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Text of the AgJOBS-2000 Bill (H.R.4056)
as printed in the Congressional Record
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IN THE HOUSE OF REPRESENTATIVE, March 22, 2000

Mr. BISHOP introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To establish a system of registries of temporary agricultural workers to provide for a sufficient supply of such workers and to amend the Immigration and Nationality Act to streamline procedures for the admission and extension of stay of nonimmigrant agricultural workers, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I--ADJUSTMENT TO LEGAL STATUS

Sec. 101. Agricultural workers.

TITLE II--AGRICULTURAL WORKER REGISTRIES

Sec. 201. Agricultural worker registries.

TITLE III--H-2A REFORM

Sec. 301. Employer applications and assurances.

Sec. 302. Search of registry.

Sec. 303. Issuance of visas and admission of aliens.

Sec. 304. Employment requirements.

Sec. 305. Program for the admission of temporary H-2A workers.

TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Enhanced worker protections and labor standards enforcement.

Sec. 402. Bilateral commissions.

Sec. 403. Regulations.

Sec. 404. Determination and use of user fees.

Sec. 405. Funding for startup costs.

Sec. 406. Report to Congress.

Sec. 407. Effective date.

SEC. 2. DEFINITIONS.

(1) ADVERSE EFFECT WAGE RATE-

(A) IN GENERAL- Except as provided in subparagraph (B), the term `adverse effect wage rate' means the rate of pay for an agricultural occupation that is 5 percent above the prevailing rate of pay for that agricultural occupation in an area of intended employment, if the prevailing rate of pay for the occupation is less than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture, provided no adverse effect wage rate shall be more than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture.

(B) EXCEPTION- If the prevailing rate of pay for an activity is a piece rate, task rate or group rate, and the average hourly earnings of an employer's workers employed in that activity, taken as a group, are less than the prior year's average hourly earnings of field and livestock workers in the State (or region that includes the State), as determined by the Secretary of Agriculture, the term `adverse effect wage rate' means the prevailing piece rate, task rate or group rate for the activity plus such an amount as is necessary to increase the average hourly earnings of the employer's workers employed in the activity, taken as a group, by 5 percent, or to the prior year's average hourly earnings for field and livestock workers for the State (or region that includes the State) determined by the Secretary of Agriculture, whichever is less.

(2) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agriculture under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or as agricultural labor under section 3121(g) of the Internal Revenue Code of 1986. For purposes of this paragraph, agricultural employment in the United States includes, but is not limited to, employment under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

(3) ELIGIBLE- The term `eligible' as used with respect to workers or individuals, means individuals authorized to be employed in the United States as provided for in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1188).

(4) EMPLOYER- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers.

(5) H-2A EMPLOYER- The term `H-2A employer' means an employer who seeks to hire one or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act.

(6) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act.

(7) JOB OPPORTUNITY- The term `job opportunity' means a specific period of employment provided by an employer to a worker in one or more agricultural activities.

(8) PREVAILING WAGE- The term `prevailing wage' means with respect to an agricultural activity in an area of intended employment, the rate of wages that includes the 51st percentile of employees in that agricultural activity in the area of intended employment, expressed in terms of the prevailing method of pay for the agricultural activity in the area of intended employment.

(9) REGISTERED WORKER- The term `registered worker' means an individual whose name appears in a registry.

(10) REGISTRY- The term `registry' means an agricultural worker registry established under section 201(a).

(11) SECRETARY- The term `Secretary' means the Secretary of Labor.

(12) UNITED STATES WORKER- The term `United States worker' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien who is authorized to work in the job opportunity within the United States other than an alien admitted pursuant to section 101(a)(15)(H)(ii)(a) or section 218 of the Immigration and Nationality Act, as in effect on the effective date of this Act, or a nonimmigrant agricultural worker whose status was adjusted under section 101(a).

(13) WORK DAY- The term `work day' means any day in which the individual is employed one or more hours in agriculture.

SEC. 101. AGRICULTURAL WORKERS.

(1) IN GENERAL- The Attorney General shall adjust the status of an alien agricultural worker who qualifies under this subsection to that of an alien lawfully admitted for nonimmigrant status under section 101(a)(15) of the Immigration and Nationality Act if the Attorney General determines that the following requirements are satisfied with respect to the alien:

(A) PERFORMANCE OF AGRICULTURAL EMPLOYMENT IN THE UNITED STATES- The alien must establish that the alien has performed agricultural employment in the United States for at least 880 hours or 150 work days, whichever is lesser, during the 12-month period prior to March 31, 2000.

(B) APPLICATION PERIOD- The alien must apply for such adjustment not later than 12 months after the effective date of this Act.

(C) ADMISSIBILITY-

(i) IN GENERAL- The alien must establish that the alien is otherwise admissible to the United States under section 212 of the Immigration and Nationality Act, except as otherwise provided under subsection (d).

(ii) WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE- An alien who has not previously been admitted to the United States pursuant to this section, and who is otherwise eligible for admission in accordance with clause (i), shall not be deemed inadmissible by virtue of section 212(a)(9)(B) of that Act.

(2) PERIOD OF VALIDITY OF NONIMMIGRANT STATUS-

(A) IN GENERAL- The status granted in paragraph (1) shall be valid for a period of not to exceed 7 consecutive calendar years, except that the alien may not be present in the United States for more than an aggregate of 300 days in any calendar year.

(B) EXCEPTION- The 300-day-per-year limitation in subparagraph (A) shall not apply to any period of validity of the status of any alien who--

(i) has established a permanent residence in the United States and has a minor child who was born in the United States prior to the date of enactment of this Act who resides in the alien's household; and

(ii) performs agricultural employment for not less than 240 days in a calendar year.

(3) AUTHORIZED TRAVEL- During the period an alien is in lawful nonimmigrant status granted under this subsection, the alien has the right to travel abroad (including commutation from a residence abroad).

(4) AUTHORIZED EMPLOYMENT- During the period an alien is in lawful nonimmigrant status granted under this subsection, the alien shall be granted authorization to engage in the performance only of agricultural employment in the United States and shall be provided an `employment authorized' endorsement or other appropriate work permit, only for the performance of such employment. A nonimmigrant alien under this subsection may perform agricultural employment anywhere in the United States.

(5) TERMINATION OF NONIMMIGRANT STATUS- Except as otherwise provided in paragraph (2), the Attorney General shall terminate the status, and bring proceedings under section 240 of the Immigration and Nationality Act to remove, any nonimmigrant alien under this subsection who failed during 3 prior calendar years to perform 1,040 hours or 180 work days, whichever is lesser, of agricultural services in any single calendar year.

(6) RECORD OF EMPLOYMENT- Each employer of a nonimmigrant agricultural worker whose status is adjusted under this subsection shall--

(A) provide a written record of employment to the alien; and

(B) provide a copy of such record to the Immigration and Naturalization Service.

