[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1773 Reported in House (RH)]
Union Calendar No. 506
113th CONGRESS
2d Session
H. R. 1773
[Report No. 113-674, Part I]
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 26, 2013
Mr. Goodlatte (for himself, Mr. Smith of Texas, Mr. Gowdy, Mr.
Farenthold, Mr. Westmoreland, Mr. Poe of Texas, Mr. Holding, Mr.
Peterson, and Mr. Hurt) introduced the following bill; which was
referred to the Committee on the Judiciary, and in addition to the
Committees on Education and the Workforce and Ways and Means, 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
December 12, 2014
Additional sponsors: Mr. Thompson of Pennsylvania, Mr. Bachus, and Mr.
Sessions
December 12, 2014
Deleted sponsor: Mr. Peterson (added April 26, 2013; deleted May 23,
2013)
December 12, 2014
Reported from the Committee on the Judiciary with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
December 12, 2014
The Committees on Education and the Workforce and Ways and Means
discharged; committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on April
26, 2013]
_______________________________________________________________________
A BILL
To create a nonimmigrant H-2C work visa program for 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.
This Act may be cited as--
(1) the ``Agricultural Guestworker Act''; or
(2) the ``AG Act''.
SEC. 2. H-2C TEMPORARY AGRICULTURAL WORK VISA PROGRAM.
(a) In General.--Section 101(a)(15)(H) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking ``; or
(iii)'' and inserting ``, or (c) having a residence in a foreign
country which he has no intention of abandoning who is coming
temporarily to the United States to perform agricultural labor or
services; or (iii)''.
(b) Definition.--Section 101(a) of such Act (8 U.S.C. 1101(a)) is
amended by adding at the end the following:
``(53) The term `agricultural labor or services' has the meaning
given such term by the Secretary of Agriculture in regulations and
includes agricultural labor as defined in section 3121(g) of the
Internal Revenue Code of 1986, agriculture as defined in section 3(f)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), the
handling, planting, drying, packing, packaging, processing, freezing,
or grading prior to delivery for storage of any agricultural or
horticultural commodity in its unmanufactured state, all activities
required for the preparation, processing or manufacturing of a product
of agriculture (as such term is defined in such section 3(f)) for
further distribution, and activities similar to all the foregoing as
they relate to fish or shellfish facilities.''.
SEC. 3. ADMISSION OF TEMPORARY H-2C WORKERS.
(a) Procedure for Admission.--Chapter 2 of title II of the
Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
inserting after section 218 the following:
``SEC. 218A. ADMISSION OF TEMPORARY H-2C WORKERS.
``(a) Definitions.--In this section and section 218B:
``(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-2C worker is or
will be performed. If such work site or location is within a
Metropolitan Statistical Area, any place within such area shall
be considered to be within the area of employment.
``(2) Displace.--The term `displace' means to lay off a
worker from a job that is essentially equivalent to the job for
which an H-2C worker is sought. A job shall not be considered
to be `essentially equivalent' to another job unless the job--
``(A) involves essentially the same
responsibilities as such other job;
``(B) was held by a United States worker with
substantially equivalent qualifications and experience;
and
``(C) is located in the same area of employment as
the other job.
``(3) Eligible individual.--The term `eligible individual'
means an individual who is not an unauthorized alien (as
defined in section 274A(h)(3)) with respect to the employment
of the individual.
``(4) Employer.--The term `employer' means an employer who
hires workers to perform agricultural employment.
``(5) H-2C worker.--The term `H-2C worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(c).
``(6) Lay off.--
``(A) In general.--The term `lay off'--
``(i) means to cause a 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) of
subsection (b)); and
``(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 (b)(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.
``(7) Prevailing wage.--The term `prevailing wage' means
the wage rate paid to workers in the same occupation in the
area of employment as computed pursuant to section 212(p).
``(8) United states worker.--The term `United States
worker' means any worker who is--
``(A) a citizen or national of the United States;
or
``(B) an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207, is granted asylum under section 208, or is
an immigrant otherwise authorized, by this Act or by
the Secretary of Homeland Security, to be employed.
``(b) Petition.--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-2C worker shall file with the Secretary of
Agriculture a petition attesting to the following:
``(1) Temporary work or services.--
``(A) In general.--The employer is seeking to
employ a specific number of agricultural workers on a
temporary basis and will provide compensation to such
workers at a specified wage rate.
``(B) Definition.--For purposes of this paragraph,
a worker is employed on a temporary basis if the
employer intends to employ the worker for no longer
than 18 months (except for sheepherders) during any
contract period.
``(2) Benefits, wages, and working conditions.--The
employer will provide, at a minimum, the benefits, wages, and
working conditions required by subsection (k) to all workers
employed in the jobs for which the H-2C worker is 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
of the H-2C worker and during the 30-day period immediately
preceding such period of employment in the occupation at the
place of employment for which the employer seeks approval to
employ H-2C workers.
``(4) Recruitment.--
``(A) In general.--The employer--
``(i) conducted adequate recruitment in the
area of intended employment before filing the
attestation; and
``(ii) was unsuccessful in locating a
qualified United States worker for the job
opportunity for which the H-2C worker is
sought.
``(B) Other requirements.--The recruitment
requirement under subparagraph (A) is satisfied if the
employer places a local job order with the State
workforce agency serving the local area where the work
will be performed, except that nothing in this
subparagraph shall require the employer to file an
interstate job order under section 653 of title 20,
Code of Federal Regulations. The State workforce agency
shall post the job order on its official agency website
for a minimum of 30 days and not later than 3 days
after receipt using the employment statistics system
authorized under section 15 of the Wagner-Peyser Act
(29 U.S.C. 49l-2). The Secretary of Labor shall include
links to the official Web sites of all State workforce
agencies on a single webpage of the official Web site
of the Department of Labor.
