S.Amdt. 4174

1. 1

   Change 1: Replaces “paragraph (1)(A)(i)(II)” with “paragraph (1)(A)(ii)”

   ReplacesPage 417, line 10Printed page

   In S. 2611 · Placed on Calendar Senate

   (iii) Sufficient evidence.--An alien can meet the burden of proof under clause (i) to establish that the alien has performed the work described in subsection (a)(1)(A) or (c)(1)(A) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.

   (4) Treatment of applications by qualified designated entities.--Each qualified designated entity shall agree to forward to the Secretary applications filed with it in accordance with paragraph (1)(A)([struck: i][inserted: ii])[struck: (II)] but shall not forward to the Secretary applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Secretary. Upon the request of the alien, a qualified designated entity shall assist the alien in obtaining documentation of the work history of the alien.

   (5) Limitation on access to information.--Files and records prepared for purposes of this subsection by qualified designated entities operating under this subsection are confidential and the Secretary shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6).

   Original wording

   On page 417, line 10, strike “paragraph (1)(A)(i)(II)” and insert “paragraph (1)(A)(ii)”.

2. 2

   Change 2: Rewrites page 429, line 8 through page 502, line 25

   ReplacesPrinted page

   Removes page 429, line 8 through page 502, line 25 of the printed bill. See that page

   Inserted: CHAPTER 2--REFORM OF H-2A WORKER PROGRAM

   Inserted: SEC. 615. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.

   Inserted: Section 218 (8 U.S.C. 1188) is amended to read as follows:

   Inserted: "SEC. 218. ADMISSION OF TEMPORARY H-2A WORKERS.

   Inserted: "(a) Employer Applications.--

   Inserted: "(1) Applications to the secretary of labor.--

   Inserted: "(A) 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--

   Inserted: "(i) the assurances described in paragraph (2);

   Inserted: "(ii) a description of the nature and location of the work to be performed;

   Inserted: "(iii) the anticipated period (expected beginning and ending dates) for which the workers will be needed; and

   Inserted: "(iv) the number of job opportunities in which the employer seeks to employ the workers.

   Inserted: "(B) Accompanied by job offer.--Each application filed under subparagraph (A) 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.

   Show 306 more inserted paragraphsShow less

   Inserted: "(2) Assurances for inclusion in applications.--The assurances referred to in paragraph (1)(A)(i) are the following:

   Inserted: "(A) Job opportunities covered by collective bargaining agreements.--With respect to a job opportunity that is covered under a collective bargaining agreement:

   Inserted: "(i) 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.

   Inserted: "(ii) 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.

   Inserted: "(iii) Notification of bargaining representatives.--The employer, at the time of filing the application, has provided notice of the filing under this subparagraph 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.

   Inserted: "(iv) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.

   Inserted: "(v) 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.

   Inserted: "(vi) 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.

   Inserted: "(B) Job opportunities not covered by collective bargaining agreements.--With respect to a job opportunity that is not covered under a collective bargaining agreement:

   Inserted: "(i) 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.

   Inserted: "(ii) Temporary or seasonal job opportunities.--The job opportunity is temporary or seasonal.

   Inserted: "(iii) Benefit, wage, and working conditions.--The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (b) to all workers employed in the job opportunities for which the employer has applied under subsection (a) and to all other workers in the same occupation at the place of employment.

   Inserted: "(iv) Nondisplacement of united states workers.--The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.

   Inserted: "(v) Requirements for placement of nonimmigrant with other employers.--The employer will not place the nonimmigrant with another employer unless--

   Inserted: "(I) the nonimmigrant performs duties in whole or in part at 1 or more work sites owned, operated, or controlled by such other employer;

   Inserted: "(II) there are indicia of an employment relationship between the nonimmigrant and such other employer; and

   Inserted: "(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.

   Inserted: "(vi) Statement of liability.--The application form shall include a clear statement explaining the liability under clause (v) of an employer if the other employer described in such clause displaces a United States worker as described in such clause.

   Inserted: "(vii) 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 shall provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.

   Inserted: "(viii) Employment of united states workers.--

   Inserted: "(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:

   Inserted: "(aa) 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.

   Inserted: "(bb) 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 paragraph (1)(B) 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.

   Inserted: "(cc) 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.

   Inserted: "(dd) 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.

   Inserted: "(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.