(1) IN GENERAL- Except as provided in paragraph (2), the Attorney General shall adjust the status of any alien provided lawful nonimmigrant status under subsection (a) to that of an alien lawfully admitted for permanent residence if the Attorney General determines that the following requirements are satisfied:

(A) QUALIFYING YEARS- The alien has performed a minimum period of agricultural employment in the United States in each of 5 calendar years during the period of validity of the alien's adjustment to nonimmigrant status pursuant to subsection (a). Qualifying years under this subparagraph may include nonconsecutive years.

(B) MINIMUM PERIODS OF AGRICULTURAL EMPLOYMENT-

(i) IN GENERAL- Except as provided in clause (ii), the minimum period of agricultural employment in any calendar year is 1,040 hours or 180 work days, whichever is lesser.

(ii) EXCEPTION- An alien described in subsection (a)(2)(B) who remains in the United States for more than 300 days in a calendar year may only be credited with satisfaction of the minimum period of agricultural employment requirement for that year if the alien performed agricultural employment in the United States for at least 240 work days that year.

(C) APPLICATION PERIOD- The alien applies for adjustment of status not later than 6 months after completing the fifth year of qualifying employment in the United States.

(2) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS- The Attorney General may deny adjustment to nonimmigrant status and provide for termination of the nonimmigrant status granted such alien under subsection (a) if--

(A) the Attorney General finds by a preponderance of the evidence that the adjustment to nonimmigrant status was the result of fraud or willful misrepresentation as set out in section 212(a)(6)(C)(i), or

(B) the alien commits an act that (i) makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act, except as provided under subsection (c)(2), or (ii) is convicted of a felony or 3 or more misdemeanors committed in the United States.

(3) TREATMENT OF ALIENS DEMONSTRATING PRIMA FACIE CASE FOR ADJUSTMENT- Any alien who demonstrates a prima facie case of eligibility for adjustment under this subsection in accordance with regulations promulgated by the Attorney General, shall be considered a temporary resident alien and, pending adjudication of an application for permanent resident status under this subsection--

(A) may remain in the United States and shall be granted authorization to engage in any employment in the United States; and

(B) shall become eligible for any assistance or benefit to which a person granted lawful permanent resident status would be eligible on the date of enactment of this Act.

(4) GROUNDS FOR REMOVAL- Any nonimmigrant alien under subsection (a) who does not apply for adjustment of status under this subsection before the expiration of the application period described in paragraph (1)(C) is deportable and may be removed.

(5) NUMERICAL LIMITATION- In any fiscal year not more than 20 percent of the number of aliens obtaining nonimmigrant status under subsection (a) may be granted adjustment of status under this subsection. In granting such adjustment, aliens having the greater number of work hours shall be accorded priority. Any temporary resident alien under paragraph (3) who does not receive adjustment of status under this subsection in a fiscal year by reason of the limitation in this paragraph may continue to work in any employment, and shall be credited with any additional hours of agricultural employment performed for purposes of being accorded priority for adjustment of status.

(1) TO WHOM MAY BE MADE-

(A) WITHIN THE UNITED STATES- The Attorney General shall provide that--

(i) applications for adjustment of status under subsection (a) may be filed--

(I) with the Attorney General; or

(II) with a qualified designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Attorney General; and

(ii) applications for adjustment of status under subsection (b) shall be filed directly with the Attorney General.

(B) OUTSIDE THE UNITED STATES- The Attorney General, in cooperation with the Secretary of State, shall provide a procedure whereby an alien may apply for adjustment of status under subsection (a) at an appropriate consular office outside the United States. The Attorney General shall prescribe regulations setting forth procedures for notification of immigration officials by the alien before departing the United States.

(C) TRAVEL DOCUMENTATION- The Attorney General shall provide each alien whose status is adjusted under this section with a counterfeit-resistant document of authorization to enter or reenter the United States.

(2) DESIGNATION OF ENTITIES TO RECEIVE APPLICATIONS- For purposes of receiving applications under subsection (a), the Attorney General--

(A) shall designate qualified voluntary organizations and other qualified State, local, community, farm labor organizations, and associations of agricultural employers; and

(B) may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under section 209 or 245 of the Immigration and Nationality

(3) PROOF OF ELIGIBILITY-

(A) IN GENERAL- An alien may establish that the alien meets the requirement of subsection (a)(1)(A) through government employment records or records supplied by employers or collective bargaining organizations. The Attorney General shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.

(B) DOCUMENTATION OF WORK HISTORY- (i) An alien applying for adjustment of status under subsection (a)(1) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours (as required under subsection (a)(1)(A)).

(ii) If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Attorney General.

(4) TREATMENT OF APPLICATIONS BY QUALIFIED DESIGNATED ENTITIES- Each qualified designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(A)(ii) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General. Upon the request of the alien, a qualified designated entity shall assist the alien in obtaining documentation of the work history of the alien.

(5) LIMITATION ON ACCESS TO INFORMATION- Files and records prepared for purposes of this section by qualified designated entities operating under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6).

(6) CONFIDENTIALITY OF INFORMATION-

(A) IN GENERAL- Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may--

(i) use the information furnished by the applicant pursuant to an application filed under this section, or the information provided to the applicant by a person designated under paragraph (2)(B), for any purpose other than to make a determination on the application, including a determination under subsection (b)(3), or for enforcement of paragraph (7);

(ii) make any publication whereby the information furnished by any particular individual can be identified; or

(iii) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.

(B) CRIME- Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.

(7) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS-

(A) CRIMINAL PENALTY- Whoever--

(i) files an application for adjustment of status under this section and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, or

(ii) creates or supplies a false writing or document for use in making such an application,

shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

(B) EXCLUSION- An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act.

(1) NUMERICAL LIMITATIONS DO NOT APPLY- The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act shall not apply to the adjustment of aliens to lawful permanent resident status under this section.

(2) WAIVER OF CERTAIN GROUNDS OF INADMISSIBILITY- In the determination of an alien's admissibility under subsection (a)(1)(D), the following provisions of section 212(a) of the Immigration and Nationality Act shall not apply:

(A) GROUNDS OF EXCLUSION NOT APPLICABLE- The provisions of paragraphs (5) and (7)(A) of section 212(a) shall not apply.

(B) WAIVER OF OTHER GROUNDS-

(i) IN GENERAL- Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

(ii) GROUNDS THAT MAY NOT BE WAIVED- The following provisions of section 212(a) may not be waived by the Attorney General under clause (i):

(I) Paragraph (2) (A) and (B) (relating to criminals).

(II) Paragraph (4) (relating to aliens likely to become public charges).

(III) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana.

(IV) Paragraph (3) (relating to security and related grounds), other than subparagraph (E) thereof.

(C) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 212(a)(4) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.