``(C) End of recruitment requirement.--The
requirement to recruit United States workers shall
terminate on the first day that work begins for the H-
2C worker.
``(5) Offers to united states workers.--The employer has
offered or will offer the job for which the H-2C worker is
sought to any eligible United States worker who--
``(A) applies;
``(B) is qualified for the job; and
``(C) will be available at the time and place of
need.
This requirement shall not apply to a United States worker who
applies for the job on or after the first day that work begins
for the H-2C worker.
``(6) Provision of insurance.--If the job for which the H-
2C worker is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker unless State law provides otherwise, 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) Requirements for placement of h-2c workers with other
employers.--A nonimmigrant who is admitted into the United
States as an H-2C worker may be transferred to another employer
that has filed a petition under this subsection and is in
compliance with this section.
``(8) Strike or lockout.--There is not a strike or lockout
in the course of a labor dispute which, under regulations
promulgated by the Secretary of Agriculture, precludes the
hiring of H-2C workers.
``(9) Previous violations.--The employer has not, during
the previous two-year period, employed H-2C 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 Agriculture after
notice and opportunity for a hearing.
``(c) Public Examination.--Not later than 1 working day after the
date on which a petition under this section is filed, the employer
shall make a copy of each such petition available for public
examination, at the employer's principal place of business or worksite.
``(d) List.--
``(1) In general.--The Secretary of Agriculture shall
maintain a list of the petitions filed under subsection (b),
which shall--
``(A) be sorted by employer; and
``(B) include the number of H-2C workers sought,
the wage rate, the period of intended employment, and
the date of need for each alien.
``(2) Availability.--The Secretary of Agriculture shall
make the list available for public examination.
``(e) Petitioning for Admission.--
``(1) Consideration of petitions.--For petitions filed and
considered under subsection (b)--
``(A) the Secretary of Agriculture may not require
such petition to be filed more than 28 calendar days
before the first date the employer requires the labor
or services of the H-2C worker;
``(B) unless the Secretary of Agriculture
determines that the petition is incomplete or obviously
inaccurate, the Secretary, not later than 10 business
days after the date on which such petition was filed,
shall either approve or reject the petition and provide
the petitioner with notice of such action by means
ensuring same or next day delivery; and
``(C) if the Secretary determines that the petition
is incomplete or obviously inaccurate, the Secretary
shall--
``(i) within 5 business days of receipt of
the petition, notify the petitioner of the
deficiencies to be corrected by means ensuring
same or next day delivery; and
``(ii) within 10 business days of receipt
of the corrected petition, approve or deny the
petition and provide the petitioner with notice
of such action by means ensuring same or next
day delivery.
``(2) Petition agreements.--By filing an H-2C petition, a
petitioner and each employer consents to allow access to the
site where the labor is being performed to the Department of
Agriculture and the Department of Homeland Security for the
purpose of investigations to determine compliance with H-2C
requirements and the immigration laws. Notwithstanding any
other provision of law, the Departments of Agriculture and
Homeland Security cannot delegate their compliance functions to
other agencies or Departments.
``(f) Roles of Agricultural Associations.--
``(1) Permitting filing by agricultural associations.--A
petition under subsection (b) to hire an alien as a temporary
agricultural worker may be filed by an association of
agricultural employers which use agricultural services.
``(2) Treatment of associations acting as employers.--If an
association is a joint employer of temporary agricultural
workers, such workers may be transferred among its members to
perform agricultural services of a temporary nature for which
the petition was approved.
``(3) Treatment of violations.--
``(A) Individual member.--If an individual member
of a joint employer association violates any condition
for approval with respect to the member's petition, the
Secretary of Agriculture shall consider as an employer
for purposes of subsection (b)(9) and invoke penalties
pursuant to subsection (i) against only that member of
the association unless the Secretary of Agriculture
determines that the association or other member
participated in, had knowledge of, or had reason to
know of the violation.
``(B) Association of agricultural employers.--If an
association representing agricultural employers as a
joint employer violates any condition for approval with
respect to the association's petition, the Secretary of
Agriculture shall consider as an employer for purposes
of subsection (b)(9) and invoke penalties pursuant to
subsection (i) against only the association and not any
individual member of the association, unless the
Secretary determines that the member participated in,
had knowledge of, or had reason to know of the
violation.
``(g) Expedited Administrative Appeals.--The Secretary of
Agriculture shall promulgate regulations to provide for an expedited
procedure--
``(1) for the review of a denial of a petition under this
section by the Secretary; or
``(2) at the petitioner's request, for a de novo
administrative hearing at which new evidence may be introduced.
``(h) Miscellaneous Provisions.--
``(1) Endorsement of documents.--The Secretary of Homeland
Security shall provide for the endorsement of entry and exit
documents of H-2C workers as may be necessary to carry out this
section and to provide notice for purposes of section 274A.
``(2) Fees.--
``(A) In general.--The Secretary of Agriculture
shall require, as a condition of approving the
petition, the payment of a fee, in accordance with
subparagraph (B), to recover the reasonable cost of
processing petitions filed by employers or associations
of employers seeking H-2C workers for jobs of a
temporary or seasonal nature, but may not require the
payment of such fees to recover the costs of processing
petitions filed by employers or associations of
employers seeking H-2C workers for jobs not of a
temporary or seasonal nature.
