Text: H.R.4092 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in House (10/23/2017)


115th CONGRESS
1st Session
H. R. 4092


To create a nonimmigrant H–2C work visa program for agricultural workers, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

October 23, 2017

Mr. Goodlatte (for himself, Mr. Marshall, Mr. Arrington, Mr. Cramer, Mr. Thompson of Pennsylvania, Mr. Duffy, Mr. Rouzer, Mr. Bishop of Utah, Mr. Gibbs, Mr. Gallagher, and Mr. Barr) 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


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—

“(A) agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986;

“(B) agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));

“(C) 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;

“(D) 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;

“(E) forestry-related activities;

“(F) aquaculture activities; and

“(G) the primary processing of fish or shellfish.”.

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) DISPLACE.—The term ‘displace’ means to lay off a United States worker from the job for which H–2C workers are sought.

“(2) JOB.—The term ‘job’ refers to all positions with an employer that—

“(A) involve essentially the same responsibilities;

“(B) are held by workers with substantially equivalent qualifications and experience; and

“(C) are located in the same place or places of employment.

“(3) EMPLOYER.—The term ‘employer’ includes a single or joint employer, including an association acting as a joint employer with its members, who hires workers to perform agricultural labor or services.

“(4) FORESTRY-RELATED ACTIVITIES.—The term ‘forestry-related activities’ includes tree planting, timber harvesting, logging operations, brush clearing, vegetation management, herbicide application, the maintenance of rights-of-way (including for roads, trails, and utilities), regardless of whether such right-of-way is on forest land, and the harvesting of pine straw.

“(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 (4) 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 position with the same employer at equivalent or higher wages 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) 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, or is granted asylum under section 208.

“(8) SPECIAL PROCEDURES INDUSTRY.—The term ‘special procedures industry’ includes sheepherding, goat herding, and the range production of livestock, itinerant commercial beekeeping and pollination, itinerant animal shearing, and custom combining and harvesting.

“(b) Petition.—An employer that seeks to employ aliens as H–2C workers under this section shall file with the Secretary of Homeland Security a petition attesting to the following:

“(1) OFFER OF EMPLOYMENT.—The employer will offer employment to the aliens on a contractual basis as H–2C workers under this section for a specific period of time during which the aliens may not work on an at-will basis (as provided for in section 218B), and such contract shall only be required to include a description of each place of employment, period of employment, wages and other benefits to be provided, and the duties of the positions.

“(2) TEMPORARY LABOR OR SERVICES.—

“(A) IN GENERAL.—The employer is seeking to employ a specific number of H–2C workers on a temporary basis and will provide compensation to such workers at a wage rate no less than that set forth in subsection (k)(2).

“(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 the time period set forth in subsection (n)(1) (subject to the exceptions in subsection (n)(3)).

“(3) 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 job for which the H–2C workers are sought.

“(4) NONDISPLACEMENT OF UNITED STATES WORKERS.—The employer did not displace and will not displace United States workers employed by the employer during the period of employment of the H–2C workers and during the 30-day period immediately preceding such period of employment in the job for which the employer seeks approval to employ H–2C workers.

“(5) RECRUITMENT.—

“(A) IN GENERAL.—The employer—

“(i) conducted adequate recruitment before filing the petition; and

“(ii) was unsuccessful in locating sufficient numbers of willing and qualified United States workers for the job for which the H–2C workers are 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 each place of employment, 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 for a job shall terminate on the first day that work begins for the H–2C workers.

“(6) OFFERS TO UNITED STATES WORKERS.—The employer has offered or will offer the job for which the H–2C workers are sought to any eligible United States workers who—

“(A) apply;

“(B) are qualified for the job; and

“(C) will be available at the time, at each place, and for the duration, of need.

This requirement shall not apply to United States workers who apply for the job on or after the first day that work begins for the H–2C workers.

“(7) PROVISION OF INSURANCE.—If the job for which the H–2C workers are sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the workers unless State law provides otherwise, insurance covering injury and disease arising out of, and in the course of, the workers’ employment, which will provide benefits at least equal to those provided under the State workers compensation law for comparable employment.

“(8) STRIKE OR LOCKOUT.—The job that is the subject of the petition is not vacant because the former workers in that job are on strike or locked out in the course of a labor dispute.

“(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 the petition available for public examination, at the employer’s principal place of employment.

“(d) List.—

“(1) IN GENERAL.—The Secretary of Homeland Security shall maintain a list of the petitions filed under this subsection, which shall—

“(A) be sorted by employer; and

“(B) include the number of H–2C workers sought, the wage rate, the period of employment, each place of employment, and the date of need for each alien.

