To simplify the process for admitting temporary alien agricultural workers under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act, to increase access to such workers, and for other purposes.

SA 432. Mr. CHAMBLISS (for himself, and Mr. Kyl) submitted an
amendment intended to be proposed to the bill H.R. 1268, Making
emergency supplemental appropriations for the fiscal year ending
September 30, 2005, to establish and rapidly implement regulations for
State driver's license and identification document security standards,
to prevent terrorists from abusing the asylum laws of the United
States, to unify terrorism-related grounds for inadmissibility and
removal, to ensure expeditious construction of the San Diego border
fence, and for other purposes; as follows:

On page 231, between lines 3 and 4, insert the following:

TITLE VII--TEMPORARY AGRICULTURAL WORKERS

SEC. 701. SHORT TITLE.

This title may be cited as the ``Temporary Agricultural
Work Reform Act of 2005''.

Subtitle A--Temporary H-2A Workers

SEC. 711. ADMISSION OF TEMPORARY H-2A WORKERS.

Section 218 of the Immigration and Nationality Act (8
U.S.C. 1188) is amended to read as follows:

``ADMISSION OF TEMPORARY H-2A WORKERS

``Sec. 218. (a) Application.--An alien may not be admitted
as an H-2A worker unless the employer has filed with the
Secretary of Homeland Security a petition attesting to the
following:
``(1) Temporary or seasonal work or services.--
``(A) In general.--The agricultural employment for which
the H-2A worker or workers is or are sought is temporary or
seasonal, the number of workers sought, and the wage rate and
conditions under which they will be employed.
``(B) Temporary or seasonal work.--For purposes of
subparagraph (A), a worker is employed on a `temporary' or
`seasonal' basis if the employment is intended not to exceed
10 months.
``(2) Benefits, wage, and working conditions.--The employer
will provide, at a minimum, the benefits, wages, and working
conditions required by subsection (m) to all workers employed
in the jobs for which the H-2A worker or workers is or are
sought and to all other temporary workers in the same
occupation at the place of employment.
``(3) Nondisplacement of united states workers.--The
employer did not displace and will not displace a United
States worker employed by the employer during the period of
employment and during 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.
``(4) Recruitment.--
``(A) In general.--The employer shall attest that the
employer--
``(i) conducted adequate recruitment in the metropolitan
statistical area of intended employment before filing the
attestation; and
``(ii) was unsuccessful in locating qualified United States
workers for the job opportunity for which the certification
is sought.
``(B) Recruitment.--The adequate recruitment requirement
under subparagraph (A) is satisfied if the employer--
``(i) places a job order with America's Job Bank Program of
the Department of Labor; and
``(ii) places a Sunday advertisement in a newspaper of
general circulation or an advertisement in an appropriate
trade journal or ethnic publication that is likely to be
patronized by a potential worker in the area of intended
employment.
``(C) Advertisement criteria.--The advertisement
requirement under subparagraph (B)(ii) is satisfied if the
advertisement--
``(i) names the employer;
``(ii) directs applicants to report or send resumes, as
appropriate for the occupation, to the employer;
``(iii) provides a description of the vacancy that is
specific enough to apprise United States workers of the job
opportunity for which certification is sought;
``(iv) describes the geographic area with enough
specificity to apprise applicants of any travel requirements
and where applicants will likely have to reside to perform
the job;
``(v) states the rate of pay, which must equal or exceed
the wage paid for the occupation in the area of intended
employment; and

[[Page S3702]]