``(B) Fee by type of employee.--
``(i) Single employer.--An employer whose
petition for temporary alien agricultural
workers is approved shall, for each approved
petition, pay a fee that--
``(I) subject to subclause (II), is
equal to $100 plus $10 for each
approved H-2C worker; and
``(II) does not exceed $1,000.
``(ii) Association.--Each employer-member
of a joint employer association whose petition
for H-2C workers is approved shall, for each
such approved petition, pay a fee that--
``(I) subject to subclause (II), is
equal to $100 plus $10 for each
approved H-2C worker; and
``(II) does not exceed $1,000.
``(iii) Limitation on association fees.--A
joint employer association under clause (ii)
shall not be charged a separate fee.
``(C) Method of payment.--The fees collected under
this paragraph shall be paid by check or money order to
the Department of Agriculture. In the case of employers
of H-2C workers that are members of a joint employer
association petitioning on their behalf, the aggregate
fees for all employers of H-2C workers under the
petition may be paid by 1 check or money order.
``(i) Enforcement.--
``(1) Investigations and audits.--The Secretary of
Agriculture shall be responsible for conducting investigations
and random audits of employers to ensure compliance with the
requirements of the H-2C program. All monetary fines levied
against violating employers shall be paid to the Department of
Agriculture and used to enhance the Department of Agriculture's
investigatory and auditing power.
``(2) Failure to meet conditions.--If the Secretary of
Agriculture finds, after notice and opportunity for a hearing,
a failure to meet a condition of subsection (b), or a material
misrepresentation of fact in a petition under subsection (b),
the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $1,000 per violation) as the Secretary
determines to be appropriate; and
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 1 year.
``(3) Penalties for willful failure.--If the Secretary of
Agriculture finds, after notice and opportunity for a hearing,
a willful failure to meet a material condition of subsection
(b), or a willful misrepresentation of a material fact in a
petition under subsection (b), the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $5,000 per violation) as the Secretary
determines to be appropriate;
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 2 years;
``(C) may, for a subsequent violation not arising
out of the prior incident, disqualify the employer from
the employment of H-2C workers for a period of 5 years;
and
``(D) may, for a subsequent violation not arising
out of the prior incident, permanently disqualify the
employer from the employment of H-2C workers.
``(4) Penalties for displacement of united states
workers.--If the Secretary of Agriculture finds, after notice
and opportunity for a hearing, a willful failure to meet a
material condition of subsection (b) or a willful
misrepresentation of a material fact in a petition under
subsection (b), in the course of which failure or
misrepresentation the employer displaced a United States worker
employed by the employer during the period of employment of the
H-2C worker or during the 30-day period preceding such period
of employment, the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $15,000 per violation) as the Secretary
determines to be appropriate;
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 5 years; and
``(C) may, for a second violation, permanently
disqualify the employer from the employment of H-2C
workers.
``(j) Failure To Pay Wages or Required Benefits.--
``(1) Assessment.--If the Secretary of Agriculture finds,
after notice and opportunity for a hearing, that the employer
has failed to provide the benefits, wages, and working
conditions attested by the employer under subsection (b), the
Secretary shall assess payment of back wages, or such other
required benefits, due any United States worker or H-2C worker
employed by the employer in the specific employment in
question.
``(2) Amount.--The back wages or other required benefits
described in paragraph (1)--
``(A) shall be equal to the difference between the
amount that should have been paid and the amount that
was paid to such worker; and
``(B) shall be distributed to the worker to whom
such wages or benefits are due.
``(k) Minimum Wages, Benefits, and Working Conditions.--
``(1) Preferential treatment of aliens prohibited.--
``(A) In general.--Each employer seeking to hire
United States workers shall offer such workers not less
than the same benefits, wages, and working conditions
that the employer is offering, intends to offer, or
will provide to H-2C workers. No job offer may impose
on United States workers any restrictions or
obligations which will not be imposed on the employer's
H-2C workers.
``(B) Interpretation.--Every interpretation and
determination made under this section 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
so that--
``(i) the services of workers to their
employers and the employment opportunities
afforded to workers by the employers, including
those employment opportunities that require
United States workers or H-2C workers to travel
or relocate in order to accept or perform
employment--
``(I) mutually benefit such
workers, as well as their families, and
employers; and
``(II) principally benefit neither
employer nor employee; and
``(ii) employment opportunities within the
United States benefit the United States
economy.
``(2) Required wages.--
``(A) In general.--Each employer petitioning for
workers under subsection (b) shall pay not less than
the greater of--
``(i) the prevailing wage level for the
occupational classification in the area of
employment; or
``(ii) the applicable Federal, State, or
local minimum wage, whichever is greatest.
``(B) Special rule.--An employer can utilize a
piece rate or other alternative wage payment system as
long as the employer guarantees each worker a wage rate
that equals or exceeds the amount required under
subparagraph (A).
``(3) Employment guarantee.--
``(A) In general.--
``(i) Requirement.--Each employer
petitioning for workers under subsection (b)
shall guarantee to offer the worker employment
for the hourly equivalent of not less than 50
percent of the work hours during the total
anticipated 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.
``(ii) Failure to meet guarantee.--If the
employer affords the United States worker or
the H-2C worker less employment than that
required under this subparagraph, the employer
shall pay such worker the amount which the
worker would have earned if the worker had
worked for the guaranteed number of hours.