“(2) AVAILABILITY.—The Secretary of Homeland Security shall make the list available for public examination.

“(e) Petitioning for admission.—

“(1) CONSIDERATION OF PETITIONS.—For petitions filed and considered under this subsection—

“(A) the Secretary of Homeland Security may not require such petition to be filed more than 28 days before the first date the employer requires the labor or services of H–2C workers;

“(B) unless the Secretary of Homeland Security 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 5 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) ACCESS.—By filing an H–2C petition, the petitioner and each employer (if the petitioner is an association that is a joint employer of workers who perform agricultural labor or services) consent to allow access to each place of employment to the Department of Agriculture and the Department of Homeland Security for the purpose of investigations and audits to determine compliance with the immigration laws (as defined in section 101(a)(17)).

“(f) Roles of agricultural associations.—

“(1) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS.—If an association is a joint employer of workers who perform agricultural labor or services, H–2C workers may be transferred among its members to perform the agricultural labor or services on a temporary basis for which the petition was approved.

“(2) TREATMENT OF VIOLATIONS.—

“(A) INDIVIDUAL MEMBER.—If an individual member of an association that is a joint employer commits a violation described in paragraph (2) or (3) of subsection (i) or subsection (j)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (i) and (j) against only that member of the association unless the Secretary of Agriculture determines that the association participated in, had knowledge of, or had reason to know of the violation.

“(B) ASSOCIATION OF AGRICULTURAL EMPLOYERS.—If an association that is a joint employer commits a violation described in subsections (i)(2) and (3) or (j)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (i) and (j) against only the association and not any individual members of the association, unless the Secretary determines that the member participated in the violation.

“(g) Expedited administrative appeals.—The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure for the review of a denial of a petition under this section by the Secretary. At the petitioner’s request, the review shall include a de novo administrative hearing at which new evidence may be introduced.

“(h) Fees.—The Secretary of Homeland Security shall require, as a condition of approving the petition, the payment of a fee to recover the reasonable cost of processing the petition.

“(i) Enforcement.—

“(1) INVESTIGATIONS AND AUDITS.—The Secretary of Agriculture shall be responsible for conducting investigations and audits, including random audits, of employers to ensure compliance with the requirements of the H–2C program. All monetary fines levied against employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigative and auditing abilities to ensure compliance by employers with their obligations under this section.

“(2) VIOLATIONS.—If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a failure to fulfill an attestation required by this subsection, or a material misrepresentation of a material fact in a petition under this subsection, the Secretary—

“(A) may impose such 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) WILLFUL VIOLATIONS.—If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, the Secretary—

“(A) may impose such administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation, or not to exceed $15,000 per violation if in the course of such failure or misrepresentation the employer displaced one or more United States workers employed by the employer during the period of employment of H–2C workers or during the 30-day period immediately preceding such period of employment) in the job the H–2C workers are performing 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 failure to fulfill an attestation required by this subsection, or a misrepresentation of a material fact in a petition under this subsection, disqualify the employer from the employment of H–2C workers for a period of 5 years; and

“(D) may, for a subsequent willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, permanently disqualify the employer from the employment of H–2C workers.

“(j) Failure To pay wages or required benefits.—

“(1) IN GENERAL.—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 that the employer has attested that it would provide under this subsection, the Secretary shall require payment of back wages, or such other required benefits, due any United States workers or H–2C workers employed by the employer.

“(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 workers; and

“(B) shall be distributed to the workers to whom such wages or benefits are due.

“(k) Minimum wages, benefits, and working conditions.—

“(1) PREFERENTIAL TREATMENT OF H–2C WORKERS PROHIBITED.—

“(A) IN GENERAL.—Each employer seeking to hire United States workers for the job the H–2C workers will perform shall offer such United States workers not less than the same benefits, wages, and working conditions that the employer will provide to the H–2C workers. No job offer may impose on United States workers any restrictions or obligations which will not be imposed on 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 H–2C workers under this subsection will offer the H–2C workers, during the period of authorized employment as H–2C workers, wages that are at least the greatest of—

“(i) the applicable State or local minimum wage;

“(ii) 115 percent of the Federal minimum wage, or 150 percent of the Federal minimum wage in the case of H–2C workers who perform agricultural labor or services consisting of meat or poultry processing; or

“(iii) the actual wage level paid by the employer to all other individuals in the job.