(1) BEFORE APPLICATION PERIOD- The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1) and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien--

(A) may not be removed, and

(B) shall be granted authorization to engage in agricultural employment in the United States and be provided an `employment authorized' endorsement or other appropriate work permit for such purpose.

(2) DURING APPLICATION PERIOD- The Attorney General shall provide that in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) during the application period, including an alien who files such an application within 30 days of the alien's apprehension, and until a final determination on the application has been made in accordance with this section, the alien--

(A) may not be removed, and

(B) shall be granted authorization to engage in agricultural employment in the United States and be provided an `employment authorized' endorsement or other appropriate work permit for such purpose.

(3) PROHIBITION- No application fees collected by the Service pursuant to this subsection may be used by the Service to offset the costs of the agricultural worker adjustment program under this title until the Service implements the program consistent with the statutory mandate as follows:

(A) During the application period described in subsection (a)(1)(A) the Service may grant nonimmigrant admission to the United States, work authorization, and provide an `employment authorized' endorsement or other appropriate work permit to any alien who presents a preliminary application for adjustment of status under subsection (a) at a designated port of entry on the southern land border. An alien who does not enter through a port of

(B) During the application period described in subsection (a)(1)(A) any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) is subject to paragraph (2) of this subsection.

(C) A preliminary application is defined as a fully completed and signed application with fee and photographs which contains specific information concerning the performance of qualifying employment in the United States and the documentary evidence which the applicant intends to submit as proof of such employment. The applicant must be otherwise admissible to the United States and must establish to the satisfaction of the examining officer during an interview that his or her claim to eligibility for agriculture worker status is credible.

(1) ADMINISTRATIVE AND JUDICIAL REVIEW- There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.

(2) ADMINISTRATIVE REVIEW-

(A) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.

(B) STANDARD FOR REVIEW- Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.

(3) JUDICIAL REVIEW-

(A) LIMITATION TO REVIEW OF EXCLUSION OR DEPORTATION- There shall be judicial review of such a denial only in the judicial review of an order of removal under section 106.

(B) STANDARD FOR JUDICIAL REVIEW- Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.

SEC. 201. AGRICULTURAL WORKER REGISTRIES.

(1) IN GENERAL- The Secretary of Labor shall establish and maintain a system of registries containing a current database of workers described in paragraph (2) who seek agricultural employment and the employment status of such workers--

(A) to ensure that eligible United States workers are informed about available agricultural job opportunities and have the right of first refusal for the agricultural jobs available through the registry; and

(B) to provide timely referral of such workers to agricultural job opportunities in the United States.

(2) COVERED WORKERS- The workers covered by paragraph (1) are--

(A) eligible United States workers; and

(B) eligible nonimmigrant agricultural workers whose status was adjusted under section 101(a).

(3) GEOGRAPHIC COVERAGE-

(A) SINGLE STATE- Each registry established under paragraph (1) shall include the job opportunities in a single State, except that, in the case of New England States, two or more such States may be represented by a single registry in lieu of multiple registries.

(B) REQUESTS FOR INCLUSION- Each State having any group of agricultural producers seeking to utilize the registry shall be represented by a registry, except that, in the case of a New England State, the State shall be represented by the registry covering the group of States of which the State is a part.

(4) COMPUTER DATABASE- The Secretary of Labor may establish the registries as part of the computer databases known as `America's Job Bank' and `America's Talent Bank'.

(5) RELATION TO PROCESS FOR IMPORTING H-2A WORKERS- Notwithstanding section 218 of the Immigration and Nationality Act (8 U.S.C. 1188), no petition to import an alien as an H-2A worker (as defined in section 218(i)(2) of that Act) may be approved by the Attorney General unless the H-2A employer--

(A) has applied to the Secretary to conduct a search of the registry of the State in which the job opportunities for which H-2A workers are sought are located; and

(B) has received a report described in section 303(a)(1).

(1) IN GENERAL- An eligible individual who seeks employment in agricultural work may apply to be included in the registry for the State in which the individual resides. Such application shall include--

(A) the name and address of the individual;

(B) the period or periods of time (including beginning and ending dates) during which the individual will be available for agricultural work;

(C) the registry or registries on which the individual desires to be included;

(D) the specific qualifications and work experience possessed by the applicant;

(E) the type or types of agricultural work the applicant is willing to perform;

(F) such other information as the applicant wishes to be taken into account in referring the applicant to agricultural job opportunities; and

(G) such other information as may be required by the Secretary.

(2) VALIDATION OF EMPLOYMENT AUTHORIZATION- No person may be included on any registry unless the Secretary of Labor has requested and obtained from the Attorney General a certification that the person is authorized to be employed in the United States.

(3) UNITED STATES WORKERS- United States workers shall have preference in referral by the registry, and may be referred to any job opportunity nationwide for which they are qualified and make a commitment to be available at the time and place needed.

(4) ADJUSTED NONIMMIGRANTS- Adjusted nonimmigrant aliens who apply to be included in a registry may only be referred to job opportunities for which they are qualified within the State covered by the registry or within States contiguous to that State.

(5) SANCTIONS FOR NONCOMPLIANCE- Adjusted nonimmigrant aliens who elect to be listed on the registry and who fail to report to a registry job opportunity for which they had made an affirmative commitment and been referred will be removed from the registry for a period of 6 months for the first such failure and for a period of 1 year for each succeeding failure.

(6) USE OF REGISTRY- Any United States agricultural employer may use the registry.

(7) DISCRETIONARY USE FOR NEW HIRES- An agricultural employer may require prospective employees to register with a registry as a means of assuring that its workers are eligible to be employed in the United States.

(8) WORKERS REFERRED TO JOB OPPORTUNITIES- The name of each registered worker who is referred and accepts employment with an employer shall be classified as inactive on each registry on which the worker is included during the period of employment involved in the job to which the worker was referred, unless the worker reports to the Secretary that the worker is no longer employed and is available for referral to another job opportunity. A registered worker classified as inactive shall not be referred.

(9) REMOVAL OF NAMES FROM A REGISTRY- The Secretary shall remove from the appropriate registry the name of any registered worker who, on 3 separate occasions within a 3-month period, is referred to a job opportunity pursuant to this section, and who declines such referral or fails to report to work in a timely manner.

(10) VOLUNTARY REMOVAL- A registered worker may request that the worker's name be removed from a registry.

(11) REMOVAL BY EXPIRATION- The application of a registered worker shall expire, and the Secretary shall remove the name of such worker from the appropriate registry if the worker has not accepted a job opportunity pursuant to this section within the preceding 12-month period.

(12) REINSTATEMENT- A worker whose name is removed from a registry pursuant to paragraph (9), (10), or (11) may apply to the Secretary for reinstatement to such registry at any time.

SEC. 301. EMPLOYER APPLICATIONS AND ASSURANCES.