   Inserted: "(III) Period of employment.--The employer will provide employment to any qualified United States worker who applies to the employer during the period beginning on the date on which the foreign worker departs for the employer's place of employment and ending on the date on which 50 percent of the period of employment for which the foreign worker who is in the job was hired has elapsed, subject to the following requirements:

   Inserted: "(aa) 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 subclause.

   Inserted: "(bb) Complaints.--Upon receipt of a complaint by an employer that a violation of item (aa) has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, not later than 36 hours after the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that a violation has occurred, the Secretary shall immediately suspend the application of this subclause with respect to that certification for that date of need.

   Inserted: "(cc) Placement of united states workers.--Before referring a United States worker to an employer during the period described in the matter preceding item (aa), 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.

   Inserted: "(IV) Statutory construction.--Nothing in this clause 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.

   Inserted: "(3) Applications by associations on behalf of employer members.--

   Inserted: "(A) In general.--An agricultural association may file an application under paragraph (1) 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.

   Inserted: "(B) Treatment of associations acting as employers.--If an association filing an application under subparagraph (A) is a joint or sole employer of the temporary or seasonal agricultural workers requested on the application, the certifications granted under paragraph (5)(B)(ii) 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.

   Inserted: "(4) Withdrawal of applications.--

   Inserted: "(A) In general.--An employer may withdraw an application filed under paragraph (1), except that if the employer is an agricultural association, the association may withdraw an application filed under paragraph (1) 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 filed under paragraph (1), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.

   Inserted: "(B) 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.

   Inserted: "(C) 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 paragraph (1) is unaffected by withdrawal of such application.

   Inserted: "(5) Review and approval of applications.--

   Inserted: "(A) Responsibility of employers.--The employer shall make available for public examination, not later than 1 working day after the date on which an application is filed under paragraph (1), at the employer's principal place of business or work site, a copy of each such application (and such accompanying documents as are necessary).

   Inserted: "(B) Responsibility of the secretary of labor.--

   Inserted: "(i) Compilation of list.--The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this paragraph. 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.

   Inserted: "(ii) 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 shall certify that the intending employer has filed with the Secretary an application described in paragraph (1). Such certification shall be provided not later than 7 days after the application is filed.

   Inserted: "(b) Employment Requirements.--

   Inserted: "(1) Preferential treatment of aliens prohibited.--Employers seeking to hire United States workers shall offer the United States 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. A job offer may not impose on United States workers any restrictions or obligations that will not be imposed on the employer's H-2A workers.

   Inserted: "(2) Minimum benefits, wages, and working conditions.--Except in cases where higher benefits, wages, or working conditions are required under paragraph (1), 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 subsection (a)(2)(B) shall include each of the following benefit, wage, and working condition provisions:

   Inserted: "(A) Requirement to provide housing or a housing allowance.--

   Inserted: "(i) In general.--An employer applying under subsection (a)(1) 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 subsection and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.

   Inserted: "(ii) Type of housing.--In complying with clause (i), 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.

   Inserted: "(iii) 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.

   Inserted: "(iv) 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.

   Inserted: "(v) Limitation.--Nothing in this subparagraph 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.

   Inserted: "(vi) Charges for housing.--

   Inserted: "(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.

   Inserted: "(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.

   Inserted: "(vii) Housing allowance as alternative.--

   Inserted: "(I) In general.--If the requirement under subclause (II) is satisfied, the employer may provide a reasonable housing allowance instead of offering housing under clause (i). 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 subclause 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.

   Inserted: "(II) Certification.--The requirement of this subclause is satisfied if the Governor of the State certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment for migrant farm workers, and H-2A workers, who are seeking temporary housing while employed at farm work. Such certification shall expire after 3 years unless renewed by the Governor of the State.

   Inserted: "(III) Amount of allowance.--

   Inserted: "(aa) Nonmetropolitan counties.--If the place of employment of the workers provided an allowance under this clause is a nonmetropolitan county, the amount of the housing allowance under this clause 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.

   Inserted: "(bb) Metropolitan counties.--If the place of employment of the workers provided an allowance under this clause is in a metropolitan county, the amount of the housing allowance under this clause 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.

   Inserted: "(B) Reimbursement of transportation.--

   Inserted: "(i) 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.

   Inserted: "(ii) 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.

   Inserted: "(iii) Limitation.--

   Inserted: "(I) Amount of reimbursement.--Except as provided in subclause (II), the amount of reimbursement provided under clause (i) or (ii) to a worker or alien shall not exceed the lesser of--

   Inserted: "(aa) the actual cost to the worker or alien of the transportation and subsistence involved; or

   Inserted: "(bb) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

   Inserted: "(II) Distance traveled.--No reimbursement under clause (i) or (ii) 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 provided under subparagraph (A)(vii).