``(iii) Period of employment.--For purposes
of this subparagraph, the term `period of
employment' means the total number of
anticipated work hours and workdays described
in the job offer and shall exclude the worker's
Sabbath and Federal holidays.
``(B) Calculation of hours.--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) Limitation.--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 50 percent guarantee described in
subparagraph (A).
``(D) Termination of employment.--
``(i) In general.--If, before the
expiration of the period of employment
specified in the job offer, the services of the
worker are no longer required due to any form
of natural disaster, including flood,
hurricane, freeze, earthquake, fire, drought,
plant or animal disease, pest infestation,
regulatory action, or any other reason beyond
the control of the employer before the
employment guarantee in subparagraph (A) is
fulfilled, the employer may terminate the
worker's employment.
``(ii) Requirements.--If a worker's
employment is terminated under clause (i), the
employer shall--
``(I) fulfill the employment
guarantee in subparagraph (A) for the
work days that have elapsed during the
period beginning on the first work day
after the arrival of the worker and
ending on the date on which such
employment is terminated;
``(II) make efforts to transfer the
United States worker to other
comparable employment acceptable to the
worker; and
``(III) not later than 24 hours
after termination, notify (or have an
association acting as an agent for the
employer notify) the Secretary of
Homeland Security of such termination.
``(l) Period of Admission.--
``(1) In general.--An H-2C worker shall be admitted for a
period of employment, not to exceed 18 months (or 36 months as
provided in subsection (o)(3)(A) for a worker employed in a job
that is not of a temporary or seasonal nature), and except for
sheepherders, that includes--
``(A) a period of not more than 7 days prior to the
beginning of the period of employment for the purpose
of travel to the work site; and
``(B) a period of not more than 14 days following
the period of employment for the purpose of departure
or a period of not more than 30 days following the
period of employment for the purpose of seeking a
subsequent offer of employment by an employer pursuant
to a petition under this section (or pursuant to at-
will employment pursuant to section 218B during such
time as that section is in effect). An H-2C worker who
does not depart within these periods will be considered
to have failed to maintain nonimmigrant status as an H-
2C worker and shall be subject to removal under section
237(a)(1)(C)(i). Such alien shall be considered to be
inadmissible pursuant to section 212(a)(9)(B)(i) for
having been unlawfully present, with the alien
considered to have been unlawfully present for 180 days
as of the 15th day following the period of employment
for the purpose of departure or as of the 31st day
following the period of employment for the purpose of
seeking a subsequent offer of employment where the
alien has not found at-will employment with a
registered agricultural employer pursuant to section
218B or employment pursuant to this section.
``(2) Employment limitation.--An alien may not be employed
during the 14-day period described in paragraph (1)(B) except
in the employment for which the alien is otherwise authorized.
``(m) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)(15)(H)(ii)(c) who abandons the employment
which was the basis for such admission or status--
``(A) shall have failed to maintain nonimmigrant
status as an H-2C worker;
``(B) shall depart the United States or be subject
to removal under section 237(a)(1)(C)(i); and
``(C) shall be considered to be inadmissible
pursuant to section 212(a)(9)(B)(i) for having been
unlawfully present, with the alien considered to have
been unlawfully present for 180 days as of the 15th day
following the date of the abandonment of employment.
``(2) Report by employer.--Not later than 24 hours after an
employer learns of the abandonment of employment by an H-2C
worker, the employer or association acting as an agent for the
employer, shall notify the Secretary of Homeland Security of
such abandonment.
``(3) Removal.--The Secretary of Homeland Security shall
promptly remove from the United States any H-2C worker who
violates any term or condition of the worker's nonimmigrant
status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate the alien's employment
if the alien promptly departs the United States upon
termination of such employment. An alien who voluntarily
terminates the alien's employment and who does not depart
within 14 days shall be considered to have failed to maintain
nonimmigrant status as an H-2C worker and shall be subject to
removal under section 237(a)(1)(C)(i). Such alien shall be
considered to be inadmissible pursuant to section
212(a)(9)(B)(i) for having been unlawfully present, with the
alien considered to have been unlawfully present for 180 days
as of the 15th day following the voluntary termination of
employment.
``(n) Replacement of Alien.--An employer may designate an eligible
alien to replace an H-2C worker who abandons employment notwithstanding
the numerical limitation found in section 214(g)(1)(C).
``(o) Extension of Stay of H-2C Workers in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an H-2C worker who is lawfully present in the United
States, the petition filed by the employer or an association
pursuant to subsection (b) shall request an extension of the
alien's stay and, if applicable, a change in the alien's
employment.
``(2) Work authorization upon filing petition for extension
of stay.--
``(A) In general.--An alien who is lawfully present
in the United States on the date of the filing of a
petition to extend the stay of the alien may commence
or continue the employment described in a petition
under paragraph (1) until and unless the petition is
denied. The employer shall provide a copy of the
employer's petition for extension of stay to the alien.
The alien 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) Employment eligibility document.--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) File defined.--In this paragraph, the term
`file' means sending the petition by certified mail via
the United States Postal Service, return receipt
requested, or delivering by guaranteed commercial
delivery which will provide the employer with a
documented acknowledgment of the date of receipt of the
petition for an extension of stay.
``(3) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous
period of authorized status as an H-2C worker
(including any extensions) is 18 months for a worker
employed in a job that is of a temporary or seasonal
nature. For an H-2C worker employed in a job that is
not of a temporary or seasonal nature, the initial
maximum continuous period of authorized status is 36
months and subsequent maximum continuous periods of
authorized status are 18 months. There is no maximum
continuous period of authorized status for a
sheepherder or for an H-2C worker who returns to the
worker's permanent residence outside the United States
each day.