``(vi) offers wages, terms, and conditions of employment,
which are at least as favorable as those offered to the
alien.
``(5) Offers to united states workers.--The employer has
offered or will offer the job for which the nonimmigrant is,
or the nonimmigrants are, sought to any eligible United
States worker who applies and is equally or better qualified
for the job and who will be available at the time and place
of need.
``(6) Provision of insurance.--If the job for which the
nonimmigrant is, or the nonimmigrants are, sought is not
covered by State workers' compensation law, the employer will
provide, at no cost to the worker, insurance covering injury
and disease arising out of, and in the course of, the
worker's employment which will provide benefits at least
equal to those provided under the State workers' compensation
law for comparable employment.
``(7) Strike or lockout.--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.
``(8) Previous violations.--The employer has not, during
the previous 5-year period, employed H-2A workers and
knowingly violated a material term or condition of approval
with respect to the employment of domestic or nonimmigrant
workers, as determined by the Secretary of Labor after notice
and opportunity for a hearing.
``(b) Publication.--The employer shall make available for
public examination, within 1 working day after the date on
which a petition under this section is filed, at the
employer's principal place of business or worksite, a copy of
each such petition (and such accompanying documents as are
necessary).
``(c) List.--The Secretary of Labor shall compile, on a
current basis, a list (by employer) of the petitions filed
under subsection (a). Such list shall include the wage rate,
number of aliens sought, period of intended employment, and
date of need. The Secretary of Labor shall make such list
available for public examination in Washington, District of
Columbia.
``(d) Special Rules for Consideration of Petitions.--The
following rules shall apply in the case of the filing and
consideration of a petition under subsection (a):
``(1) Deadline for filing applications.--The Secretary of
Homeland Security may not require that the petition be filed
more than 28 days before the first date the employer requires
the labor or services of the H-2A worker or workers.
``(2) Issuance of approval.--Unless the Secretary of
Homeland Security finds that the petition is incomplete or
obviously inaccurate, the Secretary of Homeland Security
shall provide a decision within 7 days of the date of the
filing of the petition.
``(e) Roles of Agricultural Associations.--
``(1) Permitting filing by agricultural associations.--A
petition to hire an alien as a temporary agricultural worker
may be filed by an association of agricultural producers
which use agricultural services.
``(2) Treatment of associations acting as employers.--If an
association is a joint or sole employer of temporary
agricultural workers, such workers may be transferred among
its producer members to perform agricultural services of a
temporary or seasonal nature for which the petition was
approved.
``(3) Statement of liability.--The application form shall
include a clear statement explaining the liability under this
section of an employer who places an H-2A worker with another
H-2A employer if the other employer displaces a United States
worker in violation of the condition described in subsection
(a)(7).
``(4) Treatment of violations.--
``(A) Member's violation does not necessarily disqualify
association or other members.--If an individual producer
member of a joint employer association is determined to have
committed an act that is in violation of the conditions for
approval with respect to the member's petition, the denial
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 of, or had reason to
know of the violation.
``(B) Association's violation does not necessarily
disqualify members.--
``(i) Joint employer.--If an association representing
agricultural producers as a joint employer is determined to
have committed an act that is in violation of the conditions
for approval with respect to the association's petition, the
denial shall apply only to the association and does not apply
to any individual producer member of the association, unless
the Secretary of Labor determines that the member
participated in, had knowledge of, or had reason to know of
the violation.
``(ii) Sole employer.--If an association of agricultural
producers approved as a sole employer is determined to have
committed an act that is in violation of the conditions for
approval with respect to the association's petition, no
individual producer member of such association may be the
beneficiary of the services of temporary alien agricultural
workers admitted under this section in the commodity and
occupation in which such aliens were employed by the
association which was denied approval during the period such
denial is in force, unless such producer member employs such
aliens in the commodity and occupation in question directly
or through an association which is a joint employer of such
workers with the producer member.
``(f) Expedited Administrative Appeals of Certain
Determinations.--Regulations shall provide for an expedited
procedure for the review of a denial of approval under this
section, or at the applicant's request, for a de novo
administrative hearing respecting the denial.
``(g) Miscellaneous Provisions.--
``(1) Endorsement of documents.--The Secretary of Homeland
Security shall provide for the endorsement of entry and exit
documents of nonimmigrants described in section
101(a)(15)(H)(ii)(a) as may be necessary to carry out this
section and to provide notice for purposes of section 274A.
``(2) Preemption of state laws.--The provisions of
subsections (a) and (c) of section 214 and the provisions of
this section preempt any State or local law regulating
admissibility of nonimmigrant workers.
``(3) Fees.--
``(A) In general.--The Secretary of Homeland Security may
require, as a condition of approving the petition, the
payment of a fee in accordance with subparagraph (B) to
recover the reasonable costs of processing petitions.
``(B) Amounts.--
``(i) Employer.--The fee for each employer that receives a
temporary alien agricultural labor certification shall be
equal to $100 plus $10 for each job opportunity for H-2A
workers certified, provided that the fee to an employer for
each temporary alien agricultural labor certification
received shall not exceed $1,000.
``(ii) Joint employer association.--In the case of a joint
employer association that receives a temporary alien
agricultural labor certification, each employer-member
receiving such certification shall pay a fee equal to $100
plus $10 for each job opportunity for H-2A workers certified,
provided that the fee to an employer for each temporary alien
agricultural labor certification received shall not exceed
$1,000. The joint employer association shall not be charged a
separate fee.
``(C) Payments.--The fees collected under this paragraph
shall be paid by check or money order made payable to the
`Department of Homeland Security'. In the case of employers
of H-2A workers that are members of a joint employer
association applying on their behalf, the aggregate fees for
all employers of H-2A workers under the petition may be paid
by 1 check or money order.
``(D) Inflation adjustment.--In the case of any calendar
year beginning after 2005, each dollar amount in subparagraph
(B) may be increased by an amount equal to--
``(i) such dollar amount; multiplied by
``(ii) the percentage (if any) by which the average of the
Consumer Price Index for all urban consumers (United States
city average) for the 12-month period ending with August of
the preceding calendar year exceeds such average for the 12-
month period ending with August 2004.
``(h) Failure To Meet Conditions.--If the Secretary of
Labor finds, after notice and opportunity for a hearing, a
failure to meet a condition of subsection (a), or a material
misrepresentation of fact in a petition under subsection
(a)--
``(1) the Secretary of Labor shall notify the Secretary of
Homeland Security 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
``(2) the Secretary of Homeland Security may disqualify the
employer from the employment of H-2A workers for a period of
1 year.
``(i) Willful Failures and Willful Misrepresentations.--If
the Secretary of Labor finds, after notice and opportunity
for a hearing, a willful failure to meet a material condition
of subsection (a) or a willful misrepresentation of a
material fact in a petition under subsection (a)--
``(1) the Secretary of Labor shall notify the Secretary of
Homeland Security 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;
``(2) the Secretary of Homeland Security may disqualify the
employer from the employment of H-2A workers for a period of
2 years;
``(3) for a second violation, the Secretary of Homeland
Security may disqualify the employer from the employment of
H-2A workers for a period of 5 years; and
``(4) for a third violation, the Secretary of Homeland
Security may permanently disqualify the employer from the
employment of H-2A workers.
``(j) Displacement of United States Workers.--If the
Secretary of Labor finds, after notice and opportunity for a
hearing, a willful failure to meet a material condition of
subsection (a) or a willful misrepresentation of a material
fact in a petition under subsection (a), in the course of
which failure or misrepresentation the employer displaced a
United States worker employed by the employer during the
period of employment on the employer's petition under
subsection (a) or during the period of 30 days preceding such
period of employment--
``(1) the Secretary of Labor shall notify the Secretary of
Homeland Security of such finding and may, in addition,
impose such other