   Inserted: "(iv) Early termination.--If the worker is laid off or employment is terminated for contract impossibility (as described in subparagraph (D)(iv)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by clause (ii) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by clause (i).

   Inserted: "(v) Transportation between living quarters and work site.--The employer shall provide transportation between the worker's living quarters and the employer's work site without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.

   Inserted: "(C) Required wages.--

   Inserted: "(i) In general.--An employer applying for workers under subsection (a)(1) 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.

   Inserted: "(ii) Limitation.--Effective on the date of the enactment of the AgJOBS Act of 2006, 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.

   Inserted: "(iii) Required wages after 3-year freeze.--

   Inserted: "(I) First adjustment.--If Congress does not set a new wage standard applicable to this subsection before the first March 1 that is not less than 3 years after the date of the enactment of AgJOBS Act of 2006, 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--

   Inserted: "(aa) 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

   Inserted: "(bb) 4 percent.

   Inserted: "(II) Subsequent annual adjustments.--Beginning on the first March 1 that is not less than 4 years after the date of the enactment of the AgJOBS Act of 2006, and each March 1 thereafter, the adverse effect wage rate then in effect for each State shall be adjusted by the lesser of--

   Inserted: "(aa) 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

   Inserted: "(bb) 4 percent.

   Inserted: "(iv) 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.

   Inserted: "(v) 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.

   Inserted: "(vi) Hours and earnings statements.--The employer shall furnish to the worker, on or before each payday, in 1 or more written statements--

   Inserted: "(I) the worker's total earnings for the pay period;

   Inserted: "(II) the worker's hourly rate of pay, piece rate of pay, or both;

   Inserted: "(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 75 percent guarantee described in subparagraph (D);

   Inserted: "(IV) the hours actually worked by the worker;

   Inserted: "(V) an itemization of the deductions made from the worker's wages; and

   Inserted: "(VI) if piece rates of pay are used, the units produced daily.

   Inserted: "(vii) Report on wage protections.--Not later than December 31, 2008, 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--

   Inserted: "(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural work force has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;

   Inserted: "(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;

   Inserted: "(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;

   Inserted: "(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; and

   Inserted: "(V) recommendations for future wage protection under this subsection.

   Inserted: "(viii) Commission on wage standards.--

   Inserted: "(I) Establishment.--There is established the Commission on Agricultural Wage Standards under the H-2A program (referred to in this clause as the 'Commission').

   Inserted: "(II) Composition.--The Commission shall consist of 10 members, of which--

   Inserted: "(aa) 4 shall be representatives of agricultural employers and 1 shall be a representative of the Department of Agriculture, each appointed by the Secretary of Agriculture; and

   Inserted: "(bb) 4 shall be representatives of agricultural workers and 1 shall be a representative of the Department of Labor, each appointed by the Secretary of Labor.

   Inserted: "(III) Functions.--The Commission shall conduct a study that addresses--

   Inserted: "(aa) 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;

   Inserted: "(bb) 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;

   Inserted: "(cc) 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;

   Inserted: "(dd) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; and

   Inserted: "(ee) recommendations for future wage protection under this subsection.

   Inserted: "(IV) Final report.--Not later than December 31, 2008, the Commission shall submit a report to the Congress setting forth the findings of the study conducted under subclause (III).

   Inserted: "(V) Termination date.--The Commission shall terminate upon submitting its final report.

   Inserted: "(D) Guarantee of employment.--

   Inserted: "(i) Offer to worker.--The employer shall guarantee to offer the worker employment for the hourly equivalent of at least 75 percent 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. In this clause, '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 subparagraph, the employer shall pay such worker the amount which the worker would have earned had the worker worked for the guaranteed number of hours.

   Inserted: "(ii) 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, if the worker has been offered an opportunity to so work, 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.

   Inserted: "(iii) 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 75 percent guarantee described in clause (i).

   Inserted: "(iv) 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 flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in clause (i) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in clause (i) 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 subparagraph (B)(iv).

   Inserted: "(E) Motor vehicle safety.--

   Inserted: "(i) Mode of transportation subject to coverage.--

   Inserted: "(I) In general.--Except as provided in subclauses (III) and (IV), this subparagraph 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.