``(B) Requirement to remain outside the united
states.--In the case of an alien outside the United
States who was employed in a job of a temporary or
seasonal nature pursuant to section
101(a)(15)(H)(ii)(c) whose period of authorized status
as an H-2C worker (including any extensions) has
expired, the alien may not again be admitted to the
United States as an H-2C worker unless the alien has
remained outside the United States for a continuous
period equal to at least \1/6\ the duration of the
alien's previous period of authorized status as an H-2C
worker. For an alien outside the United States who was
employed in a job not of a temporary or seasonal nature
pursuant to section 101(a)(15)(H)(ii)(c) whose period
of authorized status as an H-2C worker (including any
extensions) has expired, the alien may not again be
admitted to the United States as an H-2C worker unless
the alien has remained outside the United States for a
continuous period equal to at least the lesser of \1/6\
the duration of the alien's previous period of
authorized status as an H-2C worker or 3 months. There
is no requirement to remain outside the United States
for a sheepherder or for an H-2C worker who returns to
the worker's permanent residence outside the United
States each day.
``(p) Adjustment of Status.--Notwithstanding any other provision of
law, an alien who is unlawfully present in the United States on April
25, 2013, is eligible to adjust status to that of an H-2C worker.
``(q) Trust Fund To Assure Worker Return.--
``(1) Establishment.--There is established in the Treasury
of the United States a trust fund (in this section referred to
as the `Trust Fund') for the purpose of providing a monetary
incentive for H-2C workers to return to their country of origin
upon expiration of their visas.
``(2) Withholding of wages; payment into the trust fund.--
``(A) In general.--Notwithstanding the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.), all
employers of H-2C workers shall withhold from the wages
of the workers an amount equivalent to 10 percent of
the wages of each worker and pay such withheld amount
into the Trust Fund.
``(B) Jobs that are not of a temporary or seasonal
nature.--Employers of H-2C workers employed in jobs
that are not of a temporary or seasonal nature shall
pay into the Trust Fund an amount equivalent to the
Federal tax on the wages paid to H-2C workers that the
employer would be obligated to pay under chapters 21
and 23 of the Internal Revenue Code of 1986 had the H-
2C workers been subject to such chapters.
Amounts withheld under this paragraph shall be maintained in
such interest bearing account with such a financial institution
as the Secretary of Agriculture shall specify.
``(3) Distribution of funds.--Amounts paid into the Trust
Fund on behalf of an H-2C worker, and held pursuant to
paragraph (2)(A) and interest earned thereon, shall be paid by
the Secretary of State to the worker if--
``(A) the worker applies to the Secretary of State
(or the designee of such Secretary) for payment within
120 days of the expiration of the alien's last
authorized stay in the United States as an H-2C worker
at a United States embassy or consulate in the worker's
home country;
``(B) in such application the worker establishes
that the worker has complied with the terms and
conditions of the H-2C program; and
``(C) in connection with the application, the H-2C
worker confirms their identity.
``(4) Administrative expenses.--The amounts paid into the
Trust Fund and held pursuant to paragraph (2)(B), and interest
earned thereon, shall be paid to the Secretary of State, the
Secretary of Agriculture, and the Secretary of Homeland
Security in amounts equivalent to the expenses incurred by such
officials in the administration of the H-2C program not
reimbursed pursuant to subsection (h)(2) or section 218B(b).
``(5) Law enforcement.--Notwithstanding any other provision
of law, amounts paid into the Trust Fund under paragraph (2),
and interest earned thereon, that are not needed to carry out
paragraphs (3) and (4) shall, to the extent provided in advance
in appropriations Acts, be made available until expended
without fiscal year limitation to the Secretary of Homeland
Security to apprehend, detain, and remove aliens unlawfully
present in the United States.
``(r) Investment of Trust Fund.--
``(1) In general.--It shall be the duty of the Secretary of
the Treasury to invest such portion of the Trust Fund as is
not, in the Secretary's judgment, required to meet current
withdrawals. Such investments may be made only in interest-
bearing obligations of the United States or in obligations
guaranteed as to both principal and interest by the United
States. For such purpose, such obligations may be acquired--
``(A) on original issue at the price; or
``(B) by purchase of outstanding obligations at the
market price.
The purposes for which obligations of the United States may be
issued under chapter 31 of title 31, United States Code, are
hereby extended to authorize the issuance at par of special
obligations exclusively to the Trust Fund. Such special
obligations shall bear interest at a rate equal to the average
rate of interest, computed as to the end of the calendar month
next preceding the date of such issue, borne by all marketable
interest-bearing obligations of the United States then forming
a part of the public debt, except that where such average rate
is not a multiple of \1/8\ of 1 percent, the rate of interest
of such special obligations shall be the multiple of \1/8\ of 1
percent next lower than such average rate. Such special
obligations shall be issued only if the Secretary of the
Treasury determines that the purchase of other interest-bearing
obligations of the United States, or of obligations guaranteed
as to both principal and interest by the United States on
original issue or at the market price, is not in the public
interest.
``(2) Sale of obligation.--Any obligation acquired by the
Trust Fund (except special obligations issued exclusively to
the Trust Fund) may be sold by the Secretary of the Treasury at
the market price, and such special obligations may be redeemed
at par plus accrued interest.
``(3) Credits to trust fund.--The interest on, and the
proceeds from the sale or redemption of, any obligations held
in the Trust Fund shall be credited to and form a part of the
Trust Fund.