(1) IN GENERAL- Not later than 28 days prior to the date on which an H-2A employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall, before petitioning for the admission of such a worker, apply to the Secretary for the referral of a United States worker or nonimmigrant agricultural worker whose status was adjusted under section 101(a) through a search of the appropriate registry, in accordance with section 302. Such application shall--

(A) describe the nature and location of the work to be performed;

(B) list the anticipated period (expected beginning and ending dates) for which workers will be needed;

(C) indicate the number of job opportunities in which the employer seeks to employ workers from the registry;

(D) describe the bona fide occupational qualifications that must be possessed by a worker to be employed in the job opportunity in question;

(E) describe the wages and other terms and conditions of employment the employer will offer, which shall not be less (and are not required to be more) than those required by this section;

(F) contain the assurances required by subsection (c);

(G) specify the foreign country or region thereof from which alien workers should be admitted in the case of a failure to refer United States workers under this Act; and

(H) be accompanied by the payment of a registry user fee determined under section 404(b)(1)(A) for each job opportunity indicated under subparagraph (C).

(2) APPLICATIONS BY ASSOCIATIONS ON BEHALF OF EMPLOYER MEMBERS-

(A) IN GENERAL- An agricultural association may file an application under paragraph (1) for registered workers on behalf of its employer members.

(B) EMPLOYERS- An application under subparagraph (A) shall cover those employer members of the association that the association certifies in its application have agreed in writing to comply with the requirements of this Act.

(1) ASSURANCE THAT THE JOB OPPORTUNITY IS NOT A RESULT OF A LABOR DISPUTE- The employer shall assure that the job opportunity for which the employer requests a registered worker is not vacant because a worker is involved in a strike, lockout, or work stoppage in the course of a labor dispute involving the job opportunity at the place of employment.

(2) ASSURANCE THAT THE JOB OPPORTUNITY IS TEMPORARY OR SEASONAL-

(A) REQUIRED ASSURANCE- The employer shall assure that the job opportunity for which the employer requests a registered worker is temporary or seasonal.

(B) SEASONAL BASIS- For purposes of this Act, labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year.

(C) TEMPORARY BASIS- For purposes of this Act, a worker is employed on a temporary basis where the employment is intended not to exceed 10 months.

(3) ASSURANCE OF PROVISION OF REQUIRED WAGES AND BENEFITS- The employer shall assure that the employer will provide the wages and benefits required by subsections (a), (b), and (c) of section 304 to all workers employed in job opportunities for which the employer has applied under subsection (a) and to all other workers in the same occupation at the place of employment, and in no case less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or the applicable State minimum wage.

(4) ASSURANCE OF EMPLOYMENT- The employer shall assure that the employer will not refuse

(5) ASSURANCE OF COMPLIANCE WITH LABOR LAWS-

(A) IN GENERAL- An employer who requests registered workers shall assure that, except as otherwise provided in this Act, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer.

(B) LIMITATIONS- The disclosure required under section 201(a) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1821(a)) may be made at any time prior to the time the alien is issued a visa permitting entry into the United States.

(6) ASSURANCE OF ADVERTISING OF THE REGISTRY- The employer shall assure that the employer will, from the day an application for workers is submitted under subsection (a), and continuing throughout the period of employment of any job opportunity for which the employer has applied for a worker from the registry, post in a conspicuous place a poster to be provided by the Secretary advertising the availability of the registry.

(7) ASSURANCE OF ADVERTISING OF JOB OPPORTUNITIES- The employer shall assure that not later than 14 days after submitting an application to a registry for workers under subsection (a) the employer will advertise the availability of the job opportunities for which the employer is seeking workers from the registry in a publication in the local labor market that is likely to be patronized by potential farmworkers, if any, and refer interested workers to register with the registry.

(8) ASSURANCE OF CONTACTING FORMER WORKERS- The employer shall assure that the employer has made reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any eligible worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for registered workers, and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous worker, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.

(9) ASSURANCE OF PROVISION OF WORKERS COMPENSATION- The employer shall assure that if the job opportunity is not covered by the State workers' compensation law, that 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.

(10) ASSURANCE OF PAYMENT OF ALIEN EMPLOYMENT USER FEE- The employer shall assure that if the employer receives a notice of insufficient workers under section 302(c), such employer shall promptly pay the alien employment user fee determined under section 404(b)(1)(B) for each job opportunity to be filled by an eligible alien as required under such section.

(1) IN GENERAL- An employer may withdraw an application under subsection (a), except that, if the employer is an agricultural association, the association may withdraw an application under subsection (a) with respect to one or more of its members. To withdraw an application, the employer shall notify the Secretary in writing, and the Secretary shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.

(2) LIMITATION- An application may not be withdrawn while any alien provided status under this Act pursuant to such application is employed by the employer.

(3) OBLIGATIONS UNDER OTHER STATUTES- Any obligation incurred by an employer under any other law or regulation as a result of recruitment of United States workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.

(1) IN GENERAL- Promptly upon receipt of an application by an employer under subsection (a), the Secretary shall review the application for compliance with the requirements of such subsection.

(2) APPROVAL OF APPLICATIONS- If the Secretary determines that an application meets the requirements of subsection (a), and the employer is not ineligible to apply under paragraph (2), (3), or (4) of section 305(b), the Secretary shall, not later than 7 days after the receipt of such application, approve the application and so notify the employer.

(3) REJECTION OF APPLICATIONS- If the Secretary determines that an application fails to meet 1 or more of the requirements of subsection (a), the Secretary, as expeditiously as possible, but in no case later than 7 days after the receipt of such application, shall--

(A) notify the employer of the rejection of the application and the reasons for such rejection, and provide the opportunity for the prompt resubmission of an amended application; and

(B) offer the applicant an opportunity to request an expedited administrative review or a de novo administrative hearing before an administrative law judge of the rejection of the application.

(4) REJECTION FOR PROGRAM VIOLATIONS- The Secretary shall reject the application of an employer under this section if--

(A) the employer has been determined to be ineligible to employ workers under section 401(b); or

(B) the employer during the previous two-year period employed H-2A workers or registered workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the assurances made with respect to the employment of United States workers or nonimmigrant workers.

No employer may have applications under this section rejected for more than 3 years for any violation described in this paragraph.

SEC. 302. SEARCH OF REGISTRY.

SEC. 303. ISSUANCE OF VISAS AND ADMISSION OF ALIENS.

(1) NUMBER OF ADMISSIONS- Subject to paragraph (3), the Secretary of State shall promptly issue visas to, and the Attorney General shall admit, as nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act a sufficient number of eligible aliens designated by the employer to fill the job opportunities of the employer--

(A) upon receipt of a copy of the report described in section 302(c);

(B) upon approval of an application (or copy of an application under subsection (b));

(C) upon receipt of the report required by subsection (c)(1)(B); or

(D) upon receipt of a report under subsection (d).