   Inserted: "(II) Defined term.--In this subparagraph, the term 'uses or causes to be used'--

   Inserted: "(aa) 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

   Inserted: "(bb) does not apply to--

   Inserted: "(AA) transportation provided, or transportation arrangements made, by an H-2A worker, unless the employer specifically requested or arranged such transportation; or

   Inserted: "(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.

   Inserted: "(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.

   Inserted: "(IV) Agricultural machinery and equipment excluded.--This subparagraph 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 to such activities.

   Inserted: "(V) Common carriers excluded.--This subparagraph 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.

   Inserted: "(ii) Applicability of standards, licensing, and insurance requirements.--

   Inserted: "(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--

   Inserted: "(aa) 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;

   Inserted: "(bb) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; and

   Inserted: "(cc) 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.

   Inserted: "(II) Amount of insurance required.--The level of insurance required under subclause (I)(cc) shall be determined by the Secretary of Labor pursuant to regulations to be issued under this paragraph.

   Inserted: "(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 clause (ii)(I)(cc) relating to having an insurance policy or liability bond apply:

   Inserted: "(aa) 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.

   Inserted: "(bb) 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.

   Inserted: "(3) Compliance with labor laws.--An employer shall assure that, except as otherwise provided under this subsection, 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.).

   Inserted: "(4) 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 subsection (a)(1), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.

   Inserted: "(5) Range production of livestock.--Nothing in this section 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.

   Inserted: "(c) Procedure for Admission and Extension of Stay.--

   Inserted: "(1) Petitioning for admission.--An employer, or an association acting as an agent or joint employer for its members, that seeks the admission of an H-2A worker into the United States 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 subsection (a)(5)(B)(ii) covering the petitioner.

   Inserted: "(2) Expedited adjudication by the secretary.--The Secretary shall establish a procedure for the expedited adjudication of petitions filed under paragraph (1). Not later than 7 working days after the receipt of such a petition, the Secretary 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 if the petitioner has indicated that the alien beneficiary or beneficiaries will apply for a visa or admission to the United States.

   Inserted: "(3) Criteria for admissibility.--

   Inserted: "(A) In general.--An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section and the alien is not ineligible under subparagraph (B).

   Inserted: "(B) 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--

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

   Inserted: "(ii) 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.

   Inserted: "(C) Waiver of ineligibility for unlawful presence.--

   Inserted: "(i) In general.--An alien who has not previously been admitted into the United States pursuant to this subsection, and who is otherwise eligible for admission in accordance with subparagraphs (A) and (B), shall not be deemed inadmissible under 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.

   Inserted: "(ii) Maintenance of waiver.--An alien provided an initial waiver of ineligibility pursuant to clause (i) 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 under clause (i).

   Inserted: "(4) Period of admission.--

   Inserted: "(A) In general.--The alien shall be admitted for the period of employment in the application certified by the Secretary of Labor pursuant to subsection (a)(5)(B)(ii), 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 work site 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--

   Inserted: "(i) 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

   Inserted: "(ii) the total period of employment, including such 14-day period, may not exceed 10 months.

   Inserted: "(B) Construction.--Nothing in this paragraph shall limit the authority of the Secretary to extend the stay of the alien under any other provision of this Act.

   Inserted: "(5) Abandonment of employment.--

   Inserted: "(A) 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).

   Inserted: "(B) 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.

   Inserted: "(C) 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.

   Inserted: "(D) Voluntary termination.--Notwithstanding subparagraph (A), an alien may voluntarily terminate the alien's employment if the alien promptly departs the United States upon termination of such employment.

   Inserted: "(6) Replacement of alien.--

   Inserted: "(A) In general.--Upon notification to the Secretary under paragraph (5)(B), 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--

   Inserted: "(i) who abandons or prematurely terminates employment; or

   Inserted: "(ii) whose employment is terminated after a United States worker is employed pursuant to subsection (a)(2)(B)(viii)(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.

   Inserted: "(B) Construction.--Nothing in this paragraph shall limit any preference required to be accorded United States workers under any other provision of this Act.

   Inserted: "(7) Identification document.--

   Inserted: "(A) In general.--Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a) shall be provided an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.

   Inserted: "(B) Requirements.--An identification and employment eligibility document may be issued only if it meets the following requirements:

   Inserted: "(i) The document shall be capable of reliably determining whether--

   Inserted: "(I) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment;

   Inserted: "(II) the individual whose eligibility is being verified is claiming the identity of another person; and

   Inserted: "(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.

   Inserted: "(ii) The document shall be in a form that is resistant to counterfeiting and to tampering.