“(B) SPECIAL RULE.—An employer can utilize a piece rate or other alternative wage payment system so long as the employer guarantees each worker a wage rate that equals or exceeds the amount required under subparagraph (A) for the total hours worked in each pay period. Compensation from a piece rate or other alternative wage payment system shall include time spent during rest breaks, moving from job to job, clean up, or any other nonproductive time, provided that such time does not exceed 20 percent of the total hours in the work day.

“(3) EMPLOYMENT GUARANTEE.—

“(A) IN GENERAL.—

“(i) REQUIREMENT.—Each employer petitioning for workers under this subsection shall guarantee to offer the H–2C workers and United States workers performing the same job employment for the hourly equivalent of not less than 50 percent of the work hours set forth in the work contract.

“(ii) FAILURE TO MEET GUARANTEE.—If an employer affords the United States workers or the H–2C workers less employment than that required under this subparagraph, the employer shall pay such workers the amount which the workers would have earned if the workers had worked for the guaranteed number of hours.

“(B) CALCULATION OF HOURS.—Any hours which workers fail to work, up to a maximum of the number of hours specified in the work contract for a work day, when the workers have 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 work contract in a work day) may be counted by the employer in calculating whether the period of guaranteed employment has been met.

“(C) LIMITATION.—If the workers abandon employment before the end of the work contract period, or are terminated for cause, the workers are 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 work contract, the services of the workers 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 workers’ 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 and ending on the date on which such employment is terminated;

“(II) make efforts to transfer the worker to other comparable employment acceptable to the worker; and

“(III) not later than 72 hours after termination, notify the Secretary of Agriculture of such termination and stating the nature of the contract impossibility.

“(l) Nondelegation.—The Department of Agriculture and the Department of Homeland Security shall not delegate their investigatory, enforcement, or administrative functions relating to this section or section 218B to other agencies or departments of the Federal Government.

“(m) Compliance with bio-Security protocols.—Except in the case of an imminent threat to health or safety, any personnel from a Federal agency or Federal grantee seeking to determine the compliance of an employer with the requirements of this section or section 218B shall, when visiting such employer’s place of employment, make their presence known to the employer and sign-in in accordance with reasonable bio-security protocols before proceeding to any other area of the place of employment.

“(n) Limitation on H–2C workers’ stay in status.—

“(1) MAXIMUM PERIOD.—The maximum continuous period of authorized status as an H–2C worker (including any extensions) is 18 months for workers employed in a job that is of a temporary or seasonal nature. For H–2C workers 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.

“(2) REQUIREMENT TO REMAIN OUTSIDE THE UNITED STATES.—In the case of H–2C workers who were employed in a job of a temporary or seasonal nature whose maximum continuous period of authorized status as H–2C workers (including any extensions) have expired, the aliens may not again be eligible to be H–2C workers until they remain outside the United States for a continuous period equal to at least 112 of the duration of their previous period of authorized status an H–2C workers. For H–2C workers who were employed in a job not of a temporary or seasonal nature whose maximum continuous period of authorized status as H–2C workers (including any extensions) have expired, the aliens may not again be eligible to be H–2C workers until they remain outside the United States for a continuous period equal to at least the lesser of 112 of the duration of their previous period of authorized status as H–2C workers or 45 days.

“(3) EXCEPTIONS.—

“(A) The Secretary of Homeland Security shall deduct absences from the United States that take place during an H–2C worker’s period of authorized status from the period that the alien is required to remain outside the United States under paragraph (2), if the alien or the alien’s employer requests such a deduction, and provides clear and convincing proof that the alien qualifies for such a deduction. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

“(B) There is no maximum continuous period of authorized status as set forth in paragraph (1) or a requirement to remain outside the United States as set forth in paragraph (2) for H–2C workers employed as a sheepherder, goatherder, in the range production of livestock, or who return to the workers’ permanent residence outside the United States each day.

“(o) Period of Admission.—

“(1) IN GENERAL.—In addition to the maximum continuous period of authorized status, workers’ authorized period of admission shall include—

“(A) a period of not more than 7 days prior to the beginning of authorized employment as H–2C workers for the purpose of travel to the place of employment; and

“(B) a period of not more than 14 days after the conclusion of their authorized employment for the purpose of departure from the United States or a period of not more than 30 days following the 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 under section 218B during such times as that section is in effect) if they have not reached their maximum continuous period of authorized employment under subsection (n) (subject to the exceptions in subsection (n)(3)) unless they accept subsequent offers of employment as H–2C workers or are otherwise lawfully present.

