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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˙092A 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
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``(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
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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--
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``(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
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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
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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
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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.
For more information,
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.01268 |