[[Page S3703]]

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;
``(2) the Secretary of Homeland Security may disqualify the
employer from the employment of H-2A workers for a period of
5 years; and
``(3) for a second violation, the Secretary of Homeland
Security may permanently disqualify the employer from the
employment of H-2A workers.
``(k) Limitations on Civil Money Penalties.--The Secretary
of Labor shall not impose total civil money penalties with
respect to a petition under subsection (a) in excess of
$90,000.
``(l) 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 (a)(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 (a)(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.
``(m) Minimum Benefits, Wages, and Working Conditions.--
``(1) Preferential treatment of aliens prohibited.--
``(A) In general.--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. 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) Interpretations and determinations.--While benefits,
wages, and other terms and conditions of employment specified
in this subsection are required to be provided in connection
with employment under this section, every interpretation and
determination made under this Act or under any other law,
regulation, or interpretative provision regarding the nature,
scope, and timing of the provision of these and any other
benefits, wages, and other terms and conditions of employment
shall be made in conformance with the governing principles
that the services of workers to their employers and the
employment opportunities afforded to workers by their
employers, including those employment opportunities that
require United States workers or H-2A workers to travel or
relocate in order to accept or perform employment, mutually
benefit such workers, as well as their families, and
employers, principally benefitting neither, and that
employment opportunities within the United States further
benefit the United States economy as a whole and should be
encouraged.
``(2) Required wages.--
``(A) An employer applying for workers under subsection (a)
shall offer to pay, and shall pay, all workers in the
occupation for which the employer has applied for workers,
not less than the prevailing wage.
``(B) In complying with subparagraph (A), an employer may
request and obtain a prevailing wage determination from the
State employment security agency.
``(C) In lieu of the procedure described in subparagraph
(B), an employer may rely on other wage information,
including a survey of the prevailing wages of workers in the
occupation in the area of intended employment that has been
conducted or funded by the employer or a group of employers,
that meets criteria specified by the Secretary of Labor in
regulations.
``(D) An employer who obtains such prevailing wage
determination, or who relies on a qualifying survey of
prevailing wages, and who pays the wage determined to be
prevailing, shall be considered to have complied with the
requirement of subparagraph (A).
``(E) No worker shall be paid less than the greater of the
prevailing wage or the applicable State minimum wage.
``(3) Requirement to provide housing or a housing
allowance.--
``(A) In general.--An employer applying for workers under
subsection (a) 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 State or
local standards, Federal temporary labor camp standards shall
apply.
``(C) Certificate of inspection.--Prior to any occupation
by a worker in housing described in subparagraph (B), the
employer shall submit a certificate of inspection by an
approved Federal or State agency to the Secretary of Labor.
``(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) Housing allowance as alternative.--
``(i) In general.--The employer may provide a reasonable
housing allowance in lieu of offering housing under
subparagraph (A) if the requirement under clause (v) is
satisfied.
``(ii) Assistance to locate housing.--Upon the request of a
worker seeking assistance in locating housing, the employer
shall make a good-faith effort to assist the worker in
locating housing in the area of intended employment.
``(iii) Limitation.--A housing allowance may not be used
for housing which is owned or controlled by the employer. An
employer who offers a housing allowance to a worker, or
assists a worker in locating housing which the worker
occupies, pursuant to this clause shall not be deemed a
housing provider under section 203 of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823)
solely by virtue of providing such housing allowance.
``(iv) Reporting requirement.--The employer must provide
the Secretary of Labor with a list of the names of all
workers assisted under this subparagraph and the local
address of each such worker.
``(v) 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 at farm work. Such certification shall expire after
3 years unless renewed by the Governor of the State.
``(vi) 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.