“(2) FAILURE TO DEPART.—H–2C workers who do not depart the United States within the periods referred to in paragraph (1) will be considered to have failed to maintain nonimmigrant status as H–2C workers and shall be subject to removal under section 237(a)(1)(C)(i). Such aliens shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the aliens considered to have been unlawfully present for 181 days as of the 15th day following their period of employment for the purpose of departure or as of the 31st day following their period of employment for the purpose of seeking subsequent offers of employment.

“(p) Abandonment of employment.—

“(1) REPORT BY EMPLOYER.—Not later than 72 hours after an employer learns of the abandonment of employment by H–2C workers before the conclusion of their work contracts, the employer shall notify the Secretary of Agriculture and the Secretary of Homeland Security of such abandonment.

“(2) REPLACEMENT OF ALIENS.—An employer may designate eligible aliens to replace H–2C workers who abandon employment notwithstanding the numerical limitation found in section 214(g)(1)(C).

“(q) Change to H–2C status.—

“(1) IN GENERAL.—An alien described in paragraph (4) is eligible for status as an H–2C worker despite their unlawful presence.

“(2) WAIVER.—In the case of an alien described in paragraph (4), the Secretary of Homeland Security shall waive the grounds of inadmissibility under paragraphs (5), (6), (7), and (9)(B) of section 212(a), and the grounds of deportability under subparagraphs (A) through (D) of paragraph (1), and paragraph (3), of section 237(a), with respect to conduct that occurred prior to the alien first seeking status as an H–2C worker, solely in order to provide the alien with such status.

“(3) REQUIREMENT TO REMAIN OUTSIDE THE UNITED STATES.—An alien granted status as an H–2C worker under this subsection shall, after first being granted such status, depart the United States for a period by not later than 180 days after being issued a visa or otherwise being provided with status as an H–2C worker. Failure to comply with the requirement of the previous sentence shall be considered failure to maintain nonimmigrant status, and beginning on the date that is 180 days after the date on which the alien was granted such status, the alien shall be subject to removal under section 237(a)(1)(C)(i).

“(4) ALIEN DESCRIBED.—An alien described in this paragraph is an alien who—

“(A) was unlawfully present in the United States on October 23, 2017; and

“(B) performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 180 days during the 2-year period ending on the date of the enactment of the AG Act.

“(r) 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.) and State and local wage laws, all employers of H–2C workers shall withhold from the wages of all H–2C workers other than those employed as sheepherders, goatherders, in the range production of livestock, or who return to the their permanent residence outside the United States each day, an amount equivalent to 10 percent of the gross wages of each worker in each pay period and, on behalf of each worker, transfer such withheld amount to 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, other than those employed as a sheepherder, goatherder, or in the range production of livestock, shall also 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.

“(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 transferred from the Trust Fund to the Secretary of Homeland Security, who shall distribute them to the worker if the worker—

“(A) applies to the Secretary of Homeland Security (or the designee of the 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, for which they seek amounts from the Trust Fund;

“(B) establishes to the satisfaction of the Secretary of Homeland Security that they have complied with the terms and conditions of the H–2C program;

“(C) once approved by the Secretary of Homeland Security for payment, physically appears at a United States embassy or consulate in the worker’s home country; and

“(D) establishes their identity to the satisfaction of the Secretary of Homeland Security.

“(4) ADMINISTRATIVE EXPENSES.—The amounts paid into the Trust Fund and held pursuant to paragraph (2)(B), and interest earned thereon, shall be distributed annually to the Secretary of Agriculture and the Secretary of Homeland Security in amounts proportionate to the expenses incurred by such officials in the administration and enforcement of the terms of the H–2C program.

“(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 inadmissible to or deportable from the United States.

“(6) INVESTMENT OF TRUST FUND.—

“(A) 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.

“(B) 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.

“(C) 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 Homeland Security) 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 in which the report is made.

“(s) Procedures for special procedures industries.—

“(1) WORK LOCATIONS.—The Secretary of Homeland Security shall permit an employer in a Special Procedures Industry that does not operate at a single fixed place of employment to provide, as part of its petition, a list of places of employment, which—

“(A) may include an itinerary; and

“(B) may be subsequently amended at any time by the employer, after notice to the Secretary.

“(2) WAGES.—Notwithstanding subsection (k)(2), the Secretary of Agriculture may establish monthly, weekly, or biweekly wage rates for occupations in a Special Procedures Industry for a State or other geographic area. For an employer in a Special Procedures Industry that typically pays a monthly wage, the Secretary shall require that H–2C workers be paid not less frequently than monthly and at a rate no less than the legally required monthly cash wage in an amount as re-determined annually by the Secretary.

