- With
respect to a job opportunity that is covered under a collective bargaining
agreement:
`(A) UNION CONTRACT DESCRIBED- The job opportunity is covered by a union
contract which was negotiated at arm's length between a bona fide union
and the employer.
`(B) STRIKE OR LOCKOUT- The specific job opportunity for which the employer
is requesting an H-2A worker is not vacant because the former occupant
is on strike or being locked out in the course of a labor dispute.
`(C) NOTIFICATION OF BARGAINING REPRESENTATIVES- The employer, at the
time of filing the application, has provided notice of the filing under
this paragraph to the bargaining representative of the employer's employees
in the occupational classification at the place or places of employment
for which aliens are sought.
`(D) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is
temporary or seasonal.
`(E) OFFERS TO UNITED STATES WORKERS- The employer has offered or will
offer the job to any eligible United States worker who applies and is
equally or better qualified for the job for which the nonimmigrant is,
or the nonimmigrants are, sought and who will be available at the time
and place of need.
`(F) PROVISION OF INSURANCE- If the job opportunity is not covered by
the State workers' compensation law, the employer will provide, at no
cost to the worker, insurance covering injury and disease arising out
of, and in the course of, the worker's employment which will provide
benefits at least equal to those provided under the State's workers'
compensation law for comparable employment.
`(2) JOB OPPORTUNITIES NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS-
With respect to a job opportunity that is not covered under a collective
bargaining agreement:
`(A) STRIKE OR LOCKOUT- The specific job opportunity for which the employer
has applied for an H-2A worker is not vacant because the former occupant
is on strike or being locked out in the course of a labor dispute.
`(B) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is
temporary or seasonal.
`(C) BENEFIT, WAGE, AND WORKING CONDITIONS- The employer will provide,
at a minimum, the benefits, wages, and working conditions required by
section 218A to all workers employed in the job opportunities for which
the employer has applied for an H-2A worker 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 has applied for an H-2A worker.
`(E) REQUIREMENTS FOR PLACEMENT OF THE NONIMMIGRANT WITH OTHER EMPLOYERS-
The employer will not place the nonimmigrant with another employer unless--
`(i) the nonimmigrant performs duties in whole or in part at 1 or
more worksites owned, operated, or controlled by such other employer;
`(ii) there are indicia of an employment relationship between the
nonimmigrant and such other employer; and
`(iii) the employer has inquired of the other employer as to whether,
and has no actual knowledge or notice that, during the period of employment
and for a period of 30 days preceding the period of employment, the
other employer has displaced or intends to displace a United States
worker employed by the other employer in the occupation at the place
of employment for which the employer seeks approval to employ H-2A
workers.
`(F) STATEMENT OF LIABILITY- The application form shall include a clear
statement explaining the liability under subparagraph (E) of an employer
if the other employer described in such subparagraph displaces a United
States worker as described in such subparagraph.
`(G) PROVISION OF INSURANCE- If the job opportunity is not covered by
the State workers' compensation law, the employer will provide, at no
cost to the worker, insurance covering injury and disease arising out
of and in the course of the worker's employment which will provide benefits
at least equal to those provided under the State's workers' compensation
law for comparable employment.
`(H) EMPLOYMENT OF UNITED STATES WORKERS-
`(i) RECRUITMENT- The employer has taken or will take the following
steps to recruit United States workers for the job opportunities for
which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:
`(I) CONTACTING FORMER WORKERS- The employer shall make reasonable
efforts through the sending of a letter by United States Postal
Service mail, or otherwise, to contact any United States worker
the employer employed during the previous season in the occupation
at the place of intended employment for which the employer is applying
for workers and has made the availability of the employer's job
opportunities in the occupation at the place of intended employment
known to such previous workers, unless the worker was terminated
from employment by the employer for a lawful job-related reason
or abandoned the job before the worker completed the period of employment
of the job opportunity for which the worker was hired.