``(4) Report to congress.--It shall be the duty of the
Secretary of the Treasury to hold the Trust Fund, and (after
consultation with the Secretary of Agriculture) to report to
the Congress each year on the financial condition and the
results of the operations of the Trust Fund during the
preceding fiscal year and on its expected condition and
operations during the next fiscal year. Such report shall be
printed as both a House and a Senate document of the session of
the Congress to which the report is made.
``(s) Audit of Trust Fund.--The Secretary of Homeland Security
annually shall audit the Trust Fund.''.
(b) At-Will Employment.--Chapter 2 of title II of the Immigration
and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting
after section 218A (as inserted by subsection (a)) the following:
``SEC. 218B. AT-WILL EMPLOYMENT OF TEMPORARY H-2C WORKERS.
``(a) At-Will Employment.--
``(1) In general.--An H-2C worker may perform agricultural
labor or services for any employer that is designated as a
`registered agricultural employer' pursuant to subsection (b).
However, an H-2C worker may only perform labor or services
pursuant to this section if the worker is already lawfully
present in the United States as an H-2C worker, having been
admitted or otherwise provided nonimmigrant status pursuant to
section 218A, and has completed the period of employment
specified in the job offer the worker accepted pursuant to
section 218A or the employer has terminated the worker's
employment pursuant to section 218A(k)(3)(D)(i). An H-2C worker
who abandons the employment which was the basis for admission
or status pursuant to section 218A may not perform labor or
services pursuant to this section until the worker has returned
to their home country, been readmitted as an H-2C worker
pursuant to section 218A and has completed the period of
employment specified in the job offer the worker accepted
pursuant to section 218A or the employer has terminated the
worker's employment pursuant to section 218A(k)(3)(D)(i).
``(2) Period of stay.--An H-2C worker performing such labor
or services for a registered agricultural employer is subject
to the period of admission, limitation of stay in status, and
requirement to remain outside the United States contained in
subsections (l) and (o)(3) of section 218A.
``(3) Termination of employment.--At the conclusion of at-
will employment with a registered agricultural employer or the
conclusion of employment pursuant to section 218A qualifying an
H-2C worker to perform at-will work pursuant to this section,
an H-2C worker shall find at-will employment with a registered
agricultural employer or employment pursuant to section 218A
within 30 days or will be considered to have failed to maintain
nonimmigrant status as an H-2C worker and shall depart from the
United States or be subject to removal under section
237(a)(1)(C)(i). An H-2C worker who does not so depart shall be
considered to be inadmissible pursuant to section
212(a)(9)(B)(i) for having been unlawfully present, with the
alien considered to have been unlawfully present for 180 days
as of the 31st day after conclusion of employment where the
alien has not found at-will employment with a registered
agricultural employer or employment pursuant to section 218A.
However, an alien may voluntarily terminate the alien's
employment if the alien promptly departs the United States upon
termination of such employment. Either a registered
agricultural employer or an H-2C worker may voluntarily
terminate the worker's at-will employment at any time. The H-2C
worker then shall find additional at-will employment with a
registered agricultural employer or employment pursuant to
section 218A within 30 days or will be considered to have
failed to maintain nonimmigrant status as an H-2C worker and
shall depart from the United States or be subject to removal
under section 237(a)(1)(C)(i). An H-2C worker who does not so
depart shall be considered to be inadmissible pursuant to
section 212(a)(9)(B)(i) for having been unlawfully present,
with the alien considered to have been unlawfully present for
180 days as of the 31st day after conclusion of employment
where the alien has not found at-will employment with a
registered agricultural employer or employment pursuant to
section 218A.
``(b) Registered Agricultural Employers.--The Secretary of
Agriculture shall establish a process to accept and adjudicate
applications by employers to be designated as registered agricultural
employers. The Secretary shall require, as a condition of approving the
petition, the payment of a fee to recover the reasonable cost of
processing the application. The Secretary shall designate an employer
as a registered agricultural employer if the Secretary determines that
the employer--
``(1) employs individuals who perform agricultural labor or
services;
``(2) has not been subject to debarment from receiving
future temporary agricultural labor certifications pursuant to
section 101(a)(15)(H)(ii)(a) within the last five years;
``(3) has not been subject to disqualification from the
employment of H-2C workers within the last five years;
``(4) agrees to, if employing an H-2C worker pursuant to
this section, abide by the terms of the attestations contained
in section 218A(b) and the obligations contained in subsections
(k) (excluding paragraph (3) of such subsection) and (q) of
section 218A as if it had submitted a petition making those
attestations and accepting those obligations; and
``(5) agrees to notify the Secretary of Agriculture and the
Secretary of Homeland Security each time it employs an H-2C
worker pursuant to this section within 24 hours of the
commencement of employment and each time an H-2C worker ceases
employment within 24 hours of the cessation of employment.
``(c) Length of Designation.--An employer's designation as a
registered agricultural employer shall be valid for 3 years, and the
designation can be extended upon reapplication for additional 3-year
terms. The Secretary shall revoke a designation before the expiration
of its three year term if the employer is subject to disqualification
from the employment of H-2C workers subsequent to being designated as a
registered agricultural employer.
``(d) Enforcement.--The Secretary of Agriculture shall be
responsible for conducting investigations and random audits of
employers to ensure compliance with the requirements of this section.
All monetary fines levied against violating employers shall be paid to
the Department of Agriculture and used to enhance the Department of
Agriculture's investigatory and audit power. The Secretary of
Agriculture's enforcement powers and an employer's liability described
in subsections (i) through (j) of section 218A are applicable to
employers employing H-2C workers pursuant to this section.