“(3) ALLERGY LIMITATION.—An employer engaged in the commercial beekeeping or pollination services industry may require that job applicants be free from bee-related allergies, including allergies to pollen and bee venom.”.

(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) In general.—An employer that is designated as a ‘registered agricultural employer’ pursuant to subsection (d) may employ aliens as H–2C workers. 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).

“(b) Period of stay.—H–2C workers performing at-will labor or services for a registered agricultural employer are subject to the period of admission, limitation of stay in status, and requirement to remain outside the United States contained in subsections (o) and (n) of section 218A, except that subsection (n)(3)(A) does not apply.

“(c) 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 application, 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 (or plans to employ) individuals who perform agricultural labor or services;

“(2) has not been subject to debarment from receiving temporary agricultural labor certifications pursuant to section 101(a)(15)(H)(ii)(a) within the last three 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 H–2C workers pursuant to this section, fulfill the attestations contained in section 218A(b) as if it had submitted a petition making those attestations (excluding subsection (k)(3) of such section) and not to employ H–2C workers who have reached their maximum continuous period of authorized status under section 218A(n) (subject to the exceptions contained in section 218A(n)(3)) or if the workers have complied with the terms of section 218A(n)(2); and

“(5) agrees to notify the Secretary of Agriculture and the Secretary of Homeland Security each time it employs H–2C workers pursuant to this section within 72 hours of the commencement of employment and within 72 hours of the cessation of employment.

“(d) 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 3-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.

“(e) Enforcement.—The Secretary of Agriculture shall be responsible for conducting investigations and audits, including random audits, of employers to ensure compliance with the requirements of this section. All monetary fines levied against employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigatory and audit abilities to ensure compliance by employers with their obligations under this section and section 218A. 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.”.

(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)—

“(i) except as otherwise provided under this subparagraph, may not exceed 40,000 for aliens issued visas or otherwise provided nonimmigrant status under such section for the purpose of performing agricultural labor or services consisting or meat or poultry processing;

“(ii) except as otherwise provided under this subparagraph, may not exceed 410,000 for aliens issued visas or otherwise provided nonimmigrant status under such section for the purpose of performing agricultural labor or services other than agricultural labor or services consisting of meat or poultry processing;

“(iii) if the base allocation under clause (i) or (ii) is exhausted during any fiscal year, the base allocation under such clause for that and subsequent fiscal years shall be increased by the lesser of 10 percent or a percentage representing the number of petitioned-for aliens (as a percentage of the base allocation) who would be eligible to be issued visas or otherwise provided nonimmigrant status described in that clause during that fiscal year but for the base allocation being exhausted, and if the increased base allocation is itself exhausted during a subsequent fiscal year, the base allocation for that and subsequent fiscal years shall be further increased by the lesser of 10 percent or a percentage representing the number of petitioned-for aliens (as a percentage of the increased base allocation) who would be eligible to be issued visas or otherwise provided nonimmigrant status described in that clause during that fiscal year but for the increased base allocation being exhausted (subject to clause (iv));

“(iv) if the base allocation under clause (i) or (ii) is not exhausted during any fiscal year, the base allocation under such clause for subsequent fiscal years shall be decreased by the greater of 5 percent or a percentage representing the unutilized portion of the base allocation (as a percentage of the base allocation) during that fiscal year, and if in a subsequent fiscal year the decreased base allocation is itself not exhausted, the base allocation for fiscal years subsequent to that fiscal year shall be further decreased by the greater of 5 percent or a percentage representing the unutilized portion of the decreased base allocation (as a percentage of the decreased base allocation) during that fiscal year (subject to clause (iii) and except that the base allocations under clauses (i) and (ii) shall not fall below 40,000 and 410,000, respectively); and

“(v) the numerical limitations under this subparagraph shall not apply to any alien—

“(I) who—

“(aa) was physically present in the United States on October 23, 2017; and

“(bb) performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 180 days during the 2-year period ending on the date of the enactment of the AG Act; or

“(II) who has previously been issued a visa or otherwise provided nonimmigrant status pursuant to subclause (a) or (b) of section 101(a)(15)(H)(ii), but only to the extent that the alien is being petitioned for by an employer pursuant to section 218A(b) who previously employed the alien pursuant to subclause (a) or (b) of section 101(a)(15)(H)(ii) beginning no later than October 23, 2017.”.