(2) PROCEDURES- The admission of aliens under paragraph (1) shall be subject to the procedures of section 218 of the Immigration and Nationality Act, as amended by this Act.

(1) APPLICATION TO THE SECRETARY OF STATE- If the employer has not received a referral of sufficient workers pursuant to section 302(b) or a report of insufficient workers pursuant to section 302(c), by the date that is 7 days before the date on which the work is anticipated to begin, the employer may submit an application for alien workers directly to the Secretary of State, with a copy of the application provided to the Attorney General, seeking the issuance of visas to and the admission of aliens for employment in the job opportunities for which the employer has not received referral of registered workers. Such an application shall include a copy of the employer's application under section 301(a), together with evidence of its timely submission. The Secretary of State may consult with the Secretary of Labor in carrying out this paragraph.

(2) EXPEDITED CONSIDERATION BY SECRETARY OF STATE- The Secretary of State shall, as expeditiously as possible, but not later than 5 days after the employer files an application under paragraph (1), issue visas to, and the Attorney General shall admit, a sufficient number of eligible aliens designated by the employer to fill the job opportunities for which the employer has applied under that paragraph, if the employer has met the requirements of sections 301 and 302. The employer shall be subject to the alien employment user fee determined under section 404(b)(1)(B) with respect to each job opportunity for which the Secretary of State authorizes the issuance of a visa pursuant to paragraph (2).

(1) REQUESTS FOR REDETERMINATION-

(A) IN GENERAL- An employer may file a request for a redetermination by the Secretary of the employer's need for workers if--

(i) a worker referred from the registry is not at the place of employment on the date of need shown on the application, or the date the work for which the worker is needed has begun, whichever is later;

(ii) the worker is not ready, willing, able, or qualified to perform the work required; or

(iii) the worker abandons the employment or is terminated for a lawful job-related reason.

(B) ADDITIONAL AUTHORIZATION OF ADMISSIONS- The Secretary shall expeditiously, but in no case later than 72 hours after a redetermination is requested under subparagraph (A), submit a report to the Secretary of State and the Attorney General providing notice of a need for workers under this subsection, if the employer has met the requirements of sections 301 and 302 and the conditions described in subparagraph (A).

(2) JOB-RELATED REQUIREMENTS- An employer shall not be required to initially employ a worker who fails to meet lawful job-related employment criteria, nor to continue the employment of a worker who fails to meet lawful, job-related standards of conduct and performance, including failure to meet minimum production standards after a 3-day break-in period.

(1) who has not employed aliens under this Act in the occupation in question in the prior year's agricultural season;

(2) who faces an unforeseen need for workers (as determined by the Secretary); and

(3) with respect to whom the Secretary cannot refer able, willing, and qualified workers from the registry who will commit to be at the employer's place of employment and ready for work within 72 hours or on the date the work for which the worker is needed has begun, whichever is later.

SEC. 304. EMPLOYMENT REQUIREMENTS.

(1) IN GENERAL- An employer applying under section 301(a) for workers shall offer to pay, and shall pay, all workers in the occupation or occupations for which the employer has applied for workers from the registry, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or the applicable State minimum wage.

(2) PAYMENT OF PREVAILING WAGE DETERMINED BY A STATE EMPLOYMENT SECURITY AGENCY SUFFICIENT- In complying with paragraph (1), an employer may request and obtain a prevailing wage determination from the State employment security agency. If the employer requests such a determination, and pays the wage required by paragraph (1) based upon such a determination, such payment shall be considered sufficient to meet the requirement of paragraph (1).

(3) RELIANCE ON WAGE SURVEY- In lieu of the procedure of paragraph (2), an employer may rely on other information, such as an employer-generated prevailing wage survey that the Secretary determines meets criteria specified by the Secretary in regulations.

(4) ALTERNATIVE METHODS OF PAYMENT PERMITTED-

(A) IN GENERAL- A prevailing wage may be expressed as an hourly wage, a piece rate, a task rate, or other incentive payment method, including a group rate. The requirement to pay at least the prevailing wage in the occupation and area of intended employment does not require an employer to pay by the method of pay in which the prevailing rate is expressed, except that, if the employer adopts a method of pay other than the prevailing rate, the burden of proof is on the employer to demonstrate that the employer's method of pay is designed to produce earnings equivalent to the earnings that would result from payment of the prevailing rate.

(B) COMPLIANCE WHEN PAYING AN INCENTIVE RATE- In the case of an employer that pays a piece rate or task rate or uses any other incentive payment method, including a group rate, the employer shall be considered to be in compliance with any applicable hourly wage requirement if the average of the hourly earnings of the workers, taken as a group, in the activity for which a piece rate, task rate, or other incentive payment, including a group rate, is paid, for the pay period, is at least equal to the required hourly wage, except that no worker shall be paid less than the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State minimum wage.

(C) TASK RATE- For purposes of this paragraph, the term `task rate' means an incentive payment method based on a unit of work performed such that the incentive rate varies with the level of effort required to perform individual units of work.

(D) GROUP RATE- For purposes of this paragraph, the term `group rate' means an incentive payment method in which the payment is shared among a group of workers working together to perform the task.

(1) IN GENERAL-

(A) REQUIREMENT- An employer applying under section 301(a) for registered workers shall offer to provide housing at no cost (except for charges permitted by paragraph (5)) to all

(B) LIABILITY- An employer not complying with subparagraph (A) shall be liable to a registered worker for the costs of housing equivalent to the type of housing required to be provided under that subparagraph and shall not be liable for any employment-related obligation solely by reason of such noncompliance.

(2) TYPE OF HOUSING- In complying with paragraph (1), 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.

(3) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK- The Secretary shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.

(4) LIMITATION- Nothing in this subsection 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.

(5) CHARGES FOR HOUSING-

(A) UTILITIES AND MAINTENANCE- An employer who provides housing to a worker pursuant to paragraph (1) may charge an amount equal to the fair market value (but not greater than the employer's actual cost) for maintenance and utilities, or such lesser amount as permitted by law.

(B) SECURITY DEPOSIT- An employer who provides housing to workers pursuant to paragraph (1) may require, as a condition for providing such housing, a deposit not to exceed $50 from workers occupying such housing to protect against gross negligence or willful destruction of property.

(C) DAMAGES- An employer who provides housing to workers pursuant to paragraph (1) may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.

(6) HOUSING ALLOWANCE AS ALTERNATIVE-

(A) IN GENERAL- In lieu of offering housing pursuant to paragraph (1), the employer may provide a reasonable housing allowance during the 3-year period beginning on the date of enactment of this Act. After the expiration of that period such allowance may be provided only if the requirement of subparagraph (B) is satisfied or, in the case of a certification under subparagraph (B) that is expired, the requirement of subparagraph (C) is satisfied. Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this subparagraph shall not be deemed to be a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823)

(B) CERTIFICATION- The requirement of this subparagraph is satisfied if the Governor of the State certifies to the Secretary that there is adequate housing available in an area of intended employment for migrant farm workers, aliens provided status pursuant to this Act, or nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act, 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.