   Inserted: "(iii) The document shall--

   Inserted: "(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

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

   Inserted: "(8) Extension of stay in the united states.--

   Inserted: "(A) Extension of stay.--If an employer seeks approval to employ an H-2A alien who is lawfully present in the United States, the petition filed by the employer or an association pursuant to paragraph (1), shall request an extension of the alien's stay and a change in the alien's employment.

   Inserted: "(B) Limitation on filing a petition for extension of stay.--A petition may not be filed for an extension of an alien's stay--

   Inserted: "(i) for a period of more than 10 months; or

   Inserted: "(ii) to a date that is more than 3 years after the date of the alien's last admission to the United States under this subsection.

   Inserted: "(C) Work authorization upon filing a petition for extension of stay.--

   Inserted: "(i) In general.--An alien who is lawfully present in the United States may commence the employment described in a petition under subparagraph (A) on the date on which the petition is filed.

   Inserted: "(ii) Definition.--In clause (i), the term 'file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition.

   Inserted: "(iii) Handling of petition.--The employer shall provide a copy of the employer's petition to the alien, who shall keep the petition with the alien's identification and employment eligibility document as evidence that the petition has been filed and that the alien is authorized to work in the United States.

   Inserted: "(iv) Approval of petition.--Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition.

   Inserted: "(D) Limitation on employment authorization of aliens without valid identification and employment eligibility document.--An expired identification and employment eligibility document, together with a copy of a petition for extension of stay or change in the alien's authorized employment that complies with the requirements of subparagraph (A), shall constitute a valid work authorization document for a period of not more than 60 days beginning on the date on which such petition is filed, after which time only a currently valid identification and employment eligibility document shall be acceptable.

   Inserted: "(E) Limitation on an individual's stay in status.--

   Inserted: "(i) Maximum period.--The maximum continuous period of authorized status as an H-2A worker (including any extensions) is 3 years.

   Inserted: "(ii) Requirement to remain outside the united states.--

   Inserted: "(I) In general.--Subject to subclause (II), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least 20 percent of the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).

   Inserted: "(II) Exception.--Subclause (I) shall not apply if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.

   Inserted: "(9) Special rules for aliens employed as sheepherders, goat herders, or dairy workers.--Notwithstanding any provision of the AgJOBS Act of 2006, an alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a sheepherder, goat herder, or dairy worker--

   Inserted: "(A) may be admitted for an initial period of 12 months;

   Inserted: "(B) subject to paragraph (10)(E), may have such initial period of admission extended for a period of up to 3 years; and

   Inserted: "(C) shall not be subject to the requirements of paragraph (8)(E).

   Inserted: "(10) Adjustment to lawful permanent resident status for aliens employed as sheepherders, goat herders, or dairy workers.--

   Inserted: "(A) Eligible alien.--In this paragraph, the term 'eligible alien' means an alien--

   Inserted: "(i) having nonimmigrant status under section 101(a)(15)(H)(ii)(a) based on employment as a sheepherder, goat herder, or dairy worker;

   Inserted: "(ii) who has maintained such nonimmigrant status in the United States for a cumulative total of 36 months (excluding any period of absence from the United States); and

   Inserted: "(iii) who is seeking to receive an immigrant visa under section 203(b)(3)(A)(iii).

   Inserted: "(B) Classification petition.--In the case of an eligible alien, the petition under section 204 for classification under section 203(b)(3)(A)(iii) may be filed by--

   Inserted: "(i) the alien's employer on behalf of an eligible alien; or

   Inserted: "(ii) the eligible alien.

   Inserted: "(C) No labor certification required.--Notwithstanding section 203(b)((3)(C), no determination under section 212(a)(5)(A) is required with respect to an immigrant visa for an eligible alien under section 203(b)(3)(A)(iii).

   Inserted: "(D) Effect of petition.--The filing of a petition described in subparagraph (B) or an application for adjustment of status based on the approval of such a petition, shall not constitute evidence of an alien's ineligibility for nonimmigrant status under section 101(a)(15)(H)(ii)(a).

   Inserted: "(E) Extension of stay.--The Secretary shall extend the stay of an eligible alien having a pending or approved classification petition described in subparagraph (B) in 1-year increments until a final determination is made on the alien's eligibility for adjustment of status to that of an alien lawfully admitted for permanent residence.

   Inserted: "(F) Construction.--Nothing in this paragraph shall be construed to prevent an eligible alien from seeking adjustment of status in accordance with any other provision of law.