(e) Intent.—Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking “section 101(a)(15)(H)(i) except subclause (b1) of such section” and inserting “clause (i), except subclause (b1), or (ii)(c) of section 101(a)(15)(H)”.

(f) 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.

Nonimmigrants 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 civil actions for damages against their employers, nor may any other attorneys or individuals bring civil actions for damages on behalf of such nonimmigrants against the nonimmigrants’ employers, unless at least 90 days prior to bringing an 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.—H–2C workers 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 workers with notice of such condition of employment at the time it makes job offers.

(b) Allocation of costs.—Any cost associated with such arbitration and mediation process shall be equally divided between the employer and the H–2C workers, 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, job responsibilities, employee conduct standards, and the grievance resolution process, and to which applicants or prospective H–2C workers must consent or accept in order to be hired for the position.

(2) The term “H–2C worker” means a nonimmigrant described in section 218A(a)(5) of the Immigration and Nationality Act, as added by section 3(a) of this Act.

SEC. 7. Eligibility for health care subsidies and refundable tax credits; required health insurance coverage.

(a) Health care subsidies.—H–2C workers (as defined in section 218A(a)(5) of the Immigration and Nationality Act, as added by section 3(a) of this Act)—

(1) are not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986 and shall be subject to the rules applicable to individuals who are not lawfully present set forth in subsection (e) of such section; and

(2) 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 added by section 3(a) of this Act), shall not be allowed any credit under sections 24 and 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 workers or aliens.

(c) Requirement regarding health insurance coverage.—Notwithstanding the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and State and local wage laws, not later than 21 days after being issued a visa or otherwise provided nonimmigrant 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)), an alien must obtain health insurance coverage accepted in their State or States of employment and residence for the period of employment specified in section 218A(b)(1) of the Immigration and Nationality Act. H–2C workers under section 218A or 218B of the Immigration and Nationality Act who do not obtain and maintain the required insurance coverage will be considered to have failed to maintain nonimmigrant status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act and shall be subject to removal under section 237(a)(1)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(C)(i)).

SEC. 8. Effective dates; sunset; regulations.

(a) Effective dates.—

(1) IN GENERAL.—Sections 2 and 4 through 6 of this Act, subsections (a) and (c) through (f) of section 3 of this Act, and the amendments made by the sections, shall take effect on the date on which the Secretary issues the rules under subsection (c) of this section, and the Secretary of Homeland Security shall accept petitions pursuant to section 218A of the Immigration and Nationality Act, as inserted by this Act, beginning no later than that date. Section 7 of this Act shall take effect on the date of the enactment of the Act.

(2) AT-WILL EMPLOYMENT.—Section 3(b) of this Act and the amendments made by that subsection shall take effect on the date that it becomes unlawful for all persons or other entities 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 under sections 218A and 219B of the Immigration and Nationality Act, as added by section 3 of 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 under section 218A(n) of such Act, as added by section 3(a) of this Act, and on what date the alien would cease to be in compliance with their maximum continuous period of authorized status.

(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 Fed. Reg. 77110 et seq. (2008) shall be in force for all petitions approved 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) beginning on the date of the enactment of this Act, except that the following, as in effect on the date of the enactment of this Act, shall remain in effect, and, to the extent that any rule published at 73 Fed. Reg. 77110 et seq. is in conflict, such rule shall have no force and effect:

(A) Paragraph (a) and subparagraphs (1) and (3) of paragraph (b) of section 655.200 of title 20, Code of Federal Regulations.

(B) Section 655.201 of title 20, Code of Federal Regulations, except the paragraphs entitled “Production of Livestock” and “Range”.

(C) Paragraphs (c), (d), and (e) of section 655.210 of title 20, Code of Federal Regulations.

(D) Section 655.230 of title 20, Code of Federal Regulations.

(E) Section 655.235 of title 20, Code of Federal Regulations.

(F) The Special Procedures Labor Certification Process for Employers in the Itinerant Animal Shearing Industry under the H–2A Program in effect under the Training and Employment Guidance Letter No. 17–06, Change 1, Attachment B, Section II, with an effective date of October 1, 2011.

(2) SUNSET.—Beginning on the date on which employers can file petitions pursuant to section 218A of the Immigration and Nationality Act, as added by section 3(a) of this Act, no new petitions 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.—Notwithstanding any other provision of law, not later than the first day of the seventh month that begins after the date of the enactment of this Act, the Secretary of Homeland Security shall issue final rules, on an interim or other basis, to carry out this Act.