(C) EFFECT OF CERTIFICATION- Notwithstanding the expiration of a certification under subparagraph (B) with respect to an area of intended employment, a housing allowance described in subparagraph (A) may be offered for up to one year after the date of expiration.

(D) AMOUNT OF ALLOWANCE- The amount of a housing allowance under this paragraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State in which the employment occurs, 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.

(1) TO PLACE OF EMPLOYMENT- A worker who is referred to a job opportunity under section 302(a), or an alien employed pursuant to this Act, who completes 50 percent of the period of employment of the job opportunity for which the worker was hired, shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the worker's permanent place of residence (or place of last employment, if the worker traveled from such place) to the place of employment to which the worker was referred under section 302(a).

(2) FROM PLACE OF EMPLOYMENT- A worker who is referred to a job opportunity under section 302(a), or an alien employed pursuant to this Act, 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

(3) LIMITATION-

(A) AMOUNT OF REIMBURSEMENT- Except as provided in subparagraph (B), the amount of reimbursement provided under paragraph (1) or (2) to a worker or alien shall not exceed the lesser of--

(i) the actual cost to the worker or alien of the transportation and subsistence involved; or

(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

(B) DISTANCE TRAVELED- No reimbursement under paragraph (1) or (2) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through a voucher as provided in subsection (b)(6).

(C) PLACE OF RECRUITMENT- For the purpose of the reimbursement required under paragraph (1) or (2) to aliens admitted pursuant to this Act, the alien's place of residence shall be deemed to be the place where the alien was issued the visa authorizing admission to the United States or, if no visa was required, the place from which the alien departed the foreign country to travel to the United States.

(1) IN GENERAL- An employer that applies for registered workers under section 301(a) shall, as a condition for the approval of such application, continue to offer employment to qualified, eligible United States workers who are referred under section 302(b) after the employer receives the report described in section 302(b).

(2) LIMITATION- An employer shall not be obligated to comply with paragraph (1)--

(A) after 50 percent of the anticipated period of employment shown on the employer's application under section 301(a) has elapsed; or

(B) during any period in which the employer is employing no H-2A workers in the occupation for which the United States worker was referred; or

(C) during any period when the Secretary is conducting a search of a registry for workers in the occupation and area of intended employment to which the worker has been referred, or in other occupations in the area of intended employment for which the worker that has been referred is qualified and that offer substantially similar terms and conditions of employment.

(3) LIMITATION ON REQUIREMENT TO PROVIDE HOUSING- Notwithstanding any other provision of this Act, an employer to whom a registered worker is referred pursuant to paragraph (1) may provide a reasonable housing allowance to such referred worker in lieu of providing housing if the employer does not have sufficient housing to accommodate the referred worker and all other workers for whom the employer is providing housing or has committed to provide housing.

(4) REFERRAL OF WORKERS DURING 50-PERCENT PERIOD- The Secretary shall make all reasonable efforts to place a registered worker in an open job acceptable to the worker, including available jobs not listed on the registry, before referring

SEC. 305. PROGRAM FOR THE ADMISSION OF TEMPORARY H-2A WORKERS.

`ADMISSION OF TEMPORARY H-2A WORKERS

`(1) ALIENS WHO ARE OUTSIDE THE UNITED STATES-

`(A) CRITERIA FOR ADMISSIBILITY-

`(i) IN GENERAL- An alien described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act shall be admissible under this section if the alien is designated pursuant to section 302 of the Agricultural Job Opportunity Benefits and Security Act of 2000, otherwise admissible under this Act, and the alien is not ineligible under clause (ii).

`(ii) DISQUALIFICATION- An alien shall be ineligible for admission to the United States or being provided status under this section if the alien has, at any time during the past 5 years--

`(I) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or

`(II) otherwise violated a term or condition of admission to the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.

`(iii) INITIAL WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE-

`(I) IN GENERAL- An alien who has not previously been admitted to the United States pursuant to this section, and who is otherwise eligible for admission in accordance with clauses (i) and (ii), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). Such an alien shall depart the United States to be eligible for admission under this section.

`(II) TERMINATION- Subclause (I) shall terminate on the date that is 4 years after the date of the enactment of the Agricultural Job Opportunity Benefits and Security Act of 2000.

`(B) PERIOD OF ADMISSION- The alien shall be admitted for the period requested by the employer not to exceed 10 months, or the ending date of the anticipated period of employment on the employer's application for registered workers, whichever is less, plus an additional period of 14 days, during which the alien shall seek authorized employment in the United States. During the 14-day period following the expiration of the alien's work authorization, the alien is not authorized to be employed unless an employer who is authorized to employ such worker has filed an extension of stay on behalf of the alien pursuant to paragraph (2).

`(C) ABANDONMENT OF EMPLOYMENT-

`(i) IN GENERAL- An alien admitted or provided status under this section 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 alien described in section 101(a)(15)(H)(ii)(a) and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).

`(ii) REPORT BY EMPLOYER- The employer (or association acting as agent for the employer) shall notify the Attorney General within 7 days of an alien admitted or provided status under this Act pursuant to an application to the Secretary of Labor under section 302 of the Agricultural Job Opportunity Benefits and Security Act of 2000 by the employer who prematurely abandons the alien's employment.

`(iii) REMOVAL BY THE ATTORNEY GENERAL- The Attorney General shall promptly remove from the United States aliens admitted pursuant to section 101(a)(15)(H)(ii)(a) who have failed to maintain nonimmigrant status or who have otherwise violated the terms of a visa issued under this title.

`(iv) VOLUNTARY TERMINATION- Notwithstanding the provisions of clause

`(D) IDENTIFICATION DOCUMENT AND IDENTIFICATION SYSTEM-

`(i) IN GENERAL- Each alien admitted under this section shall, upon receipt of a visa, be given an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.

`(ii) REQUIREMENTS- No identification and employment eligibility document may be issued and no identification system may be implemented which does not meet the following requirements:

`(I) The document and system shall be capable of reliably determining whether--

`(bb) the individual whose eligibility is being verified is claiming the identity of another person, and

`(cc) the individual whose eligibility is being verified has been properly admitted under this section.

`(II) The document shall be in the form that is resistant to counterfeiting and to tampering.

`(III) The document and system shall--

`(bb) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.

`(2) EXTENSION OF STAY OF ALIENS IN THE UNITED STATES-

`(A) EXTENSION OF STAY- If an employer with respect to whom a report or application described in section 302(a)(1) of the Agricultural Job Opportunity Benefits and Security Act of 2000 has been submitted seeks to employ an alien who has acquired status under this section and who is lawfully present in the United States, the employer shall file with the Attorney General an application for an extension of the alien's stay or a change in the alien's authorized employment. The application shall be accompanied by a copy of the appropriate report or application described in section 302 of the Agricultural Job Opportunity Benefits and Security Act of 2000.