``(G) Exemption.--An employer applying for workers under
subsection (a) whose primary job site is located 150 miles or
less from the United States border shall not be required to
provide housing or a housing allowance.
``(4) Reimbursement of transportation.--
``(A) To place of employment.--
``(i) In general.--A worker who completes 50 percent of the
period of employment of the job opportunity for which the
worker was hired, measured from the worker's first day of
work in such employment, shall be reimbursed by the employer
for the cost of the worker's transportation and subsistence
from the place from which the worker was approved to enter
the United States to work for the employer (or place of last
employment, if the worker traveled from such place) to the
place of employment by the employer.
``(ii) Other fees.--The employer shall not be required to
reimburse visa, passport, consular, or international border-
crossing fees or any other fees associated with the worker's
lawful admission into the United States to perform employment
that may be incurred by the worker.
``(iii) Timely reimbursement.--Reimbursement to the worker
of expenses for the cost of the worker's transportation and
subsistence to the place of employment shall be considered
timely if such reimbursement is made not later than the
worker's first regular payday after the worker completes 50
percent of the period of employment of the job opportunity as
provided under this paragraph.
``(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 from which the
worker was approved to enter the United States to work for
the employer.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as provided in
clause (ii), the amount of reimbursement provided under
subparagraph (A) or (B) to a worker or alien shall not exceed
the lesser of--

[[Page S3704]]

``(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 if the worker is not
residing in employer-provided housing or housing secured
through an allowance as provided in paragraph (3).
``(D) Early termination.--If the worker is laid off or
employment is terminated for contract impossibility (as
described in paragraph (5)(D)) before the anticipated ending
date of employment, the employer shall provide 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 (such as housing provided by the
employer pursuant to paragraph (3), including housing
provided through a housing allowance) and the employer's
worksite without cost to the worker, and such transportation
will be in accordance with applicable laws and regulations.
``(5) Guarantee of employment.--
``(A) 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. 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
subparagraph, 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 75 percent 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, or drought), plant or animal disease, pest infestation,
or regulatory action, before the employment 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.
``(n) 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 must file a petition with the Secretary of
Homeland Security. The petition shall include the
attestations for the certification described in section
101(a)(15)(H)(ii)(a).
``(o) Expedited Adjudication by the Secretary.--The
Secretary of Homeland Security--
``(1) shall establish a procedure for expedited
adjudication of petitions filed under subsection (n); and
``(2) not later than 7 working days after such filing
shall, by fax, cable, or other means assuring expedited
delivery transmit a copy of notice of action on the
petition--
``(A) to the petitioner; and
``(B) in the case of approved petitions, to the appropriate
immigration officer at the port of entry or United States
consulate where the petitioner has indicated that the alien
beneficiary or beneficiaries will apply for a visa or
admission to the United States.
``(p) Disqualification.--
``(1) Subject to paragraph (2), an alien shall be
considered inadmissible to the United States and ineligible
for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if
the alien has, at any time during the past 5 years, violated
a term or condition of admission into the United States as a
nonimmigrant, including overstaying the period of authorized
admission.
``(2) Waivers.--
``(A) In general.--An alien outside the United States, and
seeking admission under section 101(a)(15)(H)(ii)(a), shall
not be deemed inadmissible under such section by reason of
paragraph (1) or section 212(a)(9)(B) if the previous
violation occurred on or before April 1, 2005.
``(B) Limitation.--In any case in which an alien is
admitted to the United States upon having a ground of
inadmissibility waived under subparagraph (A), such waiver
shall be considered to remain in effect unless the alien
again violates a material provision of this section or
otherwise violates a term or condition of admission into the
United States as a nonimmigrant, in which case such waiver
shall terminate.
``(q) 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
of Homeland Security within 7 days of an H-2A worker's having
prematurely abandoned employment.
``(3) Removal by the secretary.--The Secretary of Homeland
Security 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.
``(r) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the
Secretary of Homeland Security required by subsection (q)(2),
the Secretary of State shall promptly issue a visa to, and
the Secretary of Homeland Security shall admit into the
United States, an eligible alien designated by the employer
to replace an H-2A worker who abandons or prematurely
terminates employment.
``(2) Construction.--Nothing in this subsection shall limit
any preference required to be accorded United States workers
under any other provision of this Act.
``(s) Identification Document.--
``(1) In general.--The Department of Homeland Security
shall provide each alien authorized to be admitted under
section 101(a)(15)(H)(ii)(a) with a single machine-readable,
tamper-resistant, and counterfeit-resistant document that--
``(A) authorizes the alien's entry into the United States;
and
``(B) serves, for the appropriate period, as an employment
eligibility document.
``(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--
``(i) be compatible with other databases of the Secretary
of Homeland Security for the purpose of excluding aliens from
benefits for which they are not eligible and determining
whether the alien is unlawfully present in the United States;
and
``(ii) be compatible with law enforcement databases to
determine if the alien has been convicted of criminal
offenses.
``(t) Extension of Stay of H-2A Workers in the United
States.--
``(1) Extension of stay.--
``(A) In general.--An employer may seek up to 2 10-month
extensions under this subsection.
``(B) Petition.--If an employer seeks to employ an H-2A
worker who is lawfully present in the United States, the
petition filed by the employer or an association pursuant to
subsection (n) shall request an extension of the alien's
stay.
``(C) Commencement; maximum period.--An extension of stay
under this subsection--
``(i) may only commence upon the termination of the H-2A
worker's contract with an employer; and
``(ii) may not exceed 10 months unless the employer files a
written request for up to an additional 30 days accompanied
by justification that the need for such additional time is
necessitated by adverse weather conditions, acts of God, or
economic hardship beyond the control of the employer.
``(D) Future eligibility.--At the conclusion of 3 10-month
employment periods authorized under this section, the alien
so employed may not be employed in the United States as an H-
2A worker until the alien has returned to the alien's country
of nationality or country of last residence for not less than
6 months.
``(2) Work authorization upon filing petition for extension
of stay.--
``(A) In general.--An alien who is lawfully present in the
United States may commence or continue the employment
described in a petition under paragraph (1) on the date on
which the petition is filed. The employer