   Inserted: "(d) Worker Protections and Labor Standards Enforcement.--

   Inserted: "(1) Enforcement authority.--

   Inserted: "(A) Investigation of complaints.--

   Inserted: "(i) Aggrieved person or third-party complaints.--The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition under subsection (a)(2), or an employer's misrepresentation of material facts in an application under subsection (a)(1). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this clause if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

   Inserted: "(ii) Determination on complaint.--Under such process, the Secretary of Labor shall provide, not later than 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in clause (iii), (iv), (v), or (vii). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, not later than 60 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary of Labor may consolidate the hearings under this clause on such complaints.

   Inserted: "(iii) Failures to meet conditions.--If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of subparagraph (A)(i), (A)(ii), (A)(iv), (A)(vi), (B)(i), (B)(ii), or (B)(vii) of subsection (a)(2), a substantial failure to meet a condition of subparagraph (A)(iii), (A)(v), (B)(iii), (B)(iv), (B)(v), or (B)(viii) of subsection (a)(2), or a material misrepresentation of fact in an application under subsection (a)(1)--

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

   Inserted: "(II) the Secretary may disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) for a period of 1 year.

   Inserted: "(iv) Willful failures and willful misrepresentations.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of subsection (a)(2), a willful misrepresentation of a material fact in an application under subsection (a)(2), or a violation of paragraph (4)(A)--

   Inserted: "(I) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;

   Inserted: "(II) the Secretary of Labor may seek appropriate legal or equitable relief to effectuate the purposes of paragraph (4)(A); and

   Inserted: "(III) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 2 years.

   Inserted: "(v) Displacement of united states workers.--If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of subsection (a)(2) or a willful misrepresentation of a material fact in an application under subsection (a)(1), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under subsection (a)(1) or during the 30-day period preceding such period of employment--

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

   Inserted: "(II) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 3 years.

   Inserted: "(vi) Limitations on civil money penalties.--The Secretary of Labor shall not impose total civil money penalties with respect to an application under subsection (a)(1) in excess of $90,000.

   Inserted: "(vii) Failures to pay wages or required benefits.--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, required 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. The back wages or other required benefits under subsection (b)(2) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

   Inserted: "(B) Statutory construction.--Nothing in this subsection shall be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section.

   Inserted: "(2) Rights enforceable by private right of action.--H-2A workers may enforce the following rights through the private right of action provided in paragraph (3), and no other right of action shall exist under Federal or State law to enforce such rights:

   Inserted: "(A) The providing of housing or a housing allowance as required under subsection (b)(2)(A).

   Inserted: "(B) The reimbursement of transportation as required under subsection (b)(2)(B).

   Inserted: "(C) The payment of wages required under subsection (b)(2)(C) when due.

   Inserted: "(D) The benefits and material terms and conditions of employment expressly provided in the job offer described in subsection (a)(1)(B), not including the assurance to comply with other Federal, State, and local labor laws described in subsection (b)(3), compliance with which shall be governed by the provisions of such laws.

   Inserted: "(E) The guarantee of employment required under subsection (b)(2)(D).

   Inserted: "(F) The motor vehicle safety requirements under subsection (b)(2)(E).

   Inserted: "(G) The prohibition of discrimination under paragraph (4)(B).

   Inserted: "(3) Private right of action.--

   Inserted: "(A) Mediation.--

   Inserted: "(i) In general.--Upon the filing of a complaint by an H-2A worker aggrieved by a violation of rights enforceable under paragraph (2), and not later than 60 days after the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon a filing of such request and giving of notice to the parties, the parties shall attempt mediation within the period specified in clause (iii).

   Inserted: "(ii) Mediation services.--The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under paragraph (2) between H-2A workers and agricultural employers without charge to the parties.

   Inserted: "(iii) 90-day limit.--The Federal Mediation and Conciliation Service may conduct mediation or other non-binding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives the request for assistance unless the parties agree to an extension of this period of time.

   Inserted: "(iv) Authorization.--

   Inserted: "(I) In general.--Subject to subclause (II), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this subsection.

   Inserted: "(II) Mediation.--Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized to conduct the mediation or other dispute resolution activities from any other appropriated funds available to the Director and to reimburse such appropriated funds when the funds are appropriated pursuant to subclause (I). Such reimbursement shall be credited to appropriations available at the time of receipt.

   Inserted: "(B) Maintenance of civil action in district court by aggrieved person.--An H-2A worker aggrieved by a violation of rights enforceable under paragraph (2) by an agricultural employer or other person may file suit in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, without regard to the citizenship of the parties, and without regard to the exhaustion of any alternative administrative remedies under this section, not later than 3 years after the date the violation occurs.