``(e) Removal of H-2C Worker.--The Secretary of Homeland Security
shall promptly remove from the United States any H-2C worker who is or
had been employed pursuant to this section on an at-will basis who is
who violates any term or condition of the worker's nonimmigrant
status.''.
(c) Prohibition on Family Members.--Section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by
striking ``him;'' at the end and inserting ``him, except that no spouse
or child may be admitted under clause (ii)(c);''.
(d) Numerical Cap.--Section 214(g)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(1)) is amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(C) under section 101(a)(15)(H)(ii)(c) may not exceed
500,000, except that--
``(i) the Secretary of Agriculture may decrease
such number based on--
``(I) a shortage or surplus of workers
performing agricultural labor or services;
``(II) growth or contraction in the United
States agricultural industry that has increased
or decreased the demand for workers to perform
agricultural labor or services;
``(III) the level of unemployment and
underemployment of United States workers (as
defined in section 218A(a)(8)) in agricultural
labor or services;
``(IV) the number of nonimmigrant workers
employers sought during the preceding fiscal
year pursuant to clause (a) or (c) of section
101(a)(15)(H)(ii);
``(V) the number of H-2C workers (as
defined in section 218A(a)(5)) who in the
preceding fiscal year had to depart from the
United States or be subject to removal under
section 237(a)(1)(C)(i) because they could not
find additional at-will employment within 30
days pursuant to section 218B;
``(VI) the estimated number of United
States workers (as defined in section
218A(a)(8)) who worked in agriculture during
the preceding fiscal year pursuant to clause
(a) or (c) of section 101(a)(15)(H)(ii); and
``(VII) the number of nonimmigrant
agricultural workers issued a visa or otherwise
provided nonimmigrant status pursuant to clause
(a) or (c) of section 101(a)(15)(H)(ii) during
preceding fiscal years who remain in the United
States out of compliance with the terms of
their status;
``(ii) during any fiscal year, the Secretary of
Agriculture may increase such number on an emergency
basis for severe shortages of agricultural labor or
services; and
``(iii) this numerical limitation shall not apply
to any alien who performed agricultural labor or
services in the United States for not fewer than 575
hours, or 100 days in which the alien was employed 5.75
or more hours per day, pursuant to section 7 of the AG
Act during the 2-year period beginning on the date of
the enactment of such Act and ending on the date that
is 2 years after such date.''.
(e) Waiver of Bars to Admissibility.--Section 212(a)(9)(B)(v) of
the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)(v)) is
amended--
(1) by striking ``The Attorney General'' and inserting the
following:
``(I) In general.--The Secretary of
Homeland Security''.
(2) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security''; and
(3) by adding at the end the following:
``(II) H-2C workers.--The Secretary
of Homeland Security shall waive clause
(i) solely if necessary to allow an
alien to come temporarily to the United
States to perform agricultural labor or
services as provided in section
101(a)(15)(H)(ii)(c), except to the
extent that the alien's unlawful
presence followed after the alien's
having the status of a nonimmigrant
under such section.''.
(f) Prevailing Wage.--Section 212(p) of the Immigration and
Nationality Act (8 U.S.C. 1182(p)) is amended--
(1) in paragraph (1), by inserting ``and section 218A''
after ``(t)(1)(A)(i)(II)''; and
(2) in paragraph (3), by inserting ``and section 218A''
after ``(t)(1)(A)(i)(II)''.
(g) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 218 the following:
``Sec. 218A. Admission of temporary H-2C workers.
``Sec. 218B. At-will employment of temporary H-2C workers.''.
SEC. 4. MEDIATION.
A nonimmigrant having status under section 101(a)(15)(H)(ii)(c) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c))
may not bring a civil action for damages against the nonimmigrant's
employer, nor may any other attorney or individual bring a civil action
for damages on behalf of such a nonimmigrant against the nonimmigrant's
employer, unless at least 90 days prior to 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.
SEC. 5. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION.
Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1802(8)(B)(ii)) is amended by striking
``under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and
Nationality Act.'' and inserting ``under subclauses (a) and (c) of
section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and
Nationality Act.''.
SEC. 6. BINDING ARBITRATION.
(a) Applicability.--Any H-2C worker may, as a condition of
employment with an employer, be subject to mandatory binding
arbitration and mediation of any grievance relating to the employment
relationship. An employer shall provide any such worker with notice of
such condition of employment at the time the job offer is made.
(b) Allocation of Costs.--Any cost associated with such arbitration
and mediation process shall be equally divided between the employer and
the H-2C worker, except that each party shall be responsible for the
cost of its own counsel, if any.
(c) Definitions.--As used in this section:
(1) The term ``condition of employment'' means a term,
condition, obligation, or requirement that is part of the job
offer, such as the term of employment, the job
responsibilities, the employee conduct standards, and the
grievance resolution process, and to which an applicant or
prospective H-2C worker must consent or accept in order to be
hired for the position.
(2) The term ``H-2C worker'' means a nonimmigrant described
in section 101(a)(15)(H)(ii)(c) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(ii)(c)).
SEC. 7. THE PERFORMANCE OF AGRICULTURAL LABOR OR SERVICES BY ALIENS WHO
ARE UNLAWFULLY PRESENT.