[[Page S3705]]

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.
``(B) Approval.--Upon approval of a petition for an
extension of stay or change in the alien's authorized
employment, the Secretary of Homeland Security shall provide
a new or updated employment eligibility document to the alien
indicating the new validity date, after which the alien is
not required to retain a copy of the petition.
``(C) Definition.--In this paragraph, 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.
``(u) Special Rule for Aliens Employed as Sheepherders,
Goatherders, or Dairy Workers.--Notwithstanding any other
provision of this section, an alien admitted under section
101(a)(15)(H)(ii)(a) for employment as a sheepherder,
goatherder, or dairy worker may be admitted for a period of
up to 2 years.
``(v) Definitions.--For purposes of this section:
``(1) Area of employment.--The term `area of employment'
means the area within normal commuting distance of the
worksite or physical location where the work of the H-2A
worker is or will be performed. If such worksite or location
is within a Metropolitan Statistical Area, any place within
such area is deemed to be within the area of employment.
``(2) Eligible individual.--The term `eligible individual'
means, with respect to employment, an individual who is not
an unauthorized alien (as defined in section 274A(h)(3)) with
respect to that employment.
``(3) Displace.--In the case of a petition with respect to
1 or more H-2A workers by an employer, the employer is
considered to `displace' a United States worker from a job if
the employer lays off the worker from a job that is
essentially the equivalent of the job for which the H-2A
worker or workers is or are sought. A job shall not be
considered to be essentially equivalent of another job unless
it involves essentially the same responsibilities, was held
by a United States worker with substantially equivalent
qualifications and experience, and is located in the same
area of employment as the other job.
``(4) H-2a worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(5) Lays off.--
``(A) In general.--The term `lays off', with respect to a
worker--
``(i) means to cause the worker's loss of employment, other
than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure,
voluntary retirement, or the expiration of a grant or
contract (other than a temporary employment contract entered
into in order to evade a condition described in paragraph (3)
or (7) of subsection (a); but
``(ii) does not include any situation in which the worker
is offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer (or, in
the case of a placement of a worker with another employer
under subsection (a)(7), with either employer described in
such subsection) at equivalent or higher compensation and
benefits than the position from which the employee was
discharged, regardless of whether or not the employee accepts
the offer.
``(B) Construction.--Nothing in this paragraph is intended
to limit an employee's rights under a collective bargaining
agreement or other employment contract.
``(6) Prevailing wage.--The term `prevailing wage' means,
with respect to an agricultural occupation in an area of
intended employment, the rate of wages that includes the 51st
percentile of employees with similar experience and
qualifications in the agricultural occupation in the area of
intended employment, expressed in terms of the prevailing
method of pay for the occupation in the area of intended
employment.
``(7) 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 authorized to work in the relevant job
opportunity within the United States, except--
``(A) an alien admitted or otherwise provided status under
section 101(a)(15)(H)(ii)(a); and
``(B) an alien provided status under section 220.''.