`(B) LIMITATION ON FILING AN APPLICATION FOR EXTENSION OF STAY- An application may not be filed for an extension of an alien's stay for a period of more than 10 months, or later than a date which is 3 years from the date of the alien's last admission to the United States under this section, whichever occurs first.

`(C) WORK AUTHORIZATION UPON FILING AN APPLICATION FOR EXTENSION OF STAY- An employer may begin employing an alien who is present in the United States who has acquired status under this Act on the day the employer files an application for extension of stay. For the purpose of this requirement, the term `filing' means sending the application 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 sending and receipt of the application. The employer shall provide a copy of the employer's application to the alien, who shall keep the application with the alien's identification and employment eligibility document as evidence that the application has been filed and that the alien is authorized to work in the

`(D) LIMITATION ON EMPLOYMENT AUTHORIZATION OF ALIENS WITHOUT VALID IDENTIFICATION AND EMPLOYMENT ELIGIBILITY CARD- An expired identification and employment eligibility document, together with a copy of an application for extension of stay or change in the alien's authorized employment that complies with the requirements of subparagraph (A), shall constitute a valid work authorization document for a period of not more than 60 days from the date of application for the extension of stay, after which time only a currently valid identification and employment eligibility document shall be acceptable.

`(E) LIMITATION ON AN INDIVIDUAL'S STAY IN STATUS- An alien having status under this section may not have the status extended for a continuous period longer than 3 years unless the alien remains outside the United States for an uninterrupted period of 6 months. An

`(b) STUDY BY THE ATTORNEY GENERAL- The Attorney General shall conduct a study to determine whether aliens under this section depart the United States in a timely manner upon the expiration of their period of authorized stay. If the Attorney General finds that a significant number of aliens do not so depart and that withholding a portion of the aliens' wages to be refunded upon timely departure is necessary as an inducement to assure such departure, then the Attorney General shall so report to Congress and make recommendations on appropriate courses of action.'.

(b) NO FAMILY MEMBERS PERMITTED- Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking `specified in this paragraph' and inserting `specified in this subparagraph (other than in clause (ii)(a))'.

(c) RANGE PRODUCTION OF LIVESTOCK- Nothing in this title shall preclude the Secretary of Labor and the Attorney General from continuing to apply special procedures to the employment, admission, and extension of aliens in the range production of livestock.

SEC. 401. ENHANCED WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.

(1) INVESTIGATION OF COMPLAINTS-

(A) AGGRIEVED PERSON OR THIRD PARTY COMPLAINTS- The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting an employer's failure to meet a condition specified in section 301 or an employer's misrepresentation of material facts in an application under that section, or violation of the provisions described in subparagraph (B). Complaints may be filed by any aggrieved person or any organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, as the case may be. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.

(B) EXPEDITED INVESTIGATION OF SERIOUS CHILD LABOR, WAGE, AND HOUSING VIOLATIONS- The Secretary shall complete an investigation and issue a written determination as to whether or not a violation has been committed within 10 days of the receipt of a complaint pursuant to subparagraph (A) if there is reasonable cause to believe that any of the following serious violations have occurred:

(i) A violation of section 12(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 212(c)).

(ii) A failure to make a wage payment, except that complaints alleging that an amount less than the wages due has been paid shall be handled pursuant to subparagraph (A).

(iii) A failure to provide the housing allowance required under section 304(b)(6).

(iv) Providing housing pursuant to section 304(b)(1) that fails to comply with standards under section 304(b)(2) and which poses an immediate threat of serious bodily injury or death to workers.

(C) STATUTORY CONSTRUCTION- Nothing in this Act limits the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers or, in the absence of a complaint under this paragraph, under this Act.

(2) WRITTEN NOTICE OF FINDING AND OPPORTUNITY FOR APPEAL- After an investigation has been conducted, the Secretary shall issue a written determination as to whether or not any violation described in subsection (b) has been committed. The Secretary's determination shall be served on the complainant and the employer, and shall provide an

(3) ABILITY OF ALIEN WORKERS TO CHANGE EMPLOYERS-

(A) IN GENERAL- Pending the completion of an investigation pursuant to paragraph (1)(A), the Secretary may permit the transfer of an aggrieved person who has filed a complaint under such paragraph to an employer that--

(i) has been approved to employ workers under this Act; and

(ii) agrees to accept the person for employment.

(B) REPLACEMENT WORKER- An aggrieved person may not be transferred under subparagraph (A) until such time as the employer from whom the person is to be transferred receives a requested replacement worker referred by a registry pursuant to section 302 of this Act or provided status under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act.

(C) LIMITATION- An employer from whom an aggrieved person has been transferred under this paragraph shall have no obligation to reimburse the person for the cost of transportation prior to the completion of the period of employment referred to in section 304(c).

(D) VOLUNTARY TRANSFER- Notwithstanding this paragraph, an employer may voluntarily agree to transfer a worker to another employer that--

(i) has been approved to employ workers under this Act; and

(ii) agrees to accept the person for employment.

(1) BACK WAGES- Upon a final determination that the employer has failed to pay wages as required under this section, the Secretary may assess payment of back wages due to any United States worker or alien described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act employed by the employer in the specific employment in question. The back wages shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

(2) FAILURE TO PAY WAGES- Upon a final determination that the employer has failed to pay the wages required under this Act, the Secretary may assess a civil money penalty up to $1,000 for each person for whom the employer failed to pay the required wage, and may recommend to the Attorney General the disqualification of the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year.

(3) OTHER VIOLATIONS- If the Secretary, as a result of an investigation pursuant to a complaint, determines that an employer covered by an application under section 401(a) has--

(A) filed an application that misrepresents a material fact;

(B) failed to meet a condition specified in section 401; or

(C) committed a serious violation of subsection (a)(1)(B),

the Secretary may seek a cease and desist order and assess a civil money penalty not to exceed $1,000 for each violation and may recommend to the Attorney General the disqualification of the employer if the Secretary finds it to be a substantial misrepresentation or violation of the requirements for the employment of any United States workers or aliens described in section 101(a)(15)(ii)(a) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year. In determining the amount of civil money penalty to be assessed or whether to recommend disqualification of the employer, the Secretary shall consider the seriousness of the violation, the good faith of the employer, the size of the business of the employer being charged, the history of previous violations by the employer, whether the employer obtained a financial gain from the violation, whether the violation was willful, and other relevant factors.

(4) EXPANDED PROGRAM DISQUALIFICATION-

(A) 3 YEARS FOR SECOND VIOLATION- Upon a second final determination that an employer has failed to pay the wages required under this Act, or a second final determination that the employer has committed another substantial violation under paragraph (3) in the same category of violations, with respect to the same alien, the Secretary shall report such determination to the Attorney General and the Attorney General shall disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act for a period of 3 years.