`(II) FILING A JOB OFFER WITH THE LOCAL OFFICE OF THE STATE EMPLOYMENT
SECURITY AGENCY- Not later than 28 days before 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
before the date on which the employer desires to employ an H-2A
worker in a temporary or seasonal agricultural job opportunity,
the employer shall advertise the availability of the job opportunities
for which the employer is seeking workers in a publication in the
local labor market that is likely to be patronized by potential
farm workers.
`(IV) EMERGENCY PROCEDURES- The Secretary of Labor shall, by regulation,
provide a procedure for acceptance and approval of applications
in which the employer has not complied with the provisions of this
subparagraph because the employer's need for H-2A workers could
not reasonably have been foreseen.
`(ii) JOB OFFERS- The employer has offered or will offer the job to
any eligible United States worker who applies and is equally or better
qualified for the job for which the nonimmigrant is, or nonimmigrants
are, sought and who will be available at the time and place of need.
`(iii) PERIOD OF EMPLOYMENT- The employer will provide employment
to any qualified United States worker who applies to the employer
during the period beginning on the date on which the H-2A 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 H-2A 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 before the arrival of H-2A workers
in order to force the hiring of United States workers under this
clause.
`(II) COMPLAINTS- Upon receipt of a complaint by an employer that
a violation of subclause (I) has occurred, the Secretary of Labor
shall immediately investigate. The Secretary of Labor shall, within
36 hours of the receipt of the complaint, issue findings concerning
the alleged violation. If the Secretary of Labor finds that a violation
has occurred, the Secretary of Labor shall immediately suspend the
application of this clause with respect to that certification for
that date of need.
`(III) PLACEMENT OF UNITED STATES WORKERS- Before referring a United
States worker to an employer during the period described in the
matter preceding subclause (I), the Secretary of Labor shall make
all reasonable efforts to place the United States worker in an open
job acceptable to the worker, if there are other job offers pending
with the job service that offer similar job opportunities in the
area of intended employment.
`(iv) STATUTORY CONSTRUCTION- Nothing in this subparagraph shall be
construed to prohibit an employer from using such legitimate selection
criteria relevant to the type of job that are normal or customary
to the type of job involved so long as such criteria are not applied
in a discriminatory manner.
`(c) Applications by Associations on Behalf of Employer Members-
`(1) IN GENERAL- An agricultural association may file an application under
subsection (a) on behalf of 1 or more of its employer members that the
association certifies in its application has or have agreed in writing
to comply with the requirements of this section and sections 218A, 218B,
and 218C.
`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If an association
filing an application under paragraph (1) is a joint or sole employer
of the temporary or seasonal agricultural workers requested on the application,
the certifications granted under subsection (e)(2)(B) to the association
may be used for the certified job opportunities of any of its producer
members named on the application, and such workers may be transferred
among such producer members to perform the agricultural services of a
temporary or seasonal nature for which the certifications were granted.
`(d) Withdrawal of Applications-
`(1) IN GENERAL- An employer may withdraw an application filed pursuant
to subsection (a), except that if the employer is an agricultural association,
the association may withdraw an application filed pursuant to subsection
(a) with respect to 1 or more of its members. To withdraw an application,
the employer or association shall notify the Secretary of Labor in writing,
and the Secretary of Labor shall acknowledge in writing the receipt of
such withdrawal notice. An employer who withdraws an application under
subsection (a), or on whose behalf an application is withdrawn, is relieved
of the obligations undertaken in the application.
`(2) LIMITATION- An application may not be withdrawn while any alien provided
status under section 101(a)(15)(H)(ii)(a) pursuant to such application
is employed by the employer.
`(3) OBLIGATIONS UNDER OTHER STATUTES- Any obligation incurred by an employer
under any other law or regulation as a result of the recruitment of United
States workers or H-2A workers under an offer of terms and conditions
of employment required as a result of making an application under subsection
(a) is unaffected by withdrawal of such application.