SEC. 712. LEGAL ASSISTANCE PROVIDED BY THE LEGAL SERVICES
CORPORATION.

Section 305 of the Immigrant Reform and Control Act of 1986
(8 U.S.C. 1101 note) is amended--
(1) by striking ``A nonimmigrant'' and inserting the
following:
``(a) In General.--A nonimmigrant''; and
(2) by adding at the end the following:
``(b) Legal Assistance.--The Legal Services Corporation may
not provide legal assistance for or on behalf of any alien,
and may not provide financial assistance to any person or
entity that provides legal assistance for or on behalf of any
alien, unless the alien--
``(1) is present in the United States at the time the legal
assistance is provided; and
``(2) is an alien to whom subsection (a) applies.''
``(c) Required Mediation.--No party may bring a civil
action for damages on behalf of a nonimmigrant described in
section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) or pursuant
to those in the Blue Card Program established under section
220 of such Act, unless at least 90 days before bringing the
action a request has been made to the Federal Mediation and
Conciliation Service to assist the parties in reaching a
satisfactory resolution of all issues involving all parties
to the dispute and mediation has been attempted.''.

Subtitle B--Blue Card Status

SEC. 721. BLUE CARD PROGRAM.

(a) In General.--Chapter 2 of title II of the Immigration
and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
adding at the end the following:

``BLUE CARD PROGRAM

``Sec. 220. (a) Definitions.--As used in this section--
``(1) the term `agricultural employment'--
``(A) 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; and
``(B) includes any service or activity described in--
``(i) title 37, 37-3011, or 37-3012 (relating to
landscaping) of the Department of Labor 2004-2005
Occupational Information Network Handbook;
``(ii) title 45 (relating to farming fishing, and forestry)
of such handbook; or
``(iii) title 51, 51-3022, or 51-3023 (relating to meat,
poultry, fish processors and packers) of such handbook.
``(2) the term `blue card status' means the status of an
alien who has been--
``(A) lawfully admitted for a temporary period under
subsection (b); and
``(B) issued a tamper-resistant, machine-readable document
that serves as the alien's visa, employment authorization,
and travel documentation and contains such biometrics as are
required by the Secretary;
``(3) the term `employer' means any person or entity,
including any farm labor contractor and any agricultural
association, that employs workers in agricultural employment;
``(4) the term `Secretary' means the Secretary of Homeland
Security;
``(5) the term `small employer' means an employer employing
fewer than 500 employees based upon the average number of
employees for each of the pay periods for the preceding 10
calendar months, including the period in which the employer
employed H-2A workers; and
``(6) 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
authorized to work in the relevant job opportunity within the
United States, except--
``(A) an alien admitted or otherwise provided status under
section 101(a)(15)(H)(ii)(a); and
``(B) an alien provided status under this section.
``(b) Blue Card Program.--
``(1) Blue card program.--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 been in the United States continuously as of
April 1, 2005;
``(B) has performed more than 50 percent of total annual
weeks worked in agricultural employment in the United States
(except in the case of a child provided derivative status as
of April 1, 2005);
``(C) is otherwise admissible to the United States under
section 212, except as otherwise provided under paragraph
(2); and
``(D) is the beneficiary of a petition filed by an
employer, as described in paragraph (3).
``(2) Waiver of certain grounds for inadmissibility.--In
determining an alien's eligibility for blue card status under
paragraph (1)(C)--
``(A) the provisions of paragraphs (5), (6)(A), (7)(A), and
(9)(B) of section 212(a) shall not apply;
``(B) the provisions of section 212(a)(6)(C) shall not
apply with respect to prior or current agricultural
employment; and
``(C) the Secretary may not waive paragraph (1), (2), or
(3) of section 212(a) unless such waiver is permitted under
another provision of law.
``(3) Petitions.--
``(A) In general.--An employer seeking blue card status
under this section for an alien employee shall file a
petition for blue card status with the Secretary.
``(B) Employer petition.--An employer filing a petition
under subparagraph (A) shall--
``(i) pay a registration fee of--

``(I) $1,000, if the employer employs more than 500
employees; or
``(II) $500, if the employer is a small employer employing
500 or fewer employees;

``(ii) pay a processing fee to cover the actual costs
incurred in adjudicating the petition; and
``(iii) attest that the employer conducted adequate
recruitment in the metropolitan statistical area of intended
employment before filing the attestation and was unsuccessful
in locating qualified United States workers for the job
opportunity for which

[[Page S3706]]

the certification is sought, which attestation shall be valid
for a period of 60 days.
``(C) Recruitment.--
``(i) The adequate recruitment requirement under
subparagraph (B)(iii) is satisfied if the employer--

``(I) places a job order with America's Job Bank Program of
the Department of Labor; and
``(II) places a Sunday advertisement in a newspaper of
general circulation or an advertisement in an appropriate
trade journal or ethnic publication that is likely to be
patronized by a potential worker in the metropolitan
statistical area of intended employment.