(a) In General.--The Secretary of Homeland Security shall waive the
grounds of inadmissibility contained in paragraphs (5), (6), (7), and
(9)(B) of section 212(a), and the grounds of deportability contained in
subparagraphs (A) through (D) of paragraph (1), and paragraph (3), of
section 237(a), of the Immigration and Nationality Act (8 U.S.C. 1101
et seq.) in the case of an alien described in subsection (b) solely as
may be necessary in order to allow the alien to perform agricultural
labor or services. Such alien shall not be considered an unauthorized
alien for purposes of section 274A(h)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(3)) or to be unlawfully present as
long as the alien performs such labor or services. Such aliens must
thereafter remain outside the United States for a period before they
may be issued visas or otherwise provided status as H-2C workers.
(b) Aliens Described.--An alien described in this subsection is an
alien who--
(1) was physically present in the United States on April
25, 2013; and
(2) performed agricultural labor or services in the United
States for not fewer than 575 hours, or 100 days in which the
alien was employed 5.75 or more hours per day, during the 2-
year period ending on the date of the enactment of this Act.
SEC. 8. ELIGIBILITY FOR FEDERAL PUBLIC BENEFITS AND REFUNDABLE TAX
CREDITS.
(a) Federal Public Benefits.--H-2C workers (as defined in section
218A(a)(5) of the Immigration and Nationality Act, as inserted by
section 3(a) of this Act) and aliens performing agricultural labor or
services pursuant to section 7 of this Act--
(1) are not entitled to the premium assistance tax credit
authorized under section 36B of the Internal Revenue Code of
1986;
(2) shall be subject to the rules applicable to individuals
who are not lawfully present set forth in subsection (e) of
such section; and
(3) shall be subject to the rules applicable to individuals
who are not lawfully present set forth in section 1402(e) of
the Patient Protection and Affordable Care Act (42 U.S.C.
18071(e)).
(b) Refundable Tax Credits.--H-2C workers (as defined in section
218A(a)(5) of the Immigration and Nationality Act, as inserted by
section 3(a) of this Act) and aliens performing agricultural labor or
services pursuant to section 7 of this Act shall not be allowed any
credit under section 24 or 32 of the Internal Revenue Code of 1986. In
the case of a joint return, no credit shall be allowed under either
such section if both spouses are such a worker or alien.
SEC. 9. EFFECTIVE DATES; SUNSET; REGULATIONS.
(a) Effective Dates.--
(1) In general.--The amendments made by sections 2 and 4
through 6, and subsections (a) and (c) through (f) of section
3, of this Act shall take effect on the date that is 2 years
after the date of the enactment of this Act, and the Secretary
of Agriculture shall accept petitions to import an alien under
sections 101(a)(15)(H)(ii)(c) and 218A of the Immigration and
Nationality Act, as inserted by this Act, beginning on such
date.
(2) At-will employment.--The amendment made by section 3(b)
of this Act shall take effect on the date that it becomes
unlawful for any person or other entity to hire, or to recruit
or refer for a fee, for employment in the United States an
individual (as provided in section 274A(a)(1) of the
Immigration and Nationality Act) (8 U.S.C. 1324a(a)(1)) without
participating in the E-Verify Program described in section
403(a) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) or an
employment eligibility verification system patterned on such
program's verification system, and only if at that time the E-
Verify Program (or another program patterned after the E-Verify
Program) responds to inquiries made by such persons or entities
by providing confirmation, tentative nonconfirmation, and final
nonconfirmation of an individual's identity and employment
eligibility in such a way that indicates whether the individual
is eligible to be employed in all occupations or only to
perform agricultural labor or services pursuant to section
101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as
inserted by this Act), and if the latter, whether the
nonimmigrant would be in compliance with their maximum
continuous period of authorized status and requirement to
remain outside the United States pursuant to sections 218A and
218B of such Act (as so added) and on what date the alien would
cease to be in compliance with their maximum continuous period
of authorized status.
(3) Agricultural labor or services by aliens unlawfully
present.--Section 7 of this Act shall take effect on the date
of the enactment of this Act and shall cease to be in effect on
the date that is 2 years after such date.
(b) Operation and Sunset of the H-2A Program.--
(1) Application of existing regulations.--The Department of
Labor H-2A program regulations published at 73 Federal Register
77110 et seq. (2008) shall be in force for all petitions
approved under sections 101(a)(15)(H)(ii)(c) and 218A of the
Immigration and Nationality Act, as inserted by this Act,
beginning on the date of the enactment of this Act.
(2) Adjustment of status.--Notwithstanding any other
provision of law, an alien who is unlawfully present in the
United States on the date of the enactment of this Act is
eligible to adjust status to that of an alien 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)) beginning on the date of
the enactment of this Act and ending on the date that is 2
years after the date of the enactment of this Act.
(3) Sunset.--Beginning on the date that is 2 years after
the date of the enactment of this Act, no new petition to
import an alien under sections 101(a)(15)(H)(ii)(a) and 218 of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall be accepted.
(c) Regulations.--Not later than 18 months after the date of the
enactment of this Act, the Secretary of Agriculture shall promulgate
regulations, in accordance with the notice and comment provisions of
section 553 of title 5, United States Code, to implement the
Secretary's duties under this Act.
Union Calendar No. 506
113th CONGRESS
2d Session
H. R. 1773
[Report No. 113-674, Part I]
_______________________________________________________________________
A BILL
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
_______________________________________________________________________
December 12, 2014
Reported from the Committee on the Judiciary with an amendment
December 12, 2014
The Committees on Education and the Workforce and Ways and Means
discharged; committed to the Committee of the Whole House on the State
of the Union and ordered to be printed