`(e) Review and Approval of Applications-
`(1) RESPONSIBILITY OF EMPLOYERS- The employer shall make available for
public examination, within 1 working day after the date on which an application
under subsection (a) is filed, at the employer's principal place of business
or worksite, a copy of each such application (and such accompanying documents
as are necessary).
`(2) RESPONSIBILITY OF THE SECRETARY OF LABOR-
`(A) COMPILATION OF LIST- The Secretary of Labor shall compile, on a
current basis, a list (by employer and by occupational classification)
of the applications filed under subsection (a). Such list shall include
the wage rate, number of workers sought, period of intended employment,
and date of need. The Secretary of Labor shall make such list available
for examination in the District of Columbia.
`(B) REVIEW OF APPLICATIONS- The Secretary of Labor shall review such
an application only for completeness and obvious inaccuracies. Unless
the Secretary of Labor finds that the application is incomplete or obviously
inaccurate, the Secretary of Labor shall certify that the intending
employer has filed with the Secretary of Labor an application as described
in subsection (a). Such certification shall be provided within 7 days
of the filing of the application.'
`SEC. 218A. H-2A EMPLOYMENT REQUIREMENTS.
`(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 shall accompany an application under section
218(b)(2) shall include each of the following benefit, wage, and working
condition provisions:
`(1) REQUIREMENT TO PROVIDE HOUSING OR A HOUSING ALLOWANCE-
`(A) IN GENERAL- An employer applying under section 218(a) for H-2A
workers shall offer to provide housing at no cost to all workers in
job opportunities for which the employer has applied under that section
and to all other workers in the same occupation at the place of employment,
whose place of residence is beyond normal commuting distance.
`(B) TYPE OF HOUSING- In complying with subparagraph (A), an employer
may, at the employer's election, provide housing that meets applicable
Federal standards for temporary labor camps or secure housing that meets
applicable local standards for rental or public accommodation housing
or other substantially similar class of habitation, or in the absence
of applicable local standards, State standards for rental or public
accommodation housing or other substantially similar class of habitation.
In the absence of applicable local or State standards, Federal temporary
labor camp standards shall apply.
`(C) FAMILY HOUSING- If it is the prevailing practice in the occupation
and area of intended employment to provide family housing, family housing
shall be provided to workers with families who request it.
`(D) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK- The Secretary
of Labor shall issue regulations that address the specific requirements
for the provision of housing to workers engaged in the range production
of livestock.
`(E) LIMITATION- Nothing in this paragraph shall be construed to require
an employer to provide or secure housing for persons who were not entitled
to such housing under the temporary labor certification regulations
in effect on June 1, 1986.
`(F) CHARGES FOR HOUSING-
`(i) CHARGES FOR PUBLIC HOUSING- If public housing provided for migrant
agricultural workers under the auspices of a local, county, or State
government is secured by an employer, and use of the public housing
unit normally requires charges from migrant workers, such charges
shall be paid by the employer directly to the appropriate individual
or entity affiliated with the housing's management.
`(ii) DEPOSIT CHARGES- Charges in the form of deposits for bedding
or other similar incidentals related to housing shall not be levied
upon workers by employers who provide housing for their workers. 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- If the requirement set out in clause (ii) is satisfied,
the employer may provide a reasonable housing allowance instead of
offering housing under subparagraph (A). 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. No housing allowance may be used for housing
which is owned or controlled by the employer.
`(ii) CERTIFICATION- The requirement of this clause is satisfied if
the Governor of the State certifies to the Secretary of Labor that
there is adequate housing available in the area of intended employment
for migrant farm workers and H-2A workers who are seeking temporary
housing while employed in agricultural 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.
`(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 WORKSITE- The employer
shall provide transportation between the worker's living quarters and
the employer's worksite without cost to the worker, and such transportation
will be in accordance with applicable laws and regulations.
`(A) IN GENERAL- An employer applying for workers under section 218(a)
shall offer to pay, and shall pay, all workers in the occupation for
which the employer has applied for workers, not less (and is not required
to pay more) than the greater of the prevailing wage in the occupation
in the area of intended employment or the adverse effect wage rate.