``(ii) An advertisement under clause (i)(II) shall--

``(I) name the employer;
``(II) direct applicants to report or send resumes, as
appropriate for the occupation, to the employer;
``(III) provide a description of the vacancy that is
specific enough to apprise United States workers of the job
opportunity for which certification is sought;
``(IV) describe the geographic area with enough specificity
to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the job;
``(V) state the rate of pay, which must equal or exceed the
wage paid for the occupation in the area of intended
employment; and
``(VI) offer wages, terms, and conditions of employment,
which are at least as favorable as those offered to the
alien.

``(D) Notification of denial.--The Secretary shall provide
notification of a denial of a petition filed for an alien to
the alien and the employer who filed such petition.
``(E) Effect of denial.--If the Secretary denies a petition
filed for an alien, such alien shall return to the country of
the alien's nationality or last residence outside the United
States.
``(4) Blue card status.--
``(A) Blue card.--
``(i) All-in-one card.--The Secretary, in conjunction with
the Secretary of State, shall develop a single machine-
readable, tamper-resistant document that--

``(I) authorizes the alien's entry into the United States;
``(II) serves, during the period an alien is in blue card
status, as an employment authorized endorsement or other
appropriate work permit for agricultural employment only; and
``(III) serves as an entry and exit document to be used in
conjunction with a proper visa or as a visa and as other
appropriate travel and entry documentation using biometric
identifiers that meet the biometric identifier standards
jointly established by the Secretary of State and the
Secretary.

``(ii) Biometrics.--

``(I) After a petition is filed by an employer and receipt
of such petition is confirmed by the Secretary, the alien, in
order to further adjudicate the petition, shall submit 2
biometric identifiers, as required by the Secretary, at an
Application Support Center.
``(II) The Secretary shall prescribe a process for the
submission of a biometric identifier to be incorporated
electronically into an employer's prior electronic filing of
a petition. The Secretary shall prescribe an alternative
process for employers to file a petition in a manner other
than electronic filing, as needed.

``(B) Document requirements.--The Secretary shall issue a
blue card that is--
``(i) capable of reliably determining if the individual
with the blue card whose eligibility is being verified is--

``(I) eligible for employment;
``(II) claiming the identify of another person; and
``(III) authorized to be admitted; and

``(ii) compatible with--

``(I) other databases maintained by 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) law enforcement databases to determine if the alien
has been convicted of criminal offenses.

``(C) Authorized travel.--During the period an alien is in
blue card status granted under this section and pursuant to
regulations established by the Secretary, the alien may make
brief visits outside the United States. An alien may be
readmitted to the United States after such a visit without
having to obtain a visa if the alien presents the alien's
blue card document. Such periods of time spent outside the
United States shall not cause the period of blue card status
in the United States to be extended.
``(D) Portability.--
``(i) During the period in which an alien is in blue card
status, the alien issued a blue card may accept new
employment upon the Secretary's receipt of a petition filed
by an employer on behalf of the alien. Employment
authorization shall continue for such alien until such
petition is adjudicated.
``(ii) If a petition filed under clause (i) is denied and
the alien has ceased employment with the previous employer,
the authorization under clause (i) shall terminate and the
alien shall be required to return to the country of the
alien's nationality or last residence.
``(iii) A fee may be required by the Secretary to cover the
actual costs incurred in adjudicating a petition under this
subparagraph. No other fee may be required under this
subparagraph.
``(iv) A petition by an employer under this subparagraph
may not be accepted within 90 days after the adjudication of
a previous petition on behalf of an alien.
``(E) Annual check in.--The employer of an alien in blue
card status who has been employed for 1 year in blue card
status shall confirm the alien's continued employment status
with the Secretary electronically or in writing. Such
confirmation will not require a further labor attestation.
``(F) Termination of blue card status.--
``(i) During the period of blue card status granted an
alien, the Secretary may terminate such status upon a
determination by the Secretary that the alien is deportable
or has become inadmissible.
``(ii) The Secretary may terminate blue card status granted
to an alien if--

``(I) the Secretary determines that, without the
appropriate waiver, the granting of blue card status was the
result of fraud or willful misrepresentation (as described in
section 212(a)(6)(C)(i));
``(II) the alien is convicted of a felony or a misdemeanor
committed in the United States; or
``(III) the Secretary determines that the alien is
deportable or inadmissible under any other provision of this
Act.