(B) PERMANENT FOR THIRD VIOLATION- Upon a third final determination that an employer has failed to pay the wages required under this section or committed other substantial violations under paragraph (3), the Secretary shall report such determination to the Attorney General, and the Attorney General shall disqualify the employer from any subsequent employment of aliens described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act.

(1) VIOLATION BY A MEMBER OF AN ASSOCIATION- An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of this Act, as though the employer had filed the application itself. If such an employer is determined to have violated a requirement of this section, the penalty for such violation shall be assessed against the employer who committed the violation and not against the association or other members of the association.

(2) VIOLATION BY AN ASSOCIATION ACTING AS AN EMPLOYER- If an association filing an application on its own behalf as an employer is determined to have committed a violation under this subsection which results in disqualification from the program under subsection (b), no individual member of such association may be the beneficiary of the services of an alien described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act in an occupation in which such alien was employed by the association during the period such disqualification is in effect, unless such member files an application as an individual employer or such application is filed on the employer's behalf by an association with which the employer has an agreement that the employer will comply with the requirements of this Act.

(1) COMMISSION ON HOUSING MIGRANT AGRICULTURAL WORKERS-

(A) ESTABLISHMENT- There is established the Commission on Housing Migrant Agricultural Workers (in this paragraph referred to as the `Commission').

(B) COMPOSITION- The Commission shall consist of 12 members, as follows:

(i) Four representatives of agricultural employers and one representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.

(ii) Four representatives of agricultural workers and one representative of the Department of Labor, each appointed by the Secretary of Labor.

(iii) One State or local official knowledgeable about farmworker housing and one representative of Housing and Urban Development, each appointed by the Secretary of Housing and Urban Development.

(C) FUNCTIONS- The Commission shall conduct a study of the problem of in-season housing for migrant agricultural workers.

(D) INTERIM REPORTS- The Commission may at any time submit interim reports to Congress describing the findings made up to that time with respect to the study conducted under subparagraph (C).

(E) FINAL REPORT- Not later than 3 years after the date of enactment of this Act, the Commission shall submit a report to Congress setting forth the findings of the study conducted under subparagraph (C).

(F) TERMINATION DATE- The Commission shall terminate upon filing its final report.

(2) STUDY OF RELATIONSHIP BETWEEN CHILD CARE AND CHILD LABOR- The Secretaries of Labor, Agriculture, and Health and Human Services shall jointly conduct a study of the issues relating to child care of migrant agricultural workers. Such study shall address issues related to the adequacy of educational and day care services for migrant children and the relationship, if any, of child care needs and child labor violations in agriculture. An evaluation of migrant and seasonal Head Start programs (as defined in section 637(12) of the Head Start Act) as they relate to these issues shall be included as a part of the study.

(3) STUDY OF FIELD SANITATION- The Secretary of Labor and the Secretary of Agriculture shall jointly conduct a study regarding current field sanitation standards in agriculture and evaluate alternative approaches and innovations that may further compliance with such standards.

(4) STUDY OF COORDINATED AND TARGETED LABOR STANDARDS ENFORCEMENT- The Secretary, in consultation with the Secretary of Agriculture, shall conduct a study of the most persistent and serious labor standards violations in agriculture and evaluate the most effective means of coordinating enforcement efforts between Federal and State officials. The study shall place primary emphasis on the means by which Federal and State authorities, in consultation with representatives of workers and agricultural employers, may develop more effective methods of targeting resources at repeated and egregious violators of labor standards. The study also shall consider ways of facilitating expanded education among agricultural employers and workers regarding compliance with labor standards and evaluate means of broadening such education on a cooperative basis among employers and workers.

(5) REPORT- Not later than 3 years after the date of enactment of this Act, with respect to each study required to be conducted under paragraphs (2) through (4), the Secretary or group of Secretaries required to conduct the study shall submit to Congress a report setting forth the findings of the study.

SEC. 402. BILATERAL COMMISSIONS.

SEC. 403. REGULATIONS.

SEC. 404. DETERMINATION AND USE OF USER FEES.

(1) IN GENERAL- The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in an employer's application under section 301(a)(1)(C) and sufficient to provide for the reimbursement of the direct costs of providing the following services:

(A) REGISTRY USER FEE- Services provided through the agricultural worker registries established under section 301(a), including registration, referral, and validation, but not including services that would otherwise be provided by the Secretary of Labor under related or similar programs if such registries had not been established.

(B) ALIEN EMPLOYMENT USER FEE- Services related to an employer's authorization to employ eligible aliens pursuant to this Act, including the establishment and certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.

(2) PROCEDURE-

(A) IN GENERAL- In establishing and adjusting such schedule, the Secretary of Labor shall comply with Federal cost accounting and fee setting standards.

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

(1) IN GENERAL- All proceeds resulting from the payment of registry user fees and alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretaries of Labor, State, and Agriculture, and the Attorney General for the costs of carrying out section 218 of the Immigration and Nationality Act and the provisions of this Act.

(2) LIMITATION ON ENFORCEMENT COSTS- In making a determination of reimbursable costs under paragraph (1), the Secretary of Labor shall provide that reimbursement of the costs of enforcement under section 401 shall not exceed 10 percent of the direct costs of the Secretary described in subsection (b)(1) (A) and (B).

SEC. 405. FUNDING FOR STARTUP COSTS.

SEC. 406. REPORT TO CONGRESS.

(1) whether the program has ensured an adequate and timely supply of qualified, eligible workers at the time and place needed by employers;

(2) whether the program has ensured that aliens admitted under this program are employed only in authorized employment, and that they timely depart the United States when their authorized stay ends;

(3) whether the program has ensured that participating employers comply with the requirements of the program with respect to the employment of United States workers and aliens admitted under this program;

(4) whether the program has ensured that aliens admitted under this program are not displacing eligible, qualified United States workers or diminishing the wages and other terms and conditions of employment of eligible United States workers;

(5) to the extent practicable, compare the wages and other terms of employment of eligible United States workers and aliens employed under this program with the wages and other terms of employment of agricultural workers who are not authorized to work in the United States;

(6) whether the housing provisions of this program ensure that adequate housing is available to workers employed under this program who are required to be provided housing or a housing allowance;

(7) recommendations for improving the operation of the program for the benefit of participating employers, eligible United States workers, participating aliens, and governmental agencies involved in administering the program; and

(8) recommendations for the continuation or termination of the program under this Act.

(1) four representatives of agricultural employers to be appointed by the Secretary of Agriculture, including individuals who have experience with the H-2A program; and

(2) four representatives of agricultural workers to be appointed by the Secretary of Labor, including individuals who have experience with the H-2A program,

SEC. 407. EFFECTIVE DATE.