No worker shall be paid less than the greater of the hourly wage prescribed
under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(a)(1)) or the applicable State minimum wage.
`(B) LIMITATION- Effective on the date of the enactment of the Agricultural
Job Opportunities, Benefits, and Security Act of 2007 and continuing
for 3 years thereafter, no adverse effect wage rate for a State may
be more than the adverse effect wage rate for that State in effect on
January 1, 2003, as established by section 655.107 of title 20, Code
of Federal Regulations.
`(C) REQUIRED WAGES AFTER 3-YEAR FREEZE-
`(i) FIRST ADJUSTMENT- If Congress does not set a new wage standard
applicable to this section before the first March 1 that is not less
than 3 years after the date of enactment of this section, the adverse
effect wage rate for each State beginning on such March 1 shall be
the wage rate that would have resulted if the adverse effect wage
rate in effect on January 1, 2003, had been annually adjusted, beginning
on March 1, 2006, by the lesser of--
`(I) the 12-month percentage change in the Consumer Price Index
for All Urban Consumers between December of the second preceding
year and December of the preceding year; and
`(ii) SUBSEQUENT ANNUAL ADJUSTMENTS- Beginning on the first March
1 that is not less than 4 years after the date of enactment of this
section, and each March 1 thereafter, the adverse effect wage rate
then in effect for each State shall be adjusted by the lesser of--
`(I) the 12-month percentage change in the Consumer Price Index
for All Urban Consumers between December of the second preceding
year and December of the preceding year; and
`(D) DEDUCTIONS- The employer shall make only those deductions from
the worker's wages that are authorized by law or are reasonable and
customary in the occupation and area of employment. The job offer shall
specify all deductions not required by law which the employer will make
from the worker's wages.
`(E) FREQUENCY OF PAY- The employer shall pay the worker not less frequently
than twice monthly, or in accordance with the prevailing practice in
the area of employment, whichever is more frequent.
`(F) HOURS AND EARNINGS STATEMENTS- The employer shall furnish to the
worker, on or before each payday, in 1 or more written statements--
`(i) the worker's total earnings for the pay period;
`(ii) the worker's hourly rate of pay, piece rate of pay, or both;
`(iii) the hours of employment which have been offered to the worker
(broken out by hours offered in accordance with and over and above
the 3/4 guarantee described in paragraph (4);
`(iv) the hours actually worked by the worker;
`(v) an itemization of the deductions made from the worker's wages;
and
`(vi) if piece rates of pay are used, the units produced daily.
`(G) REPORT ON WAGE PROTECTIONS- Not later than December 31, 2009, the
Comptroller General of the United States shall prepare and transmit
to the Secretary of Labor, the Committee on the Judiciary of the Senate,
and Committee on the Judiciary of the House of Representatives, a report
that addresses--
`(i) whether the employment of H-2A or unauthorized aliens in the
United States agricultural workforce has depressed United States farm
worker wages below the levels that would otherwise have prevailed
if alien farm workers had not been employed in the United States;
`(ii) whether an adverse effect wage rate is necessary to prevent
wages of United States farm workers in occupations in which H-2A workers
are employed from falling below the wage levels that would have prevailed
in the absence of the employment of H-2A workers in those occupations;
`(iii) whether alternative wage standards, such as a prevailing wage
standard, would be sufficient to prevent wages in occupations in which
H-2A workers are employed from falling below the wage level that would
have prevailed in the absence of H-2A employment;
`(iv) whether any changes are warranted in the current methodologies
for calculating the adverse effect wage rate and the prevailing wage;
and
`(v) recommendations for future wage protection under this section.
`(H) COMMISSION ON WAGE STANDARDS-
`(i) ESTABLISHMENT- There is established the Commission on Agricultural
Wage Standards under the H-2A program (in this subparagraph referred
to as the `Commission').
`(ii) COMPOSITION- The Commission shall consist of 10 members as follows:
`(I) Four representatives of agricultural employers and 1 representative
of the Department of Agriculture, each appointed by the Secretary
of Agriculture.