``(5) Period of authorized admission.--
``(A) In general.--The initial period of authorized
admission for an alien with blue card status shall be not
more than 3 years. The employer of such alien may petition
for extensions of such authorized admission for 2 additional
periods of not more than 3 years each.
``(B) Exception.--The limit on renewals shall not apply to
a nonimmigrant in a position of full-time, non-temporary
employment who has managerial or supervisory
responsibilities. The employer of such nonimmigrant shall be
required to make an additional attestation to such an
employment classification with the filing of a petition.
``(C) Reporting requirement.--If an alien with blue card
status ceases to be employed by an employer, such employer
shall immediately notify the Secretary of such cessation of
employment. The Secretary shall provide electronic means for
making such notification.
``(D) Loss of employment.--
``(i) An alien's blue card status shall terminate if the
alien is unemployed for 60 or more consecutive days.
``(ii) An alien whose period of authorized admission
terminates under clause (i) shall be required to return to
the country of the alien's nationality or last residence.
``(6) Grounds for ineligibility.--
``(A) Bar to future visas for condition violations.--Any
alien having blue card status shall not again be eligible for
the same blue card status if the alien violates any term or
condition of such status.
``(B) Aliens unlawfully present.--Any alien who enters the
United States after April 1, 2005, without being admitted or
paroled shall be ineligible for blue card status.
``(C) Aliens in h-2a status.--Any alien in lawful H-2A
status as of April 1, 2005, shall be ineligible for blue card
status.
``(7) Bar on change or adjustment of status.--
``(A) In general.--An alien having blue card status shall
not be eligible to change or adjust status in the United
States or obtain a different nonimmigrant or immigrant visa
from a United States Embassy or consulate.
``(B) Loss of eligibility.--An alien having blue card
status shall lose eligibility for such status if the alien--
``(i) files a petition to adjust status to legal permanent
residence in the United States; or
``(ii) requests a consular processing for an immigrant visa
outside the United States.
``(C) Exception.--An alien having blue card status may not
adjust status to legal permanent resident status or obtain
another nonimmigrant or immigrant status unless--
``(i)(I) the alien renounces his or her blue card status by
providing written notification to the Secretary of Homeland
Security or the Secretary of State; or
``(II) the alien's blue card status otherwise expires; and
``(ii) the alien has resided and been physically present in
the alien's country of nationality or last residence for not
less than 1 year after leaving the United States and the
renouncement or expiration of blue card status.
``(8) Judicial review.--There shall be no judicial review
of a denial of blue card status.
``(c) Safe Harbor.--
``(1) Safe harbor of alien.--An alien for whom a
nonfrivolous petition is filed under this section--
``(A) shall be granted employment authorization pending
final adjudication of the petition;
``(B) may not be detained, determined inadmissible or
deportable, or removed pending final adjudication of the
petition for change in status, unless the alien commits an
act which renders the alien ineligible for such change of
status; and
``(C) may not be considered an unauthorized alien as
defined in section 274A(h)(3) until such time as the petition
for status is adjudicated.
``(2) Safe harbor for employer.--An employer that files a
petition for blue card status for an alien shall not be
subject to civil and criminal tax liability relating directly
to the employment of such alien. An employer that provides
unauthorized aliens with copies of employment records or
other

[[Page S3707]]

evidence of employment pursuant to the petition shall not be
subject to civil and criminal liability pursuant to section
274A for employing such unauthorized aliens.
``(d) Treatment of Spouses and Children.--
``(1) Spouses.--A spouse of an alien having blue card
status shall not be eligible for derivative status by
accompanying or following to join the alien. Such a spouse
may obtain status based only on an independent petition filed
by an employer petitioning under subsection (b)(3) with
respect to the employment of the spouse.
``(2) Children.--A child of an alien having blue card
status shall not be eligible for the same temporary status
unless--
``(A) the child is accompanying or following to join the
alien; and
``(B) the alien is the sole custodial parent of the child
or both custodial parents of the child have obtained such
status.''.
(b) Clerical Amendment.--The table of contents of the
Immigration and Nationality Act is amended by inserting after
the item relating to section 219 the following:

``Sec. 220. Blue card program.''.

SEC. 722. PENALTIES FOR FALSE STATEMENTS.

Section 1546 of title 18, United States Code, is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c) Any person, including the alien who is the
beneficiary of a petition, who--
``(1) files a petition under section 220(b)(3) of the
Immigration and Nationality Act; and
``(2)(A) knowingly and willfully falsifies, conceals, or
covers up a material fact related to such a petition;
``(B) 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 related to such a petition;
or
``(C) creates or supplies a false writing or document for
use in making such a petition,
shall be fined in accordance with this title, imprisoned not
more than 5 years, or both.''.

SEC. 723. SECURING THE BORDERS.

Not later than 6 months after the date of enactment of this
Act, the Secretary of Homeland Security shall submit to
Congress a comprehensive plan for securing the borders of the
United States.

SEC. 724. EFFECTIVE DATE.

This subtitle shall take effect on the date that is 6
months after the date of enactment of this Act.
______