   Inserted: "(C) Election.--An H-2A worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action under subparagraph (B) unless a complaint based on the same violation filed with the Secretary of Labor under paragraph (1)(A) is withdrawn before the filing of such action, in which case the rights and remedies available under this paragraph shall be exclusive.

   Inserted: "(D) Preemption of state contract rights.--Nothing in this section shall be construed to diminish the rights and remedies of an H-2A worker under any other Federal or State law or regulation or under any collective bargaining agreement, except that no court or administrative action shall be available under any State contract law to enforce the rights created by this section.

   Inserted: "(E) Waiver of rights prohibited.--Agreements by employees purporting to waive or modify their rights under this section shall be void as contrary to public policy, except that a waiver or modification of the rights or obligations in favor of the Secretary of Labor shall be valid for purposes of the enforcement of this section. The preceding sentence may not be construed to prohibit agreements to settle private disputes or litigation.

   Inserted: "(F) Award of damages or other equitable relief.--

   Inserted: "(i) If the court finds that the respondent has intentionally violated any of the rights enforceable under paragraph (2), it shall award actual damages, if any, or equitable relief.

   Inserted: "(ii) Any civil action brought under this paragraph shall be subject to appeal as provided in chapter 83 of title 28, United States Code.

   Inserted: "(G) Workers' compensation benefits; exclusive remedy.--

   Inserted: "(i) In general.--Notwithstanding any other provision of this subsection, if the workers' compensation law of a State is applicable and coverage is provided for an H-2A worker, the workers' compensation benefits shall be the exclusive remedy for the loss of such worker under this subsection in the case of bodily injury or death, in accordance with such workers' compensation law.

   Inserted: "(ii) Preclusion.--The exclusive remedy prescribed in clause (i) precludes the recovery under subparagraph (F) of actual damages for loss from an injury or death but does not preclude other equitable relief, except that such relief shall not include back or front pay or in any manner, directly or indirectly, expand or otherwise alter or affect--

   Inserted: "(I) a recovery under a State workers' compensation law; or

   Inserted: "(II) rights conferred under a State workers' compensation law.

   Inserted: "(H) Tolling of statute of limitations.--If it is determined under a State workers' compensation law that the workers' compensation law is not applicable to a claim for bodily injury or death of an H-2A worker, the statute of limitations for bringing an action for actual damages for such injury or death under this paragraph shall be tolled for the period during which the claim for such injury or death under such State workers' compensation law was pending. The statute of limitations for an action for actual damages or other equitable relief arising out of the same transaction or occurrence as the injury or death of the H-2A worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers' compensation law.

   Inserted: "(I) Preclusive effect.--Any settlement by an H-2A worker and an H-2A employer or any person reached through the mediation process required under 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, unless specifically provided otherwise in the settlement agreement.

   Inserted: "(J) Settlements.--Any settlement by the Secretary of Labor with an H-2A employer on behalf of an H-2A worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under paragraph (1)(A)(ii) shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.

   Inserted: "(4) Discrimination prohibited.--

   Inserted: "(A) In general.--It is a violation of this subsection for any person who has filed an application under subsection (a)(1), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section subsection (a) or (b), or any rule or regulation pertaining to such subsections, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements such subsections or any rule or regulation pertaining to either of such subsections.

   Inserted: "(B) Discrimination against h-2a workers.--It is a violation of this subsection for any person who has filed an application under subsection (a)(1), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against an H-2A employee because such worker has, with just cause, filed a complaint with the Secretary of Labor regarding a denial of the rights enumerated and enforceable under paragraph (2) or instituted, or caused to be instituted, a private right of action under paragraph (3) regarding the denial of the rights under paragraph (2), or has testified or is about to testify in any court proceeding brought under paragraph (3).

   Inserted: "(5) Authorization to seek other appropriate employment.--The Secretary of Labor and the Secretary shall establish a process under which an H-2A worker who files a complaint regarding a violation of paragraph (4) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.

   Inserted: "(6) Role of associations.--

   Inserted: "(A) Violation by a member of an association.--An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of subsections (a) and (b), as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge, or reason to know, of the violation, in which case the penalty shall be invoked against the association or other association member as well.

   Inserted: "(B) Violations by an association acting as an employer.--If an association filing an application as a sole or joint employer is determined to have committed a violation under this subsection, the penalty for such violation shall apply only to the association unless the Secretary of Labor determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.

