S.Amdt. 4185

SA 4185. Mr. CRAIG submitted an amendment intended to be proposed to
amendment SA 4084 proposed by Mr. Chambliss to the bill S. 2611, to
provide for comprehensive immigration reform and for other purposes;
which was ordered to lie on the table; as follows:

In lieu of the matter proposed to be inserted, insert the
following:
(7) Work day.--The term ``work day'' means any day in which
the individual is employed 5.75 or more hours in agricultural
employment.

CHAPTER 1--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL
WORKERS

SEC. 613. AGRICULTURAL WORKERS.

(a) Blue Card Program.--
(1) In general.--Notwithstanding any other provision of
law, the Secretary shall confer blue card status upon an
alien who qualifies under this subsection if the Secretary
determines that the alien--
(A) has performed agricultural employment in the United
States for at least 863 hours or 150 work days, whichever is
less, during the 24-month period ending on December 31, 2005;
(B) 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; and
(C) is otherwise admissible to the United States under
section 212 of the Immigration and Nationality Act (8 U.S.C.
1182), except as otherwise provided under subsection (e)(2).
(2) Authorized travel.--An alien in blue card status has
the right to travel abroad (including commutation from a
residence abroad) in the same manner as an alien lawfully
admitted for permanent residence.
(3) Authorized employment.--An alien in blue card status
shall be provided an ``employment authorized'' endorsement or
other appropriate work permit, in the same manner as an alien
lawfully admitted for permanent residence.
(4) Termination of blue card status.--
(A) In general.--The Secretary may terminate blue card
status granted under this subsection only upon a
determination under this subtitle that the alien is
deportable.
(B) Grounds for termination of blue card status.--Before
any alien becomes eligible for adjustment of status under
subsection (c), 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--
(i) 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
(ii) the alien--

(I) commits an act that makes the alien inadmissible to the
United States as an immigrant, except as provided under
subsection (e)(2);
(II) is convicted of a felony or 3 or more misdemeanors
committed in the United States; or
(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.

(5) Record of employment.--
(A) In general.--Each employer of a worker granted status
under this subsection shall annually--
(i) provide a written record of employment to the alien;
and
(ii) provide a copy of such record to the Secretary.
(B) Sunset.--The obligation under subparagraph (A) shall
terminate on the date that is 6 years after the date of the
enactment of this Act.
(6) Required features of blue card.--The Secretary shall
provide each alien granted blue card status and the spouse
and children of each such alien residing in the United States
with a card that contains--
(A) an encrypted, machine-readable, electronic
identification strip that is unique to the alien to whom the
card is issued;
(B) biometric identifiers, including fingerprints and a
digital photograph; and
(C) physical security features designed to prevent
tampering, counterfeiting, or duplication of the card for
fraudulent purposes.
(7) Fine.--An alien granted blue card status shall pay a
fine to the Secretary in an amount equal to $100.
(8) Maximum number.--The Secretary may issue not more than
1,500,000 blue cards during the 5-year period beginning on
the date of the enactment of this Act.
(b) Rights of Aliens Granted Blue Card Status.--
(1) In general.--Except as otherwise provided under this
subsection, an alien in 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.).
(2) Delayed eligibility for certain federal public
benefits.--An alien in 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 Secretary confers blue card status upon that
alien.
(3) Terms of employment respecting aliens admitted under
this section.--
(A) 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.
(B) Treatment of complaints.--
(i) 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 subparagraph 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.
(ii) Initiation of arbitration.--If the Secretary finds
that a complaint has been filed in accordance with clause (i)
and there is reasonable cause to believe that the complainant
was terminated without just cause, the 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,

[[Page S5127]]

subject to the availability of appropriations for such
purpose.
(iii) Arbitration proceedings.--The arbitrator shall
conduct the proceeding in accordance with the policies and
procedures promulgated by the American Arbitration
Association applicable to private arbitration of employment
disputes. The arbitrator shall make findings respecting
whether the termination was for just cause. The arbitrator
may not find that the termination was for just cause unless
the employer so demonstrates by a preponderance of the
evidence. If the arbitrator finds that the termination was
not for just cause, the arbitrator shall make a specific
finding of the number of days or hours of work lost by the
employee as a result of the termination. The arbitrator shall
have no authority to order any other remedy, including, but
not limited to, reinstatement, back pay, or front pay to the
affected employee. Within 30 days from the conclusion of the
arbitration proceeding, the arbitrator shall transmit the
findings in the form of a written opinion to the parties to
the arbitration and the 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.
(iv) Effect of arbitration findings.--If the Secretary
receives a finding of an arbitrator that an employer has
terminated an alien granted blue card status without just
cause, the Secretary shall credit the alien for the number of
days or hours of work lost for purposes of the requirement of
subsection (c)(1).
(v) Treatment of attorney's fees.--The parties shall bear
the cost of their own attorney's fees involved in the
litigation of the complaint.
(vi) Nonexclusive remedy.--The complaint process provided
for in this subparagraph is in addition to any other rights
an employee may have in accordance with applicable law.
(vii) Effect on other actions or proceedings.--Any finding
of fact or law, judgment, conclusion, or final order made by
an arbitrator in the proceeding before the 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 clause (iv).
(C) Civil penalties.--
(i) 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 subsection (a)(5) or has provided a
false statement of material fact in such a record, the
employer shall be subject to a civil money penalty in an
amount not to exceed $1,000 per violation.
(ii) Limitation.--The penalty applicable under clause (i)
for failure to provide records shall not apply unless the
alien has provided the employer with evidence of employment
authorization granted under this section.
(c) Adjustment to Permanent Residence.--
(1) Agricultural workers.--
(A) In general.--Except as provided in subparagraph (B),
the 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:
(i) Qualifying employment.--The alien has performed at
least--

(I) 5 years of agricultural employment in the United
States, for at least 100 work days or 575 hours, but in no
case less than 575 hours 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 or 863 hours, but in no
case less than 863 hours per year, during the 5-year period
beginning on the date of the enactment of this Act.

(ii) Proof.--An alien may demonstrate compliance with the
requirement under clause (i) by submitting--

(I) the record of employment described in subsection
(a)(5); or
(II) such documentation as may be submitted under
subsection (d)(3).

(iii) Extraordinary circumstances.--In determining whether
an alien has met the requirement under clause (i)(I), the
Secretary may credit the alien with not more than 12
additional months to meet the requirement under clause (i) if
the alien was unable to work in agricultural employment due
to--

(I) pregnancy, injury, or disease, if the alien can
establish such pregnancy, disabling injury, or disease
through medical records;
(II) 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
(III) severe weather conditions that prevented the alien
from engaging in agricultural employment for a significant
period of time.

(iv) Application period.--The alien applies for adjustment
of status not later than 7 years after the date of the
enactment of this Act.
(v) Fine.--The alien pays a fine to the Secretary in an
amount equal to $400.
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