`(II) Four representatives of agricultural workers and 1 representative
of the Department of Labor, each appointed by the Secretary of Labor.
`(iii) FUNCTIONS- The Commission shall conduct a study that shall
address--
`(I) whether the employment of H-2A or unauthorized aliens in the
United States agricultural workforce has depressed United States
farm worker wages below the levels that would otherwise have prevailed
if alien farm workers had not been employed in the United States;
`(II) whether an adverse effect wage rate is necessary to prevent
wages of United States farm workers in occupations in which H-2A
workers are employed from falling below the wage levels that would
have prevailed in the absence of the employment of H-2A workers
in those occupations;
`(III) whether alternative wage standards, such as a prevailing
wage standard, would be sufficient to prevent wages in occupations
in which H-2A workers are employed from falling below the wage level
that would have prevailed in the absence of H-2A employment;
`(IV) whether any changes are warranted in the current methodologies
for calculating the adverse effect wage rate and the prevailing
wage rate; and
`(V) recommendations for future wage protection under this section.
`(iv) FINAL REPORT- Not later than December 31, 2009, the Commission
shall submit a report to the Congress setting forth the findings of
the study conducted under clause (iii).
`(v) TERMINATION DATE- The Commission shall terminate upon submitting
its final report.
`(4) GUARANTEE OF EMPLOYMENT-
`(A) OFFER TO WORKER- The employer shall guarantee to offer the worker
employment for the hourly equivalent of at least 3/4 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 ` 3/4
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 a flood, hurricane, freeze,
earthquake, fire, drought, plant or animal disease or pest infestation,
or regulatory drought, before the guarantee in subparagraph (A) is fulfilled,
the employer may terminate the worker's employment. In the event of
such termination, the employer shall fulfill the employment guarantee
in subparagraph (A) for the work days that have elapsed from the first
work day after the arrival of the worker to the termination of employment.
In such cases, the employer will make efforts to transfer the United
States worker to other comparable employment acceptable to the worker.
If such transfer is not effected, the employer shall provide the return
transportation required in paragraph (2)(D).
`(5) MOTOR VEHICLE SAFETY-
`(A) MODE OF TRANSPORTATION SUBJECT TO COVERAGE-
`(i) IN GENERAL- Except as provided in clauses (iii) and (iv), this
subsection applies to any H-2A employer that uses or causes to be
used any vehicle to transport an H-2A worker within the United States.
`(ii) DEFINED TERM- In this paragraph, the term `uses or causes to
be used'--
`(I) applies only to transportation provided by an H-2A employer
to an H-2A worker, or by a farm labor contractor to an H-2A worker
at the request or direction of an H-2A employer; and
`(II) does not apply to--
`(aa) transportation provided, or transportation arrangements
made, by an H-2A worker, unless the employer specifically requested or arranged
such transportation; or
`(bb) car pooling arrangements made by H-2A workers themselves,
using 1 of the workers' own vehicles, unless specifically requested by the
employer directly or through a farm labor contractor.
`(iii) CLARIFICATION- Providing a job offer to an H-2A worker that
causes the worker to travel to or from the place of employment, or
the payment or reimbursement of the transportation costs of an H-2A
worker by an H-2A employer, shall not constitute an arrangement of,
or participation in, such transportation.
`(iv) AGRICULTURAL MACHINERY AND EQUIPMENT EXCLUDED- This subsection
does not apply to the transportation of an H-2A worker on a tractor,
combine, harvester, picker, or other similar machinery or equipment
while such worker is actually engaged in the planting, cultivating,
or harvesting of agricultural commodities or the care of livestock
or poultry or engaged in transportation incidental thereto.
`(v) COMMON CARRIERS EXCLUDED- This subsection does not apply to common
carrier motor vehicle transportation in which the provider holds itself
out to the general public as engaging in the transportation of passengers
for hire and holds a valid certification of authorization for such
purposes from an appropriate Federal, State, or local agency.
`(B) APPLICABILITY OF STANDARDS, LICENSING, AND INSURANCE REQUIREMENTS-
`(i) IN GENERAL- When using, or causing to be used, any vehicle for
the purpose of providing transportation to which this subparagraph
applies, each employer shall--
`(I) ensure that each such vehicle conforms to the standards prescribed
by the Secretary of Labor under section 401(b) of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C. 1841(b))
and other applicable Federal and State safety standards;
`(II) ensure that each driver has a valid and appropriate license,
as provided by State law, to operate the vehicle; and
`(III) have an insurance policy or a liability bond that is in effect
which insures the employer against liability for damage to persons
or property arising from the ownership, operation, or causing to
be operated, of any vehicle used to transport any H-2A worker.
`(ii) AMOUNT OF INSURANCE REQUIRED- The level of insurance required
shall be determined by the Secretary of Labor pursuant to regulations
to be issued under this subsection.
`(iii) EFFECT OF WORKERS' COMPENSATION COVERAGE- If the employer of
any H-2A worker provides workers' compensation coverage for such worker
in the case of bodily injury or death as provided by State law, the
following adjustments in the requirements of subparagraph (B)(i)(III)
relating to having an insurance policy or liability bond apply:
`(I) No insurance policy or liability bond shall be required of
the employer, if such workers are transported only under circumstances
for which there is coverage under such State law.
`(II) An insurance policy or liability bond shall be required of
the employer for circumstances under which coverage for the transportation
of such workers is not provided under such State law.
`(c) Compliance With Labor Laws- An employer shall assure that, except as
otherwise provided in this section, the employer will comply with all applicable
Federal, State, and local labor laws, including laws affecting migrant and
seasonal agricultural workers, with respect to all United States workers
and alien workers employed by the employer, except that a violation of this
assurance shall not constitute a violation of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1801 et seq.).
`(d) Copy of Job Offer- The employer shall provide to the worker, not later
than the day the work commences, a copy of the employer's application and
job offer described in section 218(a), or, if the employer will require
the worker to enter into a separate employment contract covering the employment
in question, such separate employment contract.
`(e) Range Production of Livestock- Nothing in this section, section 218,
or section 218B shall preclude the Secretary of Labor and the Secretary
from continuing to apply special procedures and requirements to the admission
and employment of aliens in occupations involving the range production of
livestock.
`SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS.
`(a) Petitioning for Admission- An employer, or an association acting as
an agent or joint employer for its members, that seeks the admission into
the United States of an H-2A worker may file a petition with the Secretary.
The petition shall be accompanied by an accepted and currently valid certification
provided by the Secretary of Labor under section 218(e)(2)(B) covering the
petitioner.
`(b) Expedited Adjudication by the Secretary- The Secretary shall establish
a procedure for expedited adjudication of petitions filed under subsection
(a) and within 7 working days shall, by fax, cable, or other means assuring
expedited delivery, transmit a copy of notice of action on the petition
to the petitioner and, in the case of approved petitions, to the appropriate
immigration officer at the port of entry or United States consulate (as
the case may be) where the petitioner has indicated that the alien beneficiary
(or beneficiaries) will apply for a visa or admission to the United States.
`(c) Criteria for Admissibility-
`(1) IN GENERAL- An H-2A worker shall be considered admissible to the
United States if the alien is otherwise admissible under this section,
section 218, and section 218A, and the alien is not ineligible under paragraph
(2).
`(2) DISQUALIFICATION- An alien shall be considered inadmissible to the
United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a)
if the alien has, at any time during the past 5 years--
`(A) violated a material provision of this section, including the requirement
to promptly depart the United States when the alien's authorized period
of admission under this section has expired; or
`(B) otherwise violated a term or condition of admission into the United
States as a nonimmigrant, including overstaying the period of authorized
admission as such a nonimmigrant.
`(3) WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE-
`(A) IN GENERAL- An alien who has not previously been admitted into
the United States pursuant to this section, and who is otherwise eligible
for admission in accordance with paragraphs (1) and (2), shall not be
deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described
in the preceding sentence is present in the United States, the alien
may apply from abroad for H-2A status, but may not be granted that status
in the United States.
`(B) MAINTENANCE OF WAIVER- An alien provided an initial waiver of ineligibility
pursuant to subparagraph (A) shall remain eligible for such waiver unless
the alien violates the terms of this section or again becomes ineligible
under section 212(a)(9)(B) by virtue of unlawful presence in the United
States after the date of the initial waiver of ineligibility pursuant
to subparagraph (A).
`(d) Period of Admission-
`(1) IN GENERAL- The alien shall be admitted for the period of employment
in the application certified by the Secretary of Labor pursuant to section
218(e)(2)(B), not to exceed 10 months, supplemented by a period of not
more than 1 week before the beginning of the period of employment for
the purpose of travel to the worksite and a period of 14 days following
the period of employment for the purpose of departure or extension based
on a subsequent offer of employment, except that--
`(A) the alien is not authorized to be employed during such 14-day period
except in the employment for which the alien was previously authorized;
and
`(B) the total period of employment, including such 14-day period, may
not exceed 10 months.
`(2) CONSTRUCTION- Nothing in this subsection shall limit the authority
of the Secretary to extend the stay of the alien under any other provision
of this Act.
`(e) Abandonment of Employment-
`(1) IN GENERAL- An alien admitted or provided status under section 101(a)(15)(H)(ii)(a)
who abandons the employment which was the basis for such admission or
status shall be considered to have failed to maintain nonimmigrant status
as an H-2A worker and shall depart the United States or be subject to
removal under section 237(a)(1)(C)(i).
`(2) REPORT BY EMPLOYER- The employer, or association acting as agent
for the employer, shall notify the Secretary not later than 7 days after
an H-2A worker prematurely abandons employment.
`(3) REMOVAL BY THE SECRETARY- The Secretary shall promptly remove from
the United States any H-2A worker who violates any term or condition of
the worker's nonimmigrant status.
`(4) VOLUNTARY TERMINATION- Notwithstanding paragraph (1), an alien may
voluntarily terminate his or her employment if the alien promptly departs
the United States upon termination of such employment.
`(f) Replacement of Alien-
`(1) IN GENERAL- Upon presentation of the notice to the Secretary required
by subsection (e)(2), the Secretary of State shall promptly issue a visa
to, and the Secretary shall admit into the United States, an eligible
alien designated by the employer to replace an H-2A worker--
`(A) who abandons or prematurely terminates employment; or
`(B) whose employment is terminated after a United States worker is
employed pursuant to section 218(b)(2)(H)(iii), if the United States
worker voluntarily departs before the end of the period of intended
employment or if the employment termination is for a lawful job-related
reason.
`(2) CONSTRUCTION- Nothing in this subsection is intended to limit any
preference required to be accorded United States workers under any other
provision of this Act.
`(g) Identification Document-
`(1) IN GENERAL- Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a)
shall be provided an identification and employment eligibility document
to verify eligibility for employment in the United States and verify the
alien's identity.
`(2) REQUIREMENTS- No identification and employment eligibility document
may be issued which does not meet the following requirements:
`(A) The document shall be capable of reliably determining whether--
`(i) the individual with the identification and employment eligibility
document whose eligibility is being verified is in fact eligible for
employment;
`(ii) the individual whose eligibility is being verified is claiming
the identity of another person; and
`(iii) the individual whose eligibility is being verified is authorized
to be admitted into, and employed in, the United States as an H-2A
worker.
`(B) The document shall be in a form that is resistant to counterfeiting
and to tampering.
`(C) The document shall--
`(i) be compatible with other databases of the Secretary for the purpose
of excluding aliens from benefits for which they are not eligible
and determining whether the alien is unlawfully present in the United
States; and
`(ii) be compatible with law enforcement databases to determine if
the alien ha