   Inserted: "(e) Definitions.--In this section:

   Inserted: "(1) Agricultural employment.--The term 'agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)), including employment under section 101(a)(15)(H)(ii)(a).

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

   Inserted: "(3) Displace.--The term 'displace', in the case of an application with respect to 1 or more H-2A workers by an employer, means laying off a United States worker from a job for which the H-2A worker or workers is or are sought.

   Inserted: "(4) Eligible.--The term 'eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A).

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

   Inserted: "(6) H-2a employer.--The term 'H-2A employer' means an employer who seeks to hire 1 or more H-2A workers.

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

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

   Inserted: "(9) Lays off.--

   Inserted: "(A) In general.--The term 'lays off', with respect to a worker--

   Inserted: "(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in subsection (b)(1)(B)(iv)), or temporary layoffs due to weather, markets, or other temporary conditions; but

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

   Inserted: "(B) Statutory construction.--Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.

   Inserted: "(10) Regulatory drought.--The term 'regulatory drought' means a decision subsequent to the filing of the application under subsection (a) by an entity that is not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.

   Inserted: "(11) Seasonal.--Labor is performed on a 'seasonal' basis if--

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

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

   Inserted: "(12) Secretary.--The term 'Secretary' means the Secretary of Homeland Security.

   Inserted: "(13) Temporary.--A worker is employed on a 'temporary' basis where the employment is intended not to exceed 10 months.

   Inserted: "(14) United states worker.--The term 'United States worker' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).".

   Inserted: CHAPTER 3--MISCELLANEOUS PROVISIONS

   Inserted: SEC. 616. DETERMINATION AND USE OF USER FEES.

   Inserted: (a) Schedule of Fees.--The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens under this subtitle and the amendments made by this subtitle, and a collection process for such fees from employers participating in the program provided under this subtitle. Such fees shall be the only fees chargeable to employers for services provided under this subtitle.

   Inserted: (b) Determination of Schedule.--

   Inserted: (1) In general.--The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218 of the Immigration and Nationality Act, as added by section 615 of this Act, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ eligible aliens pursuant to this subtitle, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.

   Inserted: (2) Procedure.--

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

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

   Inserted: (c) Use of Proceeds.--Notwithstanding any other provision of law, all proceeds resulting from the payment of the alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Secretary of Labor for the costs of carrying out subsections (a) and (c) of the Immigration and Nationality Act, as added by section 615 of this Act, and the provisions of this subtitle.

   Inserted: SEC. 617. REGULATIONS.

   Inserted: (a) Regulations of the Secretary.--The Secretary shall consult with the Secretary of Labor and the Secretary of Agriculture on all regulations to implement the duties of the Secretary under this subtitle and the amendments made by this subtitle.

   Inserted: (b) Regulations of the Secretary of State.--The Secretary of State shall consult with the Secretary, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this subtitle and the amendments made by this subtitle.

   Inserted: (c) Regulations of the Secretary of Labor.--The Secretary of Labor shall consult with the Secretary of Agriculture and the Secretary on all regulations to implement the duties of the Secretary of Labor under this subtitle and the amendments made by this subtitle.

   Inserted: (d) Deadline for Issuance of Regulations.--All regulations to implement the duties of the Secretary, the Secretary of State, and the Secretary of Labor created under section 218 of the Immigration and Nationality Act, as added by section 615 of this Act, shall be issued not later than 1 year after the date of the enactment of this Act.

   Inserted: SEC. 618. REPORT TO CONGRESS.

   Inserted: Not later than September 30 of each year, the Secretary shall submit a report to Congress that identifies, for the previous year--

   Inserted: (1) the number of job opportunities approved for employment of aliens admitted under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the number of workers actually admitted, by State and by occupation;

   Inserted: (2) the number of such aliens reported to have abandoned employment pursuant to section 218(c)(5)(B) of such Act;

   Inserted: (3) the number of such aliens who departed the United States within the period specified in subsection 218(c)(4) of such Act;

   Inserted: (4) the number of aliens who applied for adjustment of status pursuant to section 613(a);

   Inserted: (5) the number of such aliens whose status was adjusted under section 613(a);

   Inserted: (6) the number of aliens who applied for permanent residence pursuant to section 613(c); and

   Inserted: (7) the number of such aliens who were approved for permanent residence pursuant section 613(c).

   Original wording

   On page 429, strike line 8 and all that follows through page 502, line 25, and insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed