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116th Congress } { Rept. 116-328
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
FARM WORKFORCE MODERNIZATION ACT OF 2019
_______
December 9, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5038]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5038) to amend the Immigration and Nationality Act
to provide for terms and conditions for nonimmigrant workers
performing agricultural labor or services, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 56
Background and Need for the Legislation.......................... 57
Hearings......................................................... 65
Committee Consideration.......................................... 65
Committee Votes.................................................. 66
Committee Oversight Findings..................................... 78
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 78
Duplication of Federal Programs.................................. 78
Performance Goals and Objectives................................. 78
Advisory on Earmarks............................................. 78
Section-by-Section Analysis...................................... 79
Changes in Existing Law Made by the Bill, as Reported............ 105
Dissenting Views................................................. 256
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Farm Workforce
Modernization Act of 2019''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--SECURING THE DOMESTIC AGRICULTURAL WORKFORCE
Subtitle A--Temporary Status for Certified Agricultural Workers
Sec. 101. Certified agricultural worker status.
Sec. 102. Terms and conditions of certified status.
Sec. 103. Extensions of certified status.
Sec. 104. Determination of continuous presence.
Sec. 105. Employer obligations.
Sec. 106. Administrative and judicial review.
Subtitle B--Optional Earned Residence for Long-term Workers
Sec. 111. Optional adjustment of status for long-term agricultural
workers.
Sec. 112. Payment of taxes.
Sec. 113. Adjudication and decision; review.
Subtitle C--General Provisions
Sec. 121. Definitions.
Sec. 122. Rulemaking; Fees.
Sec. 123. Background checks.
Sec. 124. Protection for children.
Sec. 125. Limitation on removal.
Sec. 126. Documentation of agricultural work history.
Sec. 127. Employer protections.
Sec. 128. Correction of social security records.
Sec. 129. Disclosures and privacy.
Sec. 130. Penalties for false statements in applications.
Sec. 131. Dissemination of information.
Sec. 132. Exemption from numerical limitations.
Sec. 133. Reports to Congress.
Sec. 134. Grant program to assist eligible applicants.
Sec. 135. Authorization of appropriations.
TITLE II--ENSURING AN AGRICULTURAL WORKFORCE FOR THE FUTURE
Subtitle A--Reforming the H-2A Temporary Worker Program
Sec. 201. Comprehensive and streamlined electronic h-2a platform.
Sec. 202. H-2a program requirements.
Sec. 203. Agency roles and responsibilities.
Sec. 204. Worker protection and compliance.
Sec. 205. Report on wage protections.
Sec. 206. Portable h-2a visa pilot program.
Sec. 207. Improving access to permanent residence.
Subtitle B--Preservation and Construction of Farmworker Housing
Sec. 220. Short title.
Sec. 221. Permanent establishment of housing preservation and
revitalization program.
Sec. 222. Eligibility for rural housing vouchers.
Sec. 223. Amount of voucher assistance.
Sec. 224. Rental assistance contract authority.
Sec. 225. Funding for multifamily technical improvements.
Sec. 226. Plan for preserving affordability of rental projects.
Sec. 227. Covered housing programs.
Sec. 228. New farmworker housing.
Sec. 229. Loan and grant limitations.
Sec. 230. Operating assistance subsidies.
Sec. 231. Eligibility of certified workers.
Subtitle C--Foreign Labor Recruiter Accountability
Sec. 251. Registration of foreign labor recruiters.
Sec. 252. Enforcement.
Sec. 253. Appropriations.
Sec. 254. Definitions.
TITLE III--ELECTRONIC VERIFICATION OF EMPLOYMENT ELIGIBILITY
Sec. 301. Electronic employment eligibility verification system.
Sec. 302. Mandatory electronic verification for the agricultural
industry.
Sec. 303. Coordination with E-Verify Program.
Sec. 304. Fraud and misuse of documents.
Sec. 305. Technical and conforming amendments.
Sec. 306. Protection of Social Security Administration programs.
Sec. 307. Report on the implementation of the electronic employment
verification system.
Sec. 308. Modernizing and streamlining the employment eligibility
verification process.
Sec. 309. Rulemaking and Paperwork Reduction Act.
TITLE I--SECURING THE DOMESTIC AGRICULTURAL WORKFORCE
Subtitle A--Temporary Status for Certified Agricultural Workers
SEC. 101. CERTIFIED AGRICULTURAL WORKER STATUS.
(a) Requirements for Certified Agricultural Worker Status.--
(1) Principal aliens.--The Secretary may grant certified
agricultural worker status to an alien who submits a completed
application, including the required processing fees, before the
end of the period set forth in subsection (c) and who--
(A) performed agricultural labor or services in the
United States for at least 1,035 hours (or 180 work
days) during the 2-year period preceding the date of
the introduction of this Act;
(B) is inadmissible or deportable from the United
States on the date of the introduction of this Act;
(C) subject to section 104, has been continuously
present in the United States since the date of the
introduction of this Act and until the date on which
the alien is granted certified agricultural worker
status; and
(D) is not otherwise ineligible for certified
agricultural worker status as provided in subsection
(b).
(2) Dependent spouse and children.--The Secretary may grant
certified agricultural dependent status to the spouse or child
of an alien granted certified agricultural worker status under
paragraph (1) if the spouse or child is not ineligible for
certified agricultural dependent status as provided in
subsection (b).
(b) Grounds for Ineligibility.--
(1) Grounds of inadmissibility.--Except as provided in
paragraph (3), an alien is ineligible for certified
agricultural worker or certified agricultural dependent status
if the Secretary determines that the alien is inadmissible
under section 212(a) of the Immigration and Nationality Act (8
U.S.C. 1182(a)), except that in determining inadmissibility--
(A) paragraphs (4), (5), (7), and (9)(B) of such
section shall not apply;
(B) subparagraphs (A), (C), (D), (F), and (G) of such
section 212(a)(6) and paragraphs (9)(C) and (10)(B) of
such section 212(a) shall not apply unless based on the
act of unlawfully entering the United States after the
date of introduction of this Act; and
(C) paragraphs (6)(B) and (9)(A) of such section
212(a) shall not apply unless the relevant conduct
began on or after the date of filing of the application
for certified agricultural worker status.
(2) Additional criminal bars.--Except as provided in
paragraph (3), an alien is ineligible for certified
agricultural worker or certified agricultural dependent status
if the Secretary determines that, excluding any offense under
State law for which an essential element is the alien's
immigration status and any minor traffic offense, the alien has
been convicted of--
(A) any felony offense;
(B) an aggravated felony (as defined in section
101(a)(43) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(43)) at the time of the conviction);
(C) two misdemeanor offenses involving moral
turpitude, as described in section 212(a)(2)(A)(i)(I)
of the Immigration and Nationality Act (8 U.S.C.
1182(a)(2)(A)(i)(I)), unless an offense is waived by
the Secretary under paragraph (3)(B); or
(D) three or more misdemeanor offenses not occurring
on the same date, and not arising out of the same act,
omission, or scheme of misconduct.
(3) Waivers for certain grounds of inadmissibility.--For
humanitarian purposes, family unity, or if otherwise in the
public interest, the Secretary may waive the grounds of
inadmissibility under--
(A) paragraph (1), (6)(E), or (10)(D) of section
212(a) of the Immigration and Nationality Act (8 U.S.C.
1182(a)); or
(B) subparagraphs (A) and (D) of section 212(a)(2) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)(2)), unless inadmissibility is based on a
conviction that would otherwise render the alien
ineligible under subparagraph (A), (B), or (D) of
paragraph (2).
(c) Application.--
(1) Application period.--Except as provided in paragraph (2),
the Secretary shall accept initial applications for certified
agricultural worker status during the 18-month period beginning
on the date on which the interim final rule is published in the
Federal Register pursuant to section 122(a).
(2) Extension.--If the Secretary determines, during the
initial period described in paragraph (1), that additional time
is required to process initial applications for certified
agricultural worker status or for other good cause, the
Secretary may extend the period for accepting applications for
up to an additional 12 months.
(3) Submission of applications.--
(A) In general.--An alien may file an application
with the Secretary under this section with the
assistance of an attorney or a nonprofit religious,
charitable, social service, or similar organization
recognized by the Board of Immigration Appeals under
section 292.2 of title 8, Code of Federal Regulations.
The Secretary shall also create a procedure for
accepting applications filed by qualified designated
entities with the consent of the applicant.
(B) Farm service agency offices.--The Secretary, in
consultation with the Secretary of Agriculture, shall
establish a process for the filing of applications
under this section at Farm Service Agency offices
throughout the United States.
(4) Evidence of application filing.--As soon as practicable
after receiving an application for certified agricultural
worker status, the Secretary shall provide the applicant with a
document acknowledging the receipt of such application. Such
document shall serve as interim proof of the alien's
authorization to accept employment in the United States and
shall be accepted by an employer as evidence of employment
authorization under section 274A(b)(1)(C) of the Immigration
and Nationality Act (8 U.S.C. 1324a(b)(1)(C)), pending a final
administrative decision on the application.
(5) Effect of pending application.--During the period
beginning on the date on which an alien applies for certified
agricultural worker status under this subtitle, and ending on
the date on which the Secretary makes a final administrative
decision regarding such application, the alien and any
dependents included in the application--
(A) may apply for advance parole, which shall be
granted upon demonstrating a legitimate need to travel
outside the United States for a temporary purpose;
(B) may not be detained by the Secretary or removed
from the United States unless the Secretary makes a
prima facie determination that such alien is, or has
become, ineligible for certified agricultural worker
status;
(C) may not be considered unlawfully present under
section 212(a)(9)(B) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(9)(B)); and
(D) may not be considered an unauthorized alien (as
defined in section 274A(h)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(3))).
(6) Withdrawal of application.--The Secretary shall, upon
receipt of a request from the applicant to withdraw an
application for certified agricultural worker status under this
subtitle, cease processing of the application, and close the
case. Withdrawal of the application shall not prejudice any
future application filed by the applicant for any immigration
benefit under this Act or under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).
(d) Adjudication and Decision.--
(1) In general.--Subject to section 123, the Secretary shall
render a decision on an application for certified agricultural
worker status not later than 180 days after the date the
application is filed.
(2) Notice.--Prior to denying an application for certified
agricultural worker status, the Secretary shall provide the
alien with--
(A) written notice that describes the basis for
ineligibility or the deficiencies in the evidence
submitted; and
(B) at least 90 days to contest ineligibility or
submit additional evidence.
(3) Amended application.--An alien whose application for
certified agricultural worker status is denied under this
section may submit an amended application for such status to
the Secretary if the amended application is submitted within
the application period described in subsection (c) and contains
all the required information and fees that were missing from
the initial application.
(e) Alternative h-2a Status.--An alien who has not met the required
period of agricultural labor or services under subsection (a)(1)(A),
but is otherwise eligible for certified agricultural worker status
under such subsection, shall be eligible for classification as a
nonimmigrant described in section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) upon
approval of a petition submitted by a sponsoring employer, if the alien
has performed at least 575 hours (or 100 work days) of agricultural
labor or services during the 3-year period preceding the date of the
introduction of this Act. The Secretary shall create a procedure to
provide for such classification without requiring the alien to depart
the United States and obtain a visa abroad.
SEC. 102. TERMS AND CONDITIONS OF CERTIFIED STATUS.
(a) In General.--
(1) Approval.--Upon approval of an application for certified
agricultural worker status, or an extension of such status
pursuant to section 103, the Secretary shall issue--
(A) documentary evidence of such status to the
applicant; and
(B) documentary evidence of certified agricultural
dependent status to any qualified dependent included on
such application.
(2) Documentary evidence.--In addition to any other features
and information as the Secretary may prescribe, the documentary
evidence described in paragraph (1)--
(A) shall be machine-readable and tamper-resistant;
(B) shall contain a digitized photograph;
(C) shall serve as a valid travel and entry document
for purposes of applying for admission to the United
States; and
(D) shall be accepted during the period of its
validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B)
of the Immigration and Nationality Act (8 U.S.C.
1324a(b)(1)(B)).
(3) Validity period.--Certified agricultural worker and
certified agricultural dependent status shall be valid for five
and one-half years beginning on the date of approval.
(4) Travel authorization.--An alien with certified
agricultural worker or certified agricultural dependent status
may--
(A) travel within and outside of the United States,
including commuting to the United States from a
residence in a foreign country; and
(B) be admitted to the United States upon return from
travel abroad without first obtaining a visa if the
alien is in possession of--
(i) valid, unexpired documentary evidence of
certified agricultural worker or certified
agricultural worker dependent status as
described in subsection (a); or
(ii) a travel document that has been approved
by the Secretary and was issued to the alien
after the alien's original documentary evidence
was lost, stolen, or destroyed.
(b) Ability to Change Status.--
(1) Change to certified agricultural worker status.--
Notwithstanding section 101(a), an alien with valid certified
agricultural dependent status may apply to change to certified
agricultural worker status, at any time, if the alien--
(A) submits a completed application, including the
required processing fees; and
(B) is not ineligible for certified agricultural
worker status under section 101(b).
(2) Clarification.--Nothing in this title prohibits an alien
granted certified agricultural worker or certified agricultural
dependent status from changing status to any other nonimmigrant
classification for which the alien may be eligible.
(c) Prohibition on Public Benefits, Tax Benefits, and Health Care
Subsidies.--Aliens granted certified agricultural worker or certified
agricultural dependent status shall be considered lawfully present in
the United States for all purposes for the duration of their status,
except that such aliens--
(1) shall be ineligible for Federal means-tested public
benefits to the same extent as other individuals who are not
qualified aliens under section 431 of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(8 U.S.C. 1641);
(2) are not entitled to the premium assistance tax credit
authorized under section 36B of the Internal Revenue Code of
1986 (26 U.S.C. 36B), and shall be subject to the rules
applicable to individuals who are not lawfully present set
forth in subsection (e) of such section;
(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)); and
(4) shall be subject to the rules applicable to individuals
not lawfully present set forth in section 5000A(d)(3) of the
Internal Revenue Code of 1986 (26 U.S.C. 5000A(d)(3)).
(d) Revocation of Status.--
(1) In general.--The Secretary may revoke certified
agricultural worker or certified agricultural dependent status
if, after providing notice to the alien and the opportunity to
provide evidence to contest the proposed revocation, the
Secretary determines that the alien no longer meets the
eligibility requirements for such status under section 101(b).
(2) Invalidation of documentation.--Upon the Secretary's
final determination to revoke an alien's certified agricultural
worker or certified agricultural dependent status, any
documentation issued by the Secretary to such alien under
subsection (a) shall automatically be rendered invalid for any
purpose except for departure from the United States.
SEC. 103. EXTENSIONS OF CERTIFIED STATUS.
(a) Requirements for Extensions of Status.--
(1) Principal aliens.--The Secretary may extend certified
agricultural worker status for additional periods of five and
one-half years to an alien who submits a completed application,
including the required processing fees, within the 120-day
period beginning 60 days before the expiration of the fifth
year of the immediately preceding grant of certified
agricultural worker status, if the alien--
(A) except as provided in subsection (b), has
performed agricultural labor or services in the United
States for at least 575 hours (or 100 work days) for
each of the prior five years in which the alien held
certified agricultural worker status; and
(B) has not become ineligible for certified
agricultural worker status under section 101(b).
(2) Dependent spouse and children.--The Secretary may grant
or extend certified agricultural dependent status to the spouse
or child of an alien granted an extension of certified
agricultural worker status under paragraph (1) if the spouse or
child is not ineligible for certified agricultural dependent
status under section 101(b).
(3) Waiver for late filings.--The Secretary may waive an
alien's failure to timely file before the expiration of the
120-day period described in paragraph (1) if the alien
demonstrates that the delay was due to extraordinary
circumstances beyond the alien's control or for other good
cause.
(b) Status for Workers With Pending Applications.--
(1) In general.--Certified agricultural worker status of an
alien who timely files an application to extend such status
under subsection (a) (and the status of the alien's dependents)
shall be automatically extended through the date on which the
Secretary makes a final administrative decision regarding such
application.
(2) Documentation of employment authorization.--As soon as
practicable after receipt of an application to extend certified
agricultural worker status under subsection (a), the Secretary
shall issue a document to the alien acknowledging the receipt
of such application. An employer of the worker may not refuse
to accept such document as evidence of employment authorization
under section 274A(b)(1)(C) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)(1)(C)), pending a final administrative
decision on the application.
(c) Notice.--Prior to denying an application to extend certified
agricultural worker status, the Secretary shall provide the alien
with--
(1) written notice that describes the basis for ineligibility
or the deficiencies of the evidence submitted; and
(2) at least 90 days to contest ineligibility or submit
additional evidence.
SEC. 104. DETERMINATION OF CONTINUOUS PRESENCE.
(a) Effect of Notice to Appear.--The continuous presence in the
United States of an applicant for certified agricultural worker status
under section 101 shall not terminate when the alien is served a notice
to appear under section 239(a) of the Immigration and Nationality Act
(8 U.S.C. 1229(a)).
(b) Treatment of Certain Breaks in Presence.--
(1) In general.--Except as provided in paragraphs (2) and
(3), an alien shall be considered to have failed to maintain
continuous presence in the United States under this subtitle if
the alien departed the United States for any period exceeding
90 days, or for any periods, in the aggregate, exceeding 180
days.
(2) Extensions for extenuating circumstances.--The Secretary
may extend the time periods described in paragraph (1) for an
alien who demonstrates that the failure to timely return to the
United States was due to extenuating circumstances beyond the
alien's control, including the serious illness of the alien, or
death or serious illness of a spouse, parent, son or daughter,
grandparent, or sibling of the alien.
(3) Travel authorized by the secretary.--Any period of travel
outside of the United States by an alien that was authorized by
the Secretary shall not be counted toward any period of
departure from the United States under paragraph (1).
SEC. 105. EMPLOYER OBLIGATIONS.
(a) Record of Employment.--An employer of an alien in certified
agricultural worker status shall provide such alien with a written
record of employment each year during which the alien provides
agricultural labor or services to such employer as a certified
agricultural worker.
(b) Civil Penalties.--
(1) In general.--If the Secretary determines, after notice
and an opportunity for a hearing, that an employer of an alien
with certified agricultural worker status has knowingly failed
to provide the record of employment required under subsection
(a), or has provided a false statement of material fact in such
a record, the employer shall be subject to a civil penalty in
an amount not to exceed $500 per violation.
(2) Limitation.--The penalty under paragraph (1) for failure
to provide employment records shall not apply unless the alien
has provided the employer with evidence of employment
authorization described in section 102 or 103.
(3) Deposit of civil penalties.--Civil penalties collected
under this paragraph shall be deposited into the Immigration
Examinations Fee Account under section 286(m) of the
Immigration and Nationality Act (8 U.S.C. 1356(m)).
SEC. 106. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) Administrative Review.--The Secretary shall establish a process
by which an applicant may seek administrative review of a denial of an
application for certified agricultural worker status under this
subtitle, an application to extend such status, or a revocation of such
status.
(b) Admissibility in Immigration Court.--Each record of an alien's
application for certified agricultural worker status under this
subtitle, application to extend such status, revocation of such status,
and each record created pursuant to the administrative review process
under subsection (a) is admissible in immigration court, and shall be
included in the administrative record.
(c) Judicial Review.--Notwithstanding any other provision of law,
judicial review of the Secretary's decision to deny an application for
certified agricultural worker status, an application to extend such
status, or the decision to revoke such status, shall be limited to the
review of an order of removal under section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252).
Subtitle B--Optional Earned Residence for Long-term Workers
SEC. 111. OPTIONAL ADJUSTMENT OF STATUS FOR LONG-TERM AGRICULTURAL
WORKERS.
(a) Requirements for Adjustment of Status.--
(1) Principal aliens.--The Secretary may adjust the status of
an alien from that of a certified agricultural worker to that
of a lawful permanent resident if the alien submits a completed
application, including the required processing and penalty
fees, and the Secretary determines that--
(A) except as provided in section 126(c), the alien
performed agricultural labor or services for not less
than 575 hours (or 100 work days) each year--
(i) for at least 10 years prior to the date
of the enactment of this Act and for at least 4
years in certified agricultural worker status;
or
(ii) for fewer than 10 years prior to the
date of the enactment of this Act and for at
least 8 years in certified agricultural worker
status; and
(B) the alien has not become ineligible for certified
agricultural worker status under section 101(b).
(2) Dependent aliens.--
(A) In general.--The spouse and each child of an
alien described in paragraph (1) whose status has been
adjusted to that of a lawful permanent resident may be
granted lawful permanent residence under this subtitle
if--
(i) the qualifying relationship to the
principal alien existed on the date on which
such alien was granted adjustment of status
under this subtitle; and
(ii) the spouse or child is not ineligible
for certified agricultural worker dependent
status under section 101(b).
(B) Protections for spouses and children.--The
Secretary of Homeland Security shall establish
procedures to allow the spouse or child of a certified
agricultural worker to self-petition for lawful
permanent residence under this subtitle in cases
involving--
(i) the death of the certified agricultural
worker, so long as the spouse or child submits
a petition not later than 2 years after the
date of the worker's death; or
(ii) the spouse or a child being battered or
subjected to extreme cruelty by the certified
agricultural worker.
(3) Documentation of work history.--An applicant for
adjustment of status under this section shall not be required
to resubmit evidence of work history that has been previously
submitted to the Secretary in connection with an approved
extension of certified agricultural worker status.
(b) Penalty Fee.--In addition to any processing fee that the
Secretary may assess in accordance with section 122(b), a principal
alien seeking adjustment of status under this subtitle shall pay a
$1,000 penalty fee, which shall be deposited into the Immigration
Examinations Fee Account pursuant to section 286(m) of the Immigration
and Nationality Act (8 U.S.C.1356(m)).
(c) Effect of Pending Application.--During the period beginning on
the date on which an alien applies for adjustment of status under this
subtitle, and ending on the date on which the Secretary makes a final
administrative decision regarding such application, the alien and any
dependents included on the application--
(1) may apply for advance parole, which shall be granted upon
demonstrating a legitimate need to travel outside the United
States for a temporary purpose;
(2) may not be detained by the Secretary or removed from the
United States unless the Secretary makes a prima facie
determination that such alien is, or has become, ineligible for
adjustment of status under subsection (a);
(3) may not be considered unlawfully present under section
212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(9)(B)); and
(4) may not be considered an unauthorized alien (as defined
in section 274A(h)(3) of the Immigration and Nationality Act (8
U.S.C. 1324a(h)(3))).
(d) Evidence of Application Filing.--As soon as practicable after
receiving an application for adjustment of status under this subtitle,
the Secretary shall provide the applicant with a document acknowledging
the receipt of such application. Such document shall serve as interim
proof of the alien's authorization to accept employment in the United
States and shall be accepted by an employer as evidence of employment
authorization under section 274A(b)(1)(C) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)(1)(C)), pending a final
administrative decision on the application.
(e) Withdrawal of Application.--The Secretary shall, upon receipt of
a request to withdraw an application for adjustment of status under
this subtitle, cease processing of the application, and close the case.
Withdrawal of the application shall not prejudice any future
application filed by the applicant for any immigration benefit under
this Act or under the Immigration and Nationality Act (8 U.S.C. 1101 et
seq.).
SEC. 112. PAYMENT OF TAXES.
(a) In General.--An alien may not be granted adjustment of status
under this subtitle unless the applicant has satisfied any applicable
Federal tax liability.
(b) Compliance.--An alien may demonstrate compliance with subsection
(a) by submitting such documentation as the Secretary, in consultation
with the Secretary of the Treasury, may require by regulation.
SEC. 113. ADJUDICATION AND DECISION; REVIEW.
(a) In General.--Subject to the requirements of section 123, the
Secretary shall render a decision on an application for adjustment of
status under this subtitle not later than 180 days after the date on
which the application is filed.
(b) Notice.--Prior to denying an application for adjustment of status
under this subtitle, the Secretary shall provide the alien with--
(1) written notice that describes the basis for ineligibility
or the deficiencies of the evidence submitted; and
(2) at least 90 days to contest ineligibility or submit
additional evidence.
(c) Administrative Review.--The Secretary shall establish a process
by which an applicant may seek administrative review of a denial of an
application for adjustment of status under this subtitle.
(d) Judicial Review.--Notwithstanding any other provision of law, an
alien may seek judicial review of a denial of an application for
adjustment of status under this title in an appropriate United States
district court.
Subtitle C--General Provisions
SEC. 121. DEFINITIONS.
In this title:
(1) In general.--Except as otherwise provided, any term used
in this title that is used in the immigration laws shall have
the meaning given such term in the immigration laws (as such
term is defined in section 101 of the Immigration and
Nationality Act (8 U.S.C. 1101)).
(2) Agricultural labor or services.--The term ``agricultural
labor or services'' means--
(A) agricultural labor or services as such term is
used in section 101(a)(15)(H)(ii) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)),
without regard to whether the labor or services are of
a seasonal or temporary nature; and
(B) agricultural employment as such term is defined
in section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1802), without regard
to whether the specific service or activity is
temporary or seasonal.
(3) Applicable federal tax liability.--The term ``applicable
Federal tax liability'' means all Federal income taxes assessed
in accordance with section 6203 of the Internal Revenue Code of
1986 beginning on the date on which the applicant was
authorized to work in the United States as a certified
agricultural worker.
(4) Appropriate united states district court.--The term
``appropriate United States district court'' means the United
States District Court for the District of Columbia or the
United States district court with jurisdiction over the alien's
principal place of residence.
(5) Child.--The term ``child'' has the meaning given such
term in section 101(b)(1) of the Immigration and Nationality
Act (8 U.S.C. 1101(b)(1)).
(6) Convicted or conviction.--The term ``convicted'' or
``conviction'' does not include a judgment that has been
expunged or set aside, that resulted in a rehabilitative
disposition, or the equivalent.
(7) Employer.--The term ``employer'' means any person or
entity, including any labor contractor or any agricultural
association, that employs workers in agricultural labor or
services.
(8) Qualified designated entity.--The term ``qualified
designated entity'' means--
(A) a qualified farm labor organization or an
association of employers designated by the Secretary;
or
(B) any other entity that the Secretary designates as
having substantial experience, demonstrated competence,
and a history of long-term involvement in the
preparation and submission of application for
adjustment of status under title II of the Immigration
and Nationality Act (8 U.S.C. 1151 et seq.).
(9) Secretary.--The term ``Secretary'' means the Secretary of
Homeland Security.
(10) Work day.--The term ``work day'' means any day in which
the individual is employed 5.75 or more hours in agricultural
labor or services.
SEC. 122. RULEMAKING; FEES.
(a) Rulemaking.--Not later than 180 days after the date of the
enactment of this Act, the Secretary shall publish in the Federal
Register, an interim final rule implementing this title.
Notwithstanding section 553 of title 5, United States Code, the rule
shall be effective, on an interim basis, immediately upon publication,
but may be subject to change and revision after public notice and
opportunity for comment. The Secretary shall finalize such rule not
later than 1 year after the date of the enactment of this Act.
(b) Fees.--
(1) In general.--The Secretary may require an alien applying
for any benefit under this title to pay a reasonable fee that
is commensurate with the cost of processing the application.
(2) Fee waiver; installments.--
(A) In general.--The Secretary shall establish
procedures to allow an alien to--
(i) request a waiver of any fee that the
Secretary may assess under this title if the
alien demonstrates to the satisfaction of the
Secretary that the alien is unable to pay the
prescribed fee; or
(ii) pay any fee or penalty that the
Secretary may assess under this title in
installments.
(B) Clarification.--Nothing in this section shall be
read to prohibit an employer from paying any fee or
penalty that the Secretary may assess under this title
on behalf of an alien and the alien's spouse or
children.
SEC. 123. BACKGROUND CHECKS.
(a) Submission of Biometric and Biographic Data.--The Secretary may
not grant or extend certified agricultural worker or certified
agricultural dependent status under subtitle A, or grant adjustment of
status to that of a lawful permanent resident under subtitle B, unless
the alien submits biometric and biographic data, in accordance with
procedures established by the Secretary. The Secretary shall provide an
alternative procedure for aliens who cannot provide all required
biometric or biographic data because of a physical impairment.
(b) Background Checks.--The Secretary shall use biometric,
biographic, and other data that the Secretary determines appropriate to
conduct security and law enforcement background checks and to determine
whether there is any criminal, national security, or other factor that
would render the alien ineligible for status under this title. An alien
may not be granted any such status under this title unless security and
law enforcement background checks are completed to the satisfaction of
the Secretary.
SEC. 124. PROTECTION FOR CHILDREN.
(a) In General.--Except as provided in subsection (b), for purposes
of eligibility for certified agricultural dependent status or lawful
permanent resident status under this title, a determination of whether
an alien is a child shall be made using the age of the alien on the
date on which the initial application for certified agricultural worker
status is filed with the Secretary of Homeland Security.
(b) Limitation.--Subsection (a) shall apply for no more than 10 years
after the date on which the initial application for certified
agricultural worker status is filed with the Secretary of Homeland
Security.
SEC. 125. LIMITATION ON REMOVAL.
(a) In General.--An alien who appears to be prima facie eligible for
status under this title shall be given a reasonable opportunity to
apply for such status and shall not be placed in removal proceedings or
removed from the United States until a final administrative decision
establishing ineligibility for such status is rendered.
(b) Aliens in Removal Proceedings.--Notwithstanding any other
provision of the law, the Attorney General shall (upon motion by the
Secretary with the consent of the alien, or motion by the alien)
terminate removal proceedings, without prejudice, against an alien who
appears to be prima facie eligible for status under this title, and
provide such alien a reasonable opportunity to apply for such status.
(c) Effect of Final Order.--An alien present in the United States who
has been ordered removed or has been permitted to depart voluntarily
from the United States may, notwithstanding such order or permission to
depart, apply for status under this title. Such alien shall not be
required to file a separate motion to reopen, reconsider, or vacate the
order of removal. If the Secretary approves the application, the
Secretary shall notify the Attorney General of such approval, and the
Attorney General shall cancel the order of removal. If the Secretary
renders a final administrative decision to deny the application, the
order of removal or permission to depart shall be effective and
enforceable to the same extent as if the application had not been made,
only after all available administrative and judicial remedies have been
exhausted.
(d) Effect of Departure.--Section 101(g) of the Immigration and
Nationality Act (8 U.S.C. 1101(g)) shall not apply to an alien who
departs the United States--
(1) with advance permission to return to the United States
granted by the Secretary under this title; or
(2) after having been granted certified agricultural worker
status or lawful permanent resident status under this title.
SEC. 126. DOCUMENTATION OF AGRICULTURAL WORK HISTORY.
(a) Burden of Proof.--An alien applying for certified agricultural
worker status under subtitle A or adjustment of status under subtitle B
shall provide evidence that the alien has worked the requisite number
of hours or days required under section 101, 103, or 111, as
applicable. The Secretary shall establish special procedures to
properly credit work in cases in which an alien was employed under an
assumed name.
(b) Evidence.--An alien may meet the burden of proof under subsection
(a) by producing sufficient evidence to show the extent of such
employment as a matter of just and reasonable inference. Such evidence
may include--
(1) an annual record of certified agricultural worker
employment as described in section 105(a), or other employment
records from employers;
(2) employment records maintained by collective bargaining
associations;
(3) tax records or other government records;
(4) sworn affidavits from individuals who have direct
knowledge of the alien's work history; or
(5) any other documentation designated by the Secretary for
such purpose.
(c) Exception for Extraordinary Circumstances.--
(1) In general.--In determining whether an alien has met the
requirement under section 103(a)(1)(A) or 111(a)(1)(A), the
Secretary may credit the alien with not more than 575 hours (or
100 work days) of agricultural labor or services in the United
States if the alien was unable to perform the required
agricultural labor or services due to--
(A) pregnancy, illness, disease, disabling injury, or
physical limitation of the alien;
(B) injury, illness, disease, or other special needs
of the alien's child or spouse;
(C) severe weather conditions that prevented the
alien from engaging in agricultural labor or services;
or
(D) termination from agricultural employment, if the
Secretary determines that--
(i) the termination was without just cause;
and
(ii) the alien was unable to find alternative
agricultural employment after a reasonable job
search.
(2) Effect of determination.--A determination under paragraph
(1)(D) shall not be conclusive, binding, or admissible in a
separate or subsequent judicial or administrative action or
proceeding between the alien and a current or prior employer of
the alien or any other party.
SEC. 127. EMPLOYER PROTECTIONS.
(a) Continuing Employment.--An employer that continues to employ an
alien knowing that the alien intends to apply for certified
agricultural worker status under subtitle A shall not violate section
274A(a)(2) of the Immigration and Nationality Act (8 U.S.C.
1324a(a)(2)) by continuing to employ the alien for the duration of the
application period under section 101(c), and with respect to an alien
who applies for certified agricultural status, for the duration of the
period during which the alien's application is pending final
determination.
(b) Use of Employment Records.--Copies of employment records or other
evidence of employment provided by an alien or by an alien's employer
in support of an alien's application for certified agricultural worker
or adjustment of status under this title may not be used in a civil or
criminal prosecution or investigation of that employer under section
274A of the Immigration and Nationality Act (8 U.S.C. 1324a) or the
Internal Revenue Code of 1986 for the prior unlawful employment of that
alien regardless of the outcome of such application.
(c) Additional Protections.--Employers that provide unauthorized
aliens with copies of employment records or other evidence of
employment in support of an application for certified agricultural
worker status or adjustment of status under this title shall not be
subject to civil and criminal liability pursuant to such section 274A
for employing such unauthorized aliens. Records or other evidence of
employment provided by employers in response to a request for such
records for the purpose of establishing eligibility for status under
this title may not be used for any purpose other than establishing such
eligibility.
(d) Limitation on Protection.--The protections for employers under
this section shall not apply if the employer provides employment
records to the alien that are determined to be fraudulent.
SEC. 128. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(e)(1) of the Social Security Act (42
U.S.C. 408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted certified agricultural worker status,
certified agricultural dependent status, or lawful permanent
resident status under title I of the Farm Work Modernization
Act of 2019,''; and
(4) in the undesignated matter following subparagraph (D), as
added by paragraph (3), by striking ``1990.'' and inserting
``1990, or in the case of an alien described in subparagraph
(D), if such conduct is alleged to have occurred before the
date on which the alien was granted status under title I of the
Farm Work Modernization Act of 2019.''.
(b) Effective Date.--The amendments made by subsection (a) shall take
effect on the first day of the seventh month that begins after the date
of the enactment of this Act.
SEC. 129. DISCLOSURES AND PRIVACY.
(a) In General.--The Secretary may not disclose or use information
provided in an application for certified agricultural worker status or
adjustment of status under this title (including information provided
during administrative or judicial review) for the purpose of
immigration enforcement.
(b) Referrals Prohibited.--The Secretary, based solely on information
provided in an application for certified agricultural worker status or
adjustment of status under this title (including information provided
during administrative or judicial review), may not refer an applicant
to U.S. Immigration and Customs Enforcement, U.S. Customs and Border
Protection, or any designee of either such entity.
(c) Exceptions.--Notwithstanding subsections (a) and (b), information
provided in an application for certified agricultural worker status or
adjustment of status under this title may be shared with Federal
security and law enforcement agencies--
(1) for assistance in the consideration of an application
under this title;
(2) to identify or prevent fraudulent claims or schemes;
(3) for national security purposes; or
(4) for the investigation or prosecution of any felony not
related to immigration status.
(d) Penalty.--Any person who knowingly uses, publishes, or permits
information to be examined in violation of this section shall be fined
not more than $10,000.
(e) Privacy.--The Secretary shall ensure that appropriate
administrative and physical safeguards are in place to protect the
security, confidentiality, and integrity of personally identifiable
information collected, maintained, and disseminated pursuant to this
title.
SEC. 130. PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.
(a) Criminal Penalty.--Any person who--
(1) files an application for certified agricultural worker
status or adjustment of status under this title and knowingly
falsifies, conceals, or covers up a material fact or makes any
false, fictitious, or fraudulent statements or representations,
or makes or uses any false writing or document knowing the same
to contain any false, fictitious, or fraudulent statement or
entry; or
(2) creates or supplies a false writing or document for use
in making such an application,
shall be fined in accordance with title 18, United States Code,
imprisoned not more than 5 years, or both.
(b) Inadmissibility.--An alien who is convicted under subsection (a)
shall be deemed inadmissible to the United States under section
212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(6)(C)(i)).
(c) Deposit.--Fines collected under subsection (a) shall be deposited
into the Immigration Examinations Fee Account pursuant to section
286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).
SEC. 131. DISSEMINATION OF INFORMATION.
(a) In General.--Beginning not later than the first day of the
application period described in section 101(c)--
(1) the Secretary of Homeland Security, in cooperation with
qualified designated entities, shall broadly disseminate
information described in subsection (b); and
(2) the Secretary of Agriculture, in consultation with the
Secretary of Homeland Security, shall disseminate to
agricultural employers a document containing the information
described in subsection (b) for posting at employer worksites.
(b) Information Described.--The information described in this
subsection shall include--
(1) the benefits that aliens may receive under this title;
and
(2) the requirements that an alien must meet to receive such
benefits.
SEC. 132. EXEMPTION FROM NUMERICAL LIMITATIONS.
The numerical limitations under title II of the Immigration and
Nationality Act (8 U.S.C. 1151 et seq.) shall not apply to the
adjustment of aliens to lawful permanent resident status under this
title, and such aliens shall not be counted toward any such numerical
limitation.
SEC. 133. REPORTS TO CONGRESS.
Not later than 180 days after the publication of the final rule under
section 122(a), and annually thereafter for the following 10 years, the
Secretary shall submit a report to Congress that identifies, for the
previous fiscal year--
(1) the number of principal aliens who applied for certified
agricultural worker status under subtitle A, and the number of
dependent spouses and children included in such applications;
(2) the number of principal aliens who were granted certified
agricultural worker status under subtitle A, and the number of
dependent spouses and children who were granted certified
agricultural dependent status;
(3) the number of principal aliens who applied for an
extension of their certified agricultural worker status under
subtitle A, and the number of dependent spouses and children
included in such applications;
(4) the number of principal aliens who were granted an
extension of certified agricultural worker status under
subtitle A, and the number of dependent spouses and children
who were granted certified agricultural dependent status under
such an extension;
(5) the number of principal aliens who applied for adjustment
of status under subtitle B, and the number of dependent spouses
and children included in such applications;
(6) the number of principal aliens who were granted lawful
permanent resident status under subtitle B, and the number of
spouses and children who were granted such status as
dependents;
(7) the number of principal aliens included in petitions
described in section 101(e), and the number of dependent
spouses and children included in such applications; and
(8) the number of principal aliens who were granted H-2A
status pursuant to petitions described in section 101(e), and
the number of dependent spouses and children who were granted
H-4 status.
SEC. 134. GRANT PROGRAM TO ASSIST ELIGIBLE APPLICANTS.
(a) Establishment.--The Secretary shall establish a program to award
grants, on a competitive basis, to eligible nonprofit organizations to
assist eligible applicants under this title by providing them with the
services described in subsection (c).
(b) Eligible Nonprofit Organization.--For purposes of this section,
the term ``eligible nonprofit organization'' means an organization
described in section 501(c)(3) of the Internal Revenue Code of 1986
(excluding a recipient of funds under title X of the Economic
Opportunity Act of 1964 (42 U.S.C. 2996 et seq.)) that has demonstrated
qualifications, experience, and expertise in providing quality services
to farm workers or aliens.
(c) Use of Funds.--Grant funds awarded under this section may be used
for the design and implementation of programs that provide--
(1) information to the public regarding the eligibility and
benefits of certified agricultural worker status authorized
under this title; and
(2) assistance, within the scope of authorized practice of
immigration law, to individuals submitting applications for
certified agricultural worker status or adjustment of status
under this title, including--
(A) screening prospective applicants to assess their
eligibility for such status;
(B) completing applications, including providing
assistance in obtaining necessary documents and
supporting evidence; and
(C) providing any other assistance that the Secretary
determines useful to assist aliens in applying for
certified agricultural worker status or adjustment of
status under this title.
(d) Source of Funds.--In addition to any funds appropriated to carry
out this section, the Secretary may use up to $10,000,000 from the
Immigration Examinations Fee Account under section 286(m) of the
Immigration and Nationality Act (8 U.S.C. 1356(m)) to carry out this
section.
(e) Eligibility for Services.--Section 504(a)(11) of Public Law 104-
134 (110 Stat. 1321-53 et seq.) shall not be construed to prevent a
recipient of funds under title X of the Economic Opportunity Act of
1964 (42 U.S.C. 2996 et seq.) from providing legal assistance directly
related to an application for status under this title or to an alien
granted such status.
SEC. 135. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Secretary, such sums as
may be necessary to implement this title, including any amounts needed
for costs associated with the initiation of such implementation, for
each of fiscal years 2020 through 2022.
TITLE II--ENSURING AN AGRICULTURAL WORKFORCE FOR THE FUTURE
Subtitle A--Reforming the H-2A Temporary Worker Program
SEC. 201. COMPREHENSIVE AND STREAMLINED ELECTRONIC H-2A PLATFORM.
(a) Streamlined h-2a Platform.--
(1) In general.--Not later than 12 months after the date of
the enactment of this Act, the Secretary of Homeland Security,
in consultation with the Secretary of Labor, the Secretary of
Agriculture, the Secretary of State, and United States Digital
Service, shall ensure the establishment of an electronic
platform through which a petition for an H-2A worker may be
filed. Such platform shall--
(A) serve as a single point of access for an employer
to input all information and supporting documentation
required for obtaining labor certification from the
Secretary of Labor and the adjudication of the H-2A
petition by the Secretary of Homeland Security;
(B) serve as a single point of access for the
Secretary of Homeland Security, the Secretary of Labor,
and State workforce agencies to concurrently perform
their respective review and adjudicatory
responsibilities in the H-2A process;
(C) facilitate communication between employers and
agency adjudicators, including by allowing employers
to--
(i) receive and respond to notices of
deficiency and requests for information;
(ii) submit requests for inspections and
licensing;
(iii) receive notices of approval and denial;
and
(iv) request reconsideration or appeal of
agency decisions; and
(D) provide information to the Secretary of State and
U.S. Customs and Border Protection necessary for the
efficient and secure processing of H-2A visas and
applications for admission.
(2) Objectives.--In developing the platform described in
paragraph (1), the Secretary of Homeland Security, in
consultation with the Secretary of Labor, the Secretary of
Agriculture, the Secretary of State, and United States Digital
Service, shall streamline and improve the H-2A process,
including by--
(A) eliminating the need for employers to submit
duplicate information and documentation to multiple
agencies;
(B) eliminating redundant processes, where a single
matter in a petition is adjudicated by more than one
agency;
(C) reducing the occurrence of common petition
errors, and otherwise improving and expediting the
processing of H-2A petitions; and
(D) ensuring compliance with H-2A program
requirements and the protection of the wages and
working conditions of workers.
(b) Online Job Registry.--The Secretary of Labor shall maintain a
national, publicly-accessible online job registry and database of all
job orders submitted by H-2A employers. The registry and database
shall--
(1) be searchable using relevant criteria, including the
types of jobs needed to be filled, the date(s) and location(s)
of need, and the employer(s) named in the job order;
(2) provide an interface for workers in English, Spanish, and
any other language that the Secretary of Labor determines to be
appropriate; and
(3) provide for public access of job orders approved under
section 218(h)(2) of the Immigration and Nationality Act.
SEC. 202. H-2A PROGRAM REQUIREMENTS.
Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is
amended to read as follows:
``SEC. 218. ADMISSION OF TEMPORARY H-2A WORKERS.
``(a) Labor Certification Conditions.--The Secretary of Homeland
Security may not approve a petition to admit an H-2A worker unless the
Secretary of Labor has certified that--
``(1) there are not sufficient United States workers who are
able, willing and qualified, and who will be available at the
time and place needed, to perform the agricultural labor or
services described in the petition; and
``(2) the employment of the H-2A worker in such labor or
services will not adversely affect the wages and working
conditions of workers in the United States who are similarly
employed.
``(b) H-2a Petition Requirements.--An employer filing a petition for
an H-2A worker to perform agricultural labor or services shall attest
to and demonstrate compliance, as and when appropriate, with all
applicable requirements under this section, including the following:
``(1) Need for labor or services.--The employer has described
the need for agricultural labor or services in a job order that
includes a description of the nature and location of the work
to be performed, the anticipated period or periods (expected
start and end dates) for which the workers will be needed, and
the number of job opportunities in which the employer seeks to
employ the workers.
``(2) Nondisplacement of united states workers.--The employer
has not and will not displace United States workers employed by
the employer during the period of employment of the H-2A worker
and during the 60-day period immediately preceding such period
of employment in the job for which the employer seeks approval
to employ the H-2A worker.
``(3) Strike or lockout.--Each place of employment described
in the petition is not, at the time of filing the petition and
until the petition is approved, subject to a strike or lockout
in the course of a labor dispute.
``(4) Recruitment of united states workers.--The employer
shall engage in the recruitment of United States workers as
described in subsection (c) and shall hire such workers who are
able, willing and qualified, and who will be available at the
time and place needed, to perform the agricultural labor or
services described in the petition. The employer may reject a
United States worker only for lawful, job-related reasons.
``(5) Wages, benefits, and working conditions.--The employer
shall offer and provide, at a minimum, the wages, benefits, and
working conditions required by this section to the H-2A worker
and all United States workers who are similarly employed. The
employer--
``(A) shall offer such United States workers not less
than the same benefits, wages, and working conditions
that the employer is offering or will provide to the H-
2A worker; and
``(B) may not impose on such United States workers
any restrictions or obligations that will not be
imposed on the H-2A worker.
``(6) Workers' compensation.--If the job opportunity is not
covered by or is exempt from the State workers' compensation
law, the employer shall provide, at no cost to the worker,
insurance covering injury and disease arising out of, and in
the course of, the worker's employment which will provide
benefits at least equal to those provided under the State
workers' compensation law.
``(7) Compliance with labor and employment laws.--The
employer shall comply with all applicable Federal, State and
local employment-related laws and regulations.
``(c) Recruiting Requirements.--
``(1) In general.--The employer may satisfy the recruitment
requirement described in subsection (b)(4) by satisfying all of
the following:
``(A) Job order.--As provided in subsection (h)(1),
the employer shall complete a job order for posting on
the electronic job registry maintained by the Secretary
of Labor and for distribution by the appropriate State
workforce agency. Such posting shall remain on the job
registry as an active job order through the period
described in paragraph (2)(B).
``(B) Former workers.--At least 45 days before each
start date identified in the petition, the employer
shall--
``(i) make reasonable efforts to contact any
United States worker the employer employed in
the previous year in the same occupation and
area of intended employment for which an H-2A
worker is sought (excluding workers who were
terminated for cause or abandoned the
worksite); and
``(ii) post such job opportunity in a
conspicuous location or locations at the place
of employment.
``(C) Positive recruitment.--During the period of
recruitment, the employer shall complete any other
positive recruitment steps within a multi-State region
of traditional or expected labor supply where the
Secretary of Labor finds that there are a significant
number of qualified United States workers who, if
recruited, would be willing to make themselves
available for work at the time and place needed.
``(2) Period of recruitment.--
``(A) In general.--For purposes of this subsection,
the period of recruitment begins on the date on which
the job order is posted on the online job registry and
ends on the date that H-2A workers depart for the
employer's place of employment. For a petition
involving more than 1 start date under subsection
(h)(1)(C), the end of the period of recruitment shall
be determined by the date of departure of the H-2A
workers for the final start date identified in the
petition.
``(B) Requirement to hire us workers.--
``(i) In general.--Notwithstanding the
limitations of subparagraph (A), the employer
will provide employment to any qualified United
States worker who applies to the employer for
any job opportunity included in the petition
until the later of--
``(I) the date that is 30 days after
the date on which work begins; or
``(II) the date on which--
``(aa) 33 percent of the work
contract for the job
opportunity has elapsed; or
``(bb) if the employer is a
labor contractor, 50 percent of
the work contract for the job
opportunity has elapsed.
``(ii) Staggered entry.--For a petition
involving more than 1 start date under
subsection (h)(1)(C), each start date
designated in the petition shall establish a
separate job opportunity. An employer may not
reject a United States worker because the
worker is unable or unwilling to fill more than
1 job opportunity included in the petition.
``(iii) Exception.--Notwithstanding clause
(i), the employer may offer a job opportunity
to an H-2A worker instead of an alien granted
certified agricultural worker status under
title I of the Farm Workforce Modernization Act
of 2019 if the H-2A worker was employed by the
employer in each of 3 years during the most
recent 4-year period.
``(3) Recruitment report.--
``(A) In general.--The employer shall maintain a
recruitment report through the applicable period
described in paragraph (2)(B) and submit regular
updates through the electronic platform on the results
of recruitment. The employer shall retain the
recruitment report, and all associated recruitment
documentation, for a period of 3 years from the date of
certification.
``(B) Burden of proof.--If the employer asserts that
any eligible individual who has applied or been
referred is not able, willing or qualified, the
employer bears the burden of proof to establish that
the individual is not able, willing or qualified
because of a lawful, employment-related reason.
``(d) Wage Requirements.--
``(1) In general.--Each employer under this section will
offer the worker, during the period of authorized employment,
wages that are at least the greatest of--
``(A) the agreed-upon collective bargaining wage;
``(B) the adverse effect wage rate (or any successor
wage established under paragraph (7));
``(C) the prevailing wage (hourly wage or piece
rate); or
``(D) the Federal or State minimum wage.
``(2) Adverse effect wage rate determinations.--
``(A) In general.--Except as provided under
subparagraph (B), the applicable adverse effect wage
rate for each State and occupational classification for
a calendar year shall be as follows:
``(i) The annual average hourly wage for the
occupational classification in the State or
region as reported by the Secretary of
Agriculture based on a wage survey conducted by
such Secretary.
``(ii) If a wage described in clause (i) is
not reported, the national annual average
hourly wage for the occupational classification
as reported by the Secretary of Agriculture
based on a wage survey conducted by such
Secretary.
``(iii) If a wage described in clause (i) or
(ii) is not reported, the Statewide annual
average hourly wage for the standard
occupational classification as reported by the
Secretary of Labor based on a wage survey
conducted by such Secretary.
``(iv) If a wage described in clause (i),
(ii), or (iii) is not reported, the national
average hourly wage for the occupational
classification as reported by the Secretary of
Labor based on a wage survey conducted by such
Secretary.
``(B) Limitations on wage fluctuations.--
``(i) Wage freeze for calendar year 2020.--
For calendar year 2020, the adverse effect wage
rate for each State and occupational
classification under this subsection shall be
the adverse effect wage rate that was in effect
for H-2A workers in the applicable State in
calendar year 2019.
``(ii) Calendar years 2021 through 2029.--For
each of calendar years 2021 through 2029, the
adverse effect wage rate for each State and
occupational classification under this
subsection shall be the wage calculated under
subparagraph (A), except that such wage may
not--
``(I) be more than 1.5 percent lower
than the wage in effect for H-2A
workers in the applicable State and
occupational classification in the
immediately preceding calendar year;
``(II) except as provided in clause
(III), be more than 3.25 percent higher
than the wage in effect for H-2A
workers in the applicable State and
occupational classification in the
immediately preceding calendar year;
and
``(III) if the application of clause
(II) results in a wage that is lower
than 110 percent of the applicable
Federal or State minimum wage, be more
than 4.25 percent higher than the wage
in effect for H-2A workers in the
applicable State and occupational
classification in the immediately
preceding calendar year.
``(iii) Calendar years after 2029.--For any
calendar year after 2029, the applicable wage
rate described in paragraph (1)(B) shall be the
wage rate established pursuant to paragraph
(7)(D). Until such wage rate is effective, the
adverse effect wage rate for each State and
occupational classification under this
subsection shall be the wage calculated under
subparagraph (A), except that such wage may not
be more than 1.5 percent lower or 3.25 percent
higher than the wage in effect for H-2A workers
in the applicable State and occupational
classification in the immediately preceding
calendar year.
``(3) Multiple occupations.--If the primary job duties for
the job opportunity described in the petition do not fall
within a single occupational classification, the applicable
wage rates under subparagraphs (B) and (C) of paragraph (1) for
the job opportunity shall be based on the highest such wage
rates for all applicable occupational classifications.
``(4) Publication; wages in effect.--
``(A) Publication.--Prior to the start of each
calendar year, the Secretary of Labor shall publish the
applicable adverse effect wage rate (or successor wage
rate, if any), and prevailing wage if available, for
each State and occupational classification through
notice in the Federal Register.
``(B) Job orders in effect.--Except as provided in
subparagraph (C), publication by the Secretary of Labor
of an updated adverse effect wage rate or prevailing
wage for a State and occupational classification shall
not affect the wage rate guaranteed in any approved job
order for which recruitment efforts have commenced at
the time of publication.
``(C) Exception for year-round jobs.--If the
Secretary of Labor publishes an updated adverse effect
wage rate or prevailing wage for a State and
occupational classification concerning a petition
described in subsection (i), and the updated wage is
higher than the wage rate guaranteed in the work
contract, the employer shall pay the updated wage not
later than 14 days after publication of the updated
wage in the Federal Register.
``(5) Workers paid on a piece rate or other incentive
basis.--If an employer pays by the piece rate or other
incentive method and requires 1 or more minimum productivity
standards as a condition of job retention, such standards shall
be specified in the job order and shall be no more than those
normally required (at the time of the first petition for H-2A
workers) by other employers for the activity in the area of
intended employment, unless the Secretary of Labor approves a
higher minimum standard resulting from material changes in
production methods.
``(6) Guarantee of employment.--
``(A) Offer to worker.--The employer shall guarantee
the worker employment for the hourly equivalent of at
least three-fourths of the work days of the total
period of employment, beginning with the first work day
after the arrival of the worker at the place of
employment and ending on the date specified in the job
offer. For purposes of this subparagraph, the hourly
equivalent means the number of hours in the work days
as stated in the job offer and shall exclude the
worker's Sabbath and Federal holidays. If the employer
affords the worker less employment than that required
under this paragraph, the employer shall pay the worker
the amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of
hours.
``(B) Failure to work.--Any hours which the worker
fails to work, up to a maximum of the number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Abandonment of employment; termination for
cause.--If the worker voluntarily abandons employment
without good cause before the end of the contract
period, or is terminated for cause, the worker is not
entitled to the guarantee of employment described in
subparagraph (A).
``(D) Contract impossibility.--If, before the
expiration of the period of employment specified in the
job offer, the services of the worker are no longer
required for reasons beyond the control of the employer
due to any form of natural disaster before the
guarantee in subparagraph (A) is fulfilled, the
employer may terminate the worker's employment. In the
event of such termination, the employer shall fulfill
the employment guarantee in subparagraph (A) for the
work days that have elapsed from the first work day
after the arrival of the worker to the termination of
employment. The employer shall make efforts to transfer
a United States worker to other comparable employment
acceptable to the worker. If such transfer is not
affected, the employer shall provide the return
transportation required in subsection (f)(2).
``(7) Wage standards after 2029.--
``(A) Study of adverse effect wage rate.--Beginning
in fiscal year 2026, the Secretary of Agriculture and
Secretary of Labor shall jointly conduct a study that
addresses--
``(i) whether the employment of H-2A workers
has depressed the wages of United States farm
workers;
``(ii) whether an adverse effect wage rate is
necessary to protect the wages of United States
farm workers in occupations in which H-2A
workers are employed;
``(iii) whether alternative wage standards
would be sufficient to prevent wages in
occupations in which H-2A workers are employed
from falling below the wage level that would
have prevailed in the absence of H-2A
employment;
``(iv) whether any changes are warranted in
the current methodologies for calculating the
adverse effect wage rate and the prevailing
wage rate; and
``(v) recommendations for future wage
protection under this section.
``(B) Final report.--Not later than October 1, 2027,
the Secretary of Agriculture and Secretary of Labor
shall jointly prepare and submit a report to the
Congress setting forth the findings of the study
conducted under subparagraph (A) and recommendations
for future wage protections under this section.
``(C) Consultation.--In conducting the study under
subparagraph (A) and preparing the report under
subparagraph (B), the Secretary of Agriculture and
Secretary of Labor shall consult with representatives
of agricultural employers and an equal number of
representatives of agricultural workers, at the
national, State and local level.
``(D) Wage determination after 2029.--Upon
publication of the report described in subparagraph
(B), the Secretary of Labor, in consultation with and
the approval of the Secretary of Agriculture, shall
make a rule to establish a process for annually
determining the wage rate for purposes of paragraph
(1)(B) for fiscal years after 2029. Such process shall
be designed to ensure that the employment of H-2A
workers does not undermine the wages and working
conditions of similarly employed United States workers.
``(e) Housing Requirements.--Employers shall furnish housing in
accordance with regulations established by the Secretary of Labor. Such
regulations shall be consistent with the following:
``(1) In general.--The employer shall be permitted at the
employer's option to provide housing meeting applicable Federal
standards for temporary labor camps or to secure housing which
meets the local standards for rental and/or public
accommodations or other substantially similar class of
habitation: Provided, That in the absence of applicable local
standards, State standards for rental and/or public
accommodations or other substantially similar class of
habitation shall be met: Provided further, That in the absence
of applicable local or State standards, Federal temporary labor
camp standards shall apply.
``(2) Family housing.--Except as otherwise provided in
subsection (i)(5), the employer shall provide family housing to
workers with families who request it when it is the prevailing
practice in the area and occupation of intended employment to
provide family housing.
``(3) United states workers.--Notwithstanding paragraphs (1)
and (2), an employer is not required to provide housing to
United States workers who are reasonably able to return to
their residence within the same day.
``(4) Timing of inspection.--
``(A) In general.--The Secretary of Labor or designee
shall make a determination as to whether the housing
furnished by an employer for a worker meets the
requirements imposed by this subsection prior to the
date on which the Secretary of Labor is required to
make a certification with respect to a petition for the
admission of such worker.
``(B) Timely inspection.--The Secretary of Labor
shall provide a process for--
``(i) an employer to request inspection of
housing up to 60 days before the date on which
the employer will file a petition under this
section; and
``(ii) annual inspection of housing for
workers who are engaged in agricultural
employment that is not of a seasonal or
temporary nature.
``(f) Transportation Requirements.--
``(1) Travel to place of employment.--A worker who completes
50 percent of the period of employment specified in the job
order shall be reimbursed by the employer for the cost of the
worker's transportation and subsistence from the place from
which the worker came to work for the employer (or place of
last employment, if the worker traveled from such place) to the
place of employment.
``(2) Travel from place of employment.--For a worker who
completes the period of employment specified in the job order
or who is terminated without cause, the employer shall provide
or pay for the worker's transportation and subsistence from the
place of employment to the place from which the worker,
disregarding intervening employment, came to work for the
employer, or to the place of next employment, if the worker has
contracted with a subsequent employer who has not agreed to
provide or pay for the worker's transportation and subsistence
to such subsequent employer's place of employment.
``(3) Limitation.--
``(A) Amount of reimbursement.--Except as provided in
subparagraph (B), the amount of reimbursement provided
under paragraph (1) or (2) to a worker need not exceed
the lesser of--
``(i) the actual cost to the worker of the
transportation and subsistence involved; or
``(ii) the most economical and reasonable
common carrier transportation charges and
subsistence costs for the distance involved.
``(B) Distance traveled.--For travel to or from the
worker's home country, if the travel distance between
the worker's home and the relevant consulate is 50
miles or less, reimbursement for transportation and
subsistence may be based on transportation to or from
the consulate.
``(g) Heat Illness Prevention Plan.--The employer shall maintain a
reasonable plan that describes the employer's procedures for the
prevention of heat illness, including appropriate training, access to
water and shade, the provision of breaks, and the protocols for
emergency response. Such plan shall--
``(1) be in writing in English and, to the extent necessary,
any language common to a significant portion of the workers if
they are not fluent in English; and
``(2) be posted at a conspicuous location at the worksite and
provided to employees prior to the commencement of labor or
services.
``(h) H-2a Petition Procedures.--
``(1) Submission of petition and job order.--
``(A) In general.--The employer shall submit
information required for the adjudication of the H-2A
petition, including a job order, through the electronic
platform no more than 75 calendar days and no fewer
than 60 calendar days before the employer's first date
of need specified in the petition.
``(B) Filing by agricultural associations.--An
association of agricultural producers that use
agricultural services may file an H-2A petition under
subparagraph (A). If an association is a joint or sole
employer of workers who perform agricultural labor or
services, H-2A workers may be used for the approved job
opportunities of any of the association's producer
members and such workers may be transferred among its
producer members to perform the agricultural labor or
services for which the petition was approved.
``(C) Petitions involving staggered entry.--
``(i) In general.--Except as provided in
clause (ii), an employer may file a petition
involving employment in the same occupational
classification and same area of intended
employment with multiple start dates if--
``(I) the petition involves temporary
or seasonal employment and no more than
10 start dates;
``(II) the multiple start dates share
a common end date that is no longer
than 1 year after the first start date;
``(III) no more than 120 days
separate the first start date and the
final start date listed in the
petition; and
``(IV) the need for multiple start
dates arises from variations in labor
needs associated with the job
opportunity identified in the petition.
``(ii) Labor contractors.--A labor contractor
may not file a petition described in clause (i)
unless the labor contractor--
``(I) is filing as a joint employer
with its contractees, or is operating
in a State in which joint employment
and liability between the labor
contractor and its contractees is
otherwise established; or
``(II) has posted and is maintaining
a premium surety bond as described in
subsection (l)(1).
``(2) Labor certification.--
``(A) Review of job order.--
``(i) In general.--The Secretary of Labor, in
consultation with the relevant State workforce
agency, shall review the job order for
compliance with this section and notify the
employer through the electronic platform of any
deficiencies not later than 7 business days
from the date the employer submits the
necessary information required under paragraph
(1)(A). The employer shall be provided 5
business days to respond to any such notice of
deficiency.
``(ii) Standard.--The job order must include
all material terms and conditions of
employment, including the requirements of this
section, and must be otherwise consistent with
the minimum standards provided under Federal,
State or local law. In considering the question
of whether a specific qualification is
appropriate in a job order, the Secretary of
Labor shall apply the normal and accepted
qualification required by non-H-2A employers in
the same or comparable occupations and crops.
``(iii) Emergency procedures.--The Secretary
of Labor shall establish emergency procedures
for the curing of deficiencies that cannot be
resolved during the period described in clause
(i).
``(B) Approval of job order.--
``(i) In general.--Upon approval of the job
order, the Secretary of Labor shall immediately
place for public examination a copy of the job
order on the online job registry, and the State
workforce agency serving the area of intended
employment shall commence the recruitment of
United States workers.
``(ii) Referral of united states workers.--
The Secretary of Labor and State workforce
agency shall keep the job order active until
the end of the period described in subsection
(c)(2) and shall refer to the employer each
United States worker who applies for the job
opportunity.
``(C) Review of information for deficiencies.--Within
7 business days of the approval of the job order, the
Secretary of Labor shall review the information
necessary to make a labor certification and notify the
employer through the electronic platform if such
information does not meet the standards for approval.
Such notification shall include a description of any
deficiency, and the employer shall be provided 5
business days to cure such deficiency.
``(D) Certification and authorization of workers.--
Not later than 30 days before the date that labor or
services are first required to be performed, the
Secretary of Labor shall issue the requested labor
certification if the Secretary determines that the
requirements for certification set forth in this
section have been met.
``(E) Expedited administrative appeals of certain
determinations.--The Secretary of Labor shall by
regulation establish a procedure for an employer to
request the expedited review of a denial of a labor
certification under this section, or the revocation of
such a certification. Such procedure shall require the
Secretary to expeditiously, but no later than 72 hours
after expedited review is requested, issue a de novo
determination on a labor certification that was denied
in whole or in part because of the availability of
able, willing and qualified workers if the employer
demonstrates, consistent with subsection (c)(3)(B),
that such workers are not actually available at the
time or place such labor or services are required.
``(3) Petition decision.--
``(A) In general.--Not later than 7 business days
after the Secretary of Labor issues the certification,
the Secretary of Homeland Security shall issue a
decision on the petition and shall transmit a notice of
action to the petitioner via the electronic platform.
``(B) Approval.--Upon approval of a petition under
this section, the Secretary of Homeland Security shall
ensure that such approval is noted in the electronic
platform and is available to the Secretary of State and
U.S. Customs and Border Protection, as necessary, to
facilitate visa issuance and admission.
``(C) Partial approval.--A petition for multiple
named beneficiaries may be partially approved with
respect to eligible beneficiaries notwithstanding the
ineligibility, or potential ineligibility, of one or
more other beneficiaries.
``(D) Post-certification amendments.--The Secretary
of Labor shall provide a process for amending a request
for labor certification in conjunction with an H-2A
petition, subsequent to certification by the Secretary
of Labor, in cases in which the requested amendment
does not materially change the petition (including the
job order).
``(4) Roles of agricultural associations.--
``(A) Member's violation does not necessarily
disqualify association or other members.--If an
individual producer member of a joint employer
association is determined to have committed an act that
results in the denial of a petition with respect to the
member, the denial shall apply only to that member of
the association unless the Secretary of Labor
determines that the association or other member
participated in, had knowledge of, or reason to know
of, the violation.
``(B) Association's violation does not necessarily
disqualify members.--
``(i) If an association representing
agricultural producers as a joint employer is
determined to have committed an act that
results in the denial of a petition with
respect to the association, the denial shall
apply only to the association and does not
apply to any individual producer member of the
association unless the Secretary of Labor
determines that the member participated in, had
knowledge of, or reason to know of, the
violation.
``(ii) If an association of agricultural
producers certified as a sole employer is
determined to have committed an act that
results in the denial of a petition with
respect to the association, no individual
producer member of such association may be the
beneficiary of the services of H-2A workers in
the commodity and occupation in which such
aliens were employed by the association which
was denied during the period such denial is in
force, unless such producer member employs such
aliens in the commodity and occupation in
question directly or through an association
which is a joint employer of such workers with
the producer member.
``(5) Special procedures.--The Secretary of Labor, in
consultation with the Secretary of Agriculture and Secretary of
Homeland Security, may by regulation establish alternate
procedures that reasonably modify program requirements under
this section, when the Secretary determines that such
modifications are required due to the unique nature of the work
involved.
``(6) Construction occupations.--An employer may not file a
petition under this section on behalf of a worker if the
majority of the worker's duties will fall within a construction
or extraction occupational classification.
``(i) Non-temporary or -seasonal Needs.--
``(1) In general.--Notwithstanding the requirement in section
101(a)(15)(H)(ii)(a) that the agricultural labor or services
performed by an H-2A worker be of a temporary or seasonal
nature, the Secretary of Homeland Security may, consistent with
the provisions of this subsection, approve a petition for an H-
2A worker to perform agricultural services or labor that is not
of a temporary or seasonal nature.
``(2) Numerical limitations.--
``(A) First 3 fiscal years.--The total number of
aliens who may be issued visas or otherwise provided H-
2A nonimmigrant status under paragraph (1) for the
first fiscal year during which the first visa is issued
under such paragraph and for each of the following two
fiscal years may not exceed 20,000.
``(B) Fiscal years 4 through 10.--
``(i) In general.--The total number of aliens
who may be issued visas or otherwise provided
H-2A nonimmigrant status under paragraph (1)
for the first fiscal year following the fiscal
years referred to in subparagraph (A) and for
each of the following six fiscal years may not
exceed a numerical limitation jointly imposed
by the Secretary of Agriculture and Secretary
of Labor in accordance with clause (ii).
``(ii) Annual adjustments.--For each fiscal
year referred to in clause (i), the Secretary
of Agriculture and Secretary of Labor, in
consultation with the Secretary of Homeland
Security, shall establish a numerical
limitation for purposes of clause (i). Such
numerical limitation may not be lower 20,000
and may not vary by more than 12.5 percent
compared to the numerical limitation applicable
to the immediately preceding fiscal year. In
establishing such numerical limitation, the
Secretaries shall consider appropriate factors,
including--
``(I) a demonstrated shortage of
agricultural workers;
``(II) the level of unemployment and
underemployment of agricultural workers
during the preceding fiscal year;
``(III) the number of H-2A workers
sought by employers during the
preceding fiscal year to engage in
agricultural labor or services not of a
temporary or seasonal nature;
``(IV) the number of such H-2A
workers issued a visa in the most
recent fiscal year who remain in the
United States in compliance with the
terms of such visa;
``(V) the estimated number of United
States workers, including workers who
obtained certified agricultural worker
status under title I of the Farm
Workforce Modernization Act of 2019,
who worked during the preceding fiscal
year in agricultural labor or services
not of a temporary or seasonal nature;
``(VI) the number of such United
States workers who accepted jobs
offered by employers using the online
job registry during the preceding
fiscal year;
``(VII) any growth or contraction of
the United States agricultural industry
that has increased or decreased the
demand for agricultural workers; and
``(VIII) any changes in the real
wages paid to agricultural workers in
the United States as an indication of a
shortage or surplus of agricultural
labor.
``(C) Subsequent fiscal years.--For each fiscal year
following the fiscal years referred to in subparagraph
(B), the Secretary of Agriculture and Secretary of
Labor shall jointly determine, in consultation with the
Secretary of Homeland Security, and after considering
appropriate factors, including those factors listed in
subclauses (I) through (VIII) of subparagraph (B)(ii),
whether to establish a numerical limitation for that
fiscal year. If a numerical limitation is so
established--
``(i) such numerical limitation may not be
lower than highest number of aliens admitted
under this subsection in any of the three
fiscal years immediately preceding the fiscal
year for which the numerical limitation is to
be established; and
``(ii) the total number of aliens who may be
issued visas or otherwise provided H-2A
nonimmigrant status under paragraph (1) for
that fiscal year may not exceed such numerical
limitation.
``(D) Emergency procedures.--The Secretary of
Agriculture and Secretary of Labor, in consultation
with the Secretary of Homeland Security, shall jointly
establish by regulation procedures for immediately
adjusting a numerical limitation imposed under
subparagraph (B) or (C) to account for significant
labor shortages.
``(3) Allocation of visas.--
``(A) Bi-annual allocation.--The annual allocation of
visas described in paragraph (2) shall be evenly
allocated between two halves of the fiscal year unless
the Secretary of Homeland Security, in consultation
with the Secretary of Agriculture and Secretary of
Labor, determines that an alternative allocation would
better accommodate demand for visas. Any unused visas
in the first half of the fiscal year shall be added to
the allocation for the subsequent half of the same
fiscal year.
``(B) Reserve for dairy labor or services.--
``(i) In general.--Of the visa numbers made
available in each half of the fiscal year
pursuant to subparagraph (A), 50 percent of
such visas shall be reserved for employers
filing petitions seeking H-2A workers to engage
in agricultural labor or services in the dairy
industry.
``(ii) Exception.--If, after four months have
elapsed in one half of the fiscal year, the
Secretary of Homeland Security determines that
application of clause (i) will result in visas
going unused during that half of the fiscal
year, clause (i) shall not apply to visas under
this paragraph during the remainder of such
calendar half.
``(4) Annual round trip home.--
``(A) In general.--In addition to the other
requirements of this section, an employer shall provide
H-2A workers employed under this subsection, at no cost
to such workers, with annual round trip travel,
including transportation and subsistence during travel,
to their homes in their communities of origin. The
employer must provide such travel within 14 months of
the initiation of the worker's employment, and no more
than 14 months can elapse between each required period
of travel.
``(B) Limitation.--The cost of travel under
subparagraph (A) need not exceed the lesser of--
``(i) the actual cost to the worker of the
transportation and subsistence involved; or
``(ii) the most economical and reasonable
common carrier transportation charges and
subsistence costs for the distance involved.
``(5) Family housing.--An employer seeking to employ an H-2A
worker pursuant to this subsection shall offer family housing
to workers with families if such workers are engaged in
agricultural employment that is not of a seasonal or temporary
nature. The worker may reject such an offer. The employer may
not charge the worker for the worker's housing, except that if
the worker accepts family housing, a prorated rent based on the
fair market value for such housing may be charged for the
worker's family members.
``(6) Workplace safety plan for dairy employees.--
``(A) In general.--If an employer is seeking to
employ a worker in agricultural labor or services in
the dairy industry pursuant to this subsection, the
employer must report incidents consistent with the
requirements under section 1904.39 of title 29, Code of
Federal Regulations, and maintain an effective worksite
safety and compliance plan to prevent workplace
accidents and otherwise ensure safety. Such plan
shall--
``(i) be in writing in English and, to the
extent necessary, any language common to a
significant portion of the workers if they are
not fluent in English; and
``(ii) be posted at a conspicuous location at
the worksite and provided to employees prior to
the commencement of labor or services.
``(B) Contents of plan.--The Secretary of Labor, in
consultation with the Secretary of Agriculture, shall
establish by regulation the minimum requirements for
the plan described in subparagraph (A). Such plan shall
include measures to--
``(i) require workers (other than the
employer's family members) whose positions
require contact with animals to complete animal
care training, including animal handling and
job-specific animal care;
``(ii) protect against sexual harassment and
violence, resolve complaints involving
harassment or violence, and protect against
retaliation against workers reporting
harassment or violence; and
``(iii) contain other provisions necessary
for ensuring workplace safety, as determined by
the Secretary of Labor, in consultation with
the Secretary of Agriculture.
``(j) Eligibility for h-2a Status and Admission to the United
States.--
``(1) Disqualification.--An alien shall be ineligible for
admission to the United States as an H-2A worker pursuant to a
petition filed under this section if the alien was admitted to
the United States as an H-2A worker within the past 5 years of
the date the petition was filed and--
``(A) violated a material provision of this section,
including the requirement to promptly depart the United
States when the alien's authorized period of admission
has expired, unless the alien has good cause for such
failure to depart; or
``(B) otherwise violated a term or condition of
admission into the United States as an H-2A worker.
``(2) Visa validity.--A visa issued to an H-2A worker shall
be valid for three years and shall allow for multiple entries
during the approved period of admission.
``(3) Period of authorized stay; admission.--
``(A) In general.--An alien admissible as an H-2A
worker shall be authorized to stay in the United States
for the period of employment specified in the petition
approved by the Secretary of Homeland Security under
this section. The maximum continuous period of
authorized stay for an H-2A worker is 36 months.
``(B) Requirement to remain outside the united
states.--In the case of an H-2A worker whose maximum
continuous period of authorized stay (including any
extensions) has expired, the alien may not again be
eligible for such stay until the alien remains outside
the United States for a cumulative period of at least
45 days.
``(C) Exceptions.--The Secretary of Homeland Security
shall deduct absences from the United States that take
place during an H-2A worker's period of authorized stay
from the period that the alien is required to remain
outside the United States under subparagraph (B), 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 including, but not limited
to, arrival and departure records, copies of tax
returns, and records of employment abroad.
``(D) Admission.--In addition to the maximum
continuous period of authorized stay, an H-2A worker's
authorized period of admission shall include an
additional period of 10 days prior to the beginning of
the period of employment for the purpose of traveling
to the place of employment and 45 days at the end of
the period of employment for the purpose of traveling
home or seeking an extension of status based on a
subsequent offer of employment if the worker has not
reached the maximum continuous period of authorized
stay under subparagraph (A) (subject to the exceptions
in subparagraph (C)).
``(4) Continuing h-2a workers.--
``(A) Successive employment.--An H-2A worker is
authorized to start new or concurrent employment upon
the filing of a nonfrivolous H-2A petition, or as of
the requested start date, whichever is later if--
``(i) the petition to start new or concurrent
employment was filed prior to the expiration of
the H-2A worker's period of admission as
defined in paragraph (3)(D); and
``(ii) the H-2A worker has not been employed
without authorization in the United States from
the time of last admission to the United States
in H-2A status through the filing of the
petition for new employment.
``(B) Protection due to immigrant visa backlogs.--
Notwithstanding the limitations on the period of
authorized stay described in paragraph (3), any H-2A
worker who--
``(i) is the beneficiary of an approved
petition, filed under section 204(a)(1)(E) or
(F) for preference status under section
203(b)(3)(A)(iii); and
``(ii) is eligible to be granted such status
but for the annual limitations on visas under
section 203(b)(3)(A),
may apply for, and the Secretary of Homeland Security
may grant, an extension of such nonimmigrant status
until the Secretary of Homeland Security issues a final
administrative decision on the alien's application for
adjustment of status or the Secretary of State issues a
final decision on the alien's application for an
immigrant visa.
``(5) Abandonment of employment.--
``(A) In general.--Except as provided in subparagraph
(B), an H-2A worker who abandons the employment which
was the basis for the worker's authorized stay, without
good cause, shall be considered to have failed to
maintain H-2A status and shall depart the United States
or be subject to removal under section 237(a)(1)(C)(i).
``(B) Grace period to secure new employment.--An H-2A
worker shall not be considered to have failed to
maintain H-2A status solely on the basis of a cessation
of the employment on which the alien's classification
was based for a period of 45 consecutive days, or until
the end of the authorized validity period, whichever is
shorter, once during each authorized validity period.
``(k) Required Disclosures.--
``(1) Disclosure of work contract.--Not later than the time
the H-2A worker applies for a visa, the employer shall provide
the worker with a copy of the work contract that includes the
disclosures and rights under this section (or in the absence of
such a contract, a copy of the job order and proof of the
certification described in subparagraphs (B) and (D) of
subsection (h)(2)). An H-2A worker moving from one H-2A
employer to a subsequent H-2A employer shall be provided with a
copy of the new employment contract no later than the time an
offer of employment is made by the subsequent employer.
``(2) Hours and earnings statements.--The employer shall
furnish to H-2A workers, on or before each payday, in 1 or more
written statements--
``(A) the worker's total earnings for the pay period;
``(B) the worker's hourly rate of pay, piece rate of
pay, or both;
``(C) the hours of employment offered to the worker
and the hours of employment actually worked;
``(D) if piece rates of pay are used, the units
produced daily;
``(E) an itemization of the deductions made from the
worker's wages; and
``(F) any other information required by Federal,
State or local law.
``(3) Notice of worker rights.--The employer must post and
maintain in a conspicuous location at the place of employment,
a poster provided by the Secretary of Labor in English, and, to
the extent necessary, any language common to a significant
portion of the workers if they are not fluent in English, which
sets out the rights and protections for workers employed
pursuant to this section.
``(l) Labor Contractors; Foreign Labor Recruiters; Prohibition on
Fees.--
``(1) Labor contractors.--
``(A) Surety bond.--An employer that is a labor
contractor who seeks to employ H-2A workers shall
maintain a surety bond in an amount required under
subparagraph (B). Such bond shall be payable to the
Secretary of Labor or pursuant to the resolution of a
civil or criminal proceeding, for the payment of wages
and benefits, including any assessment of interest,
owed to an H-2A worker or a similarly employed United
States worker, or a United States worker who has been
rejected or displaced in violation of this section.
``(B) Amount of bond.--The Secretary of Labor shall
annually publish in the Federal Register a schedule of
required bond amounts that are determined by such
Secretary to be sufficient for labor contractors to
discharge financial obligations under this section
based on the number of workers the labor contractor
seeks to employ and the wages such workers are required
to be paid.
``(C) Premium bond.--A labor contractor seeking to
file a petition involving more than 1 start date under
subsection (h)(1)(C) shall maintain a surety bond that
is at least 15 percent higher than the applicable bond
amount determined by the Secretary under subparagraph
(B).
``(D) Use of funds.--Any sums paid to the Secretary
under subparagraph (A) that are not paid to a worker
because of the inability to do so within a period of 5
years following the date of a violation giving rise to
the obligation to pay shall remain available to the
Secretary without further appropriation until expended
to support the enforcement of this section.
``(2) Foreign labor recruiting.--If the employer has retained
the services of a foreign labor recruiter, the employer shall
use a foreign labor recruiter registered under section 251 of
the Farm Workforce Modernization Act of 2019.
``(3) Prohibition against employees paying fees.--Neither the
employer nor its agents shall seek or receive payment of any
kind from any worker for any activity related to the H-2A
process, including payment of the employer's attorneys' fees,
application fees, or recruitment costs. An employer and its
agents may receive reimbursement for costs that are the
responsibility and primarily for the benefit of the worker,
such as government-required passport fees.
``(4) Third party contracts.--The contract between an
employer and any labor contractor or any foreign labor
recruiter (or any agent of such labor contractor or foreign
labor recruiter) whom the employer engages shall include a term
providing for the termination of such contract for cause if the
contractor or recruiter, either directly or indirectly, in the
placement or recruitment of H-2A workers seeks or receives
payments or other compensation from prospective employees. Upon
learning that a labor contractor or foreign labor recruiter has
sought or collected such payments, the employer shall so
terminate any contracts with such contractor or recruiter.
``(m) Enforcement Authority.--
``(1) In general.--The Secretary of Labor is authorized to
take such actions against employers, including imposing
appropriate penalties and seeking monetary and injunctive
relief and specific performance of contractual obligations, as
may be necessary to ensure compliance with the requirements of
this section and with the applicable terms and conditions of
employment.
``(2) Complaint process.--
``(A) Process.--The Secretary of Labor shall
establish a process for the receipt, investigation, and
disposition of complaints alleging failure of an
employer to comply with the requirements under this
section and with the applicable terms and conditions of
employment.
``(B) Filing.--A complaint referred to in
subparagraph (A) may be filed not later than 2 years
after the date of the conduct that is the subject of
the complaint.
``(C) Complaint not exclusive.--A complaint filed
under this paragraph is not an exclusive remedy and the
filing of such a complaint does not waive any rights or
remedies of the aggrieved party under this law or other
laws.
``(D) Decision and remedies.--If the Secretary of
Labor finds, after notice and opportunity for a
hearing, that the employer failed to comply with the
requirements of this section or the terms and
conditions of employment, the Secretary of Labor may
require payment of unpaid wages, unpaid benefits, fees
assessed in violation of this section, damages, and
civil money penalties. The Secretary is also authorized
to impose other administrative remedies, including
disqualification of the employer from utilizing the H-
2A program for a period of up to 5 years in the event
of willful or multiple material violations. The
Secretary is authorized to permanently disqualify an
employer from utilizing the H-2A program upon a
subsequent finding involving willful or multiple
material violations.
``(E) Disposition of penalties.--Civil penalties
collected under this paragraph shall be deposited into
the H-2A Labor Certification Fee Account established
under section 203 of the Farm Workforce Modernization
Act of 2019.
``(3) Statutory construction.--Nothing in this subsection may
be construed as limiting the authority of the Secretary of
Labor to conduct an investigation--
``(A) under any other law, including any law
affecting migrant and seasonal agricultural workers; or
``(B) in the absence of a complaint.
``(4) Retaliation prohibited.--It is a violation of this
subsection for any person who has filed a petition under this
section to intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any other manner discriminate against, or to
cause any person to intimidate, threaten, restrain, coerce,
blacklist, or in any manner discriminate against, an employee,
including a former employee or an applicant for employment,
because the employee--
``(A) has disclosed information to the employer, or
to any other person, that the employee reasonably
believes evidences a violation under this section, or
any rule or regulation relating to this section;
``(B) has filed a complaint concerning the employer's
compliance with the requirements under this section or
any rule or regulation pertaining to this section;
``(C) cooperates or seeks to cooperate in an
investigation or other proceeding concerning the
employer's compliance with the requirements under this
section or any rule or regulation pertaining to this
section; or
``(D) has taken steps to exercise or assert any right
or protection under the provisions of this section, or
any rule or regulation pertaining to this section, or
any other relevant Federal, State, or local law.
``(5) Interagency communication.--The Secretary of Labor, in
consultation with the Secretary of Homeland Security, Secretary
of State and the Equal Employment Opportunity Commission, shall
establish mechanisms by which the agencies and their components
share information, including by public electronic means,
regarding complaints, studies, investigations, findings and
remedies regarding compliance by employers with the
requirements of the H-2A program and other employment-related
laws and regulations.
``(n) Definitions.--In this section:
``(1) Displace.--The term `displace' means to lay off a
similarly employed United States worker, other than for lawful
job-related reasons, in the occupation and area of intended
employment for the job for which H-2A workers are sought.
``(2) H-2a worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(3) Job order.--The term `job order' means the document
containing the material terms and conditions of employment,
including obligations and assurances required under this
section or any other law.
``(4) Online job registry.--The term `online job registry'
means the online job registry of the Secretary of Labor
required under section 201(b) of the Farm Workforce
Modernization Act of 2019 (or similar successor registry).
``(5) Similarly employed.--The term `similarly employed', in
the case of a worker, means a worker in the same occupational
classification as the classification or classifications for
which the H-2A worker is sought.
``(6) United states worker.--The term `United States worker'
means any worker who is--
``(A) a citizen or national of the United States;
``(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 to be employed in the United
States;
``(C) an alien granted certified agricultural worker
status under title I of the Farm Workforce
Modernization Act of 2019; or
``(D) an individual who is not an unauthorized alien
(as defined in section 274A(h)(3)) with respect to the
employment in which the worker is engaging.
``(o) Fees; Authorization of Appropriations.--
``(1) Fees.--
``(A) In general.--The Secretary of Homeland Security
shall impose a fee to process petitions under this
section. Such fee shall be set at a level that is
sufficient to recover the reasonable costs of
processing the petition, including the reasonable costs
of providing labor certification by the Secretary of
Labor.
``(B) Distribution.--Fees collected under
subparagraph (A) shall be deposited as offsetting
receipts into the immigration examinations fee account
in section 286(m), except that the portion of fees
assessed for the Secretary of Labor shall be deposited
into the H-2A Labor Certification Fee Account
established pursuant to section 203(c) of the Farm
Workforce Modernization Act of 2019 .
``(2) Appropriations.--There are authorized to be
appropriated for each fiscal year such sums as necessary for
the purposes of--
``(A) recruiting United States workers for labor or
services which might otherwise be performed by H-2A
workers, including by ensuring that State workforce
agencies are sufficiently funded to fulfill their
functions under this section;
``(B) enabling the Secretary of Labor to make
determinations and certifications under this section
and under section 212(a)(5)(A)(i);
``(C) monitoring the terms and conditions under which
H-2A workers (and United States workers employed by the
same employers) are employed in the United States; and
``(D) enabling the Secretary of Agriculture to carry
out the Secretary of Agriculture's duties and
responsibilities under this section.''.
SEC. 203. AGENCY ROLES AND RESPONSIBILITIES.
(a) Responsibilities of the Secretary of Labor.--With respect to the
administration of the H-2A program, the Secretary of Labor shall be
responsible for--
(1) consulting with State workforce agencies to--
(A) review and process job orders;
(B) facilitate the recruitment and referral of able,
willing and qualified United States workers who will be
available at the time and place needed;
(C) determine prevailing wages and practices; and
(D) conduct timely inspections to ensure compliance
with applicable Federal, State, or local housing
standards and Federal regulations for H-2A housing;
(2) determining whether the employer has met the conditions
for approval of the H-2A petition described in section 218(a)
of the Immigration and Nationality Act (8 U.S.C. 1188(a));
(3) determining, in consultation with the Secretary of
Agriculture, whether a job opportunity is of a seasonal or
temporary nature;
(4) determining whether the employer has complied or will
comply with the H-2A program requirements set forth in section
218 of the Immigration and Nationality Act (8 U.S.C. 1188);
(5) processing and investigating complaints consistent with
section 218(m) of the Immigration and Nationality Act (8 U.S.C.
1188(m)); and
(6) ensuring that guidance to State workforce agencies to
conduct wage surveys is regularly updated.
(b) Responsibilities of the Secretary of Homeland Security.--With
respect to the administration of the H-2A program, the Secretary of
Homeland Security shall be responsible for--
(1) adjudicating petitions for the admission of H-2A workers,
which shall include an assessment as to whether each
beneficiary will be employed in accordance with the terms and
conditions of the certification and whether any named
beneficiaries qualify for such employment;
(2) transmitting a copy of the final decision on the petition
to the employer, and in the case of approved petitions,
ensuring that the petition approval is reflected in the
electronic platform to facilitate the prompt issuance of a visa
by the Department of State (if required) and the admission of
the H-2A workers to the United States; and
(3) establishing a reliable and secure method through which
H-2A workers can access information about their H-2A visa
status, including information on pending, approved, or denied
petitions to extend such status.
(c) Establishment of Account and Use of Funds.--
(1) Establishment of account.--There is established in the
general fund of the Treasury a separate account, which shall be
known as the ``H-2A Labor Certification Fee Account''.
Notwithstanding any other provisions of law, there shall be
deposited as offsetting receipts into the account all amounts--
(A) collected as a civil penalty under section
218(m)(2)(E)of the Immigration and Nationality Act; and
(B) collected as a fee under section 218(o)(1)(B) of
the Immigration and Nationality Act.
(2) Use of fees.--Amounts deposited into the H-2A Labor
Certification Fee Account shall be available (except as
otherwise provided in this paragraph) without fiscal year
limitation and without the requirement for specification in
appropriations Acts to the Secretary of Labor for use, directly
or through grants, contracts, or other arrangements, in such
amounts as the Secretary of Labor determines are necessary for
the costs of Federal and State administration in carrying out
activities in connection with labor certification under section
218 of the Immigration and Nationality Act. Such costs may
include personnel salaries and benefits, equipment and
infrastructure for adjudication and customer service processes,
the operation and maintenance of an on-line job registry, and
program integrity activities. The Secretary, in determining
what amounts to transfer to States for State administration in
carrying out activities in connection with labor certification
under section 218 of the Immigration and Nationality Act shall
consider the number of H-2A workers employed in that State and
shall adjust the amount transferred to that State accordingly.
In addition, 10 percent of the amounts deposited into the H-2A
Labor Certification Fee Account shall be available to the
Office of Inspector General of the Department of Labor to
conduct audits and criminal investigations relating to such
foreign labor certification programs.
(3) Additional funds.--Amounts available under paragraph (1)
shall be available in addition to any other funds appropriated
or made available to the Department of Labor under other laws,
including section 218(o)(2) of the Immigration and Nationality
Act.
SEC. 204. WORKER PROTECTION AND COMPLIANCE.
(a) Equality of Treatment.--H-2A workers shall not be denied any
right or remedy under any Federal, State, or local labor or employment
law applicable to United States workers engaged in agricultural
employment.
(b) Applicability of Other Laws.--
(1) Migrant and seasonal agricultural worker protection
act.--H-2A workers shall be considered migrant agricultural
workers for purposes of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1801 et seq.).
(2) Waiver of rights prohibited.--Agreements by H-2A workers
to waive or modify any rights or protections under this Act or
section 218 of the Immigration and Nationality Act (8 U.S.C.
1188) shall be considered void or contrary to public policy
except as provided in a collective bargaining agreement with a
bona fide labor organization.
(3) Mediation.--
(A) Free mediation services.--The Federal Mediation
and Conciliation Service shall be available to assist
in resolving disputes arising under this section
between H-2A workers and agricultural employers without
charge to the parties.
(B) Complaint.--If an H-2A worker files a civil
lawsuit alleging one or more violations of section 218
of the Immigration and Nationality Act (8 U.S.C. 1188),
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.), or the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1801 et seq.), not later than
60 days after the filing of proof of service of the
complaint, a party to the lawsuit may file a request
with the Federal Mediation and Conciliation Service to
assist the parties in reaching a satisfactory
resolution of all issues involving all parties to the
dispute.
(C) Notice.--Upon filing a request under subparagraph
(B) and giving of notice to the parties, the parties
shall attempt mediation within the period specified in
subparagraph (D), except that nothing in this paragraph
shall limit the ability of a court to order preliminary
injunctive relief to protect health and safety.
(D) 90-day limit.--The Federal Mediation and
Conciliation Service may conduct mediation or other
nonbinding dispute resolution activities for a period
not to exceed 90 days beginning on the date on which
the Federal Mediation and Conciliation Service receives
a request for assistance under subparagraph (B) unless
the parties agree to an extension of such period.
(E) Authorization of appropriations.--
(i) In general.--Subject to clause (ii),
there is authorized to be appropriated to the
Federal Mediation and Conciliation Service,
$500,000 for each fiscal year to carry out this
subparagraph.
(ii) Mediation.--Notwithstanding any other
provision of law, the Director of the Federal
Mediation and Conciliation Service is
authorized--
(I) to conduct the mediation or other
dispute resolution activities from any
other account containing amounts
available to the Director; and
(II) to reimburse such account with
amounts appropriated pursuant to clause
(i).
(F) Private mediation.--If all parties agree, a
private mediator may be employed as an alternative to
the Federal Mediation and Conciliation Service.
(c) Farm Labor Contractor Requirements.--
(1) Surety bonds.--
(A) Requirement.--Section 101 of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C.
1811), is amended by adding at the end the following:
``(e) A farm labor contractor shall maintain a surety bond in an
amount determined by the Secretary to be sufficient for ensuring the
ability of the farm labor contractor to discharge its financial
obligations, including payment of wages and benefits to employees. Such
a bond shall be available to satisfy any amounts ordered to be paid by
the Secretary or by court order for failure to comply with the
obligations of this Act. The Secretary of Labor shall annually publish
in the Federal Register a schedule of required bond amounts that are
determined by such Secretary to be sufficient for farm labor
contractors to discharge financial obligations based on the number of
workers to be covered.''.
(B) Registration determinations.--Section 103(a) of
the Migrant and Seasonal Agricultural Worker Protection
Act (29 U.S.C. 1813(a)), is amended--
(i) in paragraph (4), by striking ``or'' at
the end;
(ii) in paragraph (5)(B), by striking ``or''
at the end;
(iii) in paragraph (6), by striking the
period at the end and inserting ``;'' ; and
(iv) by adding at the end the following:
``(7) has failed to maintain a surety bond in compliance with
section 101(e); or
``(8) has been disqualified by the Secretary of Labor from
importing nonimmigrants described in section 101(a)(15)(H)(ii)
of the Immigration and Nationality Act.''.
(2) Successors in interest.--
(A) Declaration.--Section 102 of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C.
1812), is amended--
(i) in paragraph (4), by striking ``and'' at
the end;
(ii) in paragraph (5), by striking the period
at the end and inserting ``; and''; and
(iii) by adding at the end the following:
``(6) a declaration, subscribed and sworn to by the
applicant, stating whether the applicant has a familial,
contractual, or employment relationship with, or shares
vehicles, facilities, property, or employees with, a person who
has been refused issuance or renewal of a certificate, or has
had a certificate suspended or revoked, pursuant to section
103.''.
(B) Rebuttable presumption.--Section 103 of the
Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1813), as amended by this Act, is further
amended by inserting after subsection (a) the following
new subsection (and by redesignating the subsequent
subsections accordingly):
``(b)(1) There shall be a rebuttable presumption that an applicant
for issuance or renewal of a certificate is not the real party in
interest in the application if the applicant--
``(A) is the immediate family member of any person who has
been refused issuance or renewal of a certificate, or has had a
certificate suspended or revoked; and
``(B) identifies a vehicle, facility, or real property under
paragraph (2) or (3) of section 102 that has been previously
listed by a person who has been refused issuance or renewal of
a certificate, or has had a certificate suspended or revoked.
``(2) An applicant described in paragraph (1) bears the burden of
demonstrating to the Secretary's satisfaction that the applicant is the
real party in interest in the application.''.
SEC. 205. REPORT ON WAGE PROTECTIONS.
(a) Not later than 3 years after the date of the enactment of this
Act, and every 3 years thereafter, the Secretary of Labor and Secretary
of Agriculture shall prepare and transmit to the Committees on the
Judiciary of the House of Representatives and Senate, a report that
addresses--
(1) whether, and the manner in which, the employment of H-2A
workers in the United States has impacted the wages, working
conditions, or job opportunities of United States farm workers;
(2) whether, and the manner in which, the adverse effect wage
rate increases or decreases wages on United States farms,
broken down by geographic region and farm size;
(3) whether any potential impact of the adverse effect wage
rate varies based on the percentage of workers in a geographic
region that are H-2A workers;
(4) the degree to which the adverse effect wage rate is
affected by the inclusion in wage surveys of piece rate
compensation, bonus payments, and other pay incentives, and
whether such forms of incentive compensation should be surveyed
and reported separately from hourly base rates;
(5) whether, and the manner in which, other factors may
artificially affect the adverse effect wage rate, including
factors that may be specific to a region, State, or region
within a State;
(6) whether, and the manner in which, the H-2A program
affects the ability of United States farms to compete with
agricultural commodities imported from outside the United
States;
(7) the number and percentage of farmworkers in the United
States whose incomes are below the poverty line;
(8) whether alternative wage standards would be sufficient to
prevent wages in occupations in which H-2A workers are employed
from falling below the wage level that would have prevailed in
the absence of the H-2A program;
(9) whether any changes are warranted in the current
methodologies for calculating the adverse effect wage rate and
the prevailing wage; and
(10) recommendations for future wage protection under this
section.
(b) In preparing the report described in subsection (a), the
Secretary of Labor and Secretary of Agriculture shall engage with equal
numbers of representatives of agricultural employers and agricultural
workers, both locally and nationally.
SEC. 206. PORTABLE H-2A VISA PILOT PROGRAM.
(a) Establishment of Pilot Program.--
(1) In general.--Not later than 18 months after the date of
the enactment of this Act, the Secretary of Homeland Security,
in consultation with the Secretary of Labor and Secretary of
Agriculture, shall establish through regulation a 6-year pilot
program to facilitate the free movement and employment of
temporary or seasonal H-2A workers to perform agricultural
labor or services for agricultural employers registered with
the Secretary of Agriculture. Notwithstanding the requirements
of section 218 of the Immigration and Nationality Act, such
regulation shall establish the requirements for the pilot
program, consistent with subsection (b). For purposes of this
section, such a worker shall be referred to as a portable H-2A
worker, and status as such a worker shall be referred to as
portable H-2A status.
(2) Online platform.--The Secretary of Homeland Security, in
consultation with the Secretary of Labor and the Secretary of
Agriculture, shall maintain an online electronic platform to
connect portable H-2A workers with registered agricultural
employers seeking workers to perform temporary or seasonal
agricultural labor or services. Employers shall post on the
platform available job opportunities, including a description
of the nature and location of the work to be performed, the
anticipated period or periods of need, and the terms and
conditions of employment. Such platform shall allow portable H-
2A workers to search for available job opportunities using
relevant criteria, including the types of jobs needed to be
filled and the dates and locations of need.
(3) Limitation.--Notwithstanding the issuance of the
regulation described in paragraph (1), the Secretary of State
may not issue a portable H-2A visa and the Secretary of
Homeland Security may not confer portable H-2A status on any
alien until the Secretary of Homeland Security, in consultation
with the Secretary of Labor and Secretary of Agriculture, has
determined that a sufficient number of employers have been
designated as registered agricultural employers under
subsection (b)(1) and that such employers have sufficient job
opportunities to employ a reasonable number of portable H-2A
workers to initiate the pilot program.
(b) Pilot Program Elements.--The pilot program in subsection (a)
shall contain the following elements:
(1) Registered agricultural employers.--
(A) Designation.--Agricultural employers shall be
provided the ability to seek designation as registered
agricultural employers. Reasonable fees may be assessed
commensurate with the cost of processing applications
for designation. A designation shall be valid for a
period of up to 3 years unless revoked for failure to
comply with program requirements. Registered employers
that comply with program requirements may apply to
renew such designation for additional periods of up to
3 years for the duration of the pilot program.
(B) Limitations.--Registered agricultural employers
may employ aliens with portable H-2A status without
filing a petition. Such employers shall pay such aliens
at least the wage required under section 218(d) of the
Immigration and Nationality Act (8 U.S.C. 1188(d)).
(C) Workers' compensation.--If a job opportunity is
not covered by or is exempt from the State workers'
compensation law, a registered agricultural employer
shall provide, at no cost to the worker, insurance
covering injury and disease arising out of, and in the
course of, the worker's employment, which will provide
benefits at least equal to those provided under the
State workers' compensation law.
(2) Designated workers.--
(A) In general.--Individuals who have been previously
admitted to the United States in H-2A status, and
maintained such status during the period of admission,
shall be provided the opportunity to apply for portable
H-2A status. Portable H-2A workers shall be subject to
the provisions on visa validity and periods of
authorized stay and admission for H-2A workers
described in paragraphs (2) and (3) of section 218(j)
of the Immigration and Nationality Act (8 U.S.C.
1188(j)(2) and (3)).
(B) Limitations on availability of portable h-2a
status.--
(i) Initial offer of employment required.--No
alien may be granted portable H-2A status
without an initial valid offer of employment to
perform temporary or agricultural labor or
services from a registered agricultural
employer.
(ii) Numerical limitations.--The total number
of aliens who may hold valid portable H-2A
status at any one time may not exceed 10,000.
Notwithstanding such limitation, the Secretary
of Homeland Security may further limit the
number of aliens with valid portable H-2A
status if the Secretary determines that there
are an insufficient number of registered
agricultural employers or job opportunities to
support the employment of all such portable H-
2A workers.
(C) Scope of employment.--During the period of
admission, a portable H-2A worker may perform temporary
or seasonal agricultural labor or services for any
employer in the United States that is designated as a
registered agricultural employer pursuant to paragraph
(1). An employment arrangement under this section may
be terminated by either the portable H-2A worker or the
registered agricultural employer at any time.
(D) Transfer to new employment.--At the cessation of
employment with a registered agricultural employer, a
portable H-2A worker shall have 60 days to secure new
employment with a registered agricultural employer.
(E) Maintenance of status.--A portable H-2A worker
who does not secure new employment with a registered
agricultural employer within 60 days shall be
considered to have failed to maintain such status and
shall depart the United States or be subject to removal
under section 237(a)(1)(C)(i) of the Immigration and
Nationality Act (8 U.S.C. 1188(a)(1)(C)(i)).
(3) Enforcement.--The Secretary of Labor shall be responsible
for conducting investigations and random audits of employers to
ensure compliance with the employment-related requirements of
this section, consistent with section 218(m) of the Immigration
and Nationality Act (8 U.S.C. 1188(m)). The Secretary of Labor
shall have the authority to collect reasonable civil penalties
for violations, which shall be utilized by the Secretary for
the administration and enforcement of the provisions of this
section.
(4) Eligibility for services.--Section 305 of Public Law 99-
603 (100 Stat. 3434) is amended by striking ``other employment
rights as provided in the worker's specific contract under
which the nonimmigrant was admitted'' and inserting
``employment-related rights''.
(c) Report.--Not later than 6 months before the end of the third
fiscal year of the pilot program, the Secretary of Homeland Security,
in consultation with the Secretary of Labor and the Secretary of
Agriculture, shall prepare and submit to the Committees on the
Judiciary of the House of Representatives and the Senate, a report that
provides--
(1) the number of employers designated as registered
agricultural employers, broken down by geographic region, farm
size, and the number of job opportunities offered by such
employers;
(2) the number of employers whose designation as a registered
agricultural employer was revoked;
(3) the number of individuals granted portable H-2A status in
each fiscal year, along with the number of such individuals who
maintained portable H-2A status during all or a portion of the
3-year period of the pilot program;
(4) an assessment of the impact of the pilot program on the
wages and working conditions of United States farm workers;
(5) the results of a survey of individuals granted portable
H-2A status, detailing their experiences with and feedback on
the pilot program;
(6) the results of a survey of registered agricultural
employers, detailing their experiences with and feedback on the
pilot program;
(7) an assessment as to whether the program should be
continued and if so, any recommendations for improving the
program; and
(8) findings and recommendations regarding effective
recruitment mechanisms, including use of new technology to
match workers with employers and ensure compliance with
applicable labor and employment laws and regulations.
SEC. 207. IMPROVING ACCESS TO PERMANENT RESIDENCE.
(a) Worldwide Level.--Section 201(d)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1151(d)(1)(A)) is amended by striking
``140,000'' and inserting ``180,000''.
(b) Visas for Farmworkers.--Section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) is amended--
(1) in paragraph (1) by striking ``28.6 percent of such
worldwide level'' and inserting ``40,040'';
(2) in paragraph (2)(A) by striking ``28.6 percent of such
worldwide level'' and inserting ``40,040'';
(3) in paragraph (3)--
(A) in subparagraph (A)--
(i) in the matter before clause (i), by
striking ``28.6 percent of such worldwide
level'' and inserting ``80,040''; and
(ii) by amending clause (iii) to read as
follows:
``(iii) Other workers.--Other qualified
immigrants who, at the time of petitioning for
classification under this paragraph--
``(I) are capable of performing
unskilled labor, not of a temporary or
seasonal nature, for which qualified
workers are not available in the United
States; or
``(II) can demonstrate employment in
the United States as an H-2A
nonimmigrant worker for at least 100
days in each of at least 10 years.'';
(B) by amending subparagraph (B) to read as follows:
``(B) Visas allocated for other workers.--
``(i) In general.--Except as provided in
clauses (ii) and (iii), 50,000 of the visas
made available under this paragraph shall be
reserved for qualified immigrants described in
subparagraph (A)(iii).
``(ii) Preference for agricultural workers.--
Subject to clause (iii), not less than four-
fifths of the visas described in clause (i)
shall be reserved for--
``(I) qualified immigrants described
in subparagraph (A)(iii)(I) who will be
performing agricultural labor or
services in the United States; and
``(II) qualified immigrants described
in subparagraph (A)(iii)(II).
``(iii) Exception.--If because of the
application of clause (ii), the total number of
visas available under this paragraph for a
calendar quarter exceeds the number of
qualified immigrants who otherwise may be
issued such a visa, clause (ii) shall not apply
to visas under this paragraph during the
remainder of such calendar quarter.
``(iv) No per country limits.--Visas
described under clause (ii) shall be issued
without regard to the numerical limitation
under section 202(a)(2).''; and
(C) by amending subparagraph (C) by striking ``An
immigrant visa'' and inserting ``Except for qualified
immigrants petitioning for classification under
subparagraph (A)(iii)(II), an immigrant visa'';
(4) in paragraph (4), by striking ``7.1 percent of such
worldwide level'' and inserting ``9,940''; and
(5) in paragraph (5)(A), in the matter before clause (i), by
striking ``7.1 percent of such worldwide level'' and inserting
``9,940''.
(c) Petitioning Procedure.--Section 204(a)(1)(E) of the Immigration
and Nationality Act (8 U.S.C. 1154(a)(1)(E)) is amended by inserting
``or 203(b)(3)(A)(iii)(II)'' after ``203(b)(1)(A)''.
(d) Dual 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)(a) of section
101(a)(15)(H)''.
Subtitle B--Preservation and Construction of Farmworker Housing
SEC. 220. SHORT TITLE.
This subtitle may be cited as the ``Strategy and Investment in Rural
Housing Preservation Act of 2019''.
SEC. 221. PERMANENT ESTABLISHMENT OF HOUSING PRESERVATION AND
REVITALIZATION PROGRAM.
Title V of the Housing Act of 1949 (42 U.S.C. 1471 et seq.) is
amended by adding at the end the following new section:
``SEC. 545. HOUSING PRESERVATION AND REVITALIZATION PROGRAM.
``(a) Establishment.--The Secretary shall carry out a program under
this section for the preservation and revitalization of multifamily
rental housing projects financed under section 515 or both sections 514
and 516.
``(b) Notice of Maturing Loans.--
``(1) To owners.--On an annual basis, the Secretary shall
provide written notice to each owner of a property financed
under section 515 or both sections 514 and 516 that will mature
within the 4-year period beginning upon the provision of such
notice, setting forth the options and financial incentives that
are available to facilitate the extension of the loan term or
the option to decouple a rental assistance contract pursuant to
subsection (f).
``(2) To tenants.--
``(A) In general.--For each property financed under
section 515 or both sections 514 and 516, not later
than the date that is 2 years before the date that such
loan will mature, the Secretary shall provide written
notice to each household residing in such property that
informs them of the date of the loan maturity, the
possible actions that may happen with respect to the
property upon such maturity, and how to protect their
right to reside in Federally assisted housing after
such maturity.
``(B) Language.--Notice under this paragraph shall be
provided in plain English and shall be translated to
other languages in the case of any property located in
an area in which a significant number of residents
speak such other languages.
``(c) Loan Restructuring.--Under the program under this section, the
Secretary may restructure such existing housing loans, as the Secretary
considers appropriate, for the purpose of ensuring that such projects
have sufficient resources to preserve the projects to provide safe and
affordable housing for low-income residents and farm laborers, by--
``(1) reducing or eliminating interest;
``(2) deferring loan payments;
``(3) subordinating, reducing, or reamortizing loan debt; and
``(4) providing other financial assistance, including
advances, payments, and incentives (including the ability of
owners to obtain reasonable returns on investment) required by
the Secretary.
``(d) Renewal of Rental Assistance.--When the Secretary offers to
restructure a loan pursuant to subsection (c), the Secretary shall
offer to renew the rental assistance contract under section 521(a)(2)
for a 20-year term that is subject to annual appropriations, provided
that the owner agrees to bring the property up to such standards that
will ensure its maintenance as decent, safe, and sanitary housing for
the full term of the rental assistance contract.
``(e) Restrictive Use Agreements.--
``(1) Requirement.--As part of the preservation and
revitalization agreement for a project, the Secretary shall
obtain a restrictive use agreement that obligates the owner to
operate the project in accordance with this title.
``(2) Term.--
``(A) No extension of rental assistance contract.--
Except when the Secretary enters into a 20-year
extension of the rental assistance contract for the
project, the term of the restrictive use agreement for
the project shall be consistent with the term of the
restructured loan for the project.
``(B) Extension of rental assistance contract.--If
the Secretary enters into a 20-year extension of the
rental assistance contract for a project, the term of
the restrictive use agreement for the project shall be
for 20 years.
``(C) Termination.--The Secretary may terminate the
20-year use restrictive use agreement for a project
prior to the end of its term if the 20-year rental
assistance contract for the project with the owner is
terminated at any time for reasons outside the owner's
control.
``(f) Decoupling of Rental Assistance.--
``(1) Renewal of rental assistance contract.--If the
Secretary determines that a maturing loan for a project cannot
reasonably be restructured in accordance with subsection (c)
and the project was operating with rental assistance under
section 521, the Secretary may renew the rental assistance
contract, notwithstanding any provision of section 521, for a
term, subject to annual appropriations, of at least 10 years
but not more than 20 years.
``(2) Rents.--Any agreement to extend the term of the rental
assistance contract under section 521 for a project shall
obligate the owner to continue to maintain the project as
decent, safe and sanitary housing and to operate the
development in accordance with this title, except that rents
shall be based on the lesser of--
``(A) the budget-based needs of the project; or
``(B) the operating cost adjustment factor as a
payment standard as provided under section 524 of the
Multifamily Assisted Housing Reform and Affordability
Act of 1997 (42 U.S.C. 1437 note).
``(g) Multifamily Housing Transfer Technical Assistance.--Under the
program under this section, the Secretary may provide grants to
qualified non-profit organizations and public housing agencies to
provide technical assistance, including financial and legal services,
to borrowers under loans under this title for multifamily housing to
facilitate the acquisition of such multifamily housing properties in
areas where the Secretary determines there is a risk of loss of
affordable housing.
``(h) Transfer of Rental Assistance.--After the loan or loans for a
rental project originally financed under section 515 or both sections
514 and 516 have matured or have been prepaid and the owner has chosen
not to restructure the loan pursuant to subsection (c), a tenant
residing in such project shall have 18 months prior to loan maturation
or prepayment to transfer the rental assistance assigned to the
tenant's unit to another rental project originally financed under
section 515 or both sections 514 and 516, and the owner of the initial
project may rent the tenant's previous unit to a new tenant without
income restrictions.
``(i) Administrative Expenses.--Of any amounts made available for the
program under this section for any fiscal year, the Secretary may use
not more than $1,000,000 for administrative expenses for carrying out
such program.
``(j) Authorization of Appropriations.--There is authorized to be
appropriated for the program under this section $200,000,000 for each
of fiscal years 2020 through 2024.''.
SEC. 222. ELIGIBILITY FOR RURAL HOUSING VOUCHERS.
Section 542 of the Housing Act of 1949 (42 U.S.C. 1490r) is amended
by adding at the end the following new subsection:
``(c) Eligibility of Households in Sections 514, 515, and 516
Projects.--The Secretary may provide rural housing vouchers under this
section for any low-income household (including those not receiving
rental assistance) residing, for a term longer than the remaining term
of their lease in effect just prior to prepayment, in a property
financed with a loan made or insured under section 514 or 515 (42
U.S.C. 1484, 1485) which has been prepaid without restrictions imposed
by the Secretary pursuant to section 502(c)(5)(G)(ii)(I) (42 U.S.C.
1472(c)(5)(G)(ii)(I)), has been foreclosed, or has matured after
September 30, 2005, or residing in a property assisted under section
514 or 516 that is owned by a nonprofit organization or public
agency.''.
SEC. 223. AMOUNT OF VOUCHER ASSISTANCE.
Notwithstanding any other provision of law, in the case of any rural
housing voucher provided pursuant to section 542 of the Housing Act of
1949 (42 U.S.C. 1490r), the amount of the monthly assistance payment
for the household on whose behalf such assistance is provided shall be
determined as provided in subsection (a) of such section 542.
SEC. 224. RENTAL ASSISTANCE CONTRACT AUTHORITY.
Subsection (d) of section 521 of the Housing Act of 1949 (42 U.S.C.
1490a(d)) is amended--
(1) in paragraph (1), by inserting after subparagraph (A) the
following new subparagraph (and by redesignating the subsequent
subparagraphs accordingly):
``(B) upon request of an owner of a project financed under
section 514 or 515, the Secretary is authorized to enter into
renewal of such agreements for a period of 20 years or the term
of the loan, whichever is shorter, subject to amounts made
available in appropriations Acts;''; and
(2) by adding at the end the following new paragraph:
``(3) In the case of any rental assistance contract authority that
becomes available because of the termination of assistance on behalf of
an assisted family--
``(A) at the option of the owner of the rental project, the
Secretary shall provide the owner a period of 6 months before
such assistance is made available pursuant to subparagraph (B)
during which the owner may use such assistance authority to
provide assistance of behalf of an eligible unassisted family
that--
``(i) is residing in the same rental project that the
assisted family resided in prior to such termination;
or
``(ii) newly occupies a dwelling unit in such rental
project during such period; and
``(B) except for assistance used as provided in subparagraph
(A), the Secretary shall use such remaining authority to
provide such assistance on behalf of eligible families residing
in other rental projects originally financed under section 515
or both sections 514 and 516 of this Act.''.
SEC. 225. FUNDING FOR MULTIFAMILY TECHNICAL IMPROVEMENTS.
There is authorized to be appropriated to the Secretary of
Agriculture $50,000,000 for fiscal year 2020 for improving the
technology of the Department of Agriculture used to process loans for
multifamily housing and otherwise managing such housing. Such
improvements shall be made within the 5-year period beginning upon the
appropriation of such amounts and such amount shall remain available
until the expiration of such 5-year period.
SEC. 226. PLAN FOR PRESERVING AFFORDABILITY OF RENTAL PROJECTS.
(a) Plan.--The Secretary of Agriculture (in this section referred to
as the ``Secretary'') shall submit a written plan to the Congress, not
later than the expiration of the 6-month period beginning on the date
of the enactment of this Act, for preserving the affordability for low-
income families of rental projects for which loans were made under
section 515 or made to nonprofit or public agencies under section 514
and avoiding the displacement of tenant households, which shall--
(1) set forth specific performance goals and measures;
(2) set forth the specific actions and mechanisms by which
such goals will be achieved;
(3) set forth specific measurements by which progress towards
achievement of each goal can be measured;
(4) provide for detailed reporting on outcomes; and
(5) include any legislative recommendations to assist in
achievement of the goals under the plan.
(b) Advisory Committee.--
(1) Establishment; purpose.--The Secretary shall establish an
advisory committee whose purpose shall be to assist the
Secretary in preserving section 515 properties and section 514
properties owned by nonprofit or public agencies through the
multifamily housing preservation and revitalization program
under section 545 and in implementing the plan required under
subsection (a).
(2) Member.--The advisory committee shall consist of 16
members, appointed by the Secretary, as follows:
(A) A State Director of Rural Development for the
Department of Agriculture.
(B) The Administrator for Rural Housing Service of
the Department of Agriculture.
(C) Two representatives of for-profit developers or
owners of multifamily rural rental housing.
(D) Two representatives of non-profit developers or
owners of multifamily rural rental housing.
(E) Two representatives of State housing finance
agencies.
(F) Two representatives of tenants of multifamily
rural rental housing.
(G) One representative of a community development
financial institution that is involved in preserving
the affordability of housing assisted under sections
514, 515, and 516 of the Housing Act of 1949.
(H) One representative of a nonprofit organization
that operates nationally and has actively participated
in the preservation of housing assisted by the Rural
Housing Service by conducting research regarding, and
providing financing and technical assistance for,
preserving the affordability of such housing.
(I) One representative of low-income housing tax
credit investors.
(J) One representative of regulated financial
institutions that finance affordable multifamily rural
rental housing developments.
(K) Two representatives from non-profit organizations
representing farmworkers, including one organization
representing farmworker women.
(3) Meetings.--The advisory committee shall meet not less
often than once each calendar quarter.
(4) Functions.--In providing assistance to the Secretary to
carry out its purpose, the advisory committee shall carry out
the following functions:
(A) Assisting the Rural Housing Service of the
Department of Agriculture to improve estimates of the
size, scope, and condition of rental housing portfolio
of the Service, including the time frames for maturity
of mortgages and costs for preserving the portfolio as
affordable housing.
(B) Reviewing current policies and procedures of the
Rural Housing Service regarding preservation of
affordable rental housing financed under sections 514,
515, 516, and 538 of the Housing Act of 1949, the
Multifamily Preservation and Revitalization
Demonstration program (MPR), and the rental assistance
program and making recommendations regarding
improvements and modifications to such policies and
procedures.
(C) Providing ongoing review of Rural Housing Service
program results.
(D) Providing reports to the Congress and the public
on meetings, recommendations, and other findings of the
advisory committee.
(5) Travel costs.--Any amounts made available for
administrative costs of the Department of Agriculture may be
used for costs of travel by members of the advisory committee
to meetings of the committee.
SEC. 227. COVERED HOUSING PROGRAMS.
Paragraph (3) of section 41411(a) of the Violence Against Women Act
of 1994 (34 U.S.C. 12491(a)(3)) is amended--
(1) in subparagraph (I), by striking ``and'' at the end;
(2) by redesignating subparagraph (J) as subparagraph (K);
and
(3) by inserting after subparagraph (I) the following new
subparagraph:
``(J) rural development housing voucher assistance
provided by the Secretary of Agriculture pursuant to
section 542 of the Housing Act of 1949 (42 U.S.C.
1490r), without regard to subsection (b) of such
section, and applicable appropriation Acts; and''.
SEC. 228. NEW FARMWORKER HOUSING.
Section 513 of the Housing Act of 1949 (42 U.S.C. 1483) is amended by
adding at the end the following new subsection:
``(f) Funding for Farmworker Housing.--
``(1) Section 514 farmworker housing loans.--
``(A) Insurance authority.--The Secretary of
Agriculture may, to the extent approved in
appropriation Acts, insure loans under section 514 (42
U.S.C. 1484) during each of fiscal years 2020 through
2029 in an aggregate amount not to exceed $200,000,000.
``(B) Authorization of appropriations for costs.--
There is authorized to be appropriated $75,000,000 for
each of fiscal years 2020 through 2029 for costs (as
such term is defined in section 502 of the
Congressional Budget Act of 1974 (2 U.S.C. 661a)) of
loans insured pursuant the authority under subparagraph
(A).
``(2) Section 516 grants for farmworker housing.--There is
authorized to be appropriated $30,000,000 for each of fiscal
years 2020 through 2029 for financial assistance under section
516 (42 U.S.C. 1486).
``(3) Section 521 housing assistance.--There is authorized to
be appropriated $2,700,000,000 for each of fiscal years 2020
through 2029 for rental assistance agreements entered into or
renewed pursuant to section 521(a)(2) (42 U.S.C. 1490a(a)(2))
or agreements entered into in lieu of debt forgiveness or
payments for eligible households as authorized by section
502(c)(5)(D).''.
SEC. 229. LOAN AND GRANT LIMITATIONS.
Section 514 of the Housing Act of 1949 (42 U.S.C. 1484) is amended by
adding at the end the following:
``(j) Per Project Limitations on Assistance.--If the Secretary, in
making available assistance in any area under this section or section
516 (42 U.S.C. 1486), establishes a limitation on the amount of
assistance available per project, the limitation on a grant or loan
award per project shall not be less than $5 million.''.
SEC. 230. OPERATING ASSISTANCE SUBSIDIES.
Subsection (a)(5) of section 521 of the Housing Act of 1949 (42
U.S.C. 1490a(a)(5)) is amended--
(1) in subparagraph (A) by inserting ``or domestic farm labor
legally admitted to the United States and authorized to work in
agriculture'' after ``migrant farmworkers'';
(2) in subparagraph (B)--
(A) by striking ``Amount.--In any fiscal year'' and
inserting ``Amount.--
``(i) Housing for migrant farmworkers.--In
any fiscal year'';
(B) by inserting ``providing housing for migrant
farmworkers'' after ``any project''; and
(C) by inserting at the end the following:
``(ii) Housing for other farm labor.--In any
fiscal year, the assistance provided under this
paragraph for any project providing housing for
domestic farm labor legally admitted to the
United States and authorized to work in
agriculture shall not exceed an amount equal to
50 percent of the operating costs for the
project for the year, as determined by the
Secretary. The owner of such project shall not
qualify for operating assistance unless the
Secretary certifies that the project was
unoccupied or underutilized before making units
available to such farm labor, and that a grant
under this section will not displace any farm
worker who is a United States worker.''; and
(3) in subparagraph (D), by adding at the end the following:
``(iii) The term `domestic farm labor' has the same
meaning given such term in section 514(f)(3) (42 U.S.C.
1484(f)(3)), except that subparagraph (A) of such
section shall not apply for purposes this section.''.
SEC. 231. ELIGIBILITY OF CERTIFIED WORKERS.
Subsection (a) of section 214 of the Housing and Community
Development Act of 1980 (42 U.S.C. 1436a) is amended--
(1) in paragraph (6), by striking ``or'' at the end;
(2) by redesignating paragraph (7) as paragraph (8); and
(3) by inserting after paragraph (6) the following:
``(7) an alien granted certified agricultural worker or
certified agricultural dependent status under title I of the
Farm Workforce Modernization Act of 2019, but solely for
financial assistance made available pursuant to section 521 or
542 of the Housing Act of 1949 (42 U.S.C. 1490a, 1490r); or''.
Subtitle C--Foreign Labor Recruiter Accountability
SEC. 251. REGISTRATION OF FOREIGN LABOR RECRUITERS.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Secretary of Labor, in consultation with the
Secretary of State and the Secretary of Homeland Security, shall
establish procedures for the electronic registration of foreign labor
recruiters engaged in the recruitment of nonimmigrant workers 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)) to perform agricultural labor or
services in the United States.
(b) Procedural Requirements.--The procedures described in subsection
(a) shall--
(1) require the applicant to submit a sworn declaration--
(A) stating the applicant's permanent place of
residence or principal place of business, as
applicable;
(B) describing the foreign labor recruiting
activities in which the applicant is engaged; and
(C) including such other relevant information as the
Secretary of Labor and the Secretary of State may
require;
(2) include an expeditious means to update and renew
registrations;
(3) include a process, which shall include the placement of
personnel at each United States diplomatic mission in
accordance with subsection (g)(2), to receive information from
the public regarding foreign labor recruiters who have
allegedly engaged in a foreign labor recruiting activity that
is prohibited under this subtitle;
(4) include procedures for the receipt and processing of
complaints against foreign labor recruiters and for remedies,
including the revocation of a registration or the assessment of
fines upon a determination by the Secretary of Labor that the
foreign labor recruiter has violated the requirements of this
subtitle;
(5) require the applicant to post a bond in an amount
sufficient to ensure the ability of the applicant to discharge
its responsibilities and ensure protection of workers,
including payment of wages; and
(6) allow the Secretary of Labor and the Secretary of State
to consult with other appropriate Federal agencies to determine
whether any reason exists to deny registration to a foreign
labor recruiter or revoke such registration.
(c) Attestations.--Foreign labor recruiters registering under this
subtitle shall attest and agree to abide by the following requirements:
(1) Prohibited fees.--The foreign labor recruiter, including
any agent or employee of such foreign labor recruiter, shall
not assess any recruitment fees on a worker for any foreign
labor recruiting activity.
(2) Prohibition on false and misleading information.--The
foreign labor recruiter shall not knowingly provide materially
false or misleading information to any worker concerning any
matter required to be disclosed under this subtitle.
(3) Required disclosures.--The foreign labor recruiter shall
ascertain and disclose to the worker in writing in English and
in the primary language of the worker at the time of the
worker's recruitment, the following information:
(A) The identity and address of the employer and the
identity and address of the person conducting the
recruiting on behalf of the employer, including each
subcontractor or agent involved in such recruiting.
(B) A copy of the approved job order or work contract
under section 218 of the Immigration and Nationality
Act, including all assurances and terms and conditions
of employment.
(C) A statement, in a form specified by the
Secretary--
(i) describing the general terms and
conditions associated with obtaining an H-2A
visa and maintaining H-2A status;
(ii) affirming the prohibition on the
assessment of fees described in paragraph (1),
and explaining that such fees, if paid by the
employer, may not be passed on to the worker;
(iii) describing the protections afforded the
worker under this subtitle, including
procedures for reporting violations to the
Secretary of State, filing a complaint with the
Secretary of Labor, or filing a civil action;
and
(iv) describing the protections afforded the
worker by section 202 of the William
Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (8 U.S.C. 1375b),
including the telephone number for the national
human trafficking resource center hotline
number.
(4) Bond.--The foreign labor recruiter shall agree to
maintain a bond sufficient to ensure the ability of the foreign
labor recruiter to discharge its responsibilities and ensure
protection of workers, and to forfeit such bond in an amount
determined by the Secretary under subsections (b)(1)(C)(ii) or
(c)(2)(C) of section 252 for failure to comply with the
provisions of this subtitle.
(5) Cooperation in investigation.--The foreign labor
recruiter shall agree to cooperate in any investigation under
section 252 of this subtitle by the Secretary or other
appropriate authorities.
(6) No retaliation.--The foreign labor recruiter shall agree
to refrain from intimidating, threatening, restraining,
coercing, discharging, blacklisting or in any other manner
discriminating or retaliating against any worker or their
family members (including a former worker or an applicant for
employment) because such worker disclosed information to any
person based on a reason to believe that the foreign labor
recruiter, or any agent or subcontractee of such foreign labor
recruiter, is engaging or has engaged in a foreign labor
recruiting activity that does not comply with this subtitle.
(7) Employees, agents, and subcontractees.--The foreign labor
recruiter shall consent to be liable for the conduct of any
agents or subcontractees of any level in relation to the
foreign labor recruiting activity of the agent or subcontractee
to the same extent as if the foreign labor recruiter had
engaged in such conduct.
(8) Enforcement.--If the foreign labor recruiter is
conducting foreign labor recruiting activity wholly outside the
United States, such foreign labor recruiter shall establish a
registered agent in the United States who is authorized to
accept service of process on behalf of the foreign labor
recruiter for the purpose of any administrative proceeding
under this title or any Federal court civil action, if such
service is made in accordance with the appropriate Federal
rules for service of process.
(d) Term of Registration.--Unless suspended or revoked, a
registration under this section shall be valid for 2 years.
(e) Application Fee.--The Secretary shall require a foreign labor
recruiter that submits an application for registration under this
section to pay a reasonable fee, sufficient to cover the full costs of
carrying out the registration activities under this subtitle.
(f) Notification.--
(1) Employer notification.--
(A) In general.--Not less frequently than once every
year, an employer of H-2A workers shall provide the
Secretary with the names and addresses of all foreign
labor recruiters engaged to perform foreign labor
recruiting activity on behalf of the employer, whether
the foreign labor recruiter is to receive any economic
compensation for such services, and, if so, the
identity of the person or entity who is paying for the
services.
(B) Agreement to cooperate.--In addition to the
requirements of subparagraph (A), the employer shall--
(i) provide to the Secretary the identity of
any foreign labor recruiter whom the employer
has reason to believe is engaging in foreign
labor recruiting activities that do not comply
with this subtitle; and
(ii) promptly respond to any request by the
Secretary for information regarding the
identity of a foreign labor recruiter with whom
the employer has a contract or other agreement.
(2) Foreign labor recruiter notification.--A registered
foreign labor recruiter shall notify the Secretary, not less
frequently than once every year, of the identity of any
subcontractee, agent, or foreign labor recruiter employee
involved in any foreign labor recruiting activity for, or on
behalf of, the foreign labor recruiter.
(g) Additional Responsibilities of the Secretary of State.--
(1)Lists.--The Secretary of State, in consultation with the
Secretary of Labor shall maintain and make publicly available
in written form and on the websites of United States embassies
in the official language of that country, and on websites
maintained by the Secretary of Labor, regularly updated lists--
(A) of foreign labor recruiters who hold valid
registrations under this section, including--
(i) the name and address of the foreign labor
recruiter;
(ii) the countries in which such recruiters
conduct recruitment;
(iii) the employers for whom recruiting is
conducted;
(iv) the occupations that are the subject of
recruitment;
(v) the States where recruited workers are
employed; and
(vi) the name and address of the registered
agent in the United States who is authorized to
accept service of process on behalf of the
foreign labor recruiter; and
(B) of foreign labor recruiters whose registration
the Secretary has revoked.
(2) Personnel.--The Secretary of State shall ensure that each
United States diplomatic mission is staffed with a person who
shall be responsible for receiving information from members of
the public regarding potential violations of the requirements
applicable to registered foreign labor recruiters and ensuring
that such information is conveyed to the Secretary of Labor for
evaluation and initiation of an enforcement action, if
appropriate.
(3) Visa application procedures.--The Secretary shall ensure
that consular officers issuing visas to nonimmigrants under
section 101(a)(1)(H)(ii)(a) of the Immigration and Nationality
Act (8 U.S.C. 11001(a)(1)(H)(ii)(a))--
(A) provide to and review with the applicant, in the
applicant's language (or a language the applicant
understands), a copy of the information and resources
pamphlet required by section 202 of the William
Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (8 U.S.C. 1375b);
(B) ensure that the applicant has a copy of the
approved job offer or work contract;
(C) note in the visa application file whether the
foreign labor recruiter has a valid registration under
this section; and
(D) if the foreign labor recruiter holds a valid
registration, review and include in the visa
application file, the foreign labor recruiter's
disclosures required by subsection (c)(3).
(4) Data.--The Secretary of State shall make publicly
available online, on an annual basis, data disclosing the
gender, country of origin (and State, county, or province, if
available), age, wage, level of training, and occupational
classification, disaggregated by State, of nonimmigrant workers
described in section 101(a)(15)(H)(ii)(a) of the Immigration
and Nationality Act.
SEC. 252. ENFORCEMENT.
(a) Denial or Revocation of Registration.--
(1) Grounds for denial or revocation.--The Secretary shall
deny an application for registration, or revoke a registration,
if the Secretary determines that the foreign labor recruiter,
or any agent or subcontractee of such foreign labor recruiter--
(A) knowingly made a material misrepresentation in
the registration application;
(B) materially failed to comply with one or more of
the attestations provided under section 251(c); or
(C) is not the real party in interest.
(2) Notice.--Prior to denying an application for registration
or revoking a registration under this subsection, the Secretary
shall provide written notice of the intent to deny or revoke
the registration to the foreign labor recruiter. Such notice
shall--
(A) articulate with specificity all grounds for
denial or revocation; and
(B) provide the foreign labor recruiter with not less
than 60 days to respond.
(3) Re-registration.--A foreign labor recruiter whose
registration was revoked under subsection (a) may re-register
if the foreign labor recruiter demonstrates to the Secretary's
satisfaction that the foreign labor recruiter has not violated
this subtitle in the 5 years preceding the date an application
for registration is filed and has taken sufficient steps to
prevent future violations of this subtitle.
(b) Administrative Enforcement.--
(1) Complaint process.--
(A) Filing.--A complaint may be filed with the
Secretary of Labor, in accordance with the procedures
established under section 251(b)(4) not later than 2
years after the earlier of--
(i) the date of the last action which
constituted the conduct that is the subject of
the complaint took place; or
(ii) the date on which the aggrieved party
had actual knowledge of such conduct.
(B) Decision and penalties.--If the Secretary of
Labor finds, after notice and an opportunity for a
hearing, that a foreign labor recruiter failed to
comply with any of the requirements of this subtitle,
the Secretary of Labor may--
(i) levy a fine against the foreign labor
recruiter in an amount not more than--
(I) $10,000 per violation; and
(II) $25,000 per violation, upon the
third violation;
(ii) order the forfeiture (or partial
forfeiture) of the bond and release of as much
of the bond as the Secretary determines is
necessary for the worker to recover prohibited
recruitment fees;
(iii) refuse to issue or renew a
registration, or revoke a registration; or
(iv) disqualify the foreign labor recruiter
from registration for a period of up to 5
years, or in the case of a subsequent finding
involving willful or multiple material
violations, permanently disqualify the foreign
labor recruiter from registration.
(2) Authority to ensure compliance.--The Secretary of Labor
is authorized to take other such actions, including issuing
subpoenas and seeking appropriate injunctive relief, as may be
necessary to assure compliance with the terms and conditions of
this subtitle.
(3) Statutory construction.--Nothing in this subsection may
be construed as limiting the authority of the Secretary of
Labor to conduct an investigation--
(A) under any other law, including any law affecting
migrant and seasonal agricultural workers; or
(B) in the absence of a complaint.
(c) Civil Action.--
(1) In general.--The Secretary of Labor or any person
aggrieved by a violation of this subtitle may bring a civil
action against any foreign labor recruiter, or any employer
that does not meet the requirements under subsection (d)(1), in
any court of competent jurisdiction--
(A) to seek remedial action, including injunctive
relief; and
(B) for damages in accordance with the provisions of
this subsection.
(2) Award for civil action filed by an individual.--
(A) In general.--If the court finds in a civil action
filed by an individual under this section that the
defendant has violated any provision of this subtitle,
the court may award--
(i) damages, up to and including an amount
equal to the amount of actual damages, and
statutory damages of up to $1,000 per plaintiff
per violation, or other equitable relief,
except that with respect to statutory damages--
(I) multiple infractions of a single
provision of this subtitle (or of a
regulation under this subtitle) shall
constitute only 1 violation for
purposes of this subsection to
determine the amount of statutory
damages due a plaintiff; and
(II) if such complaint is certified
as a class action the court may award--
(aa) damages up to an amount
equal to the amount of actual
damages; and
(bb) statutory damages of not
more than the lesser of up to
$1,000 per class member per
violation, or up to $500,000;
and other equitable relief;
(ii) reasonable attorneys' fees and costs;
and
(iii) such other and further relief as
necessary to effectuate the purposes of this
subtitle.
(B) Criteria.--In determining the amount of statutory
damages to be awarded under subparagraph (A), the court
is authorized to consider whether an attempt was made
to resolve the issues in dispute before the resort to
litigation.
(C) Bond.--To satisfy the damages, fees, and costs
found owing under this paragraph, the Secretary shall
release as much of the bond held pursuant to section
251(c)(4) as necessary.
(3) Sums recovered in actions by the secretary of labor.--
(A) Establishment of account.--There is established
in the general fund of the Treasury a separate account,
which shall be known as the ``H-2A Foreign Labor
Recruiter Compensation Account''. Notwithstanding any
other provisions of law, there shall be deposited as
offsetting receipts into the account, all sums
recovered in an action by the Secretary of Labor under
this subsection.
(B) Use of funds.--Amounts deposited into the H-2A
Foreign Labor Recruiter Compensation Account and shall
be paid directly to each worker affected. Any such sums
not paid to a worker because of inability to do so
within a period of 5 years following the date such
funds are deposited into the account shall remain
available to the Secretary until expended. The
Secretary may transfer all or a portion of such
remaining sums to appropriate agencies to support the
enforcement of the laws prohibiting the trafficking and
exploitation of persons or programs that aid
trafficking victims.
(d) Employer Safe Harbor.--
(1) In general.--An employer that hires workers referred by a
foreign labor recruiter with a valid registration at the time
of hiring shall not be held jointly liable for a violation
committed solely by a foreign labor recruiter under this
subtitle--
(A) in any administrative action initiated by the
Secretary concerning such violation; or
(B) in any Federal or State civil court action filed
against the foreign labor recruiter by or on behalf of
such workers or other aggrieved party under this
subtitle.
(2) Clarification.--Nothing in this subtitle shall be
construed to prohibit an aggrieved party or parties from
bringing a civil action for violations of this subtitle or any
other Federal or State law against any employer who hired
workers referred by a foreign labor recruiter--
(A) without a valid registration at the time of hire;
or
(B) with a valid registration if the employer knew or
learned of the violation and failed to report such
violation to the Secretary.
(e) Parole to Pursue Relief.--If other immigration relief is not
available, the Secretary of Homeland Security may grant parole to
permit an individual to remain legally in the United States for time
sufficient to fully and effectively participate in all legal
proceedings related to any action taken pursuant to subsection (b) or
(c).
(f) Waiver of Rights.--Agreements by employees purporting to waive or
to modify their rights under this subtitle shall be void as contrary to
public policy.
(g) Liability for Agents.--Foreign labor recruiters shall be subject
to the provisions of this section for violations committed by the
foreign labor recruiter's agents or subcontractees of any level in
relation to their foreign labor recruiting activity to the same extent
as if the foreign labor recruiter had committed the violation.
SEC. 253. APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary
for the Secretary of Labor and Secretary of State to carry out the
provisions of this subtitle.
SEC. 254. DEFINITIONS.
For purposes of this subtitle:
(1) Foreign labor recruiter.--The term ``foreign labor
recruiter'' means any person who performs foreign labor
recruiting activity in exchange for money or other valuable
consideration paid or promised to be paid, to recruit
individuals to work as nonimmigrant workers 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)), including any person who
performs foreign labor recruiting activity wholly outside of
the United States. Such term does not include any entity of the
United States Government or an employer, or employee of an
employer, who engages in foreign labor recruiting activity
solely to find employees for that employer's own use, and
without the participation of any other foreign labor recruiter.
(2) Foreign labor recruiting activity.--The term ``foreign
labor recruiting activity'' means recruiting, soliciting, or
related activities with respect to an individual who resides
outside of the United States in furtherance of employment in
the United States, including when such activity occurs wholly
outside of the United States.
(3) Recruitment fees.--The term ``recruitment fees'' has the
meaning given to such term under section 22.1702 of title 22 of
the Code of Federal Regulations, as in effect on the date of
enactment of this Act.
(4) Person.--The term ``person'' means any natural person or
any corporation, company, firm, partnership, joint stock
company or association or other organization or entity (whether
organized under law or not), including municipal corporations.
TITLE III--ELECTRONIC VERIFICATION OF EMPLOYMENT ELIGIBILITY
SEC. 301. ELECTRONIC EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
(a) In General.--Chapter 8 of title II of the Immigration and
Nationality Act (8 U.S.C. 1321 et seq.) is amended by inserting after
section 274D the following:
``SEC. 274E. REQUIREMENTS FOR THE ELECTRONIC VERIFICATION OF EMPLOYMENT
ELIGIBILITY.
``(a) Employment Eligibility Verification System.--
``(1) In general.--The Secretary of Homeland Security
(referred to in this section as the `Secretary') shall
establish and administer an electronic verification system
(referred to in this section as the `System'), patterned on 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) (as in effect on the day before the
effective date described in section 303(a)(4) of the Farm
Workforce Modernization Act of 2019), and using the employment
eligibility confirmation system established under section 404
of such Act (8 U.S.C. 1324a note) (as so in effect) as a
foundation, through which the Secretary shall--
``(A) respond to inquiries made by persons or
entities seeking to verify the identity and employment
authorization of individuals that such persons or
entities seek to hire, or to recruit or refer for a
fee, for employment in the United States; and
``(B) maintain records of the inquiries that were
made, and of verifications provided (or not provided)
to such persons or entities as evidence of compliance
with the requirements of this section.
``(2) Initial response deadline.--The System shall provide
confirmation or a tentative nonconfirmation of an individual's
identity and employment authorization as soon as practicable,
but not later than 3 calendar days after the initial inquiry.
``(3) General design and operation of system.--The Secretary
shall design and operate the System--
``(A) using responsive web design and other
technologies to maximize its ease of use and
accessibility for users on a variety of electronic
devices and screen sizes, and in remote locations;
``(B) to maximize the accuracy of responses to
inquiries submitted by persons or entities;
``(C) to maximize the reliability of the System and
to register each instance when the System is unable to
receive inquiries;
``(D) to protect the privacy and security of the
personally identifiable information maintained by or
submitted to the System;
``(E) to provide direct notification of an inquiry to
an individual with respect to whom the inquiry is made,
including the results of such inquiry, and information
related to the process for challenging the results; and
``(F) to maintain appropriate administrative,
technical, and physical safeguards to prevent misuse of
the System and unfair immigration-related employment
practices.
``(4) Measures to prevent identity theft and other forms of
fraud.--To prevent identity theft and other forms of fraud, the
Secretary shall design and operate the System with the
following attributes:
``(A) Photo matching tool.--The System shall display
the digital photograph of the individual, if any, that
corresponds to the document presented by an individual
to establish identity and employment authorization so
that the person or entity that makes an inquiry can
compare the photograph displayed by the System to the
photograph on the document presented by the individual.
``(B) Individual monitoring and suspension of
identifying information.--The System shall enable
individuals to establish user accounts, after
authentication of an individual's identity, that would
allow an individual to--
``(i) confirm the individual's own employment
authorization;
``(ii) receive electronic notification when
the individual's social security account number
or other personally identifying information has
been submitted to the System;
``(iii) monitor the use history of the
individual's personally identifying information
in the System, including the identities of all
persons or entities that have submitted such
identifying information to the System, the date
of each query run, and the System response for
each query run;
``(iv) suspend or limit the use of the
individual's social security account number or
other personally identifying information for
purposes of the System; and
``(v) provide notice to the Department of
Homeland Security of any suspected identity
fraud or other improper use of personally
identifying information.
``(C) Blocking misused social security account
numbers.--
``(i) In general.--The Secretary, in
consultation with the Commissioner of Social
Security (referred to in this section as the
`Commissioner'), shall develop, after
publication in the Federal Register and an
opportunity for public comment, a process in
which social security account numbers that have
been identified to be subject to unusual
multiple use in the System or that are
otherwise suspected or determined to have been
compromised by identity fraud or other misuse,
shall be blocked from use in the System unless
the individual using such number is able to
establish, through secure and fair procedures,
that the individual is the legitimate holder of
the number.
``(ii) Notice.--If the Secretary blocks or
suspends a social security account number under
this subparagraph, the Secretary shall provide
notice to the persons or entities that have
made inquiries to the System using such account
number that the identity and employment
authorization of the individual who provided
such account number must be re-verified.
``(D) Additional identity authentication tool.--The
Secretary shall develop, after publication in the
Federal Register and an opportunity for public comment,
additional security measures to adequately verify the
identity of an individual whose identity may not be
verified using the photo tool described in subparagraph
(A). Such additional security measures--
``(i) shall be kept up-to-date with
technological advances; and
``(ii) shall be designed to provide a high
level of certainty with respect to identity
authentication.
``(E) Child-lock pilot program.--The Secretary, in
consultation with the Commissioner, shall establish a
reliable, secure program through which parents or legal
guardians may suspend or limit the use of the social
security account number or other personally identifying
information of a minor under their care for purposes of
the System. The Secretary may implement the program on
a limited pilot basis before making it fully available
to all individuals.
``(5) Responsibilities of the commissioner of social
security.--The Commissioner, in consultation with the
Secretary, shall establish a reliable, secure method, which,
within the time periods specified in paragraph (2) and
subsection (b)(4)(D)(i)(II), compares the name and social
security account number provided in an inquiry against such
information maintained by the Commissioner in order to validate
(or not validate) the information provided by the person or
entity with respect to an individual whose identity and
employment authorization the person or entity seeks to confirm,
the correspondence of the name and number, and whether the
individual has presented a social security account number that
is not valid for employment. The Commissioner shall not
disclose or release social security information (other than
such confirmation or nonconfirmation) under the System except
as provided under this section or section 205(c)(2)(I) of the
Social Security Act (42 U.S.C. 405).
``(6) Responsibilities of the secretary of homeland
security.--
``(A) In general.--The Secretary of Homeland Security
shall establish a reliable, secure method, which,
within the time periods specified in paragraph (2) and
subsection (b)(4)(D)(i)(II), compares the name and
identification or other authorization number (or any
other information determined relevant by the Secretary)
which are provided in an inquiry against such
information maintained or accessed by the Secretary in
order to validate (or not validate) the information
provided, the correspondence of the name and number,
and whether the individual is authorized to be employed
in the United States.
``(B) Training.--The Secretary shall provide and
regularly update training materials on the use of the
System for persons and entities making inquiries.
``(C) Audit.--The Secretary shall provide for
periodic auditing of the System to detect and prevent
misuse, discrimination, fraud, and identity theft, to
protect privacy and assess System accuracy, and to
preserve the integrity and security of the information
in the System.
``(D) Notice of system changes.--The Secretary shall
provide appropriate notification to persons and
entities registered in the System of any change made by
the Secretary or the Commissioner related to permitted
and prohibited documents, and use of the System.
``(7) Responsibilities of the secretary of state.--As part of
the System, the Secretary of State shall provide to the
Secretary of Homeland Security access to passport and visa
information as needed to confirm that a passport or passport
card presented under subsection (b)(3)(A)(i) confirms the
employment authorization and identity of the individual
presenting such document, and that a passport, passport card,
or visa photograph matches the Secretary of State's records,
and shall provide such assistance as the Secretary of Homeland
Security may request in order to resolve tentative
nonconfirmations or final nonconfirmations relating to such
information.
``(8) Updating information.--The Commissioner, the Secretary
of Homeland Security, and the Secretary of State shall update
records in their custody in a manner that promotes maximum
accuracy of the System and shall provide a process for the
prompt correction of erroneous information, including instances
in which it is brought to their attention through the secondary
verification process under subsection (b)(4)(D).
``(9) Mandatory and voluntary system uses.--
``(A) Mandatory users.--Except as otherwise provided
under Federal or State law, such as sections 302 and
303 of the Farm Workforce Modernization Act of 2019,
nothing in this section shall be construed as requiring
the use of the System by any person or entity hiring,
recruiting, or referring for a fee, an individual for
employment in the United States.
``(B) Voluntary users.--Beginning after the date that
is 30 days after the date on which final rules are
published under section 309(a) of the Farm Workforce
Modernization Act of 2019, a person or entity may use
the System on a voluntary basis to seek verification of
the identity and employment authorization of
individuals the person or entity is hiring, recruiting,
or referring for a fee for employment in the United
States
``(C) Process for non-users.--The employment
verification process for any person or entity hiring,
recruiting, or referring for a fee, an individual for
employment in the United States shall be governed by
section 274A(b) unless the person or entity--
``(i) is required by Federal or State law to
use the System; or
``(ii) has opted to use the System
voluntarily in accordance with subparagraph
(B).
``(10) No fee for use.--The Secretary may not charge a fee to
an individual, person, or entity related to the use of the
System.
``(b) New Hires, Recruitment, and Referral.--Notwithstanding section
274A(b), the requirements referred to in paragraphs (1)(B) and (3) of
section 274A(a) are, in the case of a person or entity that uses the
System for the hiring, recruiting, or referring for a fee, an
individual for employment in the United States, the following:
``(1) Individual attestation of employment authorization.--
During the period beginning on the date on which an offer of
employment is accepted and ending on the date of hire, the
individual shall attest, under penalty of perjury on a form
designated by the Secretary, that the individual is authorized
to be employed in the United States by providing on such form--
``(A) the individual's name and date of birth;
``(B) the individual's social security account number
(unless the individual has applied for and not yet been
issued such a number);
``(C) whether the individual is--
``(i) a citizen or national of the United
States;
``(ii) an alien lawfully admitted for
permanent residence; or
``(iii) an alien who is otherwise authorized
by the Secretary to be hired, recruited, or
referred for employment in the United States;
and
``(D) if the individual does not attest to United
States citizenship or nationality, such identification
or other authorization number established by the
Department of Homeland Security for the alien as the
Secretary may specify.
``(2) Employer attestation after examination of documents.--
Not later than 3 business days after the date of hire, the
person or entity shall attest, under penalty of perjury on the
form designated by the Secretary for purposes of paragraph (1),
that it has verified that the individual is not an unauthorized
alien by--
``(A) obtaining from the individual the information
described in paragraph (1) and recording such
information on the form;
``(B) examining--
``(i) a document described in paragraph
(3)(A); or
``(ii) a document described in paragraph
(3)(B) and a document described in paragraph
(3)(C); and
``(C) attesting that the information recorded on the
form is consistent with the documents examined.
``(3) Acceptable documents.--
``(A) Documents establishing employment authorization
and identity.--A document described in this
subparagraph is an individual's--
``(i) United States passport or passport
card;
``(ii) permanent resident card that contains
a photograph;
``(iii) foreign passport containing temporary
evidence of lawful permanent residence in the
form of an official I-551 (or successor) stamp
from the Department of Homeland Security or a
printed notation on a machine-readable
immigrant visa;
``(iv) unexpired employment authorization
card that contains a photograph;
``(v) in the case of a nonimmigrant alien
authorized to engage in employment for a
specific employer incident to status, a foreign
passport with Form I-94, Form I-94A, or other
documentation as designated by the Secretary
specifying the alien's nonimmigrant status as
long as such status has not yet expired and the
proposed employment is not in conflict with any
restrictions or limitations identified in the
documentation;
``(vi) passport from the Federated States of
Micronesia or the Republic of the Marshall
Islands with Form I-94, Form I-94A, or other
documentation as designated by the Secretary,
indicating nonimmigrant admission under the
Compact of Free Association Between the United
States and the Federated States of Micronesia
or the Republic of the Marshall Islands; or
``(vii) other document designated by the
Secretary, by notice published in the Federal
Register, if the document--
``(I) contains a photograph of the
individual, biometric identification
data, and other personal identifying
information relating to the individual;
``(II) is evidence of authorization
for employment in the United States;
and
``(III) contains security features to
make it resistant to tampering,
counterfeiting, and fraudulent use.
``(B) Documents establishing employment
authorization.--A document described in this
subparagraph is--
``(i) an individual's social security account
number card (other than such a card which
specifies on the face that the issuance of the
card does not authorize employment in the
United States); or
``(ii) a document establishing employment
authorization that the Secretary determines, by
notice published in the Federal Register, to be
acceptable for purposes of this subparagraph,
provided that such documentation contains
security features to make it resistant to
tampering, counterfeiting, and fraudulent use.
``(C) Documents establishing identity.--A document
described in this subparagraph is--
``(i) an individual's driver's license or
identification card if it was issued by a State
or one of the outlying possessions of the
United States and contains a photograph and
personal identifying information relating to
the individual;
``(ii) an individual's unexpired United
States military identification card;
``(iii) an individual's unexpired Native
American tribal identification document issued
by a tribal entity recognized by the Bureau of
Indian Affairs;
``(iv) in the case of an individual under 18
years of age, a parent or legal guardian's
attestation under penalty of law as to the
identity and age of the individual; or
``(v) a document establishing identity that
the Secretary determines, by notice published
in the Federal Register, to be acceptable for
purposes of this subparagraph, if such
documentation contains a photograph of the
individual, biometric identification data, and
other personal identifying information relating
to the individual, and security features to
make it resistant to tampering, counterfeiting,
and fraudulent use.
``(D) Authority to prohibit use of certain
documents.--If the Secretary finds that any document or
class of documents described in subparagraph (A), (B),
or (C) does not reliably establish identity or
employment authorization or is being used fraudulently
to an unacceptable degree, the Secretary may, by notice
published in the Federal Register, prohibit or place
conditions on the use of such document or class of
documents for purposes of this section.
``(4) Use of the system to screen identity and employment
authorization.--
``(A) In general.--In the case of a person or entity
that uses the System for the hiring, recruiting, or
referring for a fee an individual for employment in the
United States, during the period described in
subparagraph (B), the person or entity shall submit an
inquiry through the System described in subsection (a)
to seek verification of the identity and employment
authorization of the individual.
``(B) Verification period.--
``(i) In general.--Except as provided in
clause (ii), and subject to subsection (d), the
verification period shall begin on the date of
hire and end on the date that is 3 business
days after the date of hire, or such other
reasonable period as the Secretary may
prescribe.
``(ii) Special rule.--In the case of an alien
who is authorized to be employed in the United
States and who provides evidence from the
Social Security Administration that the alien
has applied for a social security account
number, the verification period shall end 3
business days after the alien receives the
social security account number.
``(C) Confirmation.--If a person or entity receives
confirmation of an individual's identity and employment
authorization, the person or entity shall record such
confirmation on the form designated by the Secretary
for purposes of paragraph (1).
``(D) Tentative nonconfirmation.--
``(i) In general.--In cases of tentative
nonconfirmation, the Secretary shall provide,
in consultation with the Commissioner, a
process for--
``(I) an individual to contest the
tentative nonconfirmation not later
than 10 business days after the date of
the receipt of the notice described in
clause (ii); and
``(II) the Secretary to issue a
confirmation or final nonconfirmation
of an individual's identity and
employment authorization not later than
30 calendar days after the Secretary
receives notice from the individual
contesting a tentative nonconfirmation.
``(ii) Notice.--If a person or entity
receives a tentative nonconfirmation of an
individual's identity or employment
authorization, the person or entity shall, not
later than 3 business days after receipt,
notify such individual in writing in a language
understood by the individual and on a form
designated by the Secretary, that shall include
a description of the individual's right to
contest the tentative nonconfirmation. The
person or entity shall attest, under penalty of
perjury, that the person or entity provided (or
attempted to provide) such notice to the
individual, and the individual shall
acknowledge receipt of such notice in a manner
specified by the Secretary.
``(iii) No contest.--
``(I) In general.--A tentative
nonconfirmation shall become final if,
upon receiving the notice described in
clause (ii), the individual--
``(aa) refuses to acknowledge
receipt of such notice;
``(bb) acknowledges in
writing, in a manner specified
by the Secretary, that the
individual will not contest the
tentative nonconfirmation; or
``(cc) fails to contest the
tentative nonconfirmation
within the 10-business-day
period beginning on the date
the individual received such
notice.
``(II) Record of no contest.--The
person or entity shall indicate in the
System that the individual did not
contest the tentative nonconfirmation
and shall specify the reason the
tentative nonconfirmation became final
under subclause (I).
``(III) Effect of failure to
contest.--An individual's failure to
contest a tentative nonconfirmation
shall not be considered an admission of
any fact with respect to any violation
of this Act or any other provision of
law.
``(iv) Contest.--
``(I) In general.--An individual may
contest a tentative nonconfirmation by
using the process for secondary
verification under clause (i), not
later than 10 business days after
receiving the notice described in
clause (ii). Except as provided in
clause (iii), the nonconfirmation shall
remain tentative until a confirmation
or final nonconfirmation is provided by
the System.
``(II) Prohibition on termination.--
In no case shall a person or entity
terminate employment or take any
adverse employment action against an
individual for failure to obtain
confirmation of the individual's
identity and employment authorization
until the person or entity receives a
notice of final nonconfirmation from
the System. Nothing in this subclause
shall prohibit an employer from
terminating the employment of the
individual for any other lawful reason.
``(III) Confirmation or final
nonconfirmation.--The Secretary, in
consultation with the Commissioner,
shall issue notice of a confirmation or
final nonconfirmation of the
individual's identity and employment
authorization not later than 30
calendar days after the date the
Secretary receives notice from the
individual contesting the tentative
nonconfirmation.
``(E) Final nonconfirmation.--
``(i) Notice.--If a person or entity receives
a final nonconfirmation of an individual's
identity or employment authorization, the
person or entity shall, not later than 3
business days after receipt, notify such
individual of the final nonconfirmation in
writing, on a form designated by the Secretary,
which shall include information regarding the
individual's right to appeal the final
nonconfirmation as provided under subparagraph
(F). The person or entity shall attest, under
penalty of perjury, that the person or entity
provided (or attempted to provide) the notice
to the individual, and the individual shall
acknowledge receipt of such notice in a manner
designated by the Secretary.
``(ii) Termination or notification of
continued employment.--If a person or entity
receives a final nonconfirmation regarding an
individual, the person or entity may terminate
employment of the individual. If the person or
entity does not terminate such employment
pending appeal of the final nonconfirmation,
the person or entity shall notify the Secretary
of such fact through the System. Failure to
notify the Secretary in accordance with this
clause shall be deemed a violation of section
274A(a)(1)(A).
``(iii) Presumption of violation for
continued employment.--If a person or entity
continues to employ an individual after receipt
of a final nonconfirmation, there shall be a
rebuttable presumption that the person or
entity has violated paragraphs (1)(A) and
(a)(2) of section 274A(a).
``(F) Appeal of final nonconfirmation.--
``(i) Administrative appeal.--The Secretary,
in consultation with the Commissioner, shall
develop a process by which an individual may
seek administrative review of a final
nonconfirmation. Such process shall--
``(I) permit the individual to submit
additional evidence establishing
identity or employment authorization;
``(II) ensure prompt resolution of an
appeal (but in no event shall there be
a failure to respond to an appeal
within 30 days); and
``(III) permit the Secretary to
impose a civil money penalty (not to
exceed $500) on an individual upon
finding that an appeal was frivolous or
filed for purposes of delay.
``(ii) Compensation for lost wages resulting
from government error or omission.--
``(I) In general.--If, upon
consideration of an appeal of a final
nonconfirmation, the Secretary
determines that the final
nonconfirmation was issued in error,
the Secretary shall further determine
whether the final nonconfirmation was
the result of government error or
omission. If the Secretary determines
that the final nonconfirmation was
solely the result of government error
or omission and the individual was
terminated from employment, the
Secretary shall compensate the
individual for lost wages.
``(II) Calculation of lost wages.--
Lost wages shall be calculated based on
the wage rate and work schedule that
were in effect prior to the
individual's termination. The
individual shall be compensated for
lost wages beginning on the first
scheduled work day after employment was
terminated and ending 90 days after
completion of the administrative review
process described in this subparagraph
or the day the individual is reinstated
or obtains other employment, whichever
occurs first.
``(III) Limitation on compensation.--
No compensation for lost wages shall be
awarded for any period during which the
individual was not authorized for
employment in the United States.
``(IV) Source of funds.--There is
established in the general fund of the
Treasury, a separate account which
shall be known as the `Electronic
Verification Compensation Account'.
Fees collected under subsections (f)
and (g) shall be deposited in the
Electronic Verification Compensation
Account and shall remain available for
purposes of providing compensation for
lost wages under this subclause.
``(iii) Judicial review.--Not later than 30
days after the dismissal of an appeal under
this subparagraph, an individual may seek
judicial review of such dismissal in the United
States District Court in the jurisdiction in
which the employer resides or conducts
business.
``(5) Retention of verification records.--
``(A) In general.--After completing the form
designated by the Secretary in accordance with
paragraphs (1) and (2), the person or entity shall
retain the form in paper, microfiche, microfilm,
electronic, or other format deemed acceptable by the
Secretary, and make it available for inspection by
officers of the Department of Homeland Security, the
Department of Justice, or the Department of Labor
during the period beginning on the date the
verification is completed and ending on the later of--
``(i) the date that is 3 years after the date
of hire; or
``(ii) the date that is 1 year after the date
on which the individual's employment is
terminated.
``(B) Copying of documentation permitted.--
Notwithstanding any other provision of law, a person or
entity may copy a document presented by an individual
pursuant to this section and may retain the copy, but
only for the purpose of complying with the requirements
of this section.
``(c) Reverification of Previously Hired Individuals.--
``(1) Mandatory reverification.--In the case of a person or
entity that uses the System for the hiring, recruiting, or
referring for a fee an individual for employment in the United
States, the person or entity shall submit an inquiry using the
System to verify the identity and employment authorization of--
``(A) an individual with a limited period of
employment authorization, within 3 business days before
the date on which such employment authorization
expires; and
``(B) an individual, not later than 10 days after
receiving a notification from the Secretary requiring
the verification of such individual pursuant to
subsection (a)(4)(C).
``(2) Reverification procedures.--The verification procedures
under subsection (b) shall apply to reverifications under this
subsection, except that employers shall--
``(A) use a form designated by the Secretary for
purposes of this paragraph; and
``(B) retain the form in paper, microfiche,
microfilm, electronic, or other format deemed
acceptable by the Secretary, and make it available for
inspection by officers of the Department of Homeland
Security, the Department of Justice, or the Department
of Labor during the period beginning on the date the
reverification commences and ending on the later of--
``(i) the date that is 3 years after the date
of reverification; or
``(ii) the date that is 1 year after the date
on which the individual's employment is
terminated.
``(3) Limitation on reverification.--Except as provided in
paragraph (1), a person or entity may not otherwise reverify
the identity and employment authorization of a current
employee, including an employee continuing in employment.
``(d) Good Faith Compliance.--
``(1) In general.--Except as otherwise provided in this
subsection, a person or entity that uses the System is
considered to have complied with the requirements of this
section notwithstanding a technical failure of the System, or
other technical or procedural failure to meet such requirement
if there was a good faith attempt to comply with the
requirement.
``(2) Exception for failure to correct after notice.--
Paragraph (1) shall not apply if--
``(A) the failure is not de minimis;
``(B) the Secretary has provided notice to the person
or entity of the failure, including an explanation as
to why it is not de minimis;
``(C) the person or entity has been provided a period
of not less than 30 days (beginning after the date of
the notice) to correct the failure; and
``(D) the person or entity has not corrected the
failure voluntarily within such period.
``(3) Exception for pattern or practice violators.--Paragraph
(1) shall not apply to a person or entity that has engaged or
is engaging in a pattern or practice of violations of paragraph
(1)(A) or (2) of section 274A(a).
``(4) Defense.--In the case of a person or entity that uses
the System for the hiring, recruiting, or referring for a fee
an individual for employment in the United States, the person
or entity shall not be liable to a job applicant, an employee,
the Federal Government, or a State or local government, under
Federal, State, or local criminal or civil law, for any
employment-related action taken with respect to an employee in
good-faith reliance on information provided by the System. Such
person or entity shall be deemed to have established compliance
with its obligations under this section, absent a showing by
the Secretary, by clear and convincing evidence, that the
employer had knowledge that an employee is an unauthorized
alien.
``(e) Limitations.--
``(1) No national identification card.--Nothing in this
section shall be construed to authorize, directly or
indirectly, the issuance or use of national identification
cards or the establishment of a national identification card.
``(2) Use of records.--Notwithstanding any other provision of
law, nothing in this section shall be construed to permit or
allow any department, bureau, or other agency of the United
States Government to utilize any information, database, or
other records assembled under this section for any purpose
other than the verification of identity and employment
authorization of an individual or to ensure the secure,
appropriate, and non-discriminatory use of the System.
``(f) Penalties.--
``(1) In general.--Except as provided in this subsection, the
provisions of subsections (e) through (g) of section 274A shall
apply with respect to compliance with the provisions of this
section and penalties for non-compliance for persons or
entitles that use the System.
``(2) Cease and desist order with civil money penalties for
hiring, recruiting, and referral violations.--Notwithstanding
the civil money penalties set forth in section 274A(e)(4), with
respect to a violation of paragraph (1)(A) or (2) of section
274A(a) by a person or entity that has hired, recruited, or
referred for a fee, an individual for employment in the United
States, a cease and desist order--
``(A) shall require the person or entity to pay a
civil penalty in an amount, subject to subsection (d),
of--
``(i) not less than $2,500 and not more than
$5,000 for each unauthorized alien with respect
to whom a violation of either such subsection
occurred;
``(ii) not less than $5,000 and not more than
$10,000 for each such alien in the case of a
person or entity previously subject to one
order under this paragraph; or
``(iii) not less than $10,000 and not more
than $25,000 for each such alien in the case of
a person or entity previously subject to more
than one order under this paragraph; and
``(B) may require the person or entity to take such
other remedial action as appropriate.
``(3) Order for civil money penalty for violations.--With
respect to a violation of section 274A(a)(1)(B), the order
under this paragraph shall require the person or entity to pay
a civil penalty in an amount, subject to paragraphs (4), (5),
and (6), of not less than $1,000 and not more than $25,000 for
each individual with respect to whom such violation occurred.
Failure by a person or entity to utilize the System as required
by law or providing information to the System that the person
or entity knows or reasonably believes to be false, shall be
treated as a violation of section 274A(a)(1)(A).
``(4) Exemption from penalty for good faith violation.--
``(A) In general.--A person or entity that uses the
System is presumed to have acted with knowledge for
purposes of paragraphs (1)(A) and (2) of section
274A(a) if the person or entity fails to make an
inquiry to verify the identity and employment
authorization of the individual through the System.
``(B) Good faith exemption.--In the case of
imposition of a civil penalty under paragraph (2)(A)
with respect to a violation of paragraph (1)(A) or (2)
of section 274A(a) for hiring or continuation of
employment or recruitment or referral by a person or
entity, and in the case of imposition of a civil
penalty under paragraph (3) for a violation of section
274A(a)(1)(B) for hiring or recruitment or referral by
a person or entity, the penalty otherwise imposed may
be waived or reduced if the person or entity
establishes that the person or entity acted in good
faith.
``(5) Mitigation elements.--For purposes of paragraphs (2)(A)
and (3), when assessing the level of civil money penalties, in
addition to the good faith of the person or entity being
charged, due consideration shall be given to the size of the
business, the seriousness of the violation, whether or not the
individual was an unauthorized alien, and the history of
previous violations.
``(6) Criminal penalty.--Notwithstanding section 274A(f)(1)
and the provisions of any other Federal law relating to fine
levels, any person or entity that is required to comply with
the provisions of this section and that engages in a pattern or
practice of violations of paragraph (1) or (2) of section
274A(a), shall be fined not more than $5,000 for each
unauthorized alien with respect to whom such a violation
occurs, imprisoned for not more than 18 months, or both.
``(7) Electronic verification compensation account.--Civil
money penalties collected under this subsection shall be
deposited in the Electronic Verification Compensation Account
for the purpose of compensating individuals for lost wages as a
result of a final nonconfirmation issued by the System that was
based on government or employer error or omission, as set forth
in subsection (b)(4)(F)(ii)(IV).
``(8) Debarment.--
``(A) In general.--If a person or entity is
determined by the Secretary to be a repeat violator of
paragraph (1)(A) or (2) of section 274A(a) or is
convicted of a crime under section 274A, such person or
entity may be considered for debarment from the receipt
of Federal contracts, grants, or cooperative agreements
in accordance with the debarment standards and pursuant
to the debarment procedures set forth in the Federal
Acquisition Regulation.
``(B) No contract, grant, agreement.--If the
Secretary or the Attorney General wishes to have a
person or entity considered for debarment in accordance
with this paragraph, and such a person or entity does
not hold a Federal contract, grant or cooperative
agreement, the Secretary or Attorney General shall
refer the matter to the Administrator of General
Services to determine whether to list the person or
entity on the List of Parties Excluded from Federal
Procurement, and if so, for what duration and under
what scope.
``(C) Contract, grant, agreement.--If the Secretary
or the Attorney General wishes to have a person or
entity considered for debarment in accordance with this
paragraph, and such person or entity holds a Federal
contract, grant, or cooperative agreement, the
Secretary or Attorney General shall advise all agencies
or departments holding a contract, grant, or
cooperative agreement with the person or entity of the
Government's interest in having the person or entity
considered for debarment, and after soliciting and
considering the views of all such agencies and
departments, the Secretary or Attorney General may
refer the matter to the appropriate lead agency to
determine whether to list the person or entity on the
List of Parties Excluded from Federal Procurement, and
if so, for what duration and under what scope.
``(D) Review.--Any decision to debar a person or
entity in accordance with this subsection shall be
reviewable pursuant to part 9.4 of the Federal
Acquisition Regulation.
``(9) Preemption.--The provisions of this section preempt any
State or local law, ordinance, policy, or rule, including any
criminal or civil fine or penalty structure, relating to the
hiring, continued employment, or status verification for
employment eligibility purposes, of unauthorized aliens, except
that a State, locality, municipality, or political subdivision
may exercise its authority over business licensing and similar
laws as a penalty for failure to use the System as required
under this section.
``(g) Unfair Immigration-related Employment Practices and the
System.--
``(1) In general.--In addition to the prohibitions on
discrimination set forth in section 274B, it is an unfair
immigration-related employment practice for a person or entity,
in the course of utilizing the System--
``(A) to use the System for screening an applicant
prior to the date of hire;
``(B) to terminate the employment of an individual or
take any adverse employment action with respect to that
individual due to a tentative nonconfirmation issued by
the System;
``(C) to use the System to screen any individual for
any purpose other than confirmation of identity and
employment authorization as provided in this section;
``(D) to use the System to verify the identity and
employment authorization of a current employee,
including an employee continuing in employment, other
than reverification authorized under subsection (c);
``(E) to use the System to discriminate based on
national origin or citizenship status;
``(F) to willfully fail to provide an individual with
any notice required under this title;
``(G) to require an individual to make an inquiry
under the self-verification procedures described in
subsection (a)(4)(B) or to provide the results of such
an inquiry as a condition of employment, or hiring,
recruiting, or referring; or
``(H) to terminate the employment of an individual or
take any adverse employment action with respect to that
individual based upon the need to verify the identity
and employment authorization of the individual as
required by subsection (b).
``(2) Preemployment screening and background check.--Nothing
in paragraph (1)(A) shall be construed to preclude a
preemployment screening or background check that is required or
permitted under any other provision of law.
``(3) Civil money penalties for discriminatory conduct.--
Notwithstanding section 274B(g)(2)(B)(iv), the penalties that
may be imposed by an administrative law judge with respect to a
finding that a person or entity has engaged in an unfair
immigration-related employment practice described in paragraph
(1) are--
``(A) not less than $1,000 and not more than $4,000
for each individual discriminated against;
``(B) in the case of a person or entity previously
subject to a single order under this paragraph, not
less than $4,000 and not more than $10,000 for each
individual discriminated against; and
``(C) in the case of a person or entity previously
subject to more than one order under this paragraph,
not less than $6,000 and not more than $20,000 for each
individual discriminated against.
``(4) Electronic verification compensation account.--Civil
money penalties collected under this subsection shall be
deposited in the Electronic Verification Compensation Account
for the purpose of compensating individuals for lost wages as a
result of a final nonconfirmation issued by the System that was
based on government error or omission, as set forth in
subsection (b)(4)(F)(ii)(IV).
``(h) Clarification.--All rights and remedies provided under any
Federal, State, or local law relating to workplace rights, including
but not limited to back pay, are available to an employee despite--
``(1) the employee's status as an unauthorized alien during
or after the period of employment; or
``(2) the employer's or employee's failure to comply with the
requirements of this section.
``(i) Definition.--In this section, the term `date of hire' means the
date on which employment for pay or other remuneration commences.''.
(b) Conforming Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 274D the following:
``Sec. 274E. Requirements for the electronic verification of employment
eligibility.''.
SEC. 302. MANDATORY ELECTRONIC VERIFICATION FOR THE AGRICULTURAL
INDUSTRY.
(a) In General.--The requirements for the electronic verification of
identity and employment authorization described in section 274E of the
Immigration and Nationality Act, as inserted by section 301 of this
Act, shall apply to a person or entity hiring, recruiting, or referring
for a fee an individual for agricultural employment in the United
States in accordance with the effective dates set forth in subsection
(b).
(b) Effective Dates.--
(1) Hiring.--Subsection (a) shall apply to a person or entity
hiring an individual for agricultural employment in the United
States as follows:
(A) With respect to employers having 500 or more
employees in the United States on the date of the
enactment of this Act, on the date that is 6 months
after completion of the application period described in
section 101(c).
(B) With respect to employers having 100 or more
employees in the United States (but less than 500 such
employees) on the date of the enactment of this Act, on
the date that is 9 months after completion of the
application period described in section 101(c).
(C) With respect to employers having 20 or more
employees in the United States (but less than 100 such
employees) on the date of the enactment of this Act, on
the date that is 12 months after completion of the
application period described in section 101(c).
(D) With respect to employers having 1 or more
employees in the United States, (but less than 20 such
employees) on the date of the enactment of this Act, on
the date that is 15 months after completion of the
application period described in section 101(c).
(2) Recruiting and referring.--Subsection (a) shall apply to
a person or entity recruiting or referring an individual for
agricultural employment in the United States on the date that
is 12 months after completion of the application period
described in section 101(c).
(3) Transition rule.--Except as required under subtitle A of
title IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) (as in effect
on the day before the effective date described in section
303(a)(4)), Executive Order 13465 (8 U.S.C. 1324a note;
relating to Government procurement), or any State law requiring
persons or entities to use 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) (as in effect
on the day before the effective date described in section
303(a)(4)), sections 274A and 274B of the Immigration and
Nationality Act (8 U.S.C. 1324a and 1324b) shall apply to a
person or entity hiring, recruiting, or referring an individual
for employment in the United States until the applicable
effective date under this subsection.
(4) E-Verify voluntary users and others desiring early
compliance.--Nothing in this subsection shall be construed to
prohibit persons or entities, including persons or entities
that have voluntarily elected to participate 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) (as in effect on the day before the effective date
described in section 303(a)(4)), from seeking early compliance
on a voluntary basis.
(c) Rural Access to Secondary Review Process.--
(1) In general.--The Secretary of Homeland Security and the
Commissioner of Social Security shall coordinate with the
Secretary of Agriculture to create an alternate process for an
individual to contest a tentative nonconfirmation as described
in section 274E(b)(4)(D) of the Immigration and Nationality
Act, as inserted by section 301 of this Act, by appearing in-
person at a local office or service center of the U.S.
Department of Agriculture or at a local office of the U.S.
Social Security Administration.
(2) Staffing and resources.--The Secretary of Agriculture and
Commissioner of Social Security shall ensure that local offices
and service centers of the U.S. Department of Agriculture and
local offices of the U.S. Social Security Administration are
staffed appropriately and have the resources necessary to
receive in-person requests for secondary review of a tentative
nonconfirmation under paragraph (1) from individuals and to
facilitate the secondary review process by serving as a single
point of contact between the individual and the Department of
Homeland Security and the Social Security Administration.
(d) Document Establishing Employment Authorization and Identity.--In
accordance with section 274E(b)(3)(A)(vii) of the Immigration and
Nationality Act, as inserted by section 301 of this Act, and not later
than 12 months after the completion of the application period described
in section 101(c) of this Act, the Secretary of Homeland Security shall
recognize documentary evidence of certified agricultural worker status
described in section 102(a)(2) of this Act as valid proof of employment
authorization and identity for purposes of section 274E(b)(3)(A) of the
Immigration and Nationality Act, as inserted by section 301 of this
Act.
(e) Agricultural Employment.--For purposes of this section, the term
``agricultural employment'' means agricultural labor or services, as
defined by section 101(a)(15)(H)(ii) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by this Act.
SEC. 303. COORDINATION WITH E-VERIFY PROGRAM.
(a) Repeal.--
(1) In general.--Subtitle A of title IV of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note) is repealed.
(2) Clerical amendment.--The table of sections, in section
1(d) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, is amended by striking the items
relating to subtitle A of title IV.
(3) References.--Any reference in any Federal, State, or
local law, Executive order, rule, regulation, or delegation of
authority, or any document of, or pertaining to, the Department
of Homeland Security, Department of Justice, or the Social
Security Administration, to 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 to the
employment eligibility confirmation system established under
section 404 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note), is deemed to
refer to the employment eligibility confirmation system
established under section 274E of the Immigration and
Nationality Act, as inserted by section 301 of this Act.
(4) Effective date.--This subsection, and the amendments made
by this subsection, shall take effect on the date that is 30
days after the date on which final rules are published under
section 309(a).
(b) Former E-Verify Mandatory Users, Including Federal Contractors.--
Beginning on the effective date in subsection (a)(4), the Secretary of
Homeland Security shall require employers required to participate 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) by reason of any Federal, State, or local law, Executive
order, rule, regulation, or delegation of authority, including
employers required to participate in such program by reason of Federal
acquisition laws (and regulations promulgated under those laws,
including the Federal Acquisition Regulation), to comply with the
requirements of section 274E of the Immigration and Nationality Act, as
inserted by section 301 of this Act (and any additional requirements of
such Federal acquisition laws and regulation) in lieu of any
requirement to participate in the E-Verify Program.
(c) Former E-Verify Voluntary Users.--Beginning on the effective date
in subsection (a)(4), the Secretary of Homeland Security shall provide
for the voluntary compliance with the requirements of section 274E of
the Immigration and Nationality Act, as inserted by section 301 of this
Act, by employers voluntarily electing to participate 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) before
such date.
SEC. 304. FRAUD AND MISUSE OF DOCUMENTS.
Section 1546(b) of title 18, United States Code, is amended--
(1) in paragraph (1), by striking ``identification
document,'' and inserting ``identification document or document
meant to establish employment authorization,'';
(2) in paragraph (2), by striking ``identification document''
and inserting ``identification document or document meant to
establish employment authorization,''; and
(3) in the matter following paragraph (3) by inserting ``or
section 274E(b)'' after ``section 274A(b)''.
SEC. 305. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Unlawful Employment of Aliens.--Section 274A of the Immigration
and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in paragraph (1)(B)(ii) of subsection (a), by striking
``subsection (b).'' and inserting ``section 274B.''; and
(2) in the matter preceding paragraph (1) of subsection (b),
by striking ``The requirements referred'' and inserting
``Except as provided in section 274E, the requirements
referred''.
(b) Unfair Immigration-related Employment Practices.--Section
274B(a)(1) of the Immigration and Nationality Act (8 U.S.C.
1324b(a)(1)) is amended in the matter preceding subparagraph (A), by
inserting ``including misuse of the verification system as described in
section 274E(g)'' after ``referral for a fee,''.
SEC. 306. PROTECTION OF SOCIAL SECURITY ADMINISTRATION PROGRAMS.
(a) Funding Under Agreement.--Effective for fiscal years beginning on
or after October 1, 2020, the Commissioner and the Secretary shall
enter into and maintain an agreement which shall--
(1) provide funds to the Commissioner for the full costs of
the responsibilities of the Commissioner under section
274E(a)(5) of the Immigration and Nationality Act, as inserted
by section 301 of this Act, including--
(A) acquiring, installing, and maintaining
technological equipment and systems necessary for the
fulfillment of the responsibilities of the Commissioner
under such section, but only that portion of such costs
that are attributable exclusively to such
responsibilities; and
(B) responding to individuals who contest a tentative
nonconfirmation or administratively appeal a final
nonconfirmation provided by the electronic employment
eligibility verification system established under such
section;
(2) provide such funds annually in advance of the applicable
quarter based on an estimating methodology agreed to by the
Commissioner and the Secretary (except in such instances where
the delayed enactment of an annual appropriation may preclude
such quarterly payments); and
(3) require an annual accounting and reconciliation of the
actual costs incurred and the funds provided under the
agreement, which shall be reviewed by the Inspectors General of
the Social Security Administration and the Department of
Homeland Security.
(b) Continuation of Employment Verification in Absence of Timely
Agreement.--In any case in which the agreement required under
subsection (a) for any fiscal year beginning on or after October 1,
2020, has not been reached as of October 1 of such fiscal year, the
latest agreement between the Commissioner and the Secretary providing
for funding to cover the costs of the responsibilities of the
Commissioner under section 274E(a)(5) of the Immigration and
Nationality Act, as inserted by section 301 of this Act, shall be
deemed in effect on an interim basis for such fiscal year until such
time as an agreement required under subsection (a) is subsequently
reached, except that the terms of such interim agreement shall be
modified by the Director of the Office of Management and Budget to
adjust for inflation and any increase or decrease in the volume of
requests under the employment eligibility verification system. In any
case in which an interim agreement applies for any fiscal year under
this subsection, the Commissioner and the Secretary shall, not later
than October 1 of such fiscal year, notify the Committee on Ways and
Means, the Committee on the Judiciary, and the Committee on
Appropriations of the House of Representatives and the Committee on
Finance, the Committee on the Judiciary, and the Committee on
Appropriations of the Senate of the failure to reach the agreement
required under subsection (a) for such fiscal year. Until such time as
the agreement required under subsection (a) has been reached for such
fiscal year, the Commissioner and the Secretary shall, not later than
the end of each 90-day period after October 1 of such fiscal year,
notify such Committees of the status of negotiations between the
Commissioner and the Secretary in order to reach such an agreement.
SEC. 307. REPORT ON THE IMPLEMENTATION OF THE ELECTRONIC EMPLOYMENT
VERIFICATION SYSTEM.
Not later than 24 months after the date on which final rules are
published under section 309(a), and annually thereafter, the Secretary
shall submit to Congress a report that includes the following:
(1) An assessment of the accuracy rates of the responses of
the electronic employment verification system established under
section 274E of the Immigration and Nationality Act, as
inserted by section 301 of this Act (referred to in this
section as the ``System''), including tentative and final
nonconfirmation notices issued to employment-authorized
individuals and confirmation notices issued to individuals who
are not employment-authorized.
(2) An assessment of any challenges faced by persons or
entities (including small employers) in utilizing the System.
(3) An assessment of any challenges faced by employment-
authorized individuals who are issued tentative or final
nonconfirmation notices.
(4) An assessment of the incidence of unfair immigration-
related employment practices, as described in section 274E(g)
of the Immigration and Nationality Act, as inserted by section
301 of this Act, related to the use of the System.
(5) An assessment of the photo matching and other identity
authentication tools, as described in section 274E(a)(4) of the
Immigration and Nationality Act, as inserted by section 301 of
this Act, including--
(A) an assessment of the accuracy rates of such
tools;
(B) an assessment of the effectiveness of such tools
at preventing identity fraud and other misuse of
identifying information;
(C) an assessment of any challenges faced by persons,
entities, or individuals utilizing such tools; and
(D) an assessment of operation and maintenance costs
associated with such tools.
(6) A summary of the activities and findings of the U.S.
Citizenship and Immigrations Services E-Verify Monitoring and
Compliance Branch, or any successor office, including--
(A) the number, types and outcomes of audits,
investigations, and other compliance activities
initiated by the Branch in the previous year;
(B) the capacity of the Branch to detect and prevent
violations of section 274E(g) of the Immigration and
Nationality Act, as inserted by this Act; and
(C) an assessment of the degree to which persons and
entities misuse the System, including--
(i) use of the System before an individual's
date of hire;
(ii) failure to provide required
notifications to individuals;
(iii) use of the System to interfere with or
otherwise impede individuals' assertions of
their rights under other laws; and
(iv) use of the System for unauthorized
purposes; and
(7) An assessment of the impact of implementation of the
System in the agricultural industry and the use of the
verification system in agricultural industry hiring and
business practices.
SEC. 308. MODERNIZING AND STREAMLINING THE EMPLOYMENT ELIGIBILITY
VERIFICATION PROCESS.
Not later than 12 months after the date of the enactment of this Act,
the Secretary, in consultation with the Commissioner, shall submit to
Congress a plan to modernize and streamline the employment eligibility
verification process that shall include--
(1) procedures to allow persons and entities to verify the
identity and employment authorization of newly hired
individuals where the in-person, physical examination of
identity and employment authorization documents is not
practicable;
(2) a proposal to create a simplified employment verification
process that allows employers that utilize the employment
eligibility verification system established under section 274E
of the Immigration and Nationality Act, as inserted by section
301 of this Act, to verify the identity and employment
authorization of individuals without also having to complete
and retain Form I-9, Employment Eligibility Verification, or
any subsequent replacement form; and
(3) any other proposal that the Secretary determines would
simplify the employment eligibility verification process
without compromising the integrity or security of the system.
SEC. 309. RULEMAKING AND PAPERWORK REDUCTION ACT.
(a) In General.--Not later than 180 days prior to the end of the
application period defined in section 101(c) of this Act, the Secretary
shall publish in the Federal Register proposed rules implementing this
title and the amendments made by this title. The Secretary shall
finalize such rules not later than 180 days after the date of
publication.
(b) Paperwork Reduction Act.--
(1) In general.--The requirements under chapter 35 of title
44, United States Code, (commonly known as the ``Paperwork
Reduction Act'') shall apply to any action to implement this
title or the amendments made by this title.
(2) Electronic forms.--All forms designated or established by
the Secretary that are necessary to implement this title and
the amendments made by this title shall be made available in
paper and electronic formats, and shall be designed in such a
manner to facilitate electronic completion, storage, and
transmittal.
(3) Limitation on use of forms.--All forms designated or
established by the Secretary that are necessary to implement
this title, and the amendments made by this title, and any
information contained in or appended to such forms, may not be
used for purposes other than for enforcement of this Act and
any other provision of Federal criminal law.
Purpose and Summary
H.R. 5038, the ``Farm Workforce Modernization Act of
2019,'' addresses long-standing labor issues in our country's
agricultural sector through targeted immigration-related and
other reforms. First, the bill creates a process for certain
workers with significant and recent agricultural experience to
apply for temporary immigration status, known as certified
agricultural worker (CAW) status. Workers with CAW status may
remain on that temporary status indefinitely, but they also
have the option to earn lawful permanent resident (LPR) status
through continued agricultural work and the payment of
penalties. Second, the bill streamlines and modernizes the
existing H-2A temporary agricultural worker visa program to
make it more cost-effective and user-friendly for employers,
while strengthening protections for all agricultural workers.
Among other things, the bill creates a unified portal and
application process for hiring H-2A workers, reforms wage
requirements to control sharp wage fluctuations, opens the H-2A
program to year-round occupations, and expands the availability
of affordable farmworker housing. At the same time, the bill
ensures that both domestic and H-2A workers have access to
critical protections against exploitation and abuse. Third,
once the legalization and H-2A reforms are fully implemented,
the bill mandates the use of the electronic employment
verification system (currently known as E-Verify) by
agricultural employers. Taken together, these provisions will
ensure that the U.S. agricultural sector has access to a
stable, reliable, and authorized workforce for the future.
Background and Need for the Legislation
A robust and reliable domestic food supply is a matter of
national security. The more the country is forced to rely on
imported agricultural products, the greater the risks to the
nation. Among these risks are increased exposure to food
contamination or epidemic; without a sufficient volume of food
exports, risks also include fluctuating market prices, reduced
productivity, job loss, and increased debt.\1\ From 2004 to
2014, food imports rose by nearly 60 percent and now account
for nearly one-fifth of the U.S. food supply, including
approximately 49 percent of all consumed fruits and nuts.\2\
Although the increase in imported food can be partially
attributed to changing consumer demands and other factors,
systemic labor challenges in the agricultural sector are a
major contributor to this developing crisis.\3\
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\1\See, e.g., Renee Johnson, Food Safety Issues for the 114th
Congress, Cong. Research Service, Report R42885 at 19-20 (Apr. 10,
2015), http://www.crs.gov/reports/pdf/R42885; Mark A. McMinimy, Major
Agricultural Trade Issues in the 115th Congress, Cong. Research
Service, Report R43905 (Jan. 30, 2017), https://www.crs.gov/Reports/
R43905?source=search&guid=e0a6f4384c27464784f7f64aa8e71055&index=5;
Wayne Campbell, Your View by State Grange: Pennsylvania's Farmers
Desperately Need New Trade Deal, The Morning Call (Nov. 23, 2019),
https://www.mcall.com/opinion/mc-opi-pa-grange-favors-usmca-trade-deal-
20191123-vmjnaypqgncunm4tp27ukvwd2a-story.html.
\2\Efforts to Address the Safety of FDA-Regulated Food Imports,
Cong. Research Service, IF10403 (May 5, 2016), https://www.crs.gov/
reports/pdf/IF10403.
\3\New American Economy, Agriculture, https://
www.newamericaneconomy.org/issues/agriculture/.
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The U.S. agricultural workforce ``has long-consisted of a
mixture of self-employed farm operators and their family
members, and hired workers.''\4\ However, from 1950 to 2000,
the number of self-employed and family farm workers declined by
73 percent.\5\ Most experts believe this decline is due to an
increasingly educated U.S. workforce.\6\ While at least half of
native-born workers lacked a high school diploma through the
1950s, the share of the workforce without such a diploma has
steadily declined, dropping to about 4.5 percent in 2016.\7\
Over the same period, the agricultural sector also experienced
a decline of 52 percent in hired labor, primarily due to
mechanization. However, because the decline in self-employed
and family workers was greater, the relative proportion of
hired farm labor across the industry has increased. As of 2016,
hired workers and contract laborers represented 41 percent of
agricultural labor in the United States.\8\ The majority of
farm laborers are foreign born.\9\
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\4\U.S. Dep't of Agriculture, Farm Labor (Dec. 20, 2018), https://
www.ers.usda.gov/topics/farm-economy/farm-labor/.
\5\Id.
\6\Immigration Policy Center, Facts About Farmworkers, at 2 (May
2009), https://www.americanimmigrationcouncil.org/sites/default/files/
research/Farmworkers%20Fact%20Sheet .pdf.
\7\See U.S. Bureau of Labor Statistics, Foreign-Born Workers: Labor
Force Characteristics Summary, U.S. Dep't of Labor (May 18, 2017),
https://www.bls.gov/news.release/forbrn.nr0.htm; see also U.S. Census
Bureau, Educational Attainment in the United States: 2015, at 2-3 (Mar.
2016), https://www.census.gov/content/dam/Census/library/publications/
2016/demo/p20-578.pdf.
\8\U.S. Dep't of Agriculture, Farm Labor (Dec. 20, 2018), https://
www.ers.usda.gov/topics/farm-economy/farm-labor/.
\9\Of the more than 5,000 crop workers interviewed through the
Department of Labor's National Agricultural Workers Survey (NAWS)
during fiscal years (FY) 2015 and 2016, an estimated 75 percent were
born outside the United States or Puerto Rico. See U.S. Dep't of Labor,
Findings from the National Agricultural Worker Survey (NAWS) 2015-2016,
at i (Jan. 23 2019), https://wdr.doleta.gov/research/
details.cfm?q=&id=2616. See also U.S. Dep't of Agriculture, Farm Labor
(Dec. 20, 2018) (estimating that 53 percent of farm laborers in 2017
were foreign born), https://www.ers.usda.gov/topics/farm-economy/farm-
labor/.
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Despite the country's increased reliance on hired
farmworkers, the legal channels for hiring foreign farmworkers
have not changed in several decades. The H-2A temporary
agricultural worker program has seen significant growth in
recent years, but the program is often criticized by farmers
and ranchers as outdated, overly-burdensome, and expensive.\10\
Moreover, certain agricultural industries are unable to fully
use the program in its current form. America's dairies,
mushroom growers, and other specialty crop farmers that have
year-round labor needs are prohibited from using the H-2A
program, which is currently limited to industries with seasonal
or temporary needs.\11\ The program is also often criticized by
labor advocates for failing to adequately protect foreign
workers from abusive practices and to protect the wages and
working conditions of domestic workers.\12\
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\10\Id.
\11\See 29 C.F.R. Sec. 501.3(c).
\12\See, e.g., Summary of the Final 2010 H-2A Regulations,
Agriculture Coalition for Immigration Reform http://njnla.weebly.com/
uploads/1/4/0/9/1409189/summary_of_final_obama_h-2a_regulations_3-3-
10.pdf; Nicholas C. Geale, Back to Indentured Servitude, Washington
Times (May 10, 2009), http://www.washingtontimes.com/news/2009/may/10/
back-to-indentured-servitude/.
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Moreover, while the Immigration and Nationality Act (INA)
makes immigrant visas, or ``green cards,'' available for
employers to sponsor foreign workers for permanent labor needs,
restrictive visa caps have made this program effectively
unavailable for decades. Currently, the INA provides less than
10,000 immigrant visas per year for workers who engage in year-
round, lower-skilled labor--across all sectors of the U.S.
economy.\13\ Because demand for these visas far outweighs
supply, the program has been oversubscribed for years,
resulting in long backlogs for new sponsor petitions.\14\ And,
as noted above, these visas are unavailable to fill temporary
or seasonal needs.
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\13\Since FY 2002, up to 5,000 of these visas have been allocated
to individuals receiving lawful permanent resident status under section
203 of the Nicaraguan and Cuban Adjustment Relief Act of 1997 (NACARA),
Pub. Law 105-100, 111 Stat. 2160 (Nov. 19, 1997). However, in FY 2017,
the most recent year for which data is available, approximately 700
visa numbers were offset from the 5,000 set-aside, as NACARA programs
continue to wind down. See U.S. Dep't of Homeland Security, Yearbook of
Immigration Statistics (2017), at Table 7, https://www.dhs.gov/
immigration-statistics/yearbook/2017. The Department of State states
that in FY 2020, ``this reduction will be limited to approximately
350.'' U.S. Dep't of State, Visa Bulletin (Dec. 2019), https://
travel.state.gov/content/dam/visas/Bulletins/
visabulletin_december2019.pdf.
\14\See William A. Kandel, Permanent legal Immigration to the
United States: Policy Overview, Cong. Research Service, Report R42866
at Fig. 4: Approved LPR Visa Petitions Pending as of November 1, 2017
(May 11, 2018), https://www.crs.gov/Reports/R42866?source=search&
guid=df336568dc134449b8a6a56b122ee66e&index=0#_Toc514080628.
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Due to these and other reasons, U.S. farmers have found it
difficult to keep American farms running. In the face of
problematic and potentially unavailable visa programs, many
have turned to an unauthorized workforce. Without reforms to
our immigration laws, these difficulties will only compound.
Many U.S. agricultural producers are already experiencing
decreased productivity and earnings.\15\ Some farms and ranches
have been forced to close, while others have simply off-shored
production to Mexico or other nations where agricultural
workers are in greater supply.
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\15\See, e.g., Erin Anthony, With Fewer Hands in the Field, More
Food Goes to Waste, American Farm Bureau Federation (Sep. 18, 2019),
https://www.fb.org/viewpoints/with-fewer-hands-in-the-field-more-food-
goes-to-waste; Megan Henney, California farms are suffering from a
labor shortage. Here's why, Fox Business (May 1, 2019), https://
www.foxbusiness.com/economy/california-farms-are-suffering-from-a-
labor-shortage-heres-why; Bruce Talbott, Our fruit is rotting in the
trees as laborers are kept out of the country, Washington Post (Aug.
24, 2018), https://www.washingtonpost.com/opinions/our-fruit-is-
rotting-in-the-trees-as-laborers-are-kept-out-of-the-country/2018/08/
24/bf119ad6-a6e6-11e8-8fac-12e98c13528d_story.html.
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The lack of an adequate labor supply damages more than the
agricultural economy. Productivity losses also have a ripple
effect on other sectors, including the domestic workers in
those sectors. According to the U.S. Department of Agriculture,
for every on-farm job, there are about 3.1 ``upstream'' and
``downstream'' jobs--jobs that support and are created by
agricultural production.\16\ The vast majority of these
complementary jobs are held by U.S. workers, who would also
face unemployment if on-farm jobs are eliminated or moved out
of the country.\17\ With respect to the dairy industry, a 2015
report by Texas A&M AgriLife Research and the Center for North
American Studies found the following:
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\16\Hearing to Review the Labor Needs of American Agriculture
Before the H. Comm on Agriculture, 110th Cong. 5 (2007) (statement of
James Holt, Agricultural Labor Economist), https://www.govinfo.gov/
content/pkg/CHRG-110hhrg48999/html/CHRG-110hhrg48999.htm.
\17\Id.
A 50 percent labor loss [in milk producing farms]
would be expected to reduce fluid milk sales by dairies
by $5.8 billion while the economic loss throughout the
U.S. economy would [be] $16.0 billion. . . . The
majority of the losses occurring off the dairy farm
($10.2 billion), would be due to declining purchases by
dairies from sectors that support dairy farm
operations, such as input supply (fuel and feed),
transportation, real estate and wholesale trade.\18\
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\18\Texas A&M AgriLife Research and the Center for North American
Studies, The Economic Impacts of Immigrant Labor on U.S. Dairy Farms at
16 (Aug. 2015), https://www.nmpf.org/wp-content/uploads//immigration-
survey-090915.pdf.
The deleterious effects on the U.S. economy, and the workers
that support agriculture, will only increase as the
agricultural labor situation continues to worsen.
THE UNDOCUMENTED AGRICULTURAL WORKFORCE
Since the onset of World War I, when migration from Europe
slowed significantly, Mexican laborers have played an
increasingly important role in sustaining the American
agricultural sector.\19\ The migration of Mexican farmworkers
was at first unregulated, and later formalized when the
``Bracero program'' was created in 1942.\20\ The Bracero
program, however, grew to be controversial, leading to its
eventual termination in 1965. Without an authorized channel to
import farmworkers, the number of undocumented Mexican workers
then began to grow, given that ``the jobs were here, the
relationships existed between Mexico and the United States, and
there was limited enforcement across the Southwest
border.''\21\
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\19\Southern Poverty Law Center, Close to Slavery: Guestworker
Programs in the United States, 2013 Ed. (2013), https://
www.splcenter.org/sites/default/files/d6_legacy_files/downloads/
publication/SPLC-Close-to-Slavery-2013.pdf.
\20\Id. at 3.
\21\How Did We Get to 11 Million Unauthorized Immigrants?, National
Public Radio (Mar. 7, 2017), https://www.npr.org/2017/03/07/518201210/
how-did-we-get-to-11-million-unauthorized-immigrants.
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In the 1980s, the unauthorized workforce grew at
unprecedented levels, as an economic crisis in Mexico and a
booming U.S. economy sent more young Mexican workers north in
pursuit of work.\22\ By 2001, the undocumented agricultural
workforce had grown to nearly 55 percent.\23\ Since then, it
has hovered around 50 percent, with the Department of Labor
estimating that as of the end of fiscal year (FY) 2016, about
half of the nation's 2.4 million farm workers lacked work
authorization.\24\ More recently, because of an improved
Mexican economy and an increasing emphasis on border and
interior enforcement, the number of Mexican workers crossing
the U.S.-Mexico border in pursuit of agricultural opportunities
has decreased significantly.\25\
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\22\Id.
\23\U.S. Dep't of Agriculture, Farm Labor (Dec. 20, 2018), https://
www.ers.usda.gov/topics/farm-economy/farm-labor/.
\24\U.S. Dep't of Labor, Findings from the National Agricultural
Worker Survey (NAWS) 2015-2016, at i (Jan. 23 2019), https://
wdr.doleta.gov/research/details.cfm?q=&id=2616.
\25\What we Know About Illegal Immigration from Mexico, Pew
Research Center (Dec. 3, 2018), https://www.pewresearch.org/fact-tank/
2018/12/03/what-we-know-about-illegal-immigration-from-mexico/.
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On average, foreign-born farmworkers in the United States
have resided here for an average of 18 years.\26\ These workers
have developed knowledge and skills crucial to the continued
viability of America's farms, and they cannot simply be
replaced without significant cost to American agricultural
producers and consumers. It is estimated that ``[i]f
agriculture were to lose access to all undocumented workers,
agricultural output would fall by $30 to $60 billion.''\27\
Moreover, notwithstanding the indispensable role that these
farmworkers play in sustaining the domestic food supply, their
jobs are among the most difficult and least compensated in the
country. Without legal status, farmworkers are at even greater
risk of abuse and exploitation.
---------------------------------------------------------------------------
\26\U.S. Dep't of Labor, Findings from the National Agricultural
Worker Survey (NAWS) 2015-2016, at i (Jan. 23 2019), https://
wdr.doleta.gov/research/details.cfm?q=&id=2616.
\27\Economic Impact of Immigration, American Farm Bureau
Federation, https://www.fb.org/issues/immigration-reform/agriculture-
labor-reform/economic-impact-of-immigration.
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THE H-2A TEMPORARY AGRICULTURAL WORKER PROGRAM
Created by the Immigration Reform and Control Act of 1986
(IRCA), the H-2A program provides for the temporary admission
of foreign workers to perform agricultural work of a seasonal
or temporary nature.\28\ In recent years, as U.S. workers
continue to turn to other professions and the number of
undocumented farmworkers has begun to decline, use of the H-2A
program has grown significantly. Between FYs 1992 and 2012, no
more than 65,000 visas were issued in any one fiscal year.\29\
As of FY 2018, the number of visas issued has more than tripled
to almost 200,000.\30\ H-2A visas are not subject to numerical
limit.
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\28\Act of Nov. 6, 1986, Pub. L. 99-603; 100 Stat. 3359.
\29\Andorra Bruno, H-2A and H-2B Temporary Worker Visas: Policy and
Related Issues, Cong. Research Service, Report R44849 (May 10, 2017),
https://www.crs.gov/Reports/
R44849?source=search&guid=734a5b71a6134bbb8baaf9275470cc1c&index=0.
\30\U.S. Dep't of State, Report of the Visa Office 2018,
Nonimmigrant Visas Issued by Classification (Including Border Crossing
Cards) Fiscal Years 2014-2018, https://travel.state.gov/content/dam/
visas/Statistics/AnnualReports/FY2018AnnualReport/FY18AnnualReport%20-
%20TableXVIB .pdf.
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The following chart further illustrates the growth in H-2A
program utilization using data from the Department of Labor.
While the Department of Labor certified just over 48,000 H-2A
positions in FY 2005, that number has since increased five-
fold, with nearly 243,000 positions certified in FY 2018, with
employers in Georgia, Florida, Washington, North Carolina, and
California receiving the highest volume of H-2A
certifications.\31\
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\31\``There are more H-2A-certified jobs than workers because some
employers do not hire an H-2A worker after a job has been certified and
some workers fill two or more jobs. Each worker requires a visa, and
the ratio of visas issued to jobs certified has been falling, which
suggests that there are fewer H-2A workers filling several jobs.'' The
H-2A Farm Guestworker Program is Expanding Rapidly: Here Are the
Numbers You Need to Know, Economic Policy Institute (Apr. 13, 2017),
https://www.epi.org/blog/h-2a-farm-guestworker-program-expanding-
rapidly/.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Both farmers and labor advocates, however, find that the H-2A
program has serious deficiencies. A small sample of these
deficiencies are outlined in the following sections.
H-2A Processing
Among the most criticized aspects of the H-2A program is
the outdated process for seeking labor certification and filing
petitions for H-2A workers. This process requires multiple,
duplicative filings with several government agencies, and it is
often disparaged by users as expensive, time-consuming, and
overly bureaucratic. Specifically, the current H-2A process
involves, at minimum, the following four steps:\32\
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\32\See generally, U.S. Dep't of Labor, Employer Guide to
Participation in the H-2A Temporary Agricultural Program (Jan. 2012),
https://www.foreignlaborcert.doleta.gov/pdf/H-2A_Employer_Handbook.pdf.
Step 1: The employer must first submit a detailed
document describing the job opportunity, known as a
``job order,'' with the State Workforce Agency (SWA) in
the state where the requested agricultural work will be
performed.\33\ The SWA then reviews the job order to
determine whether the job opportunity qualifies under
the H-2A program and to initiate recruitment.
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\33\A job order is a document containing the material terms and
conditions of employment relating to wages, working conditions,
worksite, and other benefits. 20 C.F.R. Sec. 651.10.
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Step 2: If the job order is approved by the SWA, the
employer must then file an application for temporary
labor certification, along with the job order and other
supporting documentation, with the Department of Labor.
The Department of Labor then reviews the application to
further determine whether the job opportunity qualifies
for the H-2A program, including by certifying that
there are no qualified U.S. workers available to
perform the work and that hiring H-2A workers will not
adversely affect the wages and working conditions of
similarly employed U.S. workers.
Step 3: If the Department of Labor issues the labor
certification, the employer must then file a petition
with U.S. Citizenship and Immigration Services within
the Department of Homeland Security. Along with the
petition, the employer must provide the labor
certification and proof that the position is seasonal
or temporary and that any named beneficiaries meet the
minimum job requirements. The petition and supporting
documentation are largely duplicative of the labor
certification application and supporting documentation
filed with the Department of Labor.
Step 4: If U.S. Citizenship and Immigration Services
approves the petition and the prospective workers are
outside the United States, the H-2A workers must apply
for visas with the Department of State and then
admission with U.S. Customs and Border Protection at a
port of entry. If a visa is not required, the workers
may directly seek admission in H-2A status at a port of
entry.
As described above, this process requires the filing of
largely duplicative filings with different agencies, and
certain factors are subject to redundant adjudication.
Moreover, employers with varied labor needs throughout the year
must engage in this process multiple times. For example, a
strawberry grower may first need 10 workers to plant seeds, an
additional 10 workers in a few weeks to tend the plants, and an
additional 20 workers near the end of the season for harvest.
Under current practice, that employer must engage in the full
H-2A process--and each of the steps described above--at least
three times--once for each distinct labor need. These multiple
application points significantly increase the cost and
complexity of the H-2A petition process for employers.
H-2A Wage Requirements
The H-2A program's wage requirements are also often
criticized, particularly the wage standard known as the adverse
effect wage rate, or ``AEWR.'' Current H-2A regulations require
employers to pay H-2A workers, and workers in corresponding
employment (i.e., workers who are similarly employed), at least
the highest of: (1) the AEWR; (2) the prevailing wage rate;
(iii) the prevailing piece rate; (iv) the agreed-upon
collective bargaining wage; or (5) the applicable Federal or
State minimum wage.\34\
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\34\20 CFR Sec. 655.120(l).
---------------------------------------------------------------------------
For the vast majority of H-2A employers, the AEWR is the
highest--and thus, governing--wage rate. The AEWR is derived
from the Farm Labor Survey, which is conducted by the National
Agricultural Statistics Service of the Department of
Agriculture.\35\ The Department of Agriculture surveys U.S.
farms and ranches on a rolling basis to compile employment and
wage data for farmworkers in the United States as a whole, and
in each of 15 multi-state labor regions as well as the single-
state regions of California, Florida, and Hawaii.\36\
---------------------------------------------------------------------------
\35\See generally, Nat'l Agricultural Statistics Service, Surveys--
Farm Labor, U.S. Dep't of Agriculture, https://www.nass.usda.gov/.
\36\See id.
---------------------------------------------------------------------------
Although the Department of Agriculture collects information
on all types of farm occupations (e.g., crop picking, machine
operating, and supervising), survey data is aggregated to
arrive at a single AEWR for field and livestock workers
(combined) in each state or region. The AEWR is generally set
at the rate that is equal to the annual weighted average hourly
wage rate (i.e., arithmetic mean) as derived from the surveyed
data. Although the AEWR is derived from aggregated data, the
resulting single wage rate is applicable to all H-2A workers
(except for certain workers engaged in herding or production of
livestock on the range).
As noted above, the AEWR has been the subject of debate for
years. According to a 2017 Congressional Research Service
report:
Policy differences about H-2A wage requirements
center on the AEWR; the H-2A visa is the only
nonimmigrant visa subject to it. Farm labor advocates
have argued that the AEWR is necessary to protect U.S.
agricultural workers from a possible depression of
wages resulting from the hiring of foreign workers.
Employers have long maintained that the AEWR, as
traditionally calculated using USDA's Farm Labor Survey
data, results in inflated wage rates.\37\
---------------------------------------------------------------------------
\37\Andorra Bruno, H-2A and H-2B Temporary Worker Visas: Policy and
Related Issues, Cong. Research Service, Report R44849 (May 10, 2017),
https://www.crs.gov/Reports/
R44849?source=search&guid=734a5b71a6134bbb8baaf9275470cc1c&index=0.
Due in part to such concerns, the current Administration has
proposed regulatory changes to the H-2A program, including a
modification to the current AEWR methodology to provide for
more specific wage rates.\38\ Specifically, the rule would
disaggregate the Department of Agriculture's surveyed wage data
and report out distinct wage rates for each of the various
farm-related occupations in which H-2A workers are hired.\39\
In other words, under the proposed rule, the administration
would set an AEWR for crop workers based on wage data about
crop workers; an AEWR for machine operators based on wage data
about machine operators; and an AEWR for supervisors based on
wage data about supervisors.
---------------------------------------------------------------------------
\38\U.S. Dep't of Labor, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States (July 26, 2019), https://
www.federalregister.gov/documents/2019/07/26/2019-15307/temporary-
agricultural-employment-of-h-2a-nonimmigrants-in-the-united-states.
\39\Id., at proposed 20 C.F.R. Sec. 655.120.
---------------------------------------------------------------------------
H-2A Labor Protections
Labor advocates have long stated that labor protections in
the H-2A program need to be strengthened and better enforced.
Many have raised serious questions as to whether the wage
requirements described above, along with labor market tests and
other H-2A program requirements, are sufficient to actually
protect the wages and working conditions of domestic
workers.\40\
---------------------------------------------------------------------------
\40\Close to Slavery: Guestworker Programs in the United States,
2013 Edition (2013), https://www.splcenter.org/sites/default/files/
d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf;
Ruth Ellen Wasem, Immigration of Foreign Workers: Labor Market Tests
and Protections, Cong. Research Service, Report RL33977 (Dec. 20,
2010), https://www.crs.gov/Reports/RL33977?source=search.
---------------------------------------------------------------------------
To protect domestic workers, the H-2A program currently
requires employers to affirmatively recruit U.S. workers and to
hire any qualified U.S. worker who applies for a job until 50
percent of the work contract has elapsed.\41\ H-2A workers are
also entitled to free housing for the period of the contract, a
guarantee of receiving at least three-fourths of the total
hours promised in the contract, reimbursement for certain
travel costs, and workers' compensation coverage.\42\ However,
because H-2A workers can work only for petitioning employers
and those workers are dependent on the employers for their
status and their ability to return in future seasons, labor
advocates contend that existing protections are--for all
practical purposes--largely diminished.\43\
---------------------------------------------------------------------------
\41\20 C.F.R. Sec. 655.135(d).
\42\See generally, 20 C.F.R. Sec. 655.135.
\43\Ruth Ellen Wasem, Immigration of Foreign Workers: Labor Market
Tests and Protections, Cong. Research Service, Report RL33977 (Dec. 20,
2010), https://www.crs.gov/Reports/RL33977?source=search.
---------------------------------------------------------------------------
Many U.S. employers also use private agencies to find and
recruit temporary workers in their home countries, mostly in
Mexico and Central America. These foreign labor recruiters may
charge fees to workers and require them to leave collateral to
ensure that they fulfill the terms of their contract.
Consequently, labor advocates argue that many H-2A workers come
to the United States with large debts and virtually no
possibility of repaying these debts during their authorized
work periods. This leaves such workers in a precarious economic
state and further vulnerable to abuse and exploitation.
E-VERIFY AND THE AGRICULTURAL SECTOR
E-Verify is a web-based system, administered by USCIS, that
allows enrolled users (employers and recruiters) to confirm the
identity and work authorization of individuals they are seeking
to hire or recruit (or refer for a fee) for employment in the
United States.\44\ The E-Verify system is used to confirm the
identity and employment authorization of an employee by
electronically matching information provided by the employee
against records held by the Social Security Administration, the
Department of Homeland Security, and the Department of
State.\45\ If the information fails to match the information at
the appropriate federal agency, the employee will receive a
tentative nonconfirmation (TNC). The employee has 8 business
days to challenge the TNC, and if the employee fails to do so,
or if work authorization is not confirmed after a challenge, E-
Verify will issue a final nonconfirmation (FNC). E-Verify is
currently voluntary for most employers, but is mandatory for
some, including Federal government agencies, certain Federal
government contractors, and employers in certain states that
have mandated the use of E-Verify for some or all employers.
---------------------------------------------------------------------------
\44\See generally, USCIS E-Verify, https://www.e-verify.gov/.
\45\Id.
---------------------------------------------------------------------------
Given that roughly half of all farmworkers in the United
States are undocumented, an E-Verify mandate without an
accompanying legalization component would devastate the
agricultural sector.\46\ The American Farm Bureau Federation,
for example, has estimated that mandatory E-Verify without
stabilization of the agricultural workforce would reduce fruit
production 30 to 61 percent and vegetable production 15 to 31
percent.\47\
---------------------------------------------------------------------------
\46\U.S. Dep't of Labor, Findings from the National Agricultural
Worker Survey (NAWS) 2015-2016, at i (Jan. 23 2019), https://
wdr.doleta.gov/research/details.cfm?q=&id=2616; Mandatory E-Verify Too
Costly for Employers, Workers, and Taxpayers, National Immigration Law
Center (June 2015), https://www.nilc.org/wp-content/uploads/2015/11/E-
Verify-issue-brief-2015-06-26.pdf.
\47\Agricultural Labor--E-Verify, American Farm Bureau Federation
(Feb. 2018), https://www.fb.org/files/E-Verify_2018.pdf.
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Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to develop H.R.
5038: ``Securing the Future of American Agriculture,'' held
before the Subcommittee on Immigration and Citizenship on April
3, 2019. The Subcommittee heard testimony from: Arturo S.
Rodriguez, former President of the United Farm Workers; Tom
Nassif, President and CEO of Western Growers; Areli Arteaga,
former dairy worker and child of farmworkers; and Bill Brim,
President of Lewis Taylor Farms, Inc. in Tifton, Georgia.
Witnesses shared their personal stories and experiences with
respect to the current state of the U.S. agricultural industry,
highlighting the urgent need to address the growing labor
crisis impacting America's farms.
Committee Consideration
On November 20, 2019, the Committee met in open session on
H.R. 5038. An amendment in the nature of a substitute was
offered by Mr. Nadler, and two amendments to the amendment in
the nature of a substitute passed by voice vote: (1) an
amendment offered by Ms. Lofgren to correct various
typographical errors and variances in the underlying bill; and
(2) an amendment offered by Ms. Jackson Lee to expand
eligibility for certified agricultural worker (CAW) status
under section 101 to individuals in the United States pursuant
to deferred enforced departure (DED) or temporary protected
status (TPS). On November 21, 2019, the Committee ordered the
bill, H.R. 5038, favorably reported with an amendment in the
nature of a substitute by a rollcall vote of 18 to 12, a quorum
being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 5038:
1. An amendment by Mr. Collins to strike subsections (a)
and (b) of section 204, which ensures that H-2A workers are
protected by existing labor laws, including the Migrant and
Seasonal Agricultural Worker Protection Act, was defeated by a
rollcall vote of 8 to 16.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Collins to amend section 204(b) to
authorize courts to dismiss complaints filed by H-2A workers
alleging a violation of the Migrant and Seasonal Agricultural
Worker Protection Act, if, not later than five days after
receiving service of the complaint, the employer files
documentation with the court demonstrating that the action
giving rise to the complaint has been remedied, was defeated by
a rollcall vote of 9 to 16.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Chabot to amend section 101(b) by
adding a new bar to eligibility for certified agricultural
worker status or optional earned lawful permanent resident
status based on either: (1) a single conviction for driving
while intoxicated causing serious bodily injury or the death of
another person; or (2) two or more convictions for driving
while intoxicated, was defeated by a rollcall vote of 7 to 16.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
4. An amendment by Ms. Lesko to amend section 111 to
condition the Secretary of Homeland Security's approval of a
self-petition for lawful permanent resident status filed by a
dependent spouse or child who has been battered or subjected to
extreme cruelty on such Secretary's denial of any pending
adjustment of status application and revocation of certified
agricultural worker status, was defeated by a rollcall vote of
7 to 12.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. An amendment by Mr. Steube to amend section 202 of the
bill to replace the bill's wage provisions with provisions
requiring employers to offer wages that are equal to the
greatest of: (1) the applicable State or local minimum wage;
(2) 115 percent of the Federal minimum wage; or (3) the actual
wage paid by the employer to all other individuals in the job,
was defeated by a rollcall vote of 8 to 15.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
6. Motion to report H.R. 5038, as amended, favorably was
agreed to by a vote of 18 to 12.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H.R. 5038 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5038 would address longstanding labor issues in our country's
agricultural sector by: (1) creating a program for undocumented
agricultural workers to apply for temporary immigration status,
with an option for long-term workers to earn lawful permanent
resident status through continued agricultural employment and
the payment of penalties; (2) reforming the H-2A temporary
agricultural worker program to make it more streamlined, user-
friendly, and cost-effective for employers, while strengthening
labor protections for all farmworkers; and (3) phasing in
mandatory use of an electronic employment eligibility
verification system (patterned on E-Verify) for the
agricultural sector.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5038 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Title I. Securing the Domestic Agricultural Workforce.
Title I generally establishes two programs for experienced
agricultural workers in the United States to earn immigration
status through continued agricultural employment.
Subtitle A. Temporary Status for Certified Agricultural
Workers. Subtitle A creates a new temporary immigration status,
known as Certified Agricultural Worker (CAW) status, for
certain farmworkers in the United States.
Sec. 101. Certified Agricultural Worker Status. Section
101(a) sets forth the criteria for farmworkers in the United
States to receive CAW status for themselves, and dependent
status for their spouses and minor children. To be eligible,
workers must: (1) have worked at least 180 days in agriculture
in the two years prior to the date of the bill's introduction
(November 12, 2019); (2) be inadmissible or deportable from the
United States, or under a grant of deferred enforced departure
or temporary protected status, on November 12, 2019; and (3)
have been continuously present in the United States from that
date until the date they are granted CAW status.
Section 101(b) sets forth the grounds for ineligibility for
CAW (and dependent) status. Applicants and any dependents must
generally be ``admissible'' under section 212(a) of the
Immigration and Nationality Act (INA), except that: (1) certain
grounds are excused (e.g., public charge, labor certification,
unlawful presence); (2) certain grounds are waived unless the
relevant conduct occurred after the date of the bill's
introduction (e.g., misrepresenting immigration status, being a
stowaway, violating a student visa); and (3) certain grounds
are waived unless the relevant conduct occurred after the date
of application for CAW status (e.g., failing to attend
proceedings, receiving a removal order).
In addition to the normal criminal and security bars that
apply to all applicants for admission, the bill also contains
new catch-all criminal bars. Applicants are ineligible for CAW
(or dependent) status if they have been convicted of: (1) any
felony (excluding State offenses involving immigration status);
(2) an aggravated felony, as defined in section 101(a)(43) of
the INA; (3) two misdemeanor offenses of moral turpitude
(generally, crimes involving the intent to injure or steal); or
(4) more than two misdemeanor offenses of any kind (excluding
offenses involving immigration status or minor traffic
offenses), not occurring on the same date or arising out of the
same misconduct. The Department of Homeland Security is
provided the discretion to waive certain grounds of
inadmissibility, but not the bars related to convictions for
felonies, aggravated felonies, or more than two misdemeanors.
Section 101(c) delineates the application process for CAW
status, including an 18-month period for taking applications.
Applications may be filed with the Department of Homeland
Security with the assistance of an attorney or an organization
recognized by the Board of Immigration Appeals as able to
provide services to immigrants. The Department of Homeland
Security shall also establish a process with the Department of
Agriculture to allow individuals to submit applications at Farm
Service Agency offices throughout the United States. This
provision is intended to make it easier for individuals in
rural areas to physically submit applications, including by
allowing Department of Homeland Security personnel to use Farm
Service Agency space during the application process. There is
no intent to shift processing or adjudicatory responsibilities
to the Department of Agriculture; those are intended to remain
with the Department of Homeland Security. The agencies are
expected to cooperate to ensure that this provision does not
inhibit the ability of Farm Service Agency employees to fulfill
their primary missions.
Once an application is submitted, applicants receive
interim proof of employment authorization and the ability to
apply for travel permission, if needed. Applicants may not be
detained or removed while the application is pending unless the
Department of Homeland Security makes a prima facie
determination that the applicant is ineligible for CAW status.
Applicants may also withdraw their applications without
prejudice.
Section 101(d) requires the Department of Homeland Security
to adjudicate applications for CAW status within 180 days
(unless background checks and security clearances are still
pending). Prior to issuing a denial, the Department must
provide written notice to the applicant and allow the applicant
at least 90 days to correct any deficiencies in the
application.
Section 101(e) states that farmworkers who do not qualify
for CAW status because they cannot demonstrate sufficient past
agricultural work, may be eligible for H-2A status if they have
performed at least 100 days of agricultural work in the three
years prior to November 12, 2019. Such individuals shall be
eligible for H-2A status without having to depart the United
States.
Sec. 102. Terms and Conditions of Certified Status. Section
102(a) provides that CAW status is valid for five and one-half
years beginning on the date of approval. The Department of
Homeland Security shall issue documentary evidence of status to
workers and their dependents, and such documents shall serve as
evidence of travel and work authorization (for workers and
dependents). The validity period of five and one-half years is
intended to provide recipients with sufficient time to satisfy
the five-year agricultural work requirement and facilitate the
efficient processing of applications to renew CAW status.
Section 102(b) allows spouses and children with dependent
status to apply for principal CAW status if they are not
ineligible due to criminal and other bars to eligibility. Upon
receiving principal CAW status, such individuals would be
required to satisfy the applicable agricultural work
requirements to apply for renewal of such status or to apply
for lawful permanent resident status under Subtitle B. Section
102(b) also clarifies that nothing prevents workers or
dependents from changing to any other nonimmigrant
classification for which they may be eligible.
Section 102(c) provides that individuals holding CAW or
dependent status shall be considered lawfully present for all
purposes, except that they are ineligible to receive: (1)
federal means-tested public benefits to the same extent as
other individuals who are not ``qualified aliens''' as defined
in section 431 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996; and (2) premium
assistance tax credits, under section 36B of the Internal
Revenue Code of 1996, for the maintenance of health care
coverage. Such individuals shall also be subject to the rules
applicable to individuals who are not lawfully present for
purposes of certain requirements of the Patient Protection and
Affordable Care Act.
Section 102(d) authorizes the Department of Homeland
Security to revoke CAW or dependent status, after notice and
opportunity to contest the revocation, upon a finding that the
recipient no longer meets the eligibility requirements for such
status under section 101(b).
Sec. 103. Extension of Certified Status. Section 103(a)
establishes the procedures for obtaining extensions of CAW and
dependent status, which may be extended indefinitely if
applicants comply with the requirements of this section during
each five-and-one-half-year period in CAW status. Absent
extraordinary circumstances, applicants must apply to extend
status within a 120-day window straddling the end of the fifth
year of CAW status. Specifically, the 120-day application
window begins 60 days before the expiration of the fifth year
of CAW status and is intended to provide applicants with ample
opportunity to satisfy the agricultural work requirements
necessary for renewal. Applicants must demonstrate that they
worked in agriculture for at least 100 work days for each of
the 5 years in CAW status (except as otherwise provided), and
that they are not ineligible due to criminal or other bars to
eligibility. Section 103(a) further allows the Department of
Homeland Security to waive an applicant's failure to timely
file before the expiration of the 120-day window if the
applicant demonstrates that the delay resulted from
extraordinary circumstances or other good cause.
Section 103(b) automatically extends CAW status and
employment authorization based on a timely filed extension
application, until a final decision is made on the application.
Section 103(c) provides that, prior to denying an extension
application, the Department of Homeland Security must provide
written notice to the applicant along with 90 days to respond.
Sec. 104. Determination of Continuous Presence. Section
104(a) provides that an applicant's ``continuous presence'' in
the United States is not terminated based simply upon the
service of a notice to appear to initiate removal proceedings.
Section 104(b) states that absent extenuating circumstances
or prior approval for travel by the Department of Homeland
Security, applicants will fail to maintain continuous presence
if they depart the United States for any period exceeding 90
days, or any periods exceeding 180 days in the aggregate.
Sec. 105. Employer Obligations. Section 105 requires
employers to provide workers with written records of employment
for each year such workers were employed in CAW status.
Employers are subject to civil penalties of up to $500 per
violation if they knowingly fail to provide, or make false
statements of material fact in, such records.
Sec. 106. Administrative and Judicial Review. Section 106
requires the Department of Homeland Security to establish a
process for administrative review of the denial or revocation
of CAW status, and limits judicial review to review of a final
order of removal. All records related to an individual's
application for CAW status (including an extension or
revocation of such status) shall be included in the
administrative record and are admissible in immigration court.
Judicial review of the denial or revocation of CAW status is
limited to judicial review of a final order of removal.
Subtitle B. Optional Earned Residence for Long-Term
Workers. Subtitle B recognizes the contribution of farmworkers
to the economy and vibrancy of U.S. agriculture by providing an
option to earn lawful permanent resident (LPR) status through
additional agricultural work and the payment of penalties. As
noted previously, workers in CAW status are not required to
seek LPR status at any point. Workers in CAW status can renew
such status indefinitely by complying with the requirements of
Subtitle A, and they may return to their home country at any
point if they so choose.
Sec. 111. Optional Adjustment of Status for Long-Term
Agricultural Workers. Section 111(a) authorizes the Department
of Homeland Security to adjust the status of a worker in CAW
status to LPR status if the worker remains eligible for CAW
status, the worker pays the penalty under section 111(b), and
the worker demonstrates completion of one of the following work
requirements: (1) if the applicant worked in U.S. agriculture
for 10 or more years prior to the date of the bill's enactment,
the applicant must demonstrate another 4 years of agricultural
work in CAW status; or (2) if the applicant worked in U.S.
agriculture for less than 10 years prior to the date of
enactment, the applicant must demonstrate another 8 years of
agricultural work in CAW status. The Committee intends that
workers be eligible to apply for LPR status with either 4 or 8
years of additional work in CAW status, as appropriate based on
their prior work history. A spouse or child may also adjust to
LPR status if the qualifying relationship exists at the time of
adjudication and the spouse or child is not ineligible based on
criminal or other bars listed in section 101(b). The bill
includes protections for dependents in cases involving the
death of the worker or severe domestic violence. The bill also
provides that when applying for LPR status, workers are not
required to resubmit evidence of work history that has been
previously submitted and accepted by the Department of Homeland
Security.
Section 111(b) requires applicants for LPR status to pay a
penalty fee of $1,000.
Section 111(c) provides that upon filing for adjustment of
status, applicants may apply for travel permission, if needed.
Applicants are not considered unlawfully present, and may not
be detained or removed, while the application is pending unless
the Department of Homeland Security makes a prima facie
determination that the applicant is ineligible for LPR status.
Section 111(d) states that applicants shall be provided
proof of filing, which shall serve as interim proof of work
authorization.
Section 111(e) allows applicants to withdraw applications
without prejudice.
Sec. 112. Payment of Taxes. Section 112 prohibits
adjustment to LPR status unless the applicant has satisfied any
applicable Federal tax liabilities incurred since the date on
which the applicant was provided CAW status.
Sec. 113. Adjudication and Decision; Review. Section 113
requires the Department of Homeland Security to adjudicate
applications for LPR status within 180 days (unless background
checks and security clearances are still pending). Prior to
issuing a denial, the Department must provide applicants with
written notice and 90 days to correct any deficiencies. The
Department must also establish an administrative review
process. Judicial review of the denial of an application for
LPR status may be sought in an appropriate United States
district court.
Subtitle C. General Provisions.
Sec. 121. Definitions. Section 121 defines the following
terms for the purposes of Title I of the bill: agricultural
labor or services; applicable Federal tax liability;
appropriate United States district court; child; convicted or
conviction; employer; qualified designated entity; Secretary;
and work day.
Sec. 122. Rulemaking; Fees. Section 122 requires the
Department of Homeland Security to publish interim final rules
within 180 days of the date of the bill's enactment and to
finalize such rules within one year of such enactment. The
Department is authorized to charge reasonable filing fees
commensurate with the costs of processing applications under
Title I, and it must establish procedures for: (1) the waiver
of fees, and (2) the payment of fees or penalties in
installments. Section 122 also clarifies that nothing in the
bill prevents employers from paying such fees or penalties on
behalf of workers or their spouses and minor children.
Sec. 123. Background Checks. Section 123 requires the
Department of Homeland Security to collect biometric and
biographic data from applicants and prohibits the granting of
benefits unless security and background checks are completed to
the Department's satisfaction.
Sec. 124. Protection for Children. Section 124 sets a
child's age, for purposes of obtaining CAW or LPR status as a
dependent, on the filing date of the parent's first application
for CAW status. This age-out protection applies for no more
than 10 years after that filing date.
Sec. 125. Limitation on Removal. Section 125(a) requires
that individuals who are prima facie eligible for status under
Title I be given a reasonable opportunity to apply for such
status. This section also prohibits individuals who are prima
facie eligible from being placed in removal proceedings, or
removed, until a final decision on the application is rendered.
Section 125(b) requires termination of removal proceedings
against individuals who are prima facie eligible for status
under Title I. Such individuals must be provided a reasonable
opportunity to apply for such status.
Section 125(c) allows an individual ordered removed, or
granted voluntary departure, to apply for status without first
having to file a motion with the relevant immigration court. If
the application is approved, the order of removal or voluntary
departure is cancelled; if the application is denied, the order
remains in effect.
Section 125(d) clarifies that individuals with orders of
removal shall not be deemed to have executed these orders as a
result of departing the United States if the individuals have
been granted status or have obtained advance permission to
travel abroad from the Secretary.
Sec. 126. Documentation of Agricultural Work History.
Section 126(a) requires applicants for CAW or LPR status to
provide evidence that they satisfied any agricultural work
requirements. Section 126(b) sets forth the types of evidence
that may be submitted. These include employment records
maintained by employers and collective bargaining
organizations, tax records and other government records, sworn
affidavits from persons who have direct knowledge of the
applicant's work history, and other documentation designated by
the Department of Homeland Security for such purpose. This
section is intended to allow applicants for status under Title
I to satisfy the agricultural work requirement through the
submission of various types of evidence considering the
difficulty many undocumented individuals are likely to have
proving employment, and the duration of such employment, as far
back as 10 years ago.
Section 126(c) allows the Department of Homeland Security
to credit an applicant with not more than 575 hours (or 100
work days) of agricultural labor or services if the applicant
was unable to perform such services due to extraordinary
circumstances, including: pregnancy, illness, disabling injury,
or physical limitation of the applicant; injury, illness, or
special needs of the applicant's spouse or child; severe
weather conditions; or termination from employment if the
Department of Homeland Security determines that such
termination was without just cause and the applicant was unable
to find alternative agricultural employment after a reasonable
job search. This section recognizes that there are certain
situations in which a worker may be unable to satisfy all of
the applicable agricultural work requirements due to
circumstances beyond the worker's control.
Sec. 127. Employer Protections. Section 127 provides that
an employer that continues to employ an individual during the
initial application window in section 101(c), knowing that such
individual intends to apply for CAW status, shall not be held
liable for continuing to employ that individual. Documents
provided by an employer in support of an application for CAW or
LPR status cannot be used to investigate or prosecute such
employers under the immigration laws or tax code. When records
or other evidence of employment are provided by employers in
response to a request to establish eligibility for status under
this title, such documents may not be used for any purpose
other than establishing such eligibility. These employer
protections shall not apply if the employer-provided documents
are determined to be fraudulent.
Sec. 128. Correction of Social Security Records. Section
128 protects individuals with CAW (or dependent) status from
certain penalties under the Social Security Act if such
individuals worked under an assumed social security number
prior to applying for such status.
Sec. 129. Disclosures and Privacy. Section 129 prohibits
the Department of Homeland Security from disclosing or using
application information under Title I for general immigration
enforcement purposes and may not refer applicants for
immigration enforcement based solely on information provided in
such applications. However, application information may be
shared with federal law enforcement agencies for assistance in
the consideration of an application, to identify or prevent
fraud, for national security purposes, or for the investigation
or prosecution of a felony not related to immigration status. A
person who knowingly violates these provisions shall be fined
up to $10,000. The Department shall also take steps to ensure
that all personally identifiable information collected is
protected, secure, and remains confidential.
Sec. 130. Penalties for False Statements in Applications.
Section 130 makes it a crime to knowingly make false
statements, conceal a material fact, or use any false document
in an application for CAW or LPR status, or to create or supply
false documents for such purposes. Individuals may be fined,
sentenced to a maximum of 5 years imprisonment, or both. An
individual convicted of such a crime shall be deemed
inadmissible under section 212(a)(6)(C)(i) of the INA for
misrepresentation.
Sec. 131. Dissemination of Information. Section 131
requires the Department of Homeland Security to cooperate with
qualified designated entities to broadly disseminate
information on benefits and eligibility requirements under this
title. As defined in section 121, qualified designated entities
include farm labor organizations, employer associations, and
other entities that the Department of Homeland Security
designates as having substantial experience and demonstrated
competence in the preparation and submission of applications
for adjustment of status. This section also requires the
Department of Agriculture to disseminate to agricultural
employers a document with information about the requirements
and benefits under Title I for posting at employer worksites.
Sec. 132. Exemption from Numerical Limitations. Section 132
clarifies that there is no numerical limitation on the number
of individuals who may be granted CAW status, dependent status,
or LPR status under this title.
Sec. 133. Reports to Congress. Section 133 requires annual
reporting for 10 years on the number of applicants for CAW,
LPR, and H-2A status (as well as dependents) under this title,
and the number of those approved in these statuses.
Sec. 134. Grant Program to Assist Eligible Applicants.
Section 134 helps ensure that eligible individuals have access
to information and assistance under this title. Among other
things, the section establishes a grant program for nonprofit
organizations with demonstrated experience in providing quality
services to farmworkers or immigrants in publicizing
information about benefits under this title, and assisting
individuals applying for and receiving such benefits.
Sec. 135. Authorization of Appropriations. Section 135
authorizes appropriations necessary to implement this title.
Title II. Ensuring an Agricultural Workforce for the
Future. Title II contains reforms to modernize the H-2A
temporary agricultural worker program. Subtitle A reforms the
H-2A program to streamline processing, reduce costs, and
provide more flexibility for employers, while providing
protections for H-2A and domestic workers. Subtitle B reforms
existing farmworker and rural housing programs to improve
current housing stock and incentivize the construction of
additional, affordable farmworker housing. Subtitle C
establishes a program to register and provide oversight and
enforcement over foreign labor recruiters engaged in the
recruitment of workers for the H-2A program.
Subtitle A. Reforming the H-2A Temporary Worker Program.
Sec. 201. Comprehensive and Streamlined Electronic H-2A
Platform. Section 201(a) replaces the current 4-step H-2A
application and petition process with a single electronic
platform for completing most of the H-2A process. The platform
will serve as a single point of access for: (1) employers to
input all information and supporting documentation for
completing the H-2A petition process, including obtaining labor
certification and petition approval; (2) all applicable
agencies--including the Department of Homeland Security, the
Department of Labor, and State workforce agencies (SWAs)--to
concurrently perform their responsibilities relating to labor
certification and petition approval; and (3) facilitating
communication between employers and agency adjudicators. The
Department of State and U.S. Customs and Border Protection may
access the platform to facilitate H-2A visa issuance and the
admission of workers.
The purpose of the single electronic platform is to
streamline and improve the H-2A process, including by: (1)
eliminating the need for employers to submit duplicate
information and documentation to multiple agencies; (2)
eliminating redundant bureaucratic processes, where a single
matter in a petition is adjudicated by more than one agency;
(3) reducing the occurrence of common petition errors, and
otherwise improving and expediting the processing of H-2A
petitions; and (4) ensuring compliance with H-2A program
requirements and the protection of the wages and working
conditions of workers.
Section 201(b) requires the Department of Labor to maintain
a public online job registry and searchable database of all job
orders submitted by H-2A employers. The registry and database
are intended to facilitate the ability of domestic workers to
easily search and apply for available job opportunities.
Sec. 202. H-2A Program Requirements. Section 202 amends
section 218 of the INA in its entirety, as follows:
New Section 218(a) preserves the existing requirement that
the Department of Homeland Security may not approve a petition
unless the Department of Labor certifies that there are no
able, willing, and qualified workers to perform the
agricultural work that is the subject of the H-2A petition, and
that such employment of H-2A workers will not adversely affect
the wages and working conditions of similarly employed
individuals.
New Section 218(b) requires the employer to attest to and
demonstrate compliance, as appropriate, with the following:
That there is a need for agricultural labor
or services, including a description and location of
the work, the dates of need, and the number of job
opportunities in which the employer seeks to employ
workers.
That the employer has not displaced and will
not displace similarly situated U.S. workers during the
period of employment, and the 60-days preceding such
period.
That there is no strike or lockout at the
place of employment.
That the employer will engage in the
recruitment of U.S. workers and will hire such workers
who are able, willing, qualified, and available. The
employer may reject a U.S. worker only for lawful, job
related reasons.
That the employer will offer and provide the
required minimum wages, benefits, and working
conditions to H-2A workers and all similarly employed
workers; that similarly employed workers will not be
offered less than what is offered to H-2A workers; and
that similarly employed workers will not be subject to
restrictions or obligations that are not also imposed
on H-2A workers
That the employer will provide appropriate
workers' compensation insurance, at no cost to the
worker, if the job is not covered by State workers'
compensation laws.
That the employer will comply with all
applicable Federal, State, and local labor- and
employment-related laws.
New Section 218(c) modernizes the recruitment requirements
for the H-2A program, including by eliminating a requirement to
post classified ads. Under the new requirements, an employer
will be required to: (1) post the job opportunity on the
electronic job registry and at the place of employment; (2)
make reasonable efforts to contact any U.S. worker employed by
the employer in the previous year in the same job and area of
employment (excluding workers who were terminated for cause or
abandoned the worksite); and (3) fulfill other positive
recruitment steps ordered, if any.
The period of recruitment is defined as starting when the
job order is posted and ending when the H-2A workers depart for
the place of employment. For petitions involving staggered
entry (i.e., petitions seeking H-2A workers for more than one
start date), the recruitment period ends with the departure of
the worker with the last start date.
The specific requirement to hire U.S. workers who apply for
the job opportunity extends beyond the recruitment period and
ends on the later of: (1) the 30th day after work begins, or
the date on which 33% (50% for labor contractors) of the work
contract has elapsed. For petitions involving staggered entry,
each start date establishes a separate job opportunity. It is
the intent of the Committee that each job opportunity within a
staggered entry petition will be independently searchable in
the public online job registry so that U.S. workers can easily
identify and apply for such opportunities. An employer may not
reject a U.S. worker because the worker is unable or unwilling
to fill more than one job opportunity included in the petition.
For the purpose of recruitment, workers with CAW status are
considered U.S. workers, except that an employer may petition
for and hire an H-2A worker over a worker with CAW status if
the employer previously employed the H-2A worker in each of
three years during the most recent four-year period.
Employers must maintain a report on recruitment efforts and
must submit regular updates on the results of recruitment
through the electronic portal. Recruitment reports and
supporting documents must be maintained for three years from
the date of labor certification. If the employer denies
employment to an applicant as not able, willing, or qualified,
the employer maintains the burden of proof of establishing that
the applicant was not able, willing, or qualified because of a
lawful, employment-related reason.
New Section 218(d) sets the wage requirements for H-2A
workers and similarly employed workers. New Section 218(d)(1)
requires employers to offer workers the highest of: (1) the
agreed-upon collective bargaining wage, if any; (2) the Adverse
Effect Wage Rate (AEWR) (or any successor rate that may be
established under a later provision in this subsection); (3)
the prevailing hourly wage or piece rate; or (4) the Federal or
State minimum wage.
New Section 218(d)(2) sets out to comprehensively reform
AEWR determinations for future years. First, the Department of
Labor is required to set and report distinct AEWR wages at the
occupational classification level (i.e., based on the type of
agricultural work involved), rather than as a single, aggregate
wage applicable to all agricultural workers. If available, the
AEWR would be set as the annual average hourly wage for the
occupation based on regional wage data for the occupation
collected in a wage survey conducted by the Department of
Agriculture (commonly known as the ``Farm Labor Survey''). If
sufficient regional data is unavailable, the AEWR for the
occupation would be set based on national wage data collected
from that survey. However, if the survey data obtained by the
Department of Agriculture is insufficient to set the AEWR for
the occupation, the AEWR may then be set based on wage data
collected in a wage survey conducted by the Department of Labor
(commonly known as the ``Occupational Employment Survey''). The
Department of Labor would first be required to set the wage
based on regional wage data. If sufficient regional data is
unavailable, the Department could set the AEWR based on
national wage data.
Second, new Section 218(d)(2) addresses wage fluctuations
in the AEWR from 2020 through 2029. Specifically, for calendar
year 2020, the AEWR remains set at 2019 levels. For each of
calendar years 2021 through 2029, the AEWR cannot decrease by
more than 1.5% or increase by more than 3.25% based on the AEWR
from the immediately preceding year. However, if the result of
this calculation is lower than 110% of the applicable Federal
or State minimum wage, the calculation is adjusted so that the
AEWR cannot increase by more than 4.25%. For 2030 and
subsequent years, a successor wage rate is established as
provided under new Section 218(d)(7). Until this new wage
standard is effective, the AEWR cannot decrease by more than
1.5% or increase by more than 3.25% based on the AEWR from the
immediately preceding year.
New Section 218(d)(3) clarifies that if the primary job
duties of a worker fall into multiple occupational
classifications, the applicable wage rates shall be based on
the highest wage rate of any of the applicable occupational
classifications for the worker.
New Section 218(d)(4) requires the Department of Labor to
publish the AEWR and any available prevailing wage rates in the
Federal Register prior to the start of each calendar year, but
also protects employers with seasonal or temporary needs from
having required wage rates increase mid-contract. Specifically,
upon an update of the AEWR, an employer of seasonal or
temporary H-2A workers will not be required to pay the new wage
if recruitment efforts have already commenced at the time of
publication of the new AEWR. However, for year-round positions,
if the wage is higher than that which is guaranteed in the work
contract, an employer must pay the new wage within 14 days of
publication.
New Section 218(d)(5) requires employers who pay by a piece
rate or other incentive method to specify in the job order any
productivity standards that are a condition of job retention,
and such standards must be consistent with what other employers
in the area of intended employment normally require. The
Department of Labor, however, may approve a higher minimum
standard if that standard results from material changes in
production methods.
New Section 218(d)(6) requires employers to guarantee
employment for three-fourths of the work days in the contract,
unless: (1) the worker fails to work (up to a maximum of hours
specified in the job offer for a work day) when the worker has
been offered an opportunity to do so, abandons employment
without good cause, or is terminated for cause; or (2) the
contract cannot be completed for reasons beyond the control of
the employer. In the event of contract impossibility, the
employer has to fulfill the employment guarantee for the days
that have elapsed and must make efforts to transfer the worker
to comparable employment acceptable to the worker.
New Section 218(d)(7) establishes the procedures for
determining the wage rate to replace the AEWR beginning in
calendar year 2030. Beginning in 2026, the Departments of
Agriculture and Labor are first required to jointly conduct a
study of the AEWR and determine: (1) whether the employment of
H-2A workers has depressed the wages of U.S. farmworkers; (2)
whether the AEWR is necessary to protect the wages of U.S.
farmworkers or whether alternative wage standards would be
sufficient for this purpose; and (3) whether any changes are
warranted in the current methodologies for calculating required
wages for the H-2A program. The Departments are then required,
by October 1, 2027, to jointly prepare and submit a report to
Congress setting forth the findings of the study and any
recommendations for future wage protections. Upon publication
of this report, the Department of Labor, in consultation with
and with the approval of the Department of Agriculture, shall
make a rule to establish a process for annually determining a
subsequent wage standard for years beginning in 2030. That
process must be designed to ensure that the employment of H-2A
workers does not undermine the wages and working conditions of
similarly employed U.S. workers.
New Section 218(e) preserves the current requirement that
employers furnish housing that meets applicable standards, at
no cost to the worker, in accordance with Department of Labor
regulations. Employers must provide family housing where it is
the prevailing practice to provide such housing in the area and
occupation of intended employment. The employer, however, is
not required to provide housing to U.S. workers who live within
a reasonable commuting distance. The Department of Labor must
ensure housing inspections are completed prior to the date that
labor certification is required. To better ensure timely
inspections, employers may request housing inspection up to 60
days before filing the H-2A petition. Housing provided to H-2A
workers engaged in year-round employment shall be subject to an
annual inspection.
New Section 218(f) requires that for a worker who completes
50 percent of the work contract, the employer is required to
reimburse the worker for reasonable transportation and
subsistence costs to the place of employment. If the worker
completes the contract, the employer must also provide or pay
for reasonable transportation and subsistence back home or to
the next place of employment (unless the worker's subsequent
employer agrees to provide transportation and subsistence to
such worker). In either case, the amount of reimbursement need
not exceed the lesser of: (1) the actual costs of travel, or
(2) the most economical and reasonable common carrier
transportation charges and subsistence costs for the distance
involved. Finally, for travel to and from the worker's home
country, if the travel distance between the worker's home and
the relevant consulate is 50 miles or less, travel
reimbursement may be based on transportation to or from the
consulate.
New Section 218(g) requires all employers to maintain a
reasonable heat illness prevention plan, including appropriate
training, access to water and shade, the provision of breaks,
and the protocols for emergency response. Such plan must be in
a language understood by a significant portion of workers, and
it must be posted in a conspicuous location at the worksite and
provided to workers prior to the commencement of labor or
services.
New Section 218(h) sets forth the procedures for employers
to request H-2A workers through the electronic platform. The
process begins when the employer submits a completed H-2A
petition (including a job order) through the electronic
platform 75 to 60 calendar days before the first date of need.
An agricultural association may file a petition as either a
joint or sole employer. When filing the petition, an employer
may seek temporary or seasonal workers for more than one start
date (``staggered entry'') if: (1) the petition contains no
more than 10 start dates, all of which share a common end date
that is no longer than one year after the first start date; (2)
no more than 120 days separate the first and last start dates;
(3) the petition involves the same occupational classification
and area of intended employment; and (4) the need for staggered
entry arises from normal variations in labor needs. The
Committee clarifies, however, that this provision is not
intended to reflect a view on the definition of ``temporary or
seasonal.'' A labor contractor may not file such a petition
involving staggered entry unless the labor contractor: (1)
files jointly with its farmer customers or otherwise operates
in a state with joint liability, or (2) posts a premium surety
bond (i.e., a bond that is at least 15 percent higher than the
normally required bond for labor contractors).
Once the petition is filed, the Department of Labor, in
consultation with the relevant State workforce agency (SWA),
must review the job order and notify the employer of any
deficiencies through the electronic platform within 7 business
days. Employers are provided 5 business days to respond. The
job order must include all material terms and conditions of
employment, including the requirements of new Section 218, and
must be otherwise consistent with the minimum standards
provided under Federal, State, or local law. The Department of
Labor must also establish emergency procedures for the curing
of deficiencies that cannot be resolved quickly. If the job
order is approved, the Department of Labor must post it on the
online job registry and notify the appropriate SWA to commence
recruitment of U.S. workers. The SWA shall refer qualified U.S.
workers who apply for the job opportunity during the
recruitment period.
Within 7 business days of the approval of the job order,
the Department of Labor must notify the employer of any
deficiencies in the information required for labor
certification. Employers are provided 5 business days to
respond. The Department of Labor is required to issue the labor
certification, if the requirements under new Section 218 are
met, not later than 30 days before the first date of need.
Employers may appeal denials or partial certifications, and the
Department of Labor must respond to an appeal within 72 hours.
Within 7 days of the issuance of a labor certification, the
Department of Homeland Security must issue a decision on the
petition. If approved, the electronic platform is updated and
available to the Department of State for visa issuance and to
Customs and Border Protection for the purpose of determining
admission. A petition for multiple named beneficiaries may be
partially approved for the eligible beneficiaries, even if one
or more of the other beneficiaries are potentially ineligible.
Post-certification amendments are permitted if they do not
materially change the petition, including the job order.
New Section 218(h)(4) simply retains the current statutory
language governing the roles of agricultural associations and
its individual producer members. No changes were made to these
provisions.
New Section 218(h)(5) authorizes the Department of Labor,
in consultation with the Departments of Agriculture and
Homeland Security, to issue regulations reasonably modifying H-
2A program requirements to accommodate specific agricultural
occupations due to the unique nature of the work involved. This
provision is intended to codify the Department of Labor's
longstanding use of ``special procedures''' for certain
industries when strict adherence to program requirements would
be impractical or impossible.
New Section 218(h)(6) prohibits employers from hiring H-2A
workers when the majority of duties fall within an occupational
classification designated by the Department of Labor as a
construction or extraction occupation.
New Section 218(i) accommodates the need for workers
engaged in labor or services that are not of a temporary or
seasonal nature by making 3-year H-2A visas available for
workers engaged in such year-round employment. Unlike
traditional H-2A visas for temporary or seasonal jobs, which
are not subject to numerical limitation, the H-2A visas for
year-round employment are subject to such limitation. For the
first three fiscal years, year-round H-2A visas are capped at
20,000 per year. For the next seven fiscal years, the
Departments of Agriculture and Labor, in consultation with the
Department of Homeland Security, shall jointly determine the
appropriate visa cap after considering appropriate factors
related to labor needs. Such cap, however, cannot be set lower
than 20,000 and cannot increase or decrease by more than 12.5%
from the cap set in the immediately preceding fiscal year.
After the tenth year, the Departments of Agriculture and
Labor, in consultation with the Department of Homeland
Security, shall jointly determine, after considering
appropriate factors, whether to set a cap and, if so, what the
cap should be. The Departments shall also jointly establish
emergency procedures for immediately adjusting the numerical
limit in any fiscal year (after the first three fiscal years)
if such adjustment is necessary to account for significant
labor shortages.
New Section 218(i) additionally requires that 3-year H-2A
visas be evenly allocated between the two halves of the fiscal
year, unless it is determined that an alternative allocation
would better accommodate demand. Unused visas from the first
half of the fiscal year are added to the allocation for the
second half of the fiscal year. Additionally, 50 percent of the
visa numbers made available in each half of the fiscal year
shall be allocated to dairy-related jobs, except that any
unused visas can later be made available for non-dairy jobs.
Additionally, employers must provide year-round H-2A
workers with annual round trip travel home, with no more than
14 months elapsing between each period of travel. Employers
must also offer family housing to year-round workers with
families, but workers can reject such an offer. If a worker
accepts such housing, the employer may not charge the worker
for the housing, but the employer may charge a pro-rated rent
based on the fair market value of the housing for the worker's
family members.
Finally, to be eligible for year-round H-2A workers, dairy
employers must report serious safety-related incidents
consistent with federal safety regulations. Dairy employers
must also maintain a workplace safety plan to prevent workplace
accidents, including by providing animal care training;
protecting against sexual harassment and violence, as well as
retaliation; and complying with other safety regulations issued
by the Department of Labor, in consultation with the Department
of Agriculture. Such plan must be in a language understood by a
significant portion of workers, and it must be provided to
workers prior to the commencement of labor or services.
New Section 218(j) sets forth the conditions for
eligibility and admission of a worker in H-2A status. Workers
who previously violated H-2A status are disqualified from such
status for 5 years. H-2A visas shall be valid for three years
and shall allow for multiple entries, except that an H-2A
worker's authorized period of stay shall be based on the period
of employment specified in the approved petition. Upon reaching
the maximum continuous period of authorized stay (36 months),
H-2A workers must depart and remain outside the United States
for at least 45 days before they can reenter in H-2A status.
Any periods in which an H-2A worker has departed the United
States during the worker's period of authorized stay may be
used to offset or partially offset the 45-day absence
requirement.
In addition to the period of authorized stay (up to 36
months), an H-2A worker's period of admission shall include an
additional 10 days prior to the beginning of the work contract
and 45 days at the end of employment for the purpose of
traveling home or seeking an extension of status based on a new
offer of employment. H-2A workers in the United States may
start new employment with another employer if a non-frivolous
petition is timely filed and the H-2A worker has not worked
without authorization. Moreover, H-2A workers who are sponsored
for immigrant visas (i.e., lawful permanent residence) can
continue working in H-2A status (notwithstanding the 36-month
maximum) until their immigrant visas become available. Those
workers who abandon employment without good cause will
generally be considered to have failed to maintain H-2A status.
H-2A workers are provided a reasonable grace period, once
during each period of authorized stay.
New Section 218(k) governs required disclosures that
employers must make to H-2A workers. First, employers must
provide a prospective H-2A worker with a copy of the work
contract (or job order and labor certification), including the
disclosures and rights under the H-2A program, before the H-2A
worker is required to apply for a visa (or, for a worker moving
from one H-2A employer to another, by the time the subsequent
offer of employment is made). Employers must provide H-2A
workers with detailed earnings statements on or before each pay
day. Finally, employers must post a notice of worker rights, in
one or more languages common to a significant portion of the
workers, at the worksite.
New Section 218(l) requires labor contractors seeking to
hire H-2A workers to maintain surety bonds. The Department of
Labor shall set bond amounts based on the number of workers
sought, and labor contractors that want to file petitions
involving staggered entry must maintain premium surety bonds,
which are defined as bonds that are 15 percent higher than the
otherwise applicable bond amount.
New Section 218(l) also requires employers that use foreign
labor recruiters to use a recruiter registered with the
Department of Labor consistent with Subtitle C of Title II. In
addition, employers and their agents are prohibited from
collecting fees or seeking payment from workers for any
activity associated with the H-2A petition process, except for
costs that are primarily for the worker's benefit. Employers
must also contractually forbid labor contractors and foreign
labor recruiters, and any agents of such contractors or
recruiters, from seeking or receiving prohibited payments from
prospective employees.
New Section 218(m) specifies the Department of Labor's
enforcement authority over the H-2A program, including the
authority to impose penalties and other sanctions and to seek
monetary and injunctive relief and specific performance of
contractual obligations. The Department of Labor is required to
maintain a process for receiving, investigating, and resolving
complaints, which may be filed up to 2 years after the date of
the alleged violation. If, after notice and the opportunity for
a hearing, the Department of Labor finds that an employer
failed to comply with H-2A program requirements, the Department
may order the payment of back wages, unpaid benefits, or
illegally assessed fees, as well as damages and civil money
penalties. The Department may also debar employers for up to 5
years for willful or multiple material violations, and
permanently upon subsequent findings involving willful or
multiple material violations. This subsection is not to be
construed as limiting the Department of Labor's authority to
conduct an investigation under any other law or in the absence
of a complaint. Finally, employers are prohibited from
retaliating against any person who has: (1) disclosed
information that the person reasonably believes evidences a
violation, (2) filed a complaint or otherwise taken steps to
report violations of the H-2A program, (3) cooperated in any
investigation or other proceeding concerning H-2A program
compliance; or (4) exercised or asserted any right or
protection under this section.
New Section 218(n) defines the following terms: displace;
H-2A worker; job order; online job registry; similarly
employed; and United States worker.
New Section 218(o) directs the Department of Homeland
Security to impose a fee to cover the reasonable costs of
processing H-2A petitions, including the costs of providing
labor certification. The portion of fees collected to offset
the costs of labor certification shall be deposited into an
account maintained by the Department of Labor. New Section
218(o) also authorizes appropriations necessary for
administering and enforcing the H-2A program.
Sec. 203. Agency Roles and Responsibilities. Section 203(a)
sets forth the Department of Labor's responsibilities in the H-
2A process. These responsibilities include consulting with
State workforce agencies (SWAs) on processes related to the
recruitment and protection of workers. The Department of Labor
must also: (1) determine whether the employer has met the
conditions for issuance of a labor certification, including
whether the employer has complied or will comply with H-2A
program requirements; (2) determine, in consultation with the
Department of Agriculture, whether job opportunities are of a
seasonal or temporary nature; and (3) process and investigate
complaints. Finally, the Department of Labor must regularly
update guidance to the SWAs to ensure that prevailing wage
rates accomplish the statutory requirements and accurately
reflect the wages paid for particular labor or services in
specific crops throughout the season.
Section 203(b) sets forth the Department of Homeland
Security's responsibilities in the H-2A process. These
responsibilities include: (1) adjudicating H-2A petitions,
including the assessment of whether the beneficiary will be
employed in accordance with the terms and conditions of the
labor certification, (2) transmitting final decisions to the
employer, (3) notifying the Department of State and U.S.
Customs and Border Protection of petition approvals, and (4)
providing H-2A workers with access to information about their
status, including the status of petitions.
Section 203(c) establishes an H-2A Labor Certification Fee
Account, funded by H-2A program application fees and
enforcement penalties, for use by the Department of Labor to
carry out activities in connection with the labor certification
process and the enforcement of the H-2A program. Account funds
shall be provided by the Department of Labor to States for
activities conducted by State workforce agencies in connection
with the H-2A program. Funds are also made available to the
Department of Labor's Office of Inspector General to conduct
audits and investigations related to H-2A program compliance.
Sec. 204. Worker Protection and Compliance. Section 204(a)
provides that H-2A workers shall have the same rights and
remedies as U.S. agricultural workers under Federal, State, and
local labor laws.
Section 204(b) ensures that H-2A workers are covered by the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA),
and it prohibits any agreements to waive or modify any rights
or protections provided by MSPA or the H-2A program. While the
bill makes H-2A workers eligible for MSPA protection, it also
provides for free mediation services to resolve disputes prior
to litigation. As provided in the bill, if an H-2A worker files
a civil lawsuit alleging one or more violations of the H-2A
program, MSPA, or the Fair Labor Standards Act, either party to
the lawsuit may, within 60 days of service of the complaint,
request mediation. Upon such a request, the parties must
attempt mediation for up to 90 days, except that the mediation
period may be extended if both parties agree. The bill
authorizes appropriations to support free mediation services,
and it also allows for parties to use private mediators if all
parties agree.
Section 204(c) amends MSPA to better ensure compliance by
farm labor contractors. First, the bill codifies the current
regulatory requirement for farm labor contractors to maintain
surety bonds, while also requiring the Department of Labor to
annually set and publish surety bond schedules in an amount
sufficient for farm labor contractors to discharge financial
obligations based on the number of workers sought to be
covered. MSPA is also amended to expressly allow the Department
of Labor to revoke a farm labor contractor license based on the
failure to maintain the required surety bond or on being
disbarred from participating in the H-2A program. Finally,
Section 204(c) further amends MSPA to better prevent violators
with revoked licenses from serving as the actual successors in
interest in another entity that seeks to obtain a license to
continue contracting activities. The bill both: (1) requires
applicants for licenses to disclose relationships with persons
who have had licenses suspended or revoked, and (2) creates a
rebuttable presumption that the applicant is not the real party
in interest when the applicant is closely associated with such
a person.
Sec. 205. Report on Wage Protections. Section 205 requires
the Departments of Labor and Agriculture to submit a report to
Congress every three years on H-2A wage protections, including:
whether the use of H-2A workers depresses the wages of U.S.
workers; the impact of the AEWR on wages; factors that may
artificially impact wage rates; and recommendations on whether
there should be changes to wage methodologies in the H-2A
program. In preparing these reports, the Departments of Labor
and Agriculture must engage with agricultural stakeholders,
including an equal number of employer representatives and
worker representatives.
Sec. 206. Portable H-2A Visa Pilot Program. Section 206
requires the Department of Homeland Security, in consultation
with the Departments of Labor and Agriculture, to establish
through regulation a 6-year pilot program to facilitate the
free movement and employment of temporary or seasonal H-2A
workers (known herein as ``portable H-2A workers'') with
registered agricultural employers. The Department of Homeland
Security is authorized to set program rules and requirements
for this special class of H-2A workers, consistent with the
following:
Employers that wish to participate in the
pilot program must register with the Department of
Homeland Security, which will maintain an online
platform to connect portable H-2A workers with
registered employers. Workers who have been previously
admitted in H-2A status, and maintained such status
during the period of admission, are eligible to apply
for portable H-2A status.
Registered employers may employ portable H-
2A workers at will and without filing an H-2A petition,
so long as the wage requirements that apply to H-2A
workers are met. Workers may work for any registered
employer during the period of admission, which shall be
for up to 3 years, and either party can terminate
employment at any time. Workers shall also have a 60-
day grace period at the conclusion of employment to
secure new employment with a subsequent registered
employer.
If the job opportunity is not covered or is
exempt from the State workers' compensation law, the
employer must provide commensurate insurance at no cost
to the worker.
The total number of individuals who may hold
portable H-2A status at any one time may not exceed
10,000, except that the Department of Homeland Security
may further reduce this number if the Department
determines that there are an insufficient number of
registered employers or job opportunities to support
the employment of the full number of portable H-2A
workers. Moreover, no worker may be admitted in
portable H-2A status until the Department has
determined that a sufficient number of employers have
been registered to support a reasonable number of
portable H-2A workers to initiate the pilot program,
and no individual may initially be granted portable H-
2A status without an offer of employment from a
registered employer.
In addition, the Department of Labor is responsible for
enforcement of the pilot program's employment-related
requirements, including conducting investigations and audits of
employers to ensure compliance. And the Department of Homeland
Security, in consultation with the Departments of Labor and
Agriculture, must submit a report to Congress on the pilot
program, including its impact on U.S. workers and recommended
improvements, not later than six months before the end of the
third fiscal year of the pilot program.
Sec. 207. Improving Access to Permanent Residence. Section
207 further accommodates the need for workers in year-round
agriculture by adding 40,000 new immigrant visas to the
employment-based third preference (EB-3) category for
``unskilled'' labor. These additional immigrant visas are
available for employer sponsorship of workers, except that H-2A
workers may self-petition for one of these visas once they have
worked in the United States in H-2A status for at least 10
years (and for at least 100 days in each of those years).
Preference for the additional 40,000 visas is given to
agricultural employers seeking to petition for year-round
workers and for H-2A workers who are eligible to self-petition.
These visas are also not subject to the ``per country''
limitations described in section 202(a)(2) of the INA. Finally,
H-2A workers are provided dual intent so that they do not
become ineligible to remain in temporary status due solely to
being the beneficiary of an immigrant visa petition.
Subtitle B. Preservation and Construction of Farmworker
Housing. Subtitle B improves the availability of farmworker and
other rural housing, while lowering employer costs related to
such housing.
Sec. 220. Short Title. Section 220 sets forth the short
title of Subtitle B as the ``Strategy and Investment in Rural
Housing Preservation Act of 2019.''
Sec. 221. Permanent Establishment of Housing Preservation
and Revitalization Program. Section 221 amends the Housing Act
of 1949 to establish a program to revitalize and preserve
existing farmworker and rural housing financed under section
515 (``515 housing''), or both sections 514 and 516 (``514/516
housing''), of the Housing Act. Under the program, the
Department of Agriculture may offer loan restructuring to
owners of 515 or 514/516 housing to preserve and refurbish such
properties. The Department may reduce or eliminate interest,
defer payments, re-amortize existing debt, or provide other
financial assistance. If the Department offers to restructure a
loan, it shall also offer to renew for a 20-year term a rental
assistance contract under section 521 of the Housing Act.
Properties that obtain 20-year extensions of the rental
assistance contract must agree to a restrictive use agreement
that obligates the owner to continue operating the project as
farmworker or rural housing as provided in the Housing Act.
If the Department determines that a maturing loan cannot
reasonably be restructured and the project was operating with
rental assistance under section 521 of the Housing Act, the
Department may nevertheless renew the rental assistance
contract for a 10- to 20-year term so long as the owner agrees
to continue operating the project as farmworker or rural
housing. Owners of 515 or 514/516 housing whose loans have
matured must give tenants 18 months prior to loan maturation or
prepayment to transfer their rental assistance to another
rental project. The bill also authorizes $200,000,000 in
appropriations for each of FY 2020 through 2024 for such
purposes.
Sec. 222. Eligibility for Rural Housing Vouchers. Section
222 amends section 542 of the Housing Act of 1949 to authorize
the Department of Agriculture to provide rural housing vouchers
to low income households residing in properties that are
financed: (1) under sections 514 or 516 if such property is
owned by a non-profit organization or public agency; or (2)
with a loan made or insured under sections 514 or 515 that has
been prepaid without restrictions, has been foreclosed, or has
matured after September 30, 2005.
Sec. 223. Amount of Voucher Assistance. Section 223 caps
the value of a rural housing voucher in an amount equal to the
greater of: (1) the difference between the fair market rental
rate for the area in which the family is living and 30% of the
family's monthly adjusted income; or (2) the difference between
the rent of the dwelling unit in which the voucher recipient
lives and 10% of the family's monthly gross income.
Sec. 224. Rental Assistance Contract Authority. Section 224
allows the owner of a project financed under section 514 or 515
of the Housing Act to request renewal of a rental assistance
contract for up to an additional 20 years. The bill also allows
such an owner who terminates a rental assistance contract for a
family (presumably because the family moves away or is no
longer eligible) to make that assistance available for 6 months
to another eligible family residing in the same rental unit or
newly occupying a unit in the rental property.
Sec. 225. Funding for Multifamily Technical Improvements.
Section 225 authorizes an additional $50,000,000 in
appropriations for FY 2020 for the Department of Agriculture to
improve its technology for processing loans for and managing
multifamily housing.
Sec. 226. Plan for Preserving Affordability of Rental
Projects. Section 226 requires the Department of Agriculture to
submit a plan to Congress on the preservation of affordable
housing financed under section 514 or 515 of the Housing Act.
The bill also establishes an advisory committee, consisting of
16 members representing a range of stakeholders in farming and
rural communities, to assist the Department of Agriculture in
managing its rural housing programs.
Sec. 227. Covered Housing Programs. Section 227 amends the
definition of ``covered housing program'' to clarify that
recipients of rural development housing vouchers are also part
of a covered housing program under the Housing Act.
Sec. 228. New Farmworker Housing. Section 228 amends
section 513 of the Housing Act to further incentivize the
financing and construction of new farmworker housing.
Specifically, section 228: (1) increases the Department of
Agriculture's authority to insure loans made under section 514,
up to an aggregate amount of $200,000,000 during each of FYs
2020 through 2029; (2) triples funding for the section 514 loan
program by authorizing $75,000,000 in appropriations for each
of FYs 2020 through 2029; (3) triples funding for the section
516 grant program by authorizing $30,000,000 in appropriations
for each of FYs 2020 through 2029; and approximately doubles
funding for section 521 rental assistance (or operating
assistance) payments by authorizing $2.7 billion in
appropriations for each of FYs 2020 through 2029.
Sec. 229. Loan and Grant Limitations. Section 229 requires
the Department of Agriculture's per project loan and grant
limitation under sections 514 and 516 to be set at no lower
than $5 million. The current per project loan and grant
limitation is $3 million.
Sec. 230. Operating Assistance Subsidies. Section 230
authorizes operating assistance payments to owners of section
514/516 housing that house H-2A workers. Payments are capped at
50 percent of operating costs for the housing project, and the
Department of Agriculture may only authorize such payments upon
certification that: (1) the project was previously unoccupied
or underutilized; and (2) provision of operating assistance
will not displace domestic farm workers.
Sec. 231. Eligibility of Certified Workers. Section 231
makes holders of CAW status eligible for rental assistance
under section 521 and housing vouchers under section 542 of the
Housing Act of 1949.
Subtitle C. Foreign Labor Recruiter Accountability.
Sec. 251. Registration of Foreign Labor Recruiters.
Sections 251(a) and (b) require the Department of Labor, in
consultation with the Departments of State and Homeland
Security, to set up an electronic registration process for
foreign labor recruiters seeking to hire H-2A workers. The
process shall include a mechanism for obtaining information
about foreign labor recruiting activities from persons and
entities seeking to register; maintaining surety bonds to
protect workers, including by ensuring the ability of labor
recruiters to discharge their financial responsibilities;
renewing registrations; receiving information at diplomatic
missions; receiving and processing complaints, conducting
investigations, and assessing penalties; and consulting with
other agencies when revocation might be necessary.
Section 251(c) provides that foreign labor recruiters must
attest to and abide by a series of requirements. Sections
251(d) and (e) provide that a foreign labor recruiter
registration shall be valid for 2 years, unless suspended or
revoked. Foreign labor recruiters must pay a reasonable
application fee for registration.
Section 251(f) provides that at least once per year, an H-
2A employer must provide the Department of Labor with the names
and addresses of all foreign labor recruiters engaged in
recruiting activity on behalf of the employer and whether such
persons are to receive compensation for such services. Such an
employer must notify the Department of Labor if the employer
has reason to believe that a foreign labor recruiter is
violating this subtitle and must promptly respond to any
Departmental request for information about a foreign labor
recruiter with whom the employer has an agreement. Foreign
labor recruiters must also annually notify the Department of
Labor of the identity of its subcontractees, agents, and
employees.
Section 251(g) requires the Department of State, in
consultation with the Department of Labor, to maintain publicly
available lists of foreign labor recruiters with valid
registrations and those with revoked registrations. The
Department of State shall also ensure that: (1) diplomatic
missions are staffed with persons responsible for receiving
information regarding potential violations of this subtitle;
(2) consular officers take steps during consular interviews to
ensure that applicants for H-2A visas are accurately informed
of the job opportunity and any other disclosures required by
law, including by reviewing required disclosures with the visa
applicants; and (3) information is made available online on the
characteristics of H-2A workers.
Sec. 252. Enforcement. Section 252(a) requires the
Department of Labor to deny an application for registration, or
to revoke registration, if it determines that a foreign labor
recruiter, or an agent or subcontractee of such a recruiter,
knowingly made a material misrepresentation in the registration
application, materially failed to comply with an attestation
required under section 251(c), or is not the real party in
interest. Prior to such a denial, the Department of Labor must
notify the foreign labor recruiter of the intent to deny or
revoke the registration and provide the recruiter with at least
60 days to respond. A foreign labor recruiter whose
registration has been revoked may apply to reregister upon
demonstrating that it has not violated this subtitle for 5
years.
Section 252(b) establishes a complaint process at the
Department of Labor. Foreign labor recruiters found in
violation of the subtitle may: (1) be fined not more than
$10,000 per violation, or $25,000 per violation upon a third
violation; (2) be ordered to forfeit or partially forfeit a
surety bond; (3) have their registration revoked, or their
renewal application denied; or (4) be disqualified for up to
five years (or permanently disqualified with the subsequent
finding involving willful or multiple material violations). The
Department of Labor may also take other actions, including
issuing subpoenas and seeking injunctive relief, to secure
compliance with this subtitle. This subsection does not limit
the Department of Labor's authority to conduct an investigation
under any other law or in the absence of a complaint.
Section 252(c) allows the Department of Labor or any
aggrieved person to bring a civil action against a foreign
labor recruiter that violates this subtitle or an employer that
fails to use a registered recruiter. The reviewing court may
award actual damages and statutory damages up to $1,000 per
plaintiff per violation, equitable relief, attorneys' fees and
costs, and other relief as necessary. Damages recovered by the
Department of Labor shall be deposited in a separate Treasury
account. Amounts deposited in this fund shall be paid directly
to affected workers, except that remaining funds shall be
remain available to the Department of Labor, and may be
transferred to other agencies to support the enforcement of
anti-trafficking laws.
Section 252(d) provides a safe harbor for employers that
use foreign labor recruiters registered under this section.
Employers that utilize registered recruiters will not be held
jointly liable in administrative or judicial proceedings for
violations committed solely by the recruiter. Employers,
however, may be liable if they employed a recruiter without a
valid registration at the time of hire or the employer knew or
learned of a violation and failed to report it to the
Department of Labor.
Section 252(e) authorizes the Department of Homeland
Security to grant parole to individuals to participate in
administrative or judicial proceedings against foreign labor
recruiters.
Section 252(f) voids agreements by employers purporting to
waive or modify rights under this subtitle.
Section 252(g) clarifies that foreign labor recruiters are
liable for violations committed by agents or subcontractees at
any level in relation to the foreign labor recruiting activity
to the same extent as if the foreign labor recruiter had
committed the violation.
Sec. 253. Appropriations. Section 253 authorizes necessary
appropriations to implement this subtitle.
Sec. 254. Definitions. Section 254 defines the following
terms: foreign labor recruiter; foreign labor recruiting
activity; recruitment fees; and person.
Title III. Electronic Verification of the Agricultural
Workforce. Title III phases in mandatory use of an electronic
employment eligibility verification system, patterned on E-
Verify, for agricultural employment, but only after the reforms
in Titles I and II have been implemented. Title III also
includes necessary due process protections for authorized
workers who are incorrectly rejected by the system to challenge
such determinations. This serves as the last necessary piece to
ensure a legal workforce for the agricultural sector.
Sec. 301. Electronic Employment Eligibility Verification
System. Section 301 amends chapter 8 of title II of the INA by
inserting after section 274D a new section 274E:
New Section 274E(a) requires the Department of Homeland
Security to establish an electronic employment eligibility
verification system (the ``System'') patterned on E-Verify for:
(1) checking identity and employment authorization; and (2)
maintaining records of past inquiries and whether identity and
employment authorization were confirmed. Such System shall: (1)
provide a confirmation or tentative nonconfirmation (TNC) of
identity and employment authorization not later than 3 days
after the initial inquiry; (2) be designed to maximize
reliability and accessibility across devices and in remote
locations; and (3) include safeguards to prevent misuse, data
and identity theft, fraud, and violations of privacy.
New Section 274E(a)(4) requires the System to include
various features that prevent identity theft and fraud. The
System shall include a photo matching tool, a mechanism to
permit individuals to monitor and suspend the use of their
social security numbers in the System, and a process to block
misused social security numbers. The Department of Homeland
Security shall establish a pilot program that allows parents or
legal guardians to suspend use of a child's social security
number in the System.
New Section 274E(a)(5) sets forth the responsibilities of
the Social Security Administration with respect to the System.
The Social Security Administration is primarily tasked with
comparing information submitted in a System inquiry against
information maintained by the Social Security Administration.
New Section 274E(a)(6) sets forth the responsibilities of
the Department of Homeland Security with respect to the System.
The Department of Homeland Security is primarily tasked with
comparing information submitted in a System inquiry against
information maintained by the Department. The Department of
Homeland Security must also: (1) provide and regularly update
System training materials; (2) periodically conduct audits of
the System to detect and prevent violations; and (3)
appropriately notify System users of any changes to the System
or its use.
New Section 274E(a)(7) sets forth the responsibilities of
the Department of State with respect to the System. The
Department of State is primarily tasked with comparing
information submitted in a System inquiry, particularly when
passport or visa information is used, against information
maintained by the Department of State.
New Section 274E(a)(8) requires the Social Security
Administration, the Department of Homeland Security, and the
Department of State to: (1) update individual records in their
custody to ensure maximum accuracy of the System, and (2)
provide a process to correct erroneous information.
New Section 274E(a)(9) clarifies that nothing in this
section should be construed as mandating use of the System,
unless such use is otherwise required under Federal or State
law.
New Section 274E(a)(10) states that no fee may be charged
to use the System.
New Section 274E(b) sets forth the employment eligibility
verification process for employers that utilize the System, as
follows:
An individual who has accepted an offer of
employment must attest to employment authorization and
provide a social security number (or proof that the
individual has applied for a social security number).
If the individual does not attest to U.S. citizenship
or nationality, the individual must also provide an
identification or other authorization number as
provided by the Department of Homeland Security.
The employer must then attest that it has
verified that the individual is not unauthorized by
examining acceptable documents confirming the
individual's identity and employment authorization. The
bill requires the individual to present the employer
with either: (1) one document listed in New Section
274E(b)(3)(A), which lists documents acceptable for
establishing both identity and employment
authorization; or (2) one document listed in New
Section 274E(b)(3)(B), which lists documents acceptable
for establishing employment authorization, and one
document listed in New Section 274E(b)(3)(C), which
lists documents acceptable for establishing identity.
The Department of Homeland Security is also authorized
to prohibit or place conditions on any document or
class of documents if it finds that such document or
documents are unreliable or being used fraudulently to
an unacceptable degree.
Upon examining the document or documents
presented by the individual, the employer must then
submit an inquiry through the System to seek
verification of the individual's identity and
employment authorization. The employer is generally
required to submit this inquiry during the period
beginning on the date of hire and ending three business
days later.
Confirmation. If the System issues a
confirmation of identity and employment authorization,
the employer may continue employing the individual.
Tentative nonconfirmation (TNC). If the
System generates a TNC, the employer must provide
notice to the individual that explains the individual's
right to contest the TNC within 10 business days. A TNC
becomes final if the individual refuses to acknowledge
receipt of such notice, elects not to contest the TNC,
or fails to contest the TNC within 10 business days. An
individual who contests a TNC cannot be terminated
unless and until a final nonconfirmation is issued. The
Department of Homeland Security must make a final
determination not later than 30 days after the date
that the Department receives notice from the individual
contesting the TNC.
Final nonconfirmation (FNC). If the System
generates an FNC, the employer must notify the
individual within three business days of receipt of the
FNC, and the employer may terminate the individual. If
the employer does not terminate the individual, it must
so notify the Department of Homeland Security. The
individual may appeal an FNC through procedures
developed by the Department of Homeland Security. If
the FNC was due to government error, the worker may be
compensated for lost wages. Such wages shall be paid
through the collection of penalties assessed against
employers for violations of this section.
Employers are required to retain
verification records beginning on the date the
verification is completed and ending on the later of
three years after the date of hire or one year after
the date the individual's employment is terminated.
New Section 274E(c) limits re-verification of existing
employees to: (1) individuals with a limited period of work
authorization; and (2) individuals who are using a Social
Security Number identified by the Department of Homeland
Security as subject to potential misuse. Employers are required
to retain reverification records beginning on the date the
reverification commences and ending on the later of three years
after the date of reverification or one year after the date the
individual's employment is terminated.
New Section 274E(d) deems employers compliant with the
System if they made a good faith attempt to comply, even if a
technical or procedural failure prevented them from doing so.
The good faith presumption does not apply if: (1) the failure
is not de minimis; (2) the Department of Homeland Security
provides notice of the failure to the employer; and (3) the
employer fails to voluntarily correct the failure within a 30-
day period beginning on the date of notification. The
presumption also does not apply if the employer has engaged in
a pattern or practice of violations. An employer that relies in
good faith on the System in taking an employment-related action
shall not be liable in any action by the employee or the
Federal, State, or local government.
New Section 274E(e) clarifies that the bill does not
authorize: (1) the creation of a national identification card,
or (2) use of the System for anything other than verification
of employment authorization.
New Sections 274E(f) sets forth the civil penalties for
violations by employers subject to this Title. Such penalties
for violations regarding hiring, recruiting or referring for a
fee are: (1) $2,500 to $5,000 per unauthorized individual; (2)
$5,000 to $10,000 if the employer previously received one cease
and desist order; or (3) $10,000 to $25,000 if the employer
previously received more than one such order. Penalties for
failing to comply with the verification requirements in general
range from $1,000 to $25,000 for each violation.
Penalties may be waived or reduced if the violator acted in
good faith, and, in assessing penalties, consideration shall be
given to the size of the business, the severity of the
violation, whether the individual was an unauthorized alien,
and the history of previous violations. Criminal penalties may
also be imposed against employers that engage in a pattern or
practice of violations. Penalties collected under this
subsection are made available to compensate individuals for
lost wages as a result of erroneous FNCs issued by the System.
Repeat violators, and employers convicted of a crime under
section 274A of the INA, may be debarred from receipt of
Federal contracts, grants, or cooperative agreements. Finally,
the bill preempts State or local laws relating to the hiring or
employment of individuals, except that States and localities
may continue to exercise authority over business licenses and
similar laws as a penalty for failure to use the System as
required.
New Section 274E(g) establishes the unfair immigration-
related employment practices with respect to the use of the
System. Such employment practices include: (1) screening
applicants prior to the date of hire; (2) terminating
employment due to the issuance of a TNC; (3) using the System
for any purpose other than confirming employment authorization;
(4) using the System to reverify a current employee other than
as allowed in this section; (5) using the System to
discriminate based on national origin or citizenship status;
(6) willfully failing to provide individuals with notice as
required under this section; (7) requiring individuals to use
the self-verification procedures as a condition of employment;
and (8) terminating or taking other adverse employment action
with respect to an individual based on the need to verify that
individual. Penalties for unfair immigration-related employment
practices are: (1) $1,000 to $4,000 for each individual
discriminated against; (2) $4,000 to $10,000 if the employer
was previously subject to one order; and (3) $6,000 to $20,000
if the employer was previously subject to multiple orders.
Collected penalties are deposited into an account for the
purpose of compensating individuals for lost wages based on the
erroneous issuance of a final nonconfirmation due to government
error or omission.
New Section 274E(h) clarifies that all rights and remedies
available under Federal, State, or local law remain available
to an employee despite the employee's status as an unauthorized
alien or the employer or employee's failure to comply with the
requirements of this section.
New Section 274E(i) defines the term date of hire as the
date on which employment for pay or other remuneration
commences.
Sec. 302. Mandatory Electronic Verification for the
Agricultural Industry. Section 302(a) makes use of the System
mandatory for agricultural employers as defined in Section
302(e). Section 302(b) sets forth the dates by which
agricultural employers must use the System based on workforce
size: employers with 500 or more employees must use the System
within 6 months after the completion of the application period
for CAW status; within 9 months for employers with 100 to 499
employees; within 12 months for employers with 20 to 99
employees; and within 15 months for all other employers.
Entities that recruit or refer farm workers for a fee must use
the System within 12 months after the completion of the CAW
application period.
Section 302(c) requires the Department of Homeland Security
and the Social Security Administration to coordinate with the
Department of Agriculture to create an alternative process for
an individual to contest a TNC by appearing in-person at a
local office or service center of the Department of
Agriculture, or at a local office of the Social Security
Administration. The Department of Homeland Security and the
Social Security Administration shall ensure that such local
offices are sufficiently staffed and resourced to provide such
services. There is no intent to shift responsibilities related
to the System to the Department of Agriculture; those are
intended to remain with the Department of Homeland Security and
the Social Security Administration. The agencies are expected
to cooperate to ensure that this provision does not inhibit the
ability of the Department of Agriculture to fulfill its primary
missions.
Section 302(d) requires the Department of Homeland Security
to recognize documentary evidence of CAW status as valid proof
of employment authorization and identity for purposes of
employment verification.
Section 302(e) defines ``agricultural employment'' to mean
agricultural labor or services as defined for purposes of the
H-2A program. This definition is not intended to impose the
requirements of this section on any entity that does not employ
workers for such agricultural labor or services, including
entities that are members of associations or cooperatives with
other entities that do employ such workers.
Sec. 303. Coordination With E-Verify Program. Section 303
repeals the provisions of the Illegal Immigration Reform and
Immigrant Responsibility Act that established the employment
eligibility verification pilot programs. This section also
includes technical amendments to ensure that current E-Verify
users are transitioned to the System.
Sec. 304. Fraud and Misuse of Documents. Section 304 amends
18 U.S.C. 1546(b) to clarify that fines or a term of
imprisonment up to five years may be imposed for use of false
documents to satisfy the employment eligibility verification
requirements under this title.
Sec. 305. Technical and Conforming Amendments. Section 305
provides technical and conforming amendments to sections 274A
and 274B of the INA.
Sec. 306. Protection of Social Security Administration
Programs. Section 306 requires the Department of Homeland
Security and the Social Security Administration to enter into
an agreement to provide the Social Security Administration with
the funds needed to carry out its responsibilities under this
title. The Social Security Administration is also required to
provide an annual accounting and cost reconciliation for review
by the Inspectors General of the Social Security Administration
and the Department of Homeland Security.
Sec. 307. Report on the Implementation of the Verification
System. Section 307 requires annual reporting on the System, to
start within 24 months of implementation.
Sec. 308. Modernizing and Streamlining the Employment
Eligibility Verification Process. Section 308 requires the
Department of Homeland Security to submit a plan to Congress,
12 months after enactment, to modernize the System and the
employment eligibility verification process, including
procedures to allow employers to verify remote hires and to
complete the process without also having to complete the
current, paper-based Form I-9 process.
Sec. 309. Rulemaking and Paperwork Reduction Act. Section
309 requires the Department of Homeland Security to propose
rules not later than 180 days prior to the end of the
application period for CAW status, and to finalize the rules
not later than 180 days later.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 5038, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
SOCIAL SECURITY ACT
* * * * * * *
TITLE II--FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS
* * * * * * *
penalties
Sec. 208. (a) Whoever--
(1) for the purpose of causing an increase in any
payment authorized to be made under this title, or for
the purpose of causing any payment to be made where no
payment is authorized under this title, shall make or
cause to be made any false statement or representation
(including any false statement or representation in
connection with any matter arising under subchapter E
of chapter 1, or subchapter A or E of chapter 9 of the
Internal Revenue Code of 1939, or chapter 2 or 21 or
subtitle F of the Internal Revenue Code of 1954) as
to--
(A) whether wages were paid or received for
employment (as said terms are defined in this
title and the Internal Revenue Code), or the
amount of wages or the period during which paid
or the person to whom paid; or
(B) whether net earnings from self-employment
(as such term is defined in this title and in
the Internal Revenue Code) were derived, or as
to the amount of such net earnings or the
period during which or the person by whom
derived; or
(C) whether a person entitled to benefits
under this title had earnings in or for a
particular period (as determined under section
203(f) of this title for purposes of deductions
from benefits), or as to the amount thereof; or
(2) makes or causes to be made any false statement or
representation of a material fact in any application
for any payment or for a disability determination under
this title; or
(3) at any time makes or causes to be made any false
statement or representation of a material fact for use
in determining rights to payment under this title; or
(4) having knowledge of the occurrence of any event
affecting (1) his initial or continued right to any
payment under this title, or (2) the initial or
continued right to any payment of any other individual
in whose behalf he has applied for or is receiving such
payment, conceals or fails to disclose such event with
an intent fraudulently to secure payment either in a
greater amount than is due or when no payment is
authorized; or
(5) having made application to receive payment under
this title for the use and benefit of another and
having received such a payment, knowingly and willfully
converts such a payment, or any part thereof, to a use
other than for the use and benefit of such other
person; or
(6) willfully, knowingly, and with intent to deceive
the Commissioner of Social Security as to his true
identity (or the true identity of any other person)
furnishes or causes to be furnished false information
to the Commissioner of Social Security with respect to
any information required by the Commissioner of Social
Security in connection with the establishment and
maintenance of the records provided for in section
205(c)(2); or
(7) for the purpose of causing an increase in any
payment authorized under this title (or any other
program financed in whole or in part from Federal
funds), or for the purpose of causing a payment under
this title (or any such other program) to be made when
no payment is authorized thereunder, or for the purpose
of obtaining (for himself or any other person) any
payment or any other benefit to which he (or such other
person) is not entitled, or for the purpose of
obtaining anything of value from any person, or for any
other purpose--
(A) willfully, knowingly, and with intent to
deceive, uses a social security account number,
assigned by the Commissioner of Social Security
(in the exercise of the Commissioner's
authority under section 205(c)(2) to establish
and maintain records) on the basis of false
information furnished to the Commissioner of
Social Security by him or by any other person;
or
(B) with intent to deceive, falsely
represents a number to be the social security
account number assigned by the Commissioner of
Social Security to him or to another person,
when in fact such number is not the social
security account number assigned by the
Commissioner of Social Security to him or to
such other person; or
(C) knowingly alters a social security card
issued by the Commissioner of Social Security,
buys or sells a card that is, or purports to
be, a card so issued, counterfeits a social
security card, or possesses a social security
card or counterfeit social security card with
intent to sell or alter it;
(8) discloses, uses, or compels the disclosure of the
social security number of any person in violation of
the laws of the United States; or
(9) conspires to commit any offense described in any
of paragraphs (1) through (4),
shall be guilty of a felony and upon conviction thereof shall
be fined under title 18, United States Code, or imprisoned for
not more than five years, or both, except that in the case of a
person who receives a fee or other income for services
performed in connection with any determination with respect to
benefits under this title (including a claimant representative,
translator, or current or former employee of the Social
Security Administration), or who is a physician or other health
care provider who submits, or causes the submission of, medical
or other evidence in connection with any such determination,
such person shall be guilty of a felony and upon conviction
thereof shall be fined under title 18, United States Code, or
imprisoned for not more than ten years, or both.
(b)(1) Any Federal court, when sentencing a defendant
convicted of an offense under subsection (a), may order, in
addition to or in lieu of any other penalty authorized by law,
that the defendant make restitution to the victims of such
offense specified in paragraph (4).
(2) Sections 3612, 3663, and 3664 of title 18, United States
Code, shall apply with respect to the issuance and enforcement
of orders of restitution to victims of such offense under this
subsection.
(3) If the court does not order restitution, or orders only
partial restitution, under this subsection, the court shall
state on the record the reasons therefor.
(4) For purposes of paragraphs (1) and (2), the victims of an
offense under subsection (a) are the following:
(A) Any individual who suffers a financial loss as a
result of the defendant's violation of subsection (a).
(B) The Commissioner of Social Security, to the
extent that the defendant's violation of subsection (a)
results in--
(i) the Commissioner of Social Security
making a benefit payment that should not have
been made; or
(ii) an individual suffering a financial loss
due to the defendant's violation of subsection
(a) in his or her capacity as the individual's
representative payee appointed pursuant to
section 205(j).
(5)(A) Except as provided in subparagraph (B), funds paid to
the Commissioner of Social Security as restitution pursuant to
a court order shall be deposited in the Federal Old-Age and
Survivors Insurance Trust Fund, or the Federal Disability
Insurance Trust Fund, as appropriate.
(B) In the case of funds paid to the Commissioner of Social
Security pursuant to paragraph (4)(B)(ii), the Commissioner of
Social Security shall certify for payment to the individual
described in such paragraph an amount equal to the lesser of
the amount of the funds so paid or the individual's outstanding
financial loss, except that such amount may be reduced by the
amount of any overpayments of benefits owed under this title,
title VIII, or title XVI by the individual.
(c) Any person or other entity who is convicted of a
violation of any of the provisions of this section, if such
violation is committed by such person or entity in his role as,
or in applying to become, a certified payee under section
205(j) on behalf of another individual (other than such
person's spouse), upon his second or any subsequent such
conviction shall, in lieu of the penalty set forth in the
preceding provisions of this section, be guilty of a felony and
shall be fined under title 18, United States Code, or
imprisoned for not more than five years, or both.
(d) Any individual or entity convicted of a felony under this
section or under section 1632(b) may not be certified as a
payee under section 205(j). For the purpose of subsection
(a)(7), the terms ``social security number'' and ``social
security account number'' mean such numbers as are assigned by
the Commissioner of Social Security under section 205(c)(2)
whether or not, in actual use, such numbers are called social
security numbers.
(e)(1) Except as provided in paragraph (2), an alien--
(A) whose status is adjusted to that of lawful
temporary resident under section 210 or 245A of the
Immigration and Nationality Act or under section 902 of
the Foreign Relations Authorization Act, Fiscal Years
1988 and 1989,
(B) whose status is adjusted to that of permanent
resident--
(i) under section 202 of the Immigration
Reform and Control Act of 1986, or
(ii) pursuant to section 249 of the
Immigration and Nationality Act, [or]
(C) who is granted special immigrant status under
section 101(a)(27)(I) of the Immigration and
Nationality Act, or
(D) who is granted certified agricultural worker
status, certified agricultural dependent status, or
lawful permanent resident status under title I of the
Farm Work Modernization Act of 2019,
shall not be subject to prosecution for any alleged conduct
described in paragraph (6) or (7) of subsection (a) if such
conduct is alleged to have occurred prior to 60 days after the
date of the enactment of the Omnibus Budget Reconciliation Act
of [1990.] 1990, or in the case of an alien described in
subparagraph (D), if such conduct is alleged to have occurred
before the date on which the alien was granted status under
title I of the Farm Work Modernization Act of 2019.
(2) Paragraph (1) shall not apply with respect to conduct
(described in subsection (a)(7)(C)) consisting of--
(A) selling a card that is, or purports to be, a
social security card issued by the Commissioner of
Social Security,
(B) possessing a social security card with intent to
sell it, or
(C) counterfeiting a social security card with intent
to sell it.
(3) Paragraph (1) shall not apply with respect to any
criminal conduct involving both the conduct described in
subsection (a)(7) to which paragraph (1) applies and any other
criminal conduct if such other conduct would be criminal
conduct if the conduct described in subsection (a)(7) were not
committed.
* * * * * * *
----------
IMMIGRATION AND NATIONALITY ACT
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, divided into titles, chapters, and sections according to
the following table of contents, may be cited as the
``Immigration and Nationality Act''.
TABLE OF CONTENTS
Title I--General
Sec. 101. Definitions.
* * * * * * *
chapter 8--general penalty provisions
* * * * * * *
Sec. 274E. Requirements for the electronic verification of employment
eligibility.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
Sec. 201. (a) In General.--Exclusive of aliens described in
subsection (b), aliens born in a foreign state or dependent
area who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United
States for permanent residence are limited to--
(1) family-sponsored immigrants described in section
203(a) (or who are admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent under section 203(a)) in a number
not to exceed in any fiscal year the number specified
in subsection (c) for that year, and not to exceed in
any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection
for all of such fiscal year;
(2) employment-based immigrants described in section
203(b) (or who are admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent under section 203(b)), in a number
not to exceed in any fiscal year the number specified
in subsection (d) for that year, and not to exceed in
any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection
for all of such fiscal year; and
(3) for fiscal years beginning with fiscal year 1995,
diversity immigrants described in section 203(c) (or
who are admitted under section 211(a) on the basis of a
prior issuance of a visa to their accompanying parent
under section 203(c)) in a number not to exceed in any
fiscal year the number specified in subsection (e) for
that year, and not to exceed in any of the first 3
quarters of any fiscal year 27 percent of the worldwide
level under such subsection for all of such fiscal
year.
(b) Aliens Not Subject to Direct Numerical Limitations.--
Aliens described in this subsection, who are not subject to the
worldwide levels or numerical limitations of subsection (a),
are as follows:
(1)(A) Special immigrants described in subparagraph
(A) or (B) of section 101(a)(27).
(B) Aliens who are admitted under section 207 or
whose status is adjusted under section 209.
(C) Aliens whose status is adjusted to permanent
residence under section 210 or 245A.
(D) Aliens whose removal is cancelled under section
240A(a).
(E) Aliens provided permanent resident status under
section 249.
(2)(A)(i) Immediate relatives.--For purposes of this
subsection, the term ``immediate relatives'' means the
children, spouses, and parents of a citizen of the
United States, except that, in the case of parents,
such citizens shall be at least 21 years of age. In the
case of an alien who was the spouse of a citizen of the
United States and was not legally separated from the
citizen at the time of the citizen's death, the alien
(and each child of the alien) shall be considered, for
purposes of this subsection, to remain an immediate
relative after the date of the citizen's death but only
if the spouse files a petition under section
204(a)(1)(A)(ii) within 2 years after such date and
only until the date the spouse remarries. For purposes
of this clause, an alien who has filed a petition under
clause (iii) or (iv) of section 204(a)(1)(A) of this
Act remains an immediate relative in the event that the
United States citizen spouse or parent loses United
States citizenship on account of the abuse.
(ii) Aliens admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent who is such an immediate relative.
(B) Aliens born to an alien lawfully admitted for
permanent residence during a temporary visit abroad.
(c) Worldwide Level of Family-Sponsored Immigrants.--(1)(A)
The worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is, subject to subparagraph (B),
equal to--
(i) 480,000, minus
(ii) the sum of the number computed under paragraph
(2) and the number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph
(3).
(B)(i) For each of fiscal years 1992, 1993, and 1994, 465,000
shall be substituted for 480,000 in subparagraph (A)(i).
(ii) In no case shall the number computed under subparagraph
(A) be less than 226,000.
(2) The number computed under this paragraph for a fiscal
year is the sum of the number of aliens described in
subparagraphs (A) and (B) of subsection (b)(2) who were issued
immigrant visas or who otherwise acquired the status of aliens
lawfully admitted to the United States for permanent residence
in the previous fiscal year.
(3)(A) The number computed under this paragraph for fiscal
year 1992 is zero.
(B) The number computed under this paragraph for fiscal year
1993 is the difference (if any) between the worldwide level
established under paragraph (1) for the previous fiscal year
and the number of visas issued under section 203(a) during that
fiscal year.
(C) The number computed under this paragraph for a subsequent
fiscal year is the difference (if any) between the maximum
number of visas which may be issued under section 203(b)
(relating to employment-based immigrants) during the previous
fiscal year and the number of visas issued under that section
during that year.
(4) The number computed under this paragraph for a fiscal
year (beginning with fiscal year 1999) is the number of aliens
who were paroled into the United States under section 212(d)(5)
in the second preceding fiscal year--
(A) who did not depart from the United States
(without advance parole) within 365 days; and
(B) who (i) did not acquire the status of aliens
lawfully admitted to the United States for permanent
residence in the two preceding fiscal years, or (ii)
acquired such status in such years under a provision of
law (other than section 201(b)) which exempts such
adjustment from the numerical limitation on the
worldwide level of immigration under this section.
(5) If any alien described in paragraph (4) (other than an
alien described in paragraph (4)(B)(ii)) is subsequently
admitted as an alien lawfully admitted for permanent residence,
such alien shall not again be considered for purposes of
paragraph (1).
(d) Worldwide Level of Employment-Based Immigrants.--(1) The
worldwide level of employment-based immigrants under this
subsection for a fiscal year is equal to--
(A) [140,000] 180,000, plus
(B) the number computed under paragraph (2).
(2)(A) The number computed under this paragraph for fiscal
year 1992 is zero.
(B) The number computed under this paragraph for fiscal year
1993 is the difference (if any) between the worldwide level
established under paragraph (1) for the previous fiscal year
and the number of visas issued under section 203(b) during that
fiscal year.
(C) The number computed under this paragraph for a subsequent
fiscal year is the difference (if any) between the maximum
number of visas which may be issued under section 203(a)
(relating to family-sponsored immigrants) during the previous
fiscal year and the number of visas issued under that section
during that year.
(e) Worldwide Level of Diversity Immigrants.--The worldwide
level of diversity immigrants is equal to 55,000 for each
fiscal year.
(f) Rules for Determining Whether Certain Aliens Are
Immediate Relatives.--
(1) Age on petition filing date.--Except as provided
in paragraphs (2) and (3), for purposes of subsection
(b)(2)(A)(i), a determination of whether an alien
satisfies the age requirement in the matter preceding
subparagraph (A) of section 101(b)(1) shall be made
using the age of the alien on the date on which the
petition is filed with the Attorney General under
section 204 to classify the alien as an immediate
relative under subsection (b)(2)(A)(i).
(2) Age on parent's naturalization date.--In the case
of a petition under section 204 initially filed for an
alien child's classification as a family-sponsored
immigrant under section 203(a)(2)(A), based on the
child's parent being lawfully admitted for permanent
residence, if the petition is later converted, due to
the naturalization of the parent, to a petition to
classify the alien as an immediate relative under
subsection (b)(2)(A)(i), the determination described in
paragraph (1) shall be made using the age of the alien
on the date of the parent's naturalization.
(3) Age on marriage termination date.--In the case of
a petition under section 204 initially filed for an
alien's classification as a family-sponsored immigrant
under section 203(a)(3), based on the alien's being a
married son or daughter of a citizen, if the petition
is later converted, due to the legal termination of the
alien's marriage, to a petition to classify the alien
as an immediate relative under subsection (b)(2)(A)(i)
or as an unmarried son or daughter of a citizen under
section 203(a)(1), the determination described in
paragraph (1) shall be made using the age of the alien
on the date of the termination of the marriage.
(4) Application to self-petitions.--Paragraphs (1)
through (3) shall apply to self-petitioners and
derivatives of self-petitioners.
* * * * * * *
allocation of immigrant visas
Sec. 203. (a) Preference Allocation for Family-Sponsored
Immigrants.--Aliens subject to the worldwide level specified in
section 201(c) for family-sponsored immigrants shall be
allotted visas as follows:
(1) Unmarried sons and daughters of citizens.--
Qualified immigrants who are the unmarried sons or
daughters of citizens of the United States shall be
allocated visas in a number not to exceed 23,400, plus
any visas not required for the class specified in
paragraph (4).
(2) Spouses and unmarried sons and unmarried
daughters of permanent resident aliens.--Qualified
immigrants--
(A) who are the spouses or children of an
alien lawfully admitted for permanent
residence, or
(B) who are the unmarried sons or unmarried
daughters (but are not the children) of an
alien lawfully admitted for permanent
residence,
shall be allocated visas in a number not to exceed
114,200, plus the number (if any) by which such
worldwide level exceeds 226,000, plus any visas not
required for the class specified in paragraph (1);
except that not less than 77 percent of such visa
numbers shall be allocated to aliens described in
subparagraph (A).
(3) Married sons and married daughters of citizens.--
Qualified immigrants who are the married sons or
married daughters of citizens of the United States
shall be allocated visas in a number not to exceed
23,400, plus any visas not required for the classes
specified in paragraphs (1) and (2).
(4) Brothers and sisters of citizens.--Qualified
immigrants who are the brothers or sisters of citizens
of the United States, if such citizens are at least 21
years of age, shall be allocated visas in a number not
to exceed 65,000, plus any visas not required for the
classes specified in paragraphs (1) through (3).
(b) Preference Allocation for Employment-Based Immigrants.--
Aliens subject to the worldwide level specified in section
201(d) for employment-based immigrants in a fiscal year shall
be allotted visas as follows:
(1) Priority workers.--Visas shall first be made
available in a number not to exceed [28.6 percent of
such worldwide level] 40,040, plus any visas not
required for the classes specified in paragraphs (4)
and (5), to qualified immigrants who are aliens
described in any of the following subparagraphs (A)
through (C):
(A) Aliens with extraordinary ability.--An
alien is described in this subparagraph if--
(i) the alien has extraordinary
ability in the sciences, arts,
education, business, or athletics which
has been demonstrated by sustained
national or international acclaim and
whose achievements have been recognized
in the field through extensive
documentation,
(ii) the alien seeks to enter the
United States to continue work in the
area of extraordinary ability, and
(iii) the alien's entry into the
United States will substantially
benefit prospectively the United
States.
(B) Outstanding professors and researchers.--
An alien is described in this subparagraph if--
(i) the alien is recognized
internationally as outstanding in a
specific academic area,
(ii) the alien has at least 3 years
of experience in teaching or research
in the academic area, and
(iii) the alien seeks to enter the
United States--
(I) for a tenured position
(or tenure-track position)
within a university or
institution of higher education
to teach in the academic area,
(II) for a comparable
position with a university or
institution of higher education
to conduct research in the
area, or
(III) for a comparable
position to conduct research in
the area with a department,
division, or institute of a
private employer, if the
department, division, or
institute employs at least 3
persons full-time in research
activities and has achieved
documented accomplishments in
an academic field.
(C) Certain multinational executives and
managers.--An alien is described in this
subparagraph if the alien, in the 3 years
preceding the time of the alien's application
for classification and admission into the
United States under this subparagraph, has been
employed for at least 1 year by a firm or
corporation or other legal entity or an
affiliate or subsidiary thereof and the alien
seeks to enter the United States in order to
continue to render services to the same
employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or
executive.
(2) Aliens who are members of the professions holding
advanced degrees or aliens of exceptional ability.--
(A) In general.--Visas shall be made
available, in a number not to exceed [28.6
percent of such worldwide level] 40,040, plus
any visas not required for the classes
specified in paragraph (1), to qualified
immigrants who are members of the professions
holding advanced degrees or their equivalent or
who because of their exceptional ability in the
sciences, arts, or business, will substantially
benefit prospectively the national economy,
cultural or educational interests, or welfare
of the United States, and whose services in the
sciences, arts, professions, or business are
sought by an employer in the United States.
(B)(i) Subject to clause (ii), the Attorney
General may, when the Attorney General deems it
to be in the national interest, waive the
requirements of subparagraph (A) that an
alien's services in the sciences, arts,
professions, or business be sought by an
employer in the United States.
(ii)(I) The Attorney General shall grant a
national interest waiver pursuant to clause (i)
on behalf of any alien physician with respect
to whom a petition for preference
classification has been filed under
subparagraph (A) if--
(aa) the alien physician agrees to
work full time as a physician in an
area or areas designated by the
Secretary of Health and Human Services
as having a shortage of health care
professionals or at a health care
facility under the jurisdiction of the
Secretary of Veterans Affairs; and
(bb) a Federal agency or a department
of public health in any State has
previously determined that the alien
physician's work in such an area or at
such facility was in the public
interest.
(II) No permanent resident visa may
be issued to an alien physician
described in subclause (I) by the
Secretary of State under section
204(b), and the Attorney General may
not adjust the status of such an alien
physician from that of a nonimmigrant
alien to that of a permanent resident
alien under section 245, until such
time as the alien has worked full time
as a physician for an aggregate of 5
years (not including the time served in
the status of an alien described in
section 101(a)(15)(J)), in an area or
areas designated by the Secretary of
Health and Human Services as having a
shortage of health care professionals
or at a health care facility under the
jurisdiction of the Secretary of
Veterans Affairs.
(III) Nothing in this subparagraph
may be construed to prevent the filing
of a petition with the Attorney General
for classification under section
204(a), or the filing of an application
for adjustment of status under section
245, by an alien physician described in
subclause (I) prior to the date by
which such alien physician has
completed the service described in
subclause (II).
(IV) The requirements of this
subsection do not affect waivers on
behalf of alien physicians approved
under section 203(b)(2)(B) before the
enactment date of this subsection. In
the case of a physician for whom an
application for a waiver was filed
under section 203(b)(2)(B) prior to
November 1, 1998, the Attorney General
shall grant a national interest waiver
pursuant to section 203(b)(2)(B) except
that the alien is required to have
worked full time as a physician for an
aggregate of 3 years (not including
time served in the status of an alien
described in section 101(a)(15)(J))
before a visa can be issued to the
alien under section 204(b) or the
status of the alien is adjusted to
permanent resident under section 245.
(C) Determination of exceptional ability.--In
determining under subparagraph (A) whether an
immigrant has exceptional ability, the
possession of a degree, diploma, certificate,
or similar award from a college, university,
school, or other institution of learning or a
license to practice or certification for a
particular profession or occupation shall not
by itself be considered sufficient evidence of
such exceptional ability.
(3) Skilled workers, professionals, and other
workers.--
(A) In general.--Visas shall be made
available, in a number not to exceed [28.6
percent of such worldwide level] 80,040, plus
any visas not required for the classes
specified in paragraphs (1) and (2), to the
following classes of aliens who are not
described in paragraph (2):
(i) Skilled workers.--Qualified
immigrants who are capable, at the time
of petitioning for classification under
this paragraph, of performing skilled
labor (requiring at least 2 years
training or experience), not of a
temporary or seasonal nature, for which
qualified workers are not available in
the United States.
(ii) Professionals.--Qualified
immigrants who hold baccalaureate
degrees and who are members of the
professions.
[(iii) Other workers.--Other
qualified immigrants who are capable,
at the time of petitioning for
classification under this paragraph, of
performing unskilled labor, not of a
temporary or seasonal nature, for which
qualified workers are not available in
the United States.]
(iii) Other workers.--Other qualified
immigrants who, at the time of
petitioning for classification under
this paragraph--
(I) are capable of performing
unskilled labor, not of a
temporary or seasonal nature,
for which qualified workers are
not available in the United
States; or
(II) can demonstrate
employment in the United States
as an H-2A nonimmigrant worker
for at least 100 days in each
of at least 10 years.
[(B) Limitation on other workers.--Not more
than 10,000 of the visas made available under
this paragraph in any fiscal year may be
available for qualified immigrants described in
subparagraph (A)(iii).]
(B) Visas allocated for other workers.--
(i) In general.--Except as provided
in clauses (ii) and (iii), 50,000 of
the visas made available under this
paragraph shall be reserved for
qualified immigrants described in
subparagraph (A)(iii).
(ii) Preference for agricultural
workers.--Subject to clause (iii), not
less than four-fifths of the visas
described in clause (i) shall be
reserved for--
(I) qualified immigrants
described in subparagraph
(A)(iii)(I) who will be
performing agricultural labor
or services in the United
States; and
(II) qualified immigrants
described in subparagraph
(A)(iii)(II).
(iii) Exception.--If because of the
application of clause (ii), the total
number of visas available under this
paragraph for a calendar quarter
exceeds the number of qualified
immigrants who otherwise may be issued
such a visa, clause (ii) shall not
apply to visas under this paragraph
during the remainder of such calendar
quarter.
(iv) No per country limits.--Visas
described under clause (ii) shall be
issued without regard to the numerical
limitation under section 202(a)(2).
(C) Labor certification required.--[An
immigrant visa] Except for qualified immigrants
petitioning for classification under
subparagraph (A)(iii)(II), an immigrant visa
may not be issued to an immigrant under
subparagraph (A) until the consular officer is
in receipt of a determination made by the
Secretary of Labor pursuant to the provisions
of section 212(a)(5)(A).
(4) Certain special immigrants.--Visas shall be made
available, in a number not to exceed [7.1 percent of
such worldwide level] 9,940, to qualified special
immigrants described in section 101(a)(27) (other than
those described in subparagraph (A) or (B) thereof), of
which not more than 5,000 may be made available in any
fiscal year to special immigrants described in
subclause (II) or (III) of section 101(a)(27)(C)(ii),
and not more than 100 may be made available in any
fiscal year to special immigrants, excluding spouses
and children, who are described in section
101(a)(27)(M).
(5) Employment creation.--
(A) In general.--Visas shall be made
available, in a number not to exceed [7.1
percent of such worldwide level] 9,940, to
qualified immigrants seeking to enter the
United States for the purpose of engaging in a
new commercial enterprise (including a limited
partnership)--
(i) in which such alien has invested
(after the date of the enactment of the
Immigration Act of 1990) or, is
actively in the process of investing,
capital in an amount not less than the
amount specified in subparagraph (C),
and
(ii) which will benefit the United
States economy and create full-time
employment for not fewer than 10 United
States citizens or aliens lawfully
admitted for permanent residence or
other immigrants lawfully authorized to
be employed in the United States (other
than the immigrant and the immigrant's
spouse, sons, or daughters).
(B) Set-aside for targeted employment
areas.--
(i) In general.--Not less than 3,000
of the visas made available under this
paragraph in each fiscal year shall be
reserved for qualified immigrants who
invest in a new commercial enterprise
described in subparagraph (A) which
will create employment in a targeted
employment area.
(ii) Targeted employment area
defined.--In this paragraph, the term
``targeted employment area'' means, at
the time of the investment, a rural
area or an area which has experienced
high unemployment (of at least 150
percent of the national average rate).
(iii) Rural area defined.--In this
paragraph, the term ``rural area''
means any area other than an area
within a metropolitan statistical area
or within the outer boundary of any
city or town having a population of
20,000 or more (based on the most
recent decennial census of the United
States).
(C) Amount of capital required.--
(i) In general.--Except as otherwise
provided in this subparagraph, the
amount of capital required under
subparagraph (A) shall be $1,000,000.
The Attorney General, in consultation
with the Secretary of Labor and the
Secretary of State, may from time to
time prescribe regulations increasing
the dollar amount specified under the
previous sentence.
(ii) Adjustment for targeted
employment areas.--The Attorney General
may, in the case of investment made in
a targeted employment area, specify an
amount of capital required under
subparagraph (A) that is less than (but
not less than \1/2\ of) the amount
specified in clause (i).
(iii) Adjustment for high employment
areas.--In the case of an investment
made in a part of a metropolitan
statistical area that at the time of
the investment--
(I) is not a targeted
employment area, and
(II) is an area with an
unemployment rate significantly
below the national average
unemployment rate,
the Attorney General may specify an
amount of capital required under
subparagraph (A) that is greater than
(but not greater than 3 times) the
amount specified in clause (i).
(D) Full-time employment defined.--In this
paragraph, the term ``full-time employment''
means employment in a position that requires at
least 35 hours of service per week at any time,
regardless of who fills the position.
(6) Special rules for ``k'' special immigrants.--
(A) Not counted against numerical limitation
in year involved.--Subject to subparagraph (B),
the number of immigrant visas made available to
special immigrants under section 101(a)(27)(K)
in a fiscal year shall not be subject to the
numerical limitations of this subsection or of
section 202(a).
(B) Counted against numerical limitations in
following year.--
(i) Reduction in employment-based
immigrant classifications.--The number
of visas made available in any fiscal
year under paragraphs (1), (2), and (3)
shall each be reduced by \1/3\ of the
number of visas made available in the
previous fiscal year to special
immigrants described in section
101(a)(27)(K).
(ii) Reduction in per country
level.--The number of visas made
available in each fiscal year to
natives of a foreign state under
section 202(a) shall be reduced by the
number of visas made available in the
previous fiscal year to special
immigrants described in section
101(a)(27)(K) who are natives of the
foreign state.
(iii) Reduction in employment-based
immigrant classifications within per
country ceiling.--In the case of a
foreign state subject to section 202(e)
in a fiscal year (and in the previous
fiscal year), the number of visas made
available and allocated to each of
paragraphs (1) through (3) of this
subsection in the fiscal year shall be
reduced by \1/3\ of the number of visas
made available in the previous fiscal
year to special immigrants described in
section 101(a)(27)(K) who are natives
of the foreign state.
(c) Diversity Immigrants.--
(1) In general.--Except as provided in paragraph (2),
aliens subject to the worldwide level specified in
section 201(e) for diversity immigrants shall be
allotted visas each fiscal year as follows:
(A) Determination of preference
immigration.--The Attorney General shall
determine for the most recent previous 5-
fiscal-year period for which data are
available, the total number of aliens who are
natives of each foreign state and who (i) were
admitted or otherwise provided lawful permanent
resident status (other than under this
subsection) and (ii) were subject to the
numerical limitations of section 201(a) (other
than paragraph (3) thereof) or who were
admitted or otherwise provided lawful permanent
resident status as an immediate relative or
other alien described in section 201(b)(2).
(B) Identification of high-admission and low-
admission regions and high-admission and low-
admission states.--The Attorney General--
(i) shall identify--
(I) each region (each in this
paragraph referred to as a
``high-admission region'') for
which the total of the numbers
determined under subparagraph
(A) for states in the region is
greater than \1/6\ of the total
of all such numbers, and
(II) each other region (each
in this paragraph referred to
as a ``low-admission region'');
and
(ii) shall identify--
(I) each foreign state for
which the number determined
under subparagraph (A) is
greater than 50,000 (each such
state in this paragraph
referred to as a ``high-
admission state''), and
(II) each other foreign state
(each such state in this
paragraph referred to as a
``low-admission state'').
(C) Determination of percentage of worldwide
immigration attributable to high-admission
regions.--The Attorney General shall determine
the percentage of the total of the numbers
determined under subparagraph (A) that are
numbers for foreign states in high-admission
regions.
(D) Determination of regional populations
excluding high-admission states and ratios of
populations of regions within low-admission
regions and high-admission regions.--The
Attorney General shall determine--
(i) based on available estimates for
each region, the total population of
each region not including the
population of any high-admission state;
(ii) for each low-admission region,
the ratio of the population of the
region determined under clause (i) to
the total of the populations determined
under such clause for all the low-
admission regions; and
(iii) for each high-admission region,
the ratio of the population of the
region determined under clause (i) to
the total of the populations determined
under such clause for all the high-
admission regions.
(E) Distribution of visas.--
(i) No visas for natives of high-
admission states.--The percentage of
visas made available under this
paragraph to natives of a high-
admission state is 0.
(ii) For low-admission states in low-
admission regions.--Subject to clauses
(iv) and (v), the percentage of visas
made available under this paragraph to
natives (other than natives of a high-
admission state) in a low-admission
region is the product of--
(I) the percentage determined
under subparagraph (C), and
(II) the population ratio for
that region determined under
subparagraph (D)(ii).
(iii) For low-admission states in
high-admission regions.--Subject to
clauses (iv) and (v), the percentage of
visas made available under this
paragraph to natives (other than
natives of a high-admission state) in a
high-admission region is the product
of--
(I) 100 percent minus the
percentage determined under
subparagraph (C), and
(II) the population ratio for
that region determined under
subparagraph (D)(iii).
(iv) Redistribution of unused visa
numbers.--If the Secretary of State
estimates that the number of immigrant
visas to be issued to natives in any
region for a fiscal year under this
paragraph is less than the number of
immigrant visas made available to such
natives under this paragraph for the
fiscal year, subject to clause (v), the
excess visa numbers shall be made
available to natives (other than
natives of a high-admission state) of
the other regions in proportion to the
percentages otherwise specified in
clauses (ii) and (iii).
(v) Limitation on visas for natives
of a single foreign state.--The
percentage of visas made available
under this paragraph to natives of any
single foreign state for any fiscal
year shall not exceed 7 percent.
(F) Region defined.--Only for purposes of
administering the diversity program under this
subsection, Northern Ireland shall be treated
as a separate foreign state, each colony or
other component or dependent area of a foreign
state overseas from the foreign state shall be
treated as part of the foreign state, and the
areas described in each of the following
clauses shall be considered to be a separate
region:
(i) Africa.
(ii) Asia.
(iii) Europe.
(iv) North America (other than
Mexico).
(v) Oceania.
(vi) South America, Mexico, Central
America, and the Caribbean.
(2) Requirement of education or work experience.--An
alien is not eligible for a visa under this subsection
unless the alien--
(A) has at least a high school education or
its equivalent, or
(B) has, within 5 years of the date of
application for a visa under this subsection,
at least 2 years of work experience in an
occupation which requires at least 2 years of
training or experience.
(3) Maintenance of information.--The Secretary of
State shall maintain information on the age,
occupation, education level, and other relevant
characteristics of immigrants issued visas under this
subsection.
(d) Treatment of Family Members.--A spouse or child as
defined in subparagraph (A), (B), (C), (D), or (E) of section
101(b)(1) shall, if not otherwise entitled to an immigrant
status and the immediate issuance of a visa under subsection
(a), (b), or (c), be entitled to the same status, and the same
order of consideration provided in the respective subsection,
if accompanying or following to join, the spouse or parent.
(e) Order of Consideration.--(1) Immigrant visas made
available under subsection (a) or (b) shall be issued to
eligible immigrants in the order in which a petition in behalf
of each such immigrant is filed with the Attorney General (or
in the case of special immigrants under section 101(a)(27)(D),
with the Secretary of State) as provided in section 204(a).
(2) Immigrant visa numbers made available under subsection
(c) (relating to diversity immigrants) shall be issued to
eligible qualified immigrants strictly in a random order
established by the Secretary of State for the fiscal year
involved.
(3) Waiting lists of applicants for visas under this section
shall be maintained in accordance with regulations prescribed
by the Secretary of State.
(f) Authorization for Issuance.--In the case of any alien
claiming in his application for an immigrant visa to be
described in section 201(b)(2) or in subsection (a), (b), or
(c) of this section, the consular officer shall not grant such
status until he has been authorized to do so as provided by
section 204.
(g) Lists.--For purposes of carrying out the Secretary's
responsibilities in the orderly administration of this section,
the Secretary of State may make reasonable estimates of the
anticipated numbers of visas to be issued during any quarter of
any fiscal year within each of the categories under subsections
(a), (b), and (c) and to rely upon such estimates in
authorizing the issuance of visas. The Secretary of State shall
terminate the registration of any alien who fails to apply for
an immigrant visa within one year following notification to the
alien of the availability of such visa, but the Secretary shall
reinstate the registration of any such alien who establishes
within 2 years following the date of notification of the
availability of such visa that such failure to apply was due to
circumstances beyond the alien's control.
(h) Rules for Determining Whether Certain Aliens Are
Children.--
(1) In general.--For purposes of subsections
(a)(2)(A) and (d), a determination of whether an alien
satisfies the age requirement in the matter preceding
subparagraph (A) of section 101(b)(1) shall be made
using--
(A) the age of the alien on the date on which
an immigrant visa number becomes available for
such alien (or, in the case of subsection (d),
the date on which an immigrant visa number
became available for the alien's parent), but
only if the alien has sought to acquire the
status of an alien lawfully admitted for
permanent residence within one year of such
availability; reduced by
(B) the number of days in the period during
which the applicable petition described in
paragraph (2) was pending.
(2) Petitions described.--The petition described in
this paragraph is--
(A) with respect to a relationship described
in subsection (a)(2)(A), a petition filed under
section 204 for classification of an alien
child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a
derivative beneficiary under subsection (d), a
petition filed under section 204 for
classification of the alien's parent under
subsection (a), (b), or (c).
(3) Retention of priority date.--If the age of an
alien is determined under paragraph (1) to be 21 years
of age or older for the purposes of subsections
(a)(2)(A) and (d), the alien's petition shall
automatically be converted to the appropriate category
and the alien shall retain the original priority date
issued upon receipt of the original petition.
(4) Application to self-petitions.--Paragraphs (1)
through (3) shall apply to self-petitioners and
derivatives of self-petitioners.
procedure for granting immigrant status
Sec. 204. (a)(1)(A)(i) Except as provided in clause (viii),
any citizen of the United States claiming that an alien is
entitled to classification by reason of a relationship
described in paragraph (1), (3), or (4) of section 203(a) or to
an immediate relative status under section 201(b)(2)(A)(i) may
file a petition with the Attorney General for such
classification.
(ii) An alien spouse described in the second sentence of
section 201(b)(2)(A)(i) also may file a petition with the
Attorney General under this subparagraph for classification of
the alien (and the alien's children) under such section.
(iii)(I) An alien who is described in subclause (II) may file
a petition with the Attorney General under this clause for
classification of the alien (and any child of the alien) if the
alien demonstrates to the Attorney General that--
(aa) the marriage or the intent to marry the United
States citizen was entered into in good faith by the
alien; and
(bb) during the marriage or relationship intended by
the alien to be legally a marriage, the alien or a
child of the alien has been battered or has been the
subject of extreme cruelty perpetrated by the alien's
spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in
this subclause is an alien--
(aa)(AA) who is the spouse of a citizen of the United
States;
(BB) who believed that he or she had married a
citizen of the United States and with whom a marriage
ceremony was actually performed and who otherwise meets
any applicable requirements under this Act to establish
the existence of and bona fides of a marriage, but
whose marriage is not legitimate solely because of the
bigamy of such citizen of the United States; or
(CC) who was a bona fide spouse of a United States
citizen within the past 2 years and--
(aaa) whose spouse died within the past 2
years;
(bbb) whose spouse lost or renounced
citizenship status within the past 2 years
related to an incident of domestic violence; or
(ccc) who demonstrates a connection between
the legal termination of the marriage within
the past 2 years and battering or extreme
cruelty by the United States citizen spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as an immediate
relative under section 201(b)(2)(A)(i) or who would
have been so classified but for the bigamy of the
citizen of the United States that the alien intended to
marry; and
(dd) who has resided with the alien's spouse or
intended spouse.
(iv) An alien who is the child of a citizen of the United
States, or who was a child of a United States citizen parent
who within the past 2 years lost or renounced citizenship
status related to an incident of domestic violence, and who is
a person of good moral character, who is eligible to be
classified as an immediate relative under section
201(b)(2)(A)(i), and who resides, or has resided in the past,
with the citizen parent may file a petition with the Attorney
General under this subparagraph for classification of the alien
(and any child of the alien) under such section if the alien
demonstrates to the Attorney General that the alien has been
battered by or has been the subject of extreme cruelty
perpetrated by the alien's citizen parent. For purposes of this
clause, residence includes any period of visitation.
(v) An alien who--
(I) is the spouse, intended spouse, or child living
abroad of a citizen who--
(aa) is an employee of the United States
Government;
(bb) is a member of the uniformed services
(as defined in section 101(a) of title 10,
United States Code); or
(cc) has subjected the alien or the alien's
child to battery or extreme cruelty in the
United States; and
(II) is eligible to file a petition under clause
(iii) or (iv),
shall file such petition with the Attorney General under the
procedures that apply to self-petitioners under clause (iii) or
(iv), as applicable.
(vi) For the purposes of any petition filed under clause
(iii) or (iv), the denaturalization, loss or renunciation of
citizenship, death of the abuser, divorce, or changes to the
abuser's citizenship status after filing of the petition shall
not adversely affect the approval of the petition, and for
approved petitions shall not preclude the classification of the
eligible self-petitioning spouse or child as an immediate
relative or affect the alien's ability to adjust status under
subsections (a) and (c) of section 245 or obtain status as a
lawful permanent resident based on the approved self-petition
under such clauses.
(vii) An alien may file a petition with the Secretary of
Homeland Security under this subparagraph for classification of
the alien under section 201(b)(2)(A)(i) if the alien--
(I) is the parent of a citizen of the United States
or was a parent of a citizen of the United States who,
within the past 2 years, lost or renounced citizenship
status related to an incident of domestic violence or
died;
(II) is a person of good moral character;
(III) is eligible to be classified as an immediate
relative under section 201(b)(2)(A)(i);
(IV) resides, or has resided, with the citizen
daughter or son; and
(V) demonstrates that the alien has been battered or
subject to extreme cruelty by the citizen daughter or
son.
(viii)(I) Clause (i) shall not apply
to a citizen of the United States who
has been convicted of a specified
offense against a minor, unless the
Secretary of Homeland Security, in the
Secretary's sole and unreviewable
discretion, determines that the citizen
poses no risk to the alien with respect
to whom a petition described in clause
(i) is filed.
(II) For purposes of subclause (I),
the term ``specified offense against a
minor'' is defined as in section 111 of
the Adam Walsh Child Protection and
Safety Act of 2006.
(B)(i)(I) Except as provided in subclause (II), any alien
lawfully admitted for permanent residence claiming that an
alien is entitled to a classification by reason of the
relationship described in section 203(a)(2) may file a petition
with the Attorney General for such classification.
(I) Subclause (I) shall not apply in the case
of an alien lawfully admitted for permanent
residence who has been convicted of a specified
offense against a minor (as defined in
subparagraph (A)(viii)(II)), unless the
Secretary of Homeland Security, in the
Secretary's sole and unreviewable discretion,
determines that such person poses no risk to
the alien with respect to whom a petition
described in subclause (I) is filed.
(ii)(I) An alien who is described in subclause (II) may file
a petition with the Attorney General under this clause for
classification of the alien (and any child of the alien) if
such a child has not been classified under clause (iii) of
section 203(a)(2)(A) and if the alien demonstrates to the
Attorney General that--
(aa) the marriage or the intent to marry the lawful
permanent resident was entered into in good faith by
the alien; and
(bb) during the marriage or relationship intended by
the alien to be legally a marriage, the alien or a
child of the alien has been battered or has been the
subject of extreme cruelty perpetrated by the alien's
spouse or intended spouse.
(II) For purposes of subclause (I), an alien described in
this paragraph is an alien--
(aa)(AA) who is the spouse of a lawful permanent
resident of the United States; or
(BB) who believed that he or she had married a lawful
permanent resident of the United States and with whom a
marriage ceremony was actually performed and who
otherwise meets any applicable requirements under this
Act to establish the existence of and bona fides of a
marriage, but whose marriage is not legitimate solely
because of the bigamy of such lawful permanent resident
of the United States; or
(CC) who was a bona fide spouse of a lawful permanent
resident within the past 2 years and--
(aaa) whose spouse lost status within the
past 2 years due to an incident of domestic
violence; or
(bbb) who demonstrates a connection between
the legal termination of the marriage within
the past 2 years and battering or extreme
cruelty by the lawful permanent resident
spouse;
(bb) who is a person of good moral character;
(cc) who is eligible to be classified as a spouse of
an alien lawfully admitted for permanent residence
under section 203(a)(2)(A) or who would have been so
classified but for the bigamy of the lawful permanent
resident of the United States that the alien intended
to marry; and
(dd) who has resided with the alien's spouse or
intended spouse.
(iii) An alien who is the child of an alien lawfully admitted
for permanent residence, or who was the child of a lawful
permanent resident who within the past 2 years lost lawful
permanent resident status due to an incident of domestic
violence, and who is a person of good moral character, who is
eligible for classification under section 203(a)(2)(A), and who
resides, or has resided in the past, with the alien's permanent
resident alien parent may file a petition with the Attorney
General under this subparagraph for classification of the alien
(and any child of the alien) under such section if the alien
demonstrates to the Attorney General that the alien has been
battered by or has been the subject of extreme cruelty
perpetrated by the alien's permanent resident parent.
(iv) An alien who--
(I) is the spouse, intended spouse, or child living
abroad of a lawful permanent resident who--
(aa) is an employee of the United States
Government;
(bb) is a member of the uniformed services
(as defined in section 101(a) of title 10,
United States Code); or
(cc) has subjected the alien or the alien's
child to battery or extreme cruelty in the
United States; and
(II) is eligible to file a petition under clause (ii)
or (iii),
shall file such petition with the Attorney General under the
procedures that apply to self-petitioners under clause (ii) or
(iii), as applicable.
(v)(I) For the purposes of any petition filed or approved
under clause (ii) or (iii), divorce, or the loss of lawful
permanent resident status by a spouse or parent after the
filing of a petition under that clause shall not adversely
affect approval of the petition, and, for an approved petition,
shall not affect the alien's ability to adjust status under
subsections (a) and (c) of section 245 or obtain status as a
lawful permanent resident based on an approved self-petition
under clause (ii) or (iii).
(II) Upon the lawful permanent resident spouse or parent
becoming or establishing the existence of United States
citizenship through naturalization, acquisition of citizenship,
or other means, any petition filed with the Immigration and
Naturalization Service and pending or approved under clause
(ii) or (iii) on behalf of an alien who has been battered or
subjected to extreme cruelty shall be deemed reclassified as a
petition filed under subparagraph (A) even if the acquisition
of citizenship occurs after divorce or termination of parental
rights.
(C) Notwithstanding section 101(f), an act or conviction that
is waivable with respect to the petitioner for purposes of a
determination of the petitioner's admissibility under section
212(a) or deportability under section 237(a) shall not bar the
Attorney General from finding the petitioner to be of good
moral character under subparagraph (A)(iii), (A)(iv), (B)(ii),
or (B)(iii) if the Attorney General finds that the act or
conviction was connected to the alien's having been battered or
subjected to extreme cruelty.
(D)(i)(I) Any child who attains 21 years of age who has filed
a petition under clause (iv) of section 204(a)(1)(A) or section
204(a)(1)(B)(iii) that was filed or approved before the date on
which the child attained 21 years of age shall be considered
(if the child has not been admitted or approved for lawful
permanent residence by the date the child attained 21 years of
age) a petitioner for preference status under paragraph (1),
(2), or (3) of section 203(a), whichever paragraph is
applicable, with the same priority date assigned to the self-
petition filed under clause (iv) of section 204(a)(1)(A) or
section 204(a)(1)(B)(iii). No new petition shall be required to
be filed.
(II) Any individual described in subclause (I) is eligible
for deferred action and work authorization.
(III) Any derivative child who attains 21 years of age who is
included in a petition described in clause (ii) that was filed
or approved before the date on which the child attained 21
years of age shall be considered (if the child has not been
admitted or approved for lawful permanent residence by the date
the child attained 21 years of age) a VAWA self-petitioner with
the same priority date as that assigned to the petitioner in
any petition described in clause (ii). No new petition shall be
required to be filed.
(IV) Any individual described in subclause (III) and any
derivative child of a petition described in clause (ii) is
eligible for deferred action and work authorization.
(ii) The petition referred to in clause (i)(III) is a
petition filed by an alien under subparagraph (A)(iii),
(A)(iv), (B)(ii) or (B)(iii) in which the child is included as
a derivative beneficiary.
(iii) Nothing in the amendments made by the Child Status
Protection Act shall be construed to limit or deny any right or
benefit provided under this subparagraph.
(iv) Any alien who benefits from this subparagraph may adjust
status in accordance with subsections (a) and (c) of section
245 as an alien having an approved petition for classification
under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii).
(v) For purposes of this paragraph, an individual who is not
less than 21 years of age, who qualified to file a petition
under subparagraph (A)(iv) or (B)(iii) as of the day before the
date on which the individual attained 21 years of age, and who
did not file such a petition before such day, shall be treated
as having filed a petition under such subparagraph as of such
day if a petition is filed for the status described in such
subparagraph before the individual attains 25 years of age and
the individual shows that the abuse was at least one central
reason for the filing delay. Clauses (i) through (iv) of this
subparagraph shall apply to an individual described in this
clause in the same manner as an individual filing a petition
under subparagraph (A)(iv).
(E) Any alien desiring to be classified under section
203(b)(1)(A) or 203(b)(3)(A)(iii)(II), or any person on behalf
of such an alien, may file a petition with the Attorney General
for such classification.
(F) Any employer desiring and intending to employ within the
United States an alien entitled to classification under section
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) may file a
petition with the Attorney General for such classification.
(G)(i) Any alien (other than a special immigrant under
section 101(a)(27)(D)) desiring to be classified under section
203(b)(4), or any person on behalf of such an alien, may file a
petition with the Attorney General for such classification.
(ii) Aliens claiming status as a special immigrant under
section 101(a)(27)(D) may file a petition only with the
Secretary of State and only after notification by the Secretary
that such status has been recommended and approved pursuant to
such section.
(H) Any alien desiring to be classified under section
203(b)(5) may file a petition with the Attorney General for
such classification.
(I)(i) Any alien desiring to be provided an immigrant visa
under section 203(c) may file a petition at the place and time
determined by the Secretary of State by regulation. Only one
such petition may be filed by an alien with respect to any
petitioning period established. If more than one petition is
submitted all such petitions submitted for such period by the
alien shall be voided.
(ii)(I) The Secretary of State shall designate a period for
the filing of petitions with respect to visas which may be
issued under section 203(c) for the fiscal year beginning after
the end of the period.
(II) Aliens who qualify, through random selection, for a visa
under section 203(c) shall remain eligible to receive such visa
only through the end of the specific fiscal year for which they
were selected.
(III) The Secretary of State shall prescribe such regulations
as may be necessary to carry out this clause.
(iii) A petition under this subparagraph shall be in such
form as the Secretary of State may by regulation prescribe and
shall contain such information and be supported by such
documentary evidence as the Secretary of State may require.
(iv) Each petition to compete for consideration for a
visa under section 1153(c) of this title shall be
accompanied by a fee equal to $30. All amounts
collected under this clause shall be deposited into the
Treasury as miscellaneous receipts.
(J) In acting on petitions filed under clause (iii) or (iv)
of subparagraph (A) or clause (ii) or (iii) of subparagraph
(B), or in making determinations under subparagraphs (C) and
(D), the Attorney General shall consider any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be
within the sole discretion of the Attorney General.
(K) Upon the approval of a petition as a VAWA self-
petitioner, the alien--
(i) is eligible for work authorization; and
(ii) may be provided an ``employment authorized''
endorsement or appropriate work permit incidental to
such approval.
(L) Notwithstanding the previous provisions
of this paragraph, an individual who was a VAWA
petitioner or who had the status of a
nonimmigrant under subparagraph (T) or (U) of
section 101(a)(15) may not file a petition for
classification under this section or section
214 to classify any person who committed the
battery or extreme cruelty or trafficking
against the individual (or the individual's
child) which established the individual's (or
individual's child) eligibility as a VAWA
petitioner or for such nonimmigrant status.
(2)(A) The Attorney General may not approve a spousal second
preference petition for the classification of the spouse of an
alien if the alien, by virtue of a prior marriage, has been
accorded the status of an alien lawfully admitted for permanent
residence as the spouse of a citizen of the United States or as
the spouse of an alien lawfully admitted for permanent
residence, unless--
(i) a period of 5 years has elapsed after the date
the alien acquired the status of an alien lawfully
admitted for permanent residence, or
(ii) the alien establishes to the satisfaction of the
Attorney General by clear and convincing evidence that
the prior marriage (on the basis of which the alien
obtained the status of an alien lawfully admitted for
permanent residence) was not entered into for the
purpose of evading any provision of the immigration
laws.
In this subparagraph, the term ``spousal second preference
petition'' refers to a petition, seeking preference status
under section 203(a)(2), for an alien as a spouse of an alien
lawfully admitted for permanent residence.
(B) Subparagraph (A) shall not apply to a petition filed for
the classification of the spouse of an alien if the prior
marriage of the alien was terminated by the death of his or her
spouse.
(b) After an investigation of the facts in each case, and
after consultation with the Secretary of Labor with respect to
petitions to accord a status under section 203(b)(2) or
203(b)(3), the Attorney General shall, if he determines that
the facts stated in the petition are true and that the alien in
behalf of whom the petition is made is an immediate relative
specified in section 201(b) or is eligible for preference under
subsection (a) or (b) of section 203, approve the petition and
forward one copy thereof to the Department of State. The
Secretary of State shall then authorize the consular officer
concerned to grant the preference status.
(c) Notwithstanding the provisions of subsection (b) no
petition shall be approved if (1) the alien has previously been
accorded, or has sought to be accorded, an immediate relative
or preference status as the spouse of a citizen of the United
States or the spouse of an alien lawfully admitted for
permanent residence, by reason of a marriage determined by the
Attorney General to have been entered into for the purpose of
evading the immigration laws or (2) the Attorney General has
determined that the alien has attempted or conspired to enter
into a marriage for the purpose of evading the immigration
laws.
(d)(1) Notwithstanding the provisions of subsections (a) and
(b) no petition may be approved on behalf of a child defined in
subparagraph (F) or (G) of section 101(b)(1) unless a valid
home-study has been favorably recommended by an agency of the
State of the child's proposed residence, or by an agency
authorized by that State to conduct such a study, or, in the
case of a child adopted abroad, by an appropriate public or
private adoption agency which is licensed in the United States.
(2) Notwithstanding the provisions of subsections (a) and
(b), no petition may be approved on behalf of a child defined
in section 101(b)(1)(G) unless the Secretary of State has
certified that the central authority of the child's country of
origin has notified the United States central authority under
the convention referred to in such section 101(b)(1)(G) that a
United States citizen habitually resident in the United States
has effected final adoption of the child, or has been granted
custody of the child for the purpose of emigration and
adoption, in accordance with such convention and the
Intercountry Adoption Act of 2000.
(e) Nothing in this section shall be construed to entitle an
immigrant, in behalf of whom a petition under this section is
approved, to be admitted the United States as an immigrant
under subsection (a), (b), or (c) of section 203 or as an
immediate relative under section 201(b) if upon his arrival at
a port of entry in the United States he is found not to be
entitled to such classification.
(f)(1) Any alien claiming to be an alien described in
paragraph (2)(A) of this subsection (or any person on behalf of
such an alien) may file a petition with the Attorney General
for classification under section 201(b), 203(a)(1), or
203(a)(3), as appropriate. After an investigation of the facts
of each case the Attorney General shall, if the conditions
described in paragraph (2) are met, approve the petition and
forward one copy to the Secretary of State.
(2) The Attorney General may approve a petition for an alien
under paragraph (1) if--
(A) he has reason to believe that the alien (i) was
born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after 1950 and before the date of the enactment of this
subsection, and (ii) was fathered by a United States
citizen;
(B) he has received an acceptable guarantee of legal
custody and financial responsibility described in
paragraph (4); and
(C) in the case of an alien under eighteen years of
age, (i) the alien's placement with a sponsor in the
United States has been arranged by an appropriate
public, private, or State child welfare agency licensed
in the United States and actively involved in the
intercountry placement of children and (ii) the alien's
mother or guardian has in writing irrevocably released
the alien for emigration.
(3) In considering petitions filed under paragraph (1), the
Attorney General shall--
(A) consult with appropriate governmental officials
and officials of private voluntary organizations in the
country of the alien's birth in order to make the
determinations described in subparagraphs (A) and
(C)(ii) of paragraph (2); and
(B) consider the physical appearance of the alien and
any evidence provided by the petitioner, including
birth and baptismal certificates, local civil records,
photographs of, and letters or proof of financial
support from, a putative father who is a citizen of the
United States, and the testimony of witnesses, to the
extent it is relevant or probative.
(4)(A) A guarantee of legal custody and financial
responsibility for an alien described in paragraph (2) must--
(i) be signed in the presence of an immigration
officer or consular officer by an individual
(hereinafter in this paragraph referred to as the
``sponsor'') who is twenty-one years of age or older,
is of good moral character, and is a citizen of the
United States or alien lawfully admitted for permanent
residence, and
(ii) provide that the sponsor agrees (I) in the case
of an alien under eighteen years of age, to assume
legal custody for the alien after the alien's departure
to the United States and until the alien becomes
eighteen years of age, in accordance with the laws of
the State where the alien and the sponsor will reside,
and (II) to furnish, during the five-year period
beginning on the date of the alien's acquiring the
status of an alien lawfully admitted for permanent
residence, or during the period beginning on the date
of the alien's acquiring the status of an alien
lawfully admitted for permanent residence and ending on
the date on which the alien becomes twenty-one years of
age, whichever period is longer, such financial support
as is necessary to maintain the family in the United
States of which the alien is a member at a level equal
to at least 125 per centum of the current official
poverty line (as established by the Director of the
Office of Management and Budget, under section 673(2)
of the Omnibus Budget Reconciliation Act of 1981 and as
revised by the Secretary of Health and Human Services
under the second and third sentences of such section)
for a family of the same size as the size of the
alien's family.
(B) A guarantee of legal custody and financial responsibility
described in subparagraph (A) may be enforced with respect to
an alien against his sponsor in a civil suit brought by the
Attorney General in the United States district court for the
district in which the sponsor resides, except that a sponsor or
his estate shall not be liable under such a guarantee if the
sponsor dies or is adjudicated a bankrupt under title 11,
United States Code.
(g) Notwithstanding subsection (a), except as provided in
section 245(e)(3), a petition may not be approved to grant an
alien immediate relative status or preference status by reason
of a marriage which was entered into during the period
described in section 245(e)(2), until the alien has resided
outside the United States for a 2-year period beginning after
the date of the marriage.
(h) The legal termination of a marriage may not be the sole
basis for revocation under section 205 of a petition filed
under subsection (a)(1)(A)(iii) or a petition filed under
subsection (a)(1)(B)(ii) pursuant to conditions described in
subsection (a)(1)(A)(iii)(I). Remarriage of an alien whose
petition was approved under section 204(a)(1)(B)(ii) or
204(a)(1)(A)(iii) or marriage of an alien described in clause
(iv) or (vi) of section 204(a)(1)(A) or in section
204(a)(1)(B)(iii) shall not be the basis for revocation of a
petition approval under section 205.
(i) Professional Athletes.--
(1) In general.--A petition under subsection
(a)(4)(D) for classification of a professional athlete
shall remain valid for the athlete after the athlete
changes employers, if the new employer is a team in the
same sport as the team which was the employer who filed
the petition.
(2) Definition.--For purposes of paragraph (1), the
term ``professional athlete'' means an individual who
is employed as an athlete by--
(A) a team that is a member of an association
of 6 or more professional sports teams whose
total combined revenues exceed $10,000,000 per
year, if the association governs the conduct of
its members and regulates the contests and
exhibitions in which its member teams regularly
engage; or
(B) any minor league team that is affiliated
with such an association.
(j) Job Flexibility for Long Delayed Applicants for
Adjustment of Status to Permanent Residence.--A petition under
subsection (a)(1)(D) for an individual whose application for
adjustment of status pursuant to section 245 has been filed and
remained unadjudicated for 180 days or more shall remain valid
with respect to a new job if the individual changes jobs or
employers if the new job is in the same or a similar
occupational classification as the job for which the petition
was filed.
(k) Procedures for Unmarried Sons and Daughters of
Citizens.--
(1) In general.--Except as provided in paragraph (2),
in the case of a petition under this section initially
filed for an alien unmarried son or daughter's
classification as a family-sponsored immigrant under
section 203(a)(2)(B), based on a parent of the son or
daughter being an alien lawfully admitted for permanent
residence, if such parent subsequently becomes a
naturalized citizen of the United States, such petition
shall be converted to a petition to classify the
unmarried son or daughter as a family-sponsored
immigrant under section 203(a)(1).
(2) Exception.--Paragraph (1) does not apply if the
son or daughter files with the Attorney General a
written statement that he or she elects not to have
such conversion occur (or if it has occurred, to have
such conversion revoked). Where such an election has
been made, any determination with respect to the son or
daughter's eligibility for admission as a family-
sponsored immigrant shall be made as if such
naturalization had not taken place.
(3) Priority date.--Regardless of whether a petition
is converted under this subsection or not, if an
unmarried son or daughter described in this subsection
was assigned a priority date with respect to such
petition before such naturalization, he or she may
maintain that priority date.
(4) Clarification.--This subsection shall apply to a
petition if it is properly filed, regardless of whether
it was approved or not before such naturalization.
(l) Surviving Relative Consideration for Certain Petitions
and Applications.--
(1) In general.--An alien described in paragraph (2)
who resided in the United States at the time of the
death of the qualifying relative and who continues to
reside in the United States shall have such petition
described in paragraph (2), or an application for
adjustment of status to that of a person admitted for
lawful permanent residence based upon the family
relationship described in paragraph (2), and any
related applications, adjudicated notwithstanding the
death of the qualifying relative, unless the Secretary
of Homeland Security determines, in the unreviewable
discretion of the Secretary, that approval would not be
in the public interest.
(2) Alien described.--An alien described in this
paragraph is an alien who, immediately prior to the
death of his or her qualifying relative, was--
(A) the beneficiary of a pending or approved
petition for classification as an immediate
relative (as described in section
201(b)(2)(A)(i));
(B) the beneficiary of a pending or approved
petition for classification under section 203
(a) or (d);
(C) a derivative beneficiary of a pending or
approved petition for classification under
section 203(b) (as described in section
203(d));
(D) the beneficiary of a pending or approved
refugee/asylee relative petition under section
207 or 208;
(E) an alien admitted in ``T'' nonimmigrant
status as described in section
101(a)(15)(T)(ii) or in ``U'' nonimmigrant
status as described in section
101(a)(15)(U)(ii);
(F) a child of an alien who filed a pending
or approved petition for classification or
application for adjustment of status or other
benefit specified in section 101(a)(51) as a
VAWA self-petitioner; or
(G) an asylee (as described in section
208(b)(3)).
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
admission of nonimmigrants
Sec. 214. (a)(1) The admission to the United States of any
alien as a nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
prescribe, including when he deems necessary the giving of a
bond with sufficient surety in such sum and containing such
conditions as the Attorney General shall prescribe, to insure
that at the expiration of such time or upon failure to maintain
the status under which he was admitted, or to maintain any
status subsequently acquired under section 248, such alien will
depart from the United States. No alien admitted to Guam or the
Commonwealth of the Northern Mariana Islands without a visa
pursuant to section 212(l) may be authorized to enter or stay
in the United States other than in Guam or the Commonwealth of
the Northern Mariana Islands or to remain in Guam or the
Commonwealth of the Northern Mariana Islands for a period
exceeding 45 days from date of admission to Guam or the
Commonwealth of the Northern Mariana Islands. No alien admitted
to the United States without a visa pursuant to section 217 may
be authorized to remain in the United States as a nonimmigrant
visitor for a period exceeding 90 days from the date of
admission.
(2)(A) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(O) shall be for such period as
the Attorney General may specify in order to provide for the
event (or events) for which the nonimmigrant is admitted.
(B) The period of authorized status as a nonimmigrant
described in section 101(a)(15)(P) shall be for such period as
the Attorney General may specify in order to provide for the
competition, event, or performance for which the nonimmigrant
is admitted. In the case of nonimmigrants admitted as
individual athletes under section 101(a)(15)(P), the period of
authorized status may be for an initial period (not to exceed 5
years) during which the nonimmigrant will perform as an athlete
and such period may be extended by the Attorney General for an
additional period of up to 5 years.
(b) Every alien (other than a nonimmigrant described in
subparagraph (L) or (V) of section 101(a)(15), and other than a
nonimmigrant described in any provision of [section
101(a)(15)(H)(i) except subclause (b1) of such section] clause
(i), except subclause (b1), or (ii)(a) of section
101(a)(15)(H)) shall be presumed to be an immigrant until he
establishes to the satisfaction of the consular officer, at the
time of application for a visa, and the immigration officers,
at the time of application for admission, that he is entitled
to a nonimmigrant status under section 101(a)(15). An alien who
is an officer or employee of any foreign government or of any
international organization entitled to enjoy privileges,
exemptions, and immunities under the International
Organizations Immunities Act, or an alien who is the attendant,
servant, employee, or member of the immediate family of any
such alien shall not be entitled to apply for or receive an
immigrant visa, or to enter the United States as an immigrant
unless he executes a written waiver in the same form and
substance as is prescribed by section 247(b).
(c)(1) The question of importing any alien as a nonimmigrant
under subparagraph (H), (L), (O), or (P)(i) of section
101(a)(15) (excluding nonimmigrants under section
101(a)(15)(H)(i)(b1)) in any specific case or specific cases
shall be determined by the Attorney General, after consultation
with appropriate agencies of the Government, upon petition of
the importing employer. Such petition shall be made and
approved before the visa is granted. The petition shall be in
such form and contain such information as the Attorney General
shall prescribe. The approval of such a petition shall not, of
itself, be construed as establishing that the alien is a
nonimmigrant. For purposes of this subsection with respect to
nonimmigrants described in section 101(a)(15)(H)(ii)(a), the
term ``appropriate agencies of Government'' means the
Department of Labor and includes the Department of Agriculture.
The provisions of section 218 shall apply to the question of
importing any alien as a nonimmigrant under section
101(a)(15)(H)(ii)(a).
(2)(A) The Attorney General shall provide for a procedure
under which an importing employer which meets requirements
established by the Attorney General may file a blanket petition
to import aliens as nonimmigrants described in section
101(a)(15)(L) instead of filing individual petitions under
paragraph (1) to import such aliens. Such procedure shall
permit the expedited processing of visas for admission of
aliens covered under such a petition.
(B) For purposes of section 101(a)(15)(L), an alien is
considered to be serving in a capacity involving specialized
knowledge with respect to a company if the alien has a special
knowledge of the company product and its application in
international markets or has an advanced level of knowledge of
processes and procedures of the company.
(C) The Attorney General shall provide a process for
reviewing and acting upon petitions under this subsection with
respect to nonimmigrants described in section 101(a)(15)(L)
within 30 days after the date a completed petition has been
filed.
(D) The period of authorized admission for--
(i) a nonimmigrant admitted to render services in a
managerial or executive capacity under section
101(a)(15)(L) shall not exceed 7 years, or
(ii) a nonimmigrant admitted to render services in a
capacity that involves specialized knowledge under
section 101(a)(15)(L) shall not exceed 5 years.
(E) In the case of an alien spouse admitted under section
101(a)(15)(L), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(F) An alien who will serve in a capacity involving
specialized knowledge with respect to an employer for purposes
of section 101(a)(15)(L) and will be stationed primarily at the
worksite of an employer other than the petitioning employer or
its affiliate, subsidiary, or parent shall not be eligible for
classification under section 101(a)(15)(L) if--
(i) the alien will be controlled and supervised
principally by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of
the unaffiliated employer is essentially an arrangement
to provide labor for hire for the unaffiliated
employer, rather than a placement in connection with
the provision of a product or service for which
specialized knowledge specific to the petitioning
employer is necessary.
(3) The Attorney General shall approve a petition--
(A) with respect to a nonimmigrant described in
section 101(a)(15)(O)(i) only after consultation in
accordance with paragraph (6) or, with respect to
aliens seeking entry for a motion picture or television
production, after consultation with the appropriate
union representing the alien's occupational peers and a
management organization in the area of the alien's
ability, or
(B) with respect to a nonimmigrant described in
section 101(a)(15)(O)(ii) after consultation in
accordance with paragraph (6) or, in the case of such
an alien seeking entry for a motion picture or
television production, after consultation with such a
labor organization and a management organization in the
area of the alien's ability.
In the case of an alien seeking entry for a motion picture or
television production, (i) any opinion under the previous
sentence shall only be advisory, (ii) any such opinion that
recommends denial must be in writing, (iii) in making the
decision the Attorney General shall consider the exigencies and
scheduling of the production, and (iv) the Attorney General
shall append to the decision any such opinion. The Attorney
General shall provide by regulation for the waiver of the
consultation requirement under subparagraph (A) in the case of
aliens who have been admitted as nonimmigrants under section
101(a)(15)(O)(i) because of extraordinary ability in the arts
and who seek readmission to perform similar services within 2
years after the date of a consultation under such subparagraph.
Not later than 5 days after the date such a waiver is provided,
the Attorney General shall forward a copy of the petition and
all supporting documentation to the national office of an
appropriate labor organization.
(4)(A) For purposes of section 101(a)(15)(P)(i)(a), an alien
is described in this subparagraph if the alien--
(i)(I) performs as an athlete, individually or as
part of a group or team, at an internationally
recognized level of performance;
(II) is a professional athlete, as defined in section
204(i)(2);
(III) performs as an athlete, or as a coach, as part
of a team or franchise that is located in the United
States and a member of a foreign league or association
of 15 or more amateur sports teams, if--
(aa) the foreign league or association is the
highest level of amateur performance of that
sport in the relevant foreign country;
(bb) participation in such league or
association renders players ineligible, whether
on a temporary or permanent basis, to earn a
scholarship in, or participate in, that sport
at a college or university in the United States
under the rules of the National Collegiate
Athletic Association; and
(cc) a significant number of the individuals
who play in such league or association are
drafted by a major sports league or a minor
league affiliate of such a sports league; or
(IV) is a professional athlete or amateur athlete who
performs individually or as part of a group in a
theatrical ice skating production; and
(ii) seeks to enter the United States temporarily and
solely for the purpose of performing--
(I) as such an athlete with respect to a
specific athletic competition; or
(II) in the case of an individual described
in clause (i)(IV), in a specific theatrical ice
skating production or tour.
(B)(i) For purposes of section 101(a)(15)(P)(i)(b), an alien
is described in this subparagraph if the alien--
(I) performs with or is an integral and essential
part of the performance of an entertainment group that
has (except as provided in clause (ii)) been recognized
internationally as being outstanding in the discipline
for a sustained and substantial period of time,
(II) in the case of a performer or entertainer,
except as provided in clause (iii), has had a sustained
and substantial relationship with that group
(ordinarily for at least one year) and provides
functions integral to the performance of the group, and
(III) seeks to enter the United States temporarily
and solely for the purpose of performing as such a
performer or entertainer or as an integral and
essential part of a performance.
(ii) In the case of an entertainment group that is recognized
nationally as being outstanding in its discipline for a
sustained and substantial period of time, the Attorney General
may, in consideration of special circumstances, waive the
international recognition requirement of clause (i)(I).
(iii)(I) The one-year relationship requirement of clause
(i)(II) shall not apply to 25 percent of the performers and
entertainers in a group.
(II) The Attorney General may waive such one-year
relationship requirement for an alien who because of illness or
unanticipated and exigent circumstances replaces an essential
member of the group and for an alien who augments the group by
performing a critical role.
(iv) The requirements of subclauses (I) and (II) of clause
(i) shall not apply to alien circus personnel who perform as
part of a circus or circus group or who constitute an integral
and essential part of the performance of such circus or circus
group, but only if such personnel are entering the United
States to join a circus that has been recognized nationally as
outstanding for a sustained and substantial period of time or
as part of such a circus.
(C) A person may petition the Attorney General for
classification of an alien as a nonimmigrant under section
101(a)(15)(P).
(D) The Attorney General shall approve petitions under this
subsection with respect to nonimmigrants described in clause
(i) or (iii) of section 101(a)(15)(P) only after consultation
in accordance with paragraph (6).
(E) The Attorney General shall approve petitions under this
subsection for nonimmigrants described in section
101(a)(15)(P)(ii) only after consultation with labor
organizations representing artists and entertainers in the
United States.
(F)(i) No nonimmigrant visa under section 101(a)(15)(P)(i)(a)
shall be issued to any alien who is a national of a country
that is a state sponsor of international terrorism unless the
Secretary of State determines, in consultation with the
Secretary of Homeland Security and the heads of other
appropriate United States agencies, that such alien does not
pose a threat to the safety, national security, or national
interest of the United States. In making a determination under
this subparagraph, the Secretary of State shall apply standards
developed by the Secretary of State, in consultation with the
Secretary of Homeland Security and the heads of other
appropriate United States agencies, that are applicable to the
nationals of such states.
(ii) In this subparagraph, the term ``state sponsor of
international terrorism'' means any country the government of
which has been determined by the Secretary of State under any
of the laws specified in clause (iii) to have repeatedly
provided support for acts of international terrorism.
(iii) The laws specified in this clause are the following:
(I) Section 6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or
successor statute).
(II) Section 40(d) of the Arms Export Control Act (22
U.S.C. 2780(d)).
(III) Section 620A(a) of the Foreign Assistance Act
of 1961 (22 U.S.C. 2371(a)).
(G) The Secretary of Homeland Security shall permit a
petition under this subsection to seek classification of more
than 1 alien as a nonimmigrant under section
101(a)(15)(P)(i)(a).
(H) The Secretary of Homeland Security shall permit an
athlete, or the employer of an athlete, to seek admission to
the United States for such athlete under a provision of this
Act other than section 101(a)(15)(P)(i) if the athlete is
eligible under such other provision.
(5)(A) In the case of an alien who is provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(H)(ii)(b) and who is dismissed from employment by
the employer before the end of the period of authorized
admission, the employer shall be liable for the reasonable
costs of return transportation of the alien abroad.
(B) In the case of an alien who is admitted to the United
States in nonimmigrant status under section 101(a)(15)(O) or
101(a)(15)(P) and whose employment terminates for reasons other
than voluntary resignation, the employer whose offer of
employment formed the basis of such nonimmigrant status and the
petitioner are jointly and severally liable for the reasonable
cost of return transportation of the alien abroad. The
petitioner shall provide assurance satisfactory to the Attorney
General that the reasonable cost of that transportation will be
provided.
(6)(A)(i) To meet the consultation requirement of paragraph
(3)(A) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(O)(i) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a peer group (or other person or persons of its
choosing, which may include a labor organization) with
expertise in the specific field involved.
(ii) To meet the consultation requirement of paragraph (3)(B)
in the case of a petition for a nonimmigrant described in
section 101(a)(15)(O)(ii) (other than with respect to aliens
seeking entry for a motion picture or television production),
the petitioner shall submit with the petition an advisory
opinion from a labor organization with expertise in the skill
area involved.
(iii) To meet the consultation requirement of paragraph
(4)(D) in the case of a petition for a nonimmigrant described
in section 101(a)(15)(P)(i) or 101(a)(15)(P)(iii), the
petitioner shall submit with the petition an advisory opinion
from a labor organization with expertise in the specific field
of athletics or entertainment involved.
(B) To meet the consultation requirements of subparagraph
(A), unless the petitioner submits with the petition an
advisory opinion from an appropriate labor organization, the
Attorney General shall forward a copy of the petition and all
supporting documentation to the national office of an
appropriate labor organization within 5 days of the date of
receipt of the petition. If there is a collective bargaining
representative of an employer's employees in the occupational
classification for which the alien is being sought, that
representative shall be the appropriate labor organization.
(C) In those cases in which a petitioner described in
subparagraph (A) establishes that an appropriate peer group
(including a labor organization) does not exist, the Attorney
General shall adjudicate the petition without requiring an
advisory opinion.
(D) Any person or organization receiving a copy of a petition
described in subparagraph (A) and supporting documents shall
have no more than 15 days following the date of receipt of such
documents within which to submit a written advisory opinion or
comment or to provide a letter of no objection. Once the 15-day
period has expired and the petitioner has had an opportunity,
where appropriate, to supply rebuttal evidence, the Attorney
General shall adjudicate such petition in no more than 14 days.
The Attorney General may shorten any specified time period for
emergency reasons if no unreasonable burden would be thus
imposed on any participant in the process.
(E)(i) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
artists or entertainers described in section 101(a)(15)(O) or
101(a)(15)(P) to accommodate the exigencies and scheduling of a
given production or event.
(ii) The Attorney General shall establish by regulation
expedited consultation procedures in the case of nonimmigrant
athletes described in section 101(a)(15)(O)(i) or
101(a)(15)(P)(i) in the case of emergency circumstances
(including trades during a season).
(F) No consultation required under this subsection by the
Attorney General with a nongovernmental entity shall be
construed as permitting the Attorney General to delegate any
authority under this subsection to such an entity. The Attorney
General shall give such weight to advisory opinions provided
under this section as the Attorney General determines, in his
sole discretion, to be appropriate.
(7) If a petition is filed and denied under this subsection,
the Attorney General shall notify the petitioner of the
determination and the reasons for the denial and of the process
by which the petitioner may appeal the determination.
(8) The Attorney General shall submit annually to the
Committees on the Judiciary of the House of Representatives and
of the Senate a report describing, with respect to petitions
under each subcategory of subparagraphs (H), (O), (P), and (Q)
of section 101(a)(15) the following:
(A) The number of such petitions which have been
filed.
(B) The number of such petitions which have been
approved and the number of workers (by occupation)
included in such approved petitions.
(C) The number of such petitions which have been
denied and the number of workers (by occupation)
requested in such denied petitions.
(D) The number of such petitions which have been
withdrawn.
(E) The number of such petitions which are awaiting
final action.
(9)(A) The Attorney General shall impose a fee on an employer
(excluding any employer that is a primary or secondary
education institution, an institution of higher education, as
defined in section 101(a) of the Higher Education Act of 1965
(20 U.S.C. 1001(a), a nonprofit entity related to or affiliated
with any such institution, a nonprofit entity which engages in
established curriculum-related clinical training of students
registered at any such institution, a nonprofit research
organization, or a governmental research organization) filing
before a petition under paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in section 101(a)(15)(H)(i)(b);
(ii) to extend the stay of an alien having such
status (unless the employer previously has obtained an
extension for such alien); or
(iii) to obtain authorization for an alien having
such status to change employers.
(B) The amount of the fee shall be $1,500 for each such
petition except that the fee shall be half the amount for each
such petition by any employer with not more than 25 full-time
equivalent employees who are employed in the United States
(determined by including any affiliate or subsidiary of such
employer).
(C) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(s).
(10) An amended H-1B petition shall not be required
where the petitioning employer is involved in a
corporate restructuring, including but not limited to a
merger, acquisition, or consolidation, where a new
corporate entity succeeds to the interests and
obligations of the original petitioning employer and
where the terms and conditions of employment remain the
same but for the identity of the petitioner.
(11)(A) Subject to subparagraph (B), the Secretary of
Homeland Security or the Secretary of State, as appropriate,
shall impose a fee on an employer who has filed an attestation
described in section 212(t)--
(i) in order that an alien may be initially granted
nonimmigrant status described in section
101(a)(15)(H)(i)(b1); or
(ii) in order to satisfy the requirement of the
second sentence of subsection (g)(8)(C) for an alien
having such status to obtain certain extensions of
stay.
(B) The amount of the fee shall be the same as the amount
imposed by the Secretary of Homeland Security under paragraph
(9), except that if such paragraph does not authorize such
Secretary to impose any fee, no fee shall be imposed under this
paragraph.
(C) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(s).
(12)(A) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fraud prevention
and detection fee on an employer filing a petition under
paragraph (1)--
(i) initially to grant an alien nonimmigrant status
described in subparagraph (H)(i)(b) or (L) of section
101(a)(15); or
(ii) to obtain authorization for an alien having such
status to change employers.
(B) In addition to any other fees authorized by law, the
Secretary of State shall impose a fraud prevention and
detection fee on an alien filing an application abroad for a
visa authorizing admission to the United States as a
nonimmigrant described in section 101(a)(15)(L), if the alien
is covered under a blanket petition described in paragraph
(2)(A).
(C) The amount of the fee imposed under subparagraph (A) or
(B) shall be $500.
(D) The fee imposed under subparagraph (A) or (B) shall only
apply to principal aliens and not to the spouses or children
who are accompanying or following to join such principal
aliens.
(E) Fees collected under this paragraph shall be deposited in
the Treasury in accordance with section 286(v).
(13)(A) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fraud prevention
and detection fee on an employer filing a petition under
paragraph (1) for nonimmigrant workers described in section
101(a)(15)(H)(ii)(b).
(B) The amount of the fee imposed under subparagraph (A)
shall be $150.
(14)(A) If the Secretary of Homeland Security finds, after
notice and an opportunity for a hearing, a substantial failure
to meet any of the conditions of the petition to admit or
otherwise provide status to a nonimmigrant worker under section
101(a)(15)(H)(ii)(b) or a willful misrepresentation of a
material fact in such petition--
(i) the Secretary of Homeland Security may, in
addition to any other remedy authorized by law, impose
such administrative remedies (including civil monetary
penalties in an amount not to exceed $10,000 per
violation) as the Secretary of Homeland Security
determines to be appropriate; and
(ii) the Secretary of Homeland Security may deny
petitions filed with respect to that employer under
section 204 or paragraph (1) of this subsection during
a period of at least 1 year but not more than 5 years
for aliens to be employed by the employer.
(B) The Secretary of Homeland Security may delegate to the
Secretary of Labor, with the agreement of the Secretary of
Labor, any of the authority given to the Secretary of Homeland
Security under subparagraph (A)(i).
(C) In determining the level of penalties to be assessed
under subparagraph (A), the highest penalties shall be reserved
for willful failures to meet any of the conditions of the
petition that involve harm to United States workers.
(D) In this paragraph, the term ``substantial failure'' means
the willful failure to comply with the requirements of this
section that constitutes a significant deviation from the terms
and conditions of a petition.
(d)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(i) until the consular officer has
received a petition filed in the United States by the fiancee
or fiance of the applying alien and approved by the Secretary
of Homeland Security. The petition shall be in such form and
contain such information as the Secretary of Homeland Security
shall, by regulation, prescribe. Such information shall include
information on any criminal convictions of the petitioner for
any specified crime described in paragraph (3)(B) and
information on any permanent protection or restraining order
issued against the petitioner related to any specified crime
described in paragraph (3)(B)(i). It shall be approved only
after satisfactory evidence is submitted by the petitioner to
establish that the parties have previously met in person within
2 years before the date of filing the petition, have a bona
fide intention to marry, and are legally able and actually
willing to conclude a valid marriage in the United States
within a period of ninety days after the alien's arrival,
except that the Secretary of Homeland Security in his
discretion may waive the requirement that the parties have
previously met in person. In the event the marriage with the
petitioner does not occur within three months after the
admission of the said alien and minor children, they shall be
required to depart from the United States and upon failure to
do so shall be removed in accordance with sections 240 and 241.
(2)(A) Subject to subparagraphs (B) and (C), the Secretary of
Homeland Security may not approve a petition under paragraph
(1) unless the Secretary has verified that--
(i) the petitioner has not, previous to the pending
petition, petitioned under paragraph (1) with respect
to two or more applying aliens; and
(ii) if the petitioner has had such a petition
previously approved, 2 years have elapsed since the
filing of such previously approved petition.
(B) The Secretary of Homeland Security may, in the
Secretary's discretion, waive the limitations in subparagraph
(A) if justification exists for such a waiver. Except in
extraordinary circumstances and subject to subparagraph (C),
such a waiver shall not be granted if the petitioner has a
record of violent criminal offenses against a person or
persons.
(C)(i) The Secretary of Homeland Security is not limited by
the criminal court record and shall grant a waiver of the
condition described in the second sentence of subparagraph (B)
in the case of a petitioner described in clause (ii).
(ii) A petitioner described in this clause is a petitioner
who has been battered or subjected to extreme cruelty and who
is or was not the primary perpetrator of violence in the
relationship upon a determination that--
(I) the petitioner was acting in self-defense;
(II) the petitioner was found to have violated a
protection order intended to protect the petitioner; or
(III) the petitioner committed, was arrested for, was
convicted of, or pled guilty to committing a crime that
did not result in serious bodily injury and where there
was a connection between the crime and the petitioner's
having been battered or subjected to extreme cruelty.
(iii) In acting on applications under this subparagraph, the
Secretary of Homeland Security shall consider any credible
evidence relevant to the application. The determination of what
evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Secretary.
(3) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the following:
(i) Domestic violence, sexual assault, child
abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
(e)(1) Notwithstanding any other provision of this Act, an
alien who is a citizen of Canada and seeks to enter the United
States under and pursuant to the provisions of Annex 1502.1
(United States of America), Part C--Professionals, of the
United States-Canada Free-Trade Agreement to engage in business
activities at a professional level as provided for therein may
be admitted for such purpose under regulations of the Attorney
General promulgated after consultation with the Secretaries of
State and Labor.
(2) An alien who is a citizen of Canada or Mexico, and the
spouse and children of any such alien if accompanying or
following to join such alien, who seeks to enter the United
States under and pursuant to the provisions of Section D of
Annex 1603 of the North American Free Trade Agreement (in this
subsection referred to as ``NAFTA'') to engage in business
activities at a professional level as provided for in such
Annex, may be admitted for such purpose under regulations of
the Attorney General promulgated after consultation with the
Secretaries of State and Labor. For purposes of this Act,
including the issuance of entry documents and the application
of subsection (b), such alien shall be treated as if seeking
classification, or classifiable, as a nonimmigrant under
section 101(a)(15). The admission of an alien who is a citizen
of Mexico shall be subject to paragraphs (3), (4), and (5). For
purposes of this paragraph and paragraphs (3), (4), and (5),
the term ``citizen of Mexico'' means ``citizen'' as defined in
Annex 1608 of NAFTA.
(3) The Attorney General shall establish an annual numerical
limit on admissions under paragraph (2) of aliens who are
citizens of Mexico, as set forth in Appendix 1603.D.4 of Annex
1603 of the NAFTA. Subject to paragraph (4), the annual
numerical limit--
(A) beginning with the second year that NAFTA is in
force, may be increased in accordance with the
provisions of paragraph 5(a) of Section D of such
Annex, and
(B) shall cease to apply as provided for in paragraph
3 of such Appendix.
(4) The annual numerical limit referred to in paragraph (3)
may be increased or shall cease to apply (other than by
operation of paragraph 3 of such Appendix) only if--
(A) the President has obtained advice regarding the
proposed action from the appropriate advisory
committees established under section 135 of the Trade
Act of 1974 (19 U.S.C. 2155);
(B) the President has submitted a report to the
Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of
Representatives that sets forth--
(i) the action proposed to be taken and the
reasons therefor, and
(ii) the advice obtained under subparagraph
(A);
(C) a period of at least 60 calendar days that begins
on the first day on which the President has met the
requirements of subparagraphs (A) and (B) with respect
to such action has expired; and
(D) the President has consulted with such committees
regarding the proposed action during the period
referred to in subparagraph (C).
(5) During the period that the provisions of Appendix
1603.D.4 of Annex 1603 of the NAFTA apply, the entry of an
alien who is a citizen of Mexico under and pursuant to the
provisions of Section D of Annex 1603 of NAFTA shall be subject
to the attestation requirement of section 212(m), in the case
of a registered nurse, or the application requirement of
section 212(n), in the case of all other professions set out in
Appendix 1603.D.1 of Annex 1603 of NAFTA, and the petition
requirement of subsection (c), to the extent and in the manner
prescribed in regulations promulgated by the Secretary of
Labor, with respect to sections 212(m) and 212(n), and the
Attorney General, with respect to subsection (c).
(6) In the case of an alien spouse admitted under section
101(a)(15)(E), who is accompanying or following to join a
principal alien admitted under such section, the Attorney
General shall authorize the alien spouse to engage in
employment in the United States and provide the spouse with an
``employment authorized'' endorsement or other appropriate work
permit.
(f)(1) Except as provided in paragraph (3), no alien shall be
entitled to nonimmigrant status described in section
101(a)(15)(D) if the alien intends to land for the purpose of
performing service on board a vessel of the United States (as
defined in section 2101(46) of title 46, United States Code) or
on an aircraft of an air carrier (as defined in section
40102(a)(2) of title 49, United States Code) during a labor
dispute where there is a strike or lockout in the bargaining
unit of the employer in which the alien intends to perform such
service.
(2) An alien described in paragraph (1)--
(A) may not be paroled into the United States
pursuant to section 212(d)(5) unless the Attorney
General determines that the parole of such alien is
necessary to protect the national security of the
United States; and
(B) shall be considered not to be a bona fide crewman
for purposes of section 252(b).
(3) Paragraph (1) shall not apply to an alien if the air
carrier or owner or operator of such vessel that employs the
alien provides documentation that satisfies the Attorney
General that the alien--
(A) has been an employee of such employer for a
period of not less than 1 year preceding the date that
a strike or lawful lockout commenced;
(B) has served as a qualified crewman for such
employer at least once in each of 3 months during the
12-month period preceding such date; and
(C) shall continue to provide the same services that
such alien provided as such a crewman.
(g)(1) The total number of aliens who may be issued visas or
otherwise provided nonimmigrant status during any fiscal year
(beginning with fiscal year 1992)--
(A) under section 101(a)(15)(H)(i)(b), may not
exceed--
(i) 65,000 in each fiscal year before fiscal
year 1999;
(ii) 115,000 in fiscal year 1999;
(iii) 115,000 in fiscal year 2000;
(iv) 195,000 in fiscal year 2001;
(v) 195,000 in fiscal year 2002;
(vi) 195,000 in fiscal year 2003; and
(vii) 65,000 in each succeeding fiscal year;
or
(B) under section 101(a)(15)(H)(ii)(b) may not exceed
66,000.
(2) The numerical limitations of paragraph (1) shall only
apply to principal aliens and not to the spouses or children of
such aliens.
(3) Aliens who are subject to the numerical limitations of
paragraph (1) shall be issued visas (or otherwise provided
nonimmigrant status) in the order in which petitions are filed
for such visas or status. If an alien who was issued a visa or
otherwise provided nonimmigrant status and counted against the
numerical limitations of paragraph (1) is found to have been
issued such visa or otherwise provided such status by fraud or
willfully misrepresenting a material fact and such visa or
nonimmigrant status is revoked, then one number shall be
restored to the total number of aliens who may be issued visas
or otherwise provided such status under the numerical
limitations of paragraph (1) in the fiscal year in which the
petition is revoked, regardless of the fiscal year in which the
petition was approved.
(4) In the case of a nonimmigrant described in section
101(a)(15)(H)(i)(b), the period of authorized admission as such
a nonimmigrant may not exceed 6 years.
(5) The numerical limitations contained in paragraph (1)(A)
shall not apply to any nonimmigrant alien issued a visa or
otherwise provided status under section 101(a)(15)(H)(i)(b)
who--
(A) is employed (or has received an offer of
employment) at an institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a))), or a related or
affiliated nonprofit entity;
(B) is employed (or has received an offer of
employment) at a nonprofit research organization or a
governmental research organization; or
(C) has earned a master's or higher degree from a
United States institution of higher education (as
defined in section 101(a) of the Higher Education Act
of 1965 (20 U.S.C. 1001(a)), until the number of aliens
who are exempted from such numerical limitation during
such year exceeds 20,000.
(6) Any alien who ceases to be employed by an employer
described in paragraph (5)(A) shall, if employed as a
nonimmigrant alien described in section 101(a)(15)(H)(i)(b),
who has not previously been counted toward the numerical
limitations contained in paragraph (1)(A), be counted toward
those limitations the first time the alien is employed by an
employer other than one described in paragraph (5).
(7) Any alien who has already been counted, within the 6
years prior to the approval of a petition described in
subsection (c), toward the numerical limitations of paragraph
(1)(A) shall not again be counted toward those limitations
unless the alien would be eligible for a full 6 years of
authorized admission at the time the petition is filed. Where
multiple petitions are approved for 1 alien, that alien shall
be counted only once.
(8)(A) The agreements referred to in section
101(a)(15)(H)(i)(b1) are--
(i) the United States-Chile Free Trade Agreement; and
(ii) the United States-Singapore Free Trade
Agreement.
(B)(i) The Secretary of Homeland Security shall establish
annual numerical limitations on approvals of initial
applications by aliens for admission under section
101(a)(15)(H)(i)(b1).
(ii) The annual numerical limitations described in clause (i)
shall not exceed--
(I) 1,400 for nationals of Chile (as defined in
article 14.9 of the United States-Chile Free Trade
Agreement) for any fiscal year; and
(II) 5,400 for nationals of Singapore (as defined in
Annex 1A of the United States-Singapore Free Trade
Agreement) for any fiscal year.
(iii) The annual numerical limitations described in clause
(i) shall only apply to principal aliens and not to the spouses
or children of such aliens.
(iv) The annual numerical limitation described in paragraph
(1)(A) is reduced by the amount of the annual numerical
limitations established under clause (i). However, if a
numerical limitation established under clause (i) has not been
exhausted at the end of a given fiscal year, the Secretary of
Homeland Security shall adjust upwards the numerical limitation
in paragraph (1)(A) for that fiscal year by the amount
remaining in the numerical limitation under clause (i). Visas
under section 101(a)(15)(H)(i)(b) may be issued pursuant to
such adjustment within the first 45 days of the next fiscal
year to aliens who had applied for such visas during the fiscal
year for which the adjustment was made.
(C) The period of authorized admission as a nonimmigrant
under section 101(a)(15)(H)(i)(b1) shall be 1 year, and may be
extended, but only in 1-year increments. After every second
extension, the next following extension shall not be granted
unless the Secretary of Labor had determined and certified to
the Secretary of Homeland Security and the Secretary of State
that the intending employer has filed with the Secretary of
Labor an attestation under section 212(t)(1) for the purpose of
permitting the nonimmigrant to obtain such extension.
(D) The numerical limitation described in paragraph (1)(A)
for a fiscal year shall be reduced by one for each alien
granted an extension under subparagraph (C) during such year
who has obtained 5 or more consecutive prior extensions.
(9)(A) Subject to subparagraphs (B) and (C), an alien who has
already been counted toward the numerical limitation of
paragraph (1)(B) during fiscal year 2013, 2014, or 2015 shall
not again be counted toward such limitation during fiscal year
2016. Such an alien shall be considered a returning worker.
(B) A petition to admit or otherwise provide status under
section 101(a)(15)(H)(ii)(b) shall include, with respect to a
returning worker--
(i) all information and evidence that the Secretary
of Homeland Security determines is required to support
a petition for status under section
101(a)(15)(H)(ii)(b);
(ii) the full name of the alien; and
(iii) a certification to the Department of Homeland
Security that the alien is a returning worker.
(C) An H-2B visa or grant of nonimmigrant status for a
returning worker shall be approved only if the alien is
confirmed to be a returning worker by--
(i) the Department of State; or
(ii) if the alien is visa exempt or seeking to change
to status under section 101 (a)(15)(H)(ii)(b), the
Department of Homeland Security.
(10) The numerical limitations of paragraph (1)(B) shall be
allocated for a fiscal year so that the total number of aliens
subject to such numerical limits who enter the United States
pursuant to a visa or are accorded nonimmigrant status under
section 101(a)(15)(H)(ii)(b) during the first 6 months of such
fiscal year is not more than 33,000.
(11)(A) The Secretary of State may not approve a number of
initial applications submitted for aliens described in section
101(a)(15)(E)(iii) that is more than the applicable numerical
limitation set out in this paragraph.
(B) The applicable numerical limitation referred to in
subparagraph (A) is 10,500 for each fiscal year.
(C) The applicable numerical limitation referred to in
subparagraph (A) shall only apply to principal aliens and not
to the spouses or children of such aliens.
(h) The fact that an alien is the beneficiary of an
application for a preference status filed under section 204 or
has otherwise sought permanent residence in the United States
shall not constitute evidence of an intention to abandon a
foreign residence for purposes of obtaining a visa as a
nonimmigrant described in subparagraph (H)(i)(b) or (c), (L),
or (V) of section 101(a)(15) or otherwise obtaining or
maintaining the status of a nonimmigrant described in such
subparagraph, if the alien had obtained a change of status
under section 248 to a classification as such a nonimmigrant
before the alien's most recent departure from the United
States.
(i)(1) Except as provided in paragraph (3), for purposes of
section 101(a)(15)(H)(i)(b), section 101(a)(15)(E)(iii), and
paragraph (2), the term ``specialty occupation'' means an
occupation that requires--
(A) theoretical and practical application of a body
of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(2) For purposes of section 101(a)(15)(H)(i)(b), the
requirements of this paragraph, with respect to a specialty
occupation, are--
(A) full state licensure to practice in the
occupation, if such licensure is required to practice
in the occupation,
(B) completion of the degree described in paragraph
(1)(B) for the occupation, or
(C)(i) experience in the specialty equivalent to the
completion of such degree, and (ii) recognition of
expertise in the specialty through progressively
responsible positions relating to the specialty.
(3) For purposes of section 101(a)(15)(H)(i)(b1), the term
``specialty occupation'' means an occupation that requires--
(A) theoretical and practical application of a body
of specialized knowledge; and
(B) attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.
(j)(1) Notwithstanding any other provision of this Act, an
alien who is a citizen of Canada or Mexico who seeks to enter
the United States under and pursuant to the provisions of
Section B, Section C, or Section D of Annex 1603 of the North
American Free Trade Agreement, shall not be classified as a
nonimmigrant under such provisions if there is in progress a
strike or lockout in the course of a labor dispute in the
occupational classification at the place or intended place of
employment, unless such alien establishes, pursuant to
regulations promulgated by the Attorney General, that the
alien's entry will not affect adversely the settlement of the
strike or lockout or the employment of any person who is
involved in the strike or lockout. Notice of a determination
under this paragraph shall be given as may be required by
paragraph 3 of article 1603 of such Agreement. For purposes of
this paragraph, the term ``citizen of Mexico'' means
``citizen'' as defined in Annex 1608 of such Agreement.
(2) Notwithstanding any other provision of this Act except
section 212(t)(1), and subject to regulations promulgated by
the Secretary of Homeland Security, an alien who seeks to enter
the United States under and pursuant to the provisions of an
agreement listed in subsection (g)(8)(A), and the spouse and
children of such an alien if accompanying or following to join
the alien, may be denied admission as a nonimmigrant under
subparagraph (E), (L), or (H)(i)(b1) of section 101(a)(15) if
there is in progress a labor dispute in the occupational
classification at the place or intended place of employment,
unless such alien establishes, pursuant to regulations
promulgated by the Secretary of Homeland Security after
consultation with the Secretary of Labor, that the alien's
entry will not affect adversely the settlement of the labor
dispute or the employment of any person who is involved in the
labor dispute. Notice of a determination under this paragraph
shall be given as may be required by such agreement.
(k)(1) The number of aliens who may be provided a visa as
nonimmigrants under section 101(a)(15)(S)(i) in any fiscal year
may not exceed 200. The number of aliens who may be provided a
visa as nonimmigrants under section 101(a)(15)(S)(ii) in any
fiscal year may not exceed 50.
(2) The period of admission of an alien as such a
nonimmigrant may not exceed 3 years. Such period may not be
extended by the Attorney General.
(3) As a condition for the admission, and continued stay in
lawful status, of such a nonimmigrant, the nonimmigrant--
(A) shall report not less often than quarterly to the
Attorney General such information concerning the
alien's whereabouts and activities as the Attorney
General may require;
(B) may not be convicted of any criminal offense
punishable by a term of imprisonment of 1 year or more
after the date of such admission;
(C) must have executed a form that waives the
nonimmigrant's right to contest, other than on the
basis of an application for withholding of removal, any
action for removal of the alien instituted before the
alien obtains lawful permanent resident status; and
(D) shall abide by any other condition, limitation,
or restriction imposed by the Attorney General.
(4) The Attorney General shall submit a report annually to
the Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate concerning--
(A) the number of such nonimmigrants admitted;
(B) the number of successful criminal prosecutions or
investigations resulting from cooperation of such
aliens;
(C) the number of terrorist acts prevented or
frustrated resulting from cooperation of such aliens;
(D) the number of such nonimmigrants whose admission
or cooperation has not resulted in successful criminal
prosecution or investigation or the prevention or
frustration of a terrorist act; and
(E) the number of such nonimmigrants who have failed
to report quarterly (as required under paragraph (3))
or who have been convicted of crimes in the United
States after the date of their admission as such a
nonimmigrant.
(l)(1) In the case of a request by an interested State
agency, or by an interested Federal agency, for a waiver of the
2-year foreign residence requirement under section 212(e) on
behalf of an alien described in clause (iii) of such section,
the Attorney General shall not grant such waiver unless--
(A) in the case of an alien who is otherwise
contractually obligated to return to a foreign country,
the government of such country furnishes the Director
of the United States Information Agency with a
statement in writing that it has no objection to such
waiver;
(B) in the case of a request by an interested State
agency, the grant of such waiver would not cause the
number of waivers allotted for that State for that
fiscal year to exceed 30;
(C) in the case of a request by an interested Federal
agency or by an interested State agency--
(i) the alien demonstrates a bona fide offer
of full-time employment at a health facility or
health care organization, which employment has
been determined by the Attorney General to be
in the public interest; and
(ii) the alien agrees to begin employment
with the health facility or health care
organization within 90 days of receiving such
waiver, and agrees to continue to work for a
total of not less than 3 years (unless the
Attorney General determines that extenuating
circumstances exist, such as closure of the
facility or hardship to the alien, which would
justify a lesser period of employment at such
health facility or health care organization, in
which case the alien must demonstrate another
bona fide offer of employment at a health
facility or health care organization for the
remainder of such 3-year period); and
(D) in the case of a request by an interested Federal
agency (other than a request by an interested Federal
agency to employ the alien full-time in medical
research or training) or by an interested State agency,
the alien agrees to practice primary care or specialty
medicine in accordance with paragraph (2) for a total
of not less than 3 years only in the geographic area or
areas which are designated by the Secretary of Health
and Human Services as having a shortage of health care
professionals, except that--
(i) in the case of a request by the
Department of Veterans Affairs, the alien shall
not be required to practice medicine in a
geographic area designated by the Secretary;
(ii) in the case of a request by an
interested State agency, the head of such State
agency determines that the alien is to practice
medicine under such agreement in a facility
that serves patients who reside in one or more
geographic areas so designated by the Secretary
of Health and Human Services (without regard to
whether such facility is located within such a
designated geographic area), and the grant of
such waiver would not cause the number of the
waivers granted on behalf of aliens for such
State for a fiscal year (within the limitation
in subparagraph (B)) in accordance with the
conditions of this clause to exceed 10; and
(iii) in the case of a request by an
interested Federal agency or by an interested
State agency for a waiver for an alien who
agrees to practice specialty medicine in a
facility located in a geographic area so
designated by the Secretary of Health and Human
Services, the request shall demonstrate, based
on criteria established by such agency, that
there is a shortage of health care
professionals able to provide services in the
appropriate medical specialty to the patients
who will be served by the alien.
(2)(A) Notwithstanding section 248(a)(2), the
Attorney General may change the status of an alien who
qualifies under this subsection and section 212(e) to
that of an alien described in section
101(a)(15)(H)(i)(b). The numerical limitations
contained in subsection (g)(1)(A) shall not apply to
any alien whose status is changed under the preceding
sentence, if the alien obtained a waiver of the 2-year
foreign residence requirement upon a request by an
interested Federal agency or an interested State
agency.
(B) No person who has obtained a change of status
under subparagraph (A) and who has failed to fulfill
the terms of the contract with the health facility or
health care organization named in the waiver
application shall be eligible to apply for an immigrant
visa, for permanent residence, or for any other change
of nonimmigrant status, until it is established that
such person has resided and been physically present in
the country of his nationality or his last residence
for an aggregate of at least 2 years following
departure from the United States.
(3) Notwithstanding any other provision of this
subsection, the 2-year foreign residence requirement
under section 212(e) shall apply with respect to an
alien described in clause (iii) of such section, who
has not otherwise been accorded status under section
101(a)(27)(H), if--
(A) at any time the alien ceases to comply
with any agreement entered into under
subparagraph (C) or (D) of paragraph (1); or
(B) the alien's employment ceases to benefit
the public interest at any time during the 3-
year period described in paragraph (1)(C).
(m)(1) An alien may not be accorded status as a nonimmigrant
under clause (i) or (iii) of section 101(a)(15)(F) in order to
pursue a course of study--
(A) at a public elementary school or in a publicly
funded adult education program; or
(B) at a public secondary school unless--
(i) the aggregate period of such status at
such a school does not exceed 12 months with
respect to any alien, and (ii) the alien
demonstrates that the alien has reimbursed the
local educational agency that administers the
school for the full, unsubsidized per capita
cost of providing education at such school for
the period of the alien's attendance.
(2) An alien who obtains the status of a nonimmigrant under
clause (i) or (iii) of section 101(a)(15)(F) in order to pursue
a course of study at a private elementary or secondary school
or in a language training program that is not publicly funded
shall be considered to have violated such status, and the
alien's visa under section 101(a)(15)(F) shall be void, if the
alien terminates or abandons such course of study at such a
school and undertakes a course of study at a public elementary
school, in a publicly funded adult education program, in a
publicly funded adult education language training program, or
at a public secondary school (unless the requirements of
paragraph (1)(B) are met).
(n)(1) A nonimmigrant alien described in paragraph (2) who
was previously issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) is authorized to
accept new employment upon the filing by the prospective
employer of a new petition on behalf of such nonimmigrant as
provided under subsection (a). Employment authorization shall
continue for such alien until the new petition is adjudicated.
If the new petition is denied, such authorization shall cease.
(2) A nonimmigrant alien described in this paragraph is a
nonimmigrant alien--
(A) who has been lawfully admitted into the United
States;
(B) on whose behalf an employer has filed a
nonfrivolous petition for new employment before the
date of expiration of the period of stay authorized by
the Attorney General; and
(C) who, subsequent to such lawful admission, has not
been employed without authorization in the United
States before the filing of such petition.
(o)(1) No alien shall be eligible for admission to the United
States under section 101(a)(15)(T) if there is substantial
reason to believe that the alien has committed an act of a
severe form of trafficking in persons (as defined in section
103 of the Trafficking Victims Protection Act of 2000).
(2) The total number of aliens who may be issued visas or
otherwise provided nonimmigrant status during any fiscal year
under section 101(a)(15)(T) may not exceed 5,000.
(3) The numerical limitation of paragraph (2) shall only
apply to principal aliens and not to the spouses, sons,
daughters, siblings, or parents of such aliens.
(4) An unmarried alien who seeks to accompany, or follow to
join, a parent granted status under section 101(a)(15)(T)(i),
and who was under 21 years of age on the date on which such
parent applied for such status, shall continue to be classified
as a child for purposes of section 101(a)(15)(T)(ii), if the
alien attains 21 years of age after such parent's application
was filed but while it was pending.
(5) An alien described in clause (i) of section 101(a)(15)(T)
shall continue to be treated as an alien described in clause
(ii)(I) of such section if the alien attains 21 years of age
after the alien's application for status under such clause (i)
is filed but while it is pending.
(6) In making a determination under section
101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements
from State and local law enforcement officials that the alien
has complied with any reasonable request for assistance in the
investigation or prosecution of crimes such as kidnapping,
rape, slavery, or other forced labor offenses, where severe
forms of trafficking in persons (as defined in section 103 of
the Trafficking Victims Protection Act of 2000) appear to have
been involved, shall be considered.
(7)(A) Except as provided in subparagraph (B), an alien who
is issued a visa or otherwise provided nonimmigrant status
under section 101(a)(15)(T) may be granted such status for a
period of not more than 4 years.
(B) An alien who is issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(T) may extend the
period of such status beyond the period described in
subparagraph (A) if--
(i) a Federal, State, or local law enforcement
official, prosecutor, judge, or other authority
investigating or prosecuting activity relating to human
trafficking or certifies that the presence of the alien
in the United States is necessary to assist in the
investigation or prosecution of such activity;
(ii) the alien is eligible for relief under section
245(l) and is unable to obtain such relief because
regulations have not been issued to implement such
section; or
(iii) the Secretary of Homeland Security determines
that an extension of the period of such nonimmigrant
status is warranted due to exceptional circumstances.
(C) Nonimmigrant status under section 101(a)(15)(T) shall be
extended during the pendency of an application for adjustment
of status under section 245(l).
(p) Requirements Applicable to Section 101(a)(15)(U) Visas.--
(1) Petitioning procedures for section 101(a)(15)(u)
visas.--The petition filed by an alien under section
101(a)(15)(U)(i) shall contain a certification from a
Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local
authority investigating criminal activity described in
section 101(a)(15)(U)(iii). This certification may also
be provided by an official of the Service whose ability
to provide such certification is not limited to
information concerning immigration violations. This
certification shall state that the alien ``has been
helpful, is being helpful, or is likely to be helpful''
in the investigation or prosecution of criminal
activity described in section 101(a)(15)(U)(iii).
(2) Numerical limitations.--
(A) The number of aliens who may be issued
visas or otherwise provided status as
nonimmigrants under section 101(a)(15)(U) in
any fiscal year shall not exceed 10,000.
(B) The numerical limitations in subparagraph
(A) shall only apply to principal aliens
described in section 101(a)(15)(U)(i), and not
to spouses, children, or, in the case of alien
children, the alien parents of such children.
(3) Duties of the attorney general with respect to
``u'' visa nonimmigrants.--With respect to nonimmigrant
aliens described in subsection (a)(15)(U)--
(A) the Attorney General and other government
officials, where appropriate, shall provide
those aliens with referrals to nongovernmental
organizations to advise the aliens regarding
their options while in the United States and
the resources available to them; and
(B) the Attorney General shall, during the
period those aliens are in lawful temporary
resident status under that subsection, provide
the aliens with employment authorization.
(4) Credible evidence considered.--In acting on any
petition filed under this subsection, the consular
officer or the Attorney General, as appropriate, shall
consider any credible evidence relevant to the
petition.
(5) Nonexclusive relief.--Nothing in this subsection
limits the ability of aliens who qualify for status
under section 101(a)(15)(U) to seek any other
immigration benefit or status for which the alien may
be eligible.
(6) Duration of status.--The authorized period of
status of an alien as a nonimmigrant under section
101(a)(15)(U) shall be for a period of not more than 4
years, but shall be extended upon certification from a
Federal, State, or local law enforcement official,
prosecutor, judge, or other Federal, State, or local
authority investigating or prosecuting criminal
activity described in section 101(a)(15)(U)(iii) that
the alien's presence in the United States is required
to assist in the investigation or prosecution of such
criminal activity. The Secretary of Homeland Security
may extend, beyond the 4-year period authorized under
this section, the authorized period of status of an
alien as a nonimmigrant under section 101(a)(15)(U) if
the Secretary determines that an extension of such
period is warranted due to exceptional circumstances.
Such alien's nonimmigrant status shall be extended
beyond the 4-year period authorized under this section
if the alien is eligible for relief under section
245(m) and is unable to obtain such relief because
regulations have not been issued to implement such
section and shall be extended during the pendency of an
application for adjustment of status under section
245(m). The Secretary may grant work authorization to
any alien who has a pending, bona fide application for
nonimmigrant status under section 101(a)(15)(U).
(7) Age determinations.--
(A) Children.--An unmarried alien who seeks
to accompany, or follow to join, a parent
granted status under section 101(a)(15)(U)(i),
and who was under 21 years of age on the date
on which such parent petitioned for such
status, shall continue to be classified as a
child for purposes of section
101(a)(15)(U)(ii), if the alien attains 21
years of age after such parent's petition was
filed but while it was pending.
(B) Principal aliens.--An alien described in
clause (i) of section 101(a)(15)(U) shall
continue to be treated as an alien described in
clause (ii)(I) of such section if the alien
attains 21 years of age after the alien's
application for status under such clause (i) is
filed but while it is pending.
(q)(1) In the case of a nonimmigrant described in section
101(a)(15)(V)--
(A) the Attorney General shall authorize the alien to
engage in employment in the United States during the
period of authorized admission and shall provide the
alien with an ``employment authorized'' endorsement or
other appropriate document signifying authorization of
employment; and
(B) the period of authorized admission as such a
nonimmigrant shall terminate 30 days after the date on
which any of the following is denied:
(i) The petition filed under section 204 to
accord the alien a status under section
203(a)(2)(A) (or, in the case of a child
granted nonimmigrant status based on
eligibility to receive a visa under section
203(d), the petition filed to accord the
child's parent a status under section
203(a)(2)(A)).
(ii) The alien's application for an immigrant
visa pursuant to the approval of such petition.
(iii) The alien's application for adjustment
of status under section 245 pursuant to the
approval of such petition.
(2) In determining whether an alien is eligible to be
admitted to the United States as a nonimmigrant under section
101(a)(15)(V), the grounds for inadmissibility specified in
section 212(a)(9)(B) shall not apply.
(3) The status of an alien physically present in the United
States may be adjusted by the Attorney General, in the
discretion of the Attorney General and under such regulations
as the Attorney General may prescribe, to that of a
nonimmigrant under section 101(a)(15)(V), if the alien--
(A) applies for such adjustment;
(B) satisfies the requirements of such section; and
(C) is eligible to be admitted to the United States,
except in determining such admissibility, the grounds
for inadmissibility specified in paragraphs (6)(A),
(7), and (9)(B) of section 212(a) shall not apply.
(r)(1) A visa shall not be issued under the provisions of
section 101(a)(15)(K)(ii) until the consular officer has
received a petition filed in the United States by the spouse of
the applying alien and approved by the Attorney General. The
petition shall be in such form and contain such information as
the Attorney General shall, by regulation, prescribe. Such
information shall include information on any criminal
convictions of the petitioner for any specified crime described
in paragraph (5)(B) and information on any permanent protection
or restraining order issued against the petitioner related to
any specified crime described in subsection (5)(B)(i).
(2) In the case of an alien seeking admission under section
101(a)(15)(K)(ii) who concluded a marriage with a citizen of
the United States outside the United States, the alien shall be
considered inadmissible under section 212(a)(7)(B) if the alien
is not at the time of application for admission in possession
of a valid nonimmigrant visa issued by a consular officer in
the foreign state in which the marriage was concluded.
(3) In the case of a nonimmigrant described in section
101(a)(15)(K)(ii), and any child of such a nonimmigrant who was
admitted as accompanying, or following to join, such a
nonimmigrant, the period of authorized admission shall
terminate 30 days after the date on which any of the following
is denied:
(A) The petition filed under section 204 to accord
the principal alien status under section
201(b)(2)(A)(i).
(B) The principal alien's application for an
immigrant visa pursuant to the approval of such
petition.
(C) The principal alien's application for adjustment
of status under section 245 pursuant to the approval of
such petition.
(4)(A) The Secretary of Homeland Security shall create a
database for the purpose of tracking multiple visa petitions
filed for fiance(e)s and spouses under clauses (i) and (ii) of
section 101(a)(15)(K). Upon approval of a second visa petition
under section 101(a)(15)(K) for a fiance(e) or spouse filed by
the same United States citizen petitioner, the petitioner shall
be notified by the Secretary that information concerning the
petitioner has been entered into the multiple visa petition
tracking database. All subsequent fiance(e) or spouse
nonimmigrant visa petitions filed by that petitioner under such
section shall be entered in the database.
(B)(i) Once a petitioner has had two fiance(e) or spousal
petitions approved under clause (i) or (ii) of section
101(a)(15)(K), if a subsequent petition is filed under such
section less than 10 years after the date the first visa
petition was filed under such section, the Secretary of
Homeland Security shall notify both the petitioner and
beneficiary of any such subsequent petition about the number of
previously approved fiance(e) or spousal petitions listed in
the database.
(ii) To notify the beneficiary as required by clause (i), the
Secretary of Homeland Security shall provide such notice to the
Secretary of State for inclusion in the mailing to the
beneficiary described in section 833(a)(5)(A)(i) of the
International Marriage Broker Regulation Act of 2005 (8 U.S.C.
1375a(a)(5)(A)(i)).
(5) In this subsection:
(A) The terms ``domestic violence'', ``sexual
assault'', ``child abuse and neglect'', ``dating
violence'', ``elder abuse'', and ``stalking'' have the
meaning given such terms in section 3 of the Violence
Against Women and Department of Justice Reauthorization
Act of 2005.
(B) The term ``specified crime'' means the following:
(i) Domestic violence, sexual assault, child
abuse and neglect, dating violence, elder
abuse, stalking, or an attempt to commit any
such crime.
(ii) Homicide, murder, manslaughter, rape,
abusive sexual contact, sexual exploitation,
incest, torture, trafficking, peonage, holding
hostage, involuntary servitude, slave trade,
kidnapping, abduction, unlawful criminal
restraint, false imprisonment, or an attempt to
commit any of the crimes described in this
clause.
(iii) At least three convictions for crimes
relating to a controlled substance or alcohol
not arising from a single act.
* * * * * * *
[ADMISSION OF TEMPORARY H-2A WORKERS
[Sec. 218. (a) Conditions for Approval of H-2A Petitions.--
(1) A petition to import an alien as an H-2A worker (as defined
in subsection (i)(2)) may not be approved by the Attorney
General unless the petitioner has applied to the Secretary of
Labor for a certification that--
[(A) there are not sufficient workers who are able,
willing, and qualified, and who will be available at
the time and place needed, to perform the labor or
services involved in the petition, and
[(B) the employment of the alien in such labor or
services will not adversely affect the wages and
working conditions of workers in the United States
similarly employed.
[(2) The Secretary of Labor may require by regulation, as a
condition of issuing the certification, the payment of a fee to
recover the reasonable costs of processing applications for
certification.
[(b) Conditions for Denial of Labor Certification.--The
Secretary of Labor may not issue a certification under
subsection (a) with respect to an employer if the conditions
described in that subsection are not met or if any of the
following conditions are met:
[(1) There is a strike or lockout in the course of a
labor dispute which, under the regulations, precludes
such certification.
[(2)(A) The employer during the previous two-year
period employed H-2A workers and the Secretary of Labor
has determined, after notice and opportunity for a
hearing, that the employer at any time during that
period substantially violated a material term or
condition of the labor certification with respect to
the employment of domestic or nonimmigrant workers.
[(B) No employer may be denied certification under
subparagraph (A) for more than three years for any
violation described in such subparagraph.
[(3) The employer has not provided the Secretary with
satisfactory assurances that if the employment for
which the certification is sought is not covered by
State workers' compensation law, the employer will
provide, at no cost to the worker, insurance covering
injury and disease arising out of and in the course of
the worker's employment which will provide benefits at
least equal to those provided under the State workers'
compensation law for comparable employment.
[(4) The Secretary determines that the employer has
not made positive recruitment efforts within a multi-
state region of traditional or expected labor supply
where the Secretary finds that there are a significant
number of qualified United States workers who, if
recruited, would be willing to make themselves
available for work at the time and place needed.
Positive recruitment under this paragraph is in
addition to, and shall be conducted within the same
time period as, the circulation through the interstate
employment service system of the employer's job offer.
The obligation to engage in positive recruitment under
this paragraph shall terminate on the date the H-2A
workers depart for the employer's place of employment.
[(c) Special Rules for Consideration of Applications.--The
following rules shall apply in the case of the filing and
consideration of an application for a labor certification under
this section:
[(1) Deadline for filing applications.--The Secretary
of Labor may not require that the application be filed
more than 45 days before the first date the employer
requires the labor or services of the H-2A worker.
[(2) Notice within seven days of deficiencies.--(A)
The employer shall be notified in writing within seven
days of the date of filing if the application does not
meet the standards (other than that described in
subsection (a)(1)(A)) for approval.
[(B) If the application does not meet such standards,
the notice shall include the reasons therefor and the
Secretary shall provide an opportunity for the prompt
resubmission of a modified application.
[(3) Issuance of certification.--(A) The Secretary of
Labor shall make, not later than 30 days before the
date such labor or services are first required to be
performed, the certification described in subsection
(a)(1) if--
[(i) the employer has complied with the
criteria for certification (including criteria
for the recruitment of eligible individuals as
prescribed by the Secretary), and
[(ii) the employer does not actually have, or
has not been provided with referrals of,
qualified eligible individuals who have
indicated their availability to perform such
labor or services on the terms and conditions
of a job offer which meets the requirements of
the Secretary.
In considering the question of whether a specific
qualification is appropriate in a job offer, the
Secretary shall apply the normal and accepted
qualifications required by non-H-2A-employers in the
same or comparable occupations and crops.
[(B)(i) For a period of 3 years subsequent to the
effective date of this section, labor certifications
shall remain effective only if, from the time the
foreign worker departs for the employer's place of
employment, the employer will provide employment to any
qualified United States worker who applies to the
employer until 50 percent of the period of the work
contract, under which the foreign worker who is in the
job was hired, has elapsed. In addition, the employer
will offer to provide benefits, wages and working
conditions required pursuant to this section and
regulations.
[(ii) The requirement of clause (i) shall not apply
to any employer who--
[(I) did not, during any calendar quarter
during the preceding calendar year, use more
than 500 man-days of agricultural labor, as
defined in section 3(u) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(u)),
[(II) is not a member of an association which
has petitioned for certification under this
section for its members, and
[(III) has not otherwise associated with
other employers who are petitioning for
temporary foreign workers under this section.
[(iii) Six months before the end of the 3-year period
described in clause (i), the Secretary of Labor shall
consider the findings of the report mandated by section
403(a)(4)(D) of the Immigration Reform and Control Act
of 1986 as well as other relevant materials, including
evidence of benefits to United States workers and costs
to employers, addressing the advisability of continuing
a policy which requires an employer, as a condition for
certification under this section, to continue to accept
qualified, eligible United States workers for
employment after the date the H-2A workers depart for
work with the employer. The Secretary's review of such
findings and materials shall lead to the issuance of
findings in furtherance of the Congressional policy
that aliens not be admitted under this section unless
there are not sufficient workers in the United States
who are able, willing, and qualified to perform the
labor or service needed and that the employment of the
aliens in such labor or services will not adversely
affect the wages and working conditions of workers in
the United States similarly employed. In the absence of
the enactment of Federal legislation prior to three
months before the end of the 3-year period described in
clause (i) which addresses the subject matter of this
subparagraph, the Secretary shall immediately publish
the findings required by this clause, and shall
promulgate, on an interim or final basis, regulations
based on his findings which shall be effective no later
than three years from the effective date of this
section.
[(iv) In complying with clause (i) of this
subparagraph, an association shall be allowed to refer
or transfer workers among its members: Provided, That
for purposes of this section an association acting as
an agent for its members shall not be considered a
joint employer merely because of such referral or
transfer.
[(v) United States workers referred or transferred
pursuant to clause (iv) of this subparagraph shall not
be treated dis- parately.
[(vi) An employer shall not be liable for payments
under section 655.202(b)(6) of title 20, Code of
Federal Regulations (or any successor regulation) with
respect to an H-2A worker who is displaced due to
compliance with the requirement of this subparagraph,
if the Secretary of Labor certifies that the H-2A
worker was displaced because of the employer's
compliance with clause (i) of this subparagraph.
[(vii)(I) No person or entity shall willfully and
knowingly withhold domestic workers prior to the
arrival of H-2A workers in order to force the hiring of
domestic workers under clause (i).
[(II) Upon the receipt of a complaint by an employer
that a violation of subclause (I) has occurred the
Secretary shall immediately investigate. He shall
within 36 hours of the receipt of the complaint issue
findings concerning the alleged violation. Where the
Secretary finds that a violation has occurred, he shall
immediately suspend the application of clause (i) of
this subparagraph with respect to that certification
for that date of need.
[(4) Housing.--Employers shall furnish housing in
accordance with regulations. The employer shall be
permitted at the employer's option to provide housing
meeting applicable Federal standards for temporary
labor camps or to secure housing which meets the local
standards for rental and/or public accommodations or
other substantially similar class of habitation:
Provided, That in the absence of applicable local
standards, State standards for rental and/or public
accommodations or other substantially similar class of
habitation shall be met: Provided further, That in the
absence of applicable local or State standards, Federal
temporary labor camp standards shall apply: Provided
further, That the Secretary of Labor shall issue
regulations which address the specific requirements of
housing for employees principally engaged in the range
production of livestock: Provided further, That when it
is the prevailing practice in the area and occupation
of intended employment to provide family housing,
family housing shall be provided to workers with
families who request it: And provided further, That
nothing in this paragraph shall require an employer to
provide or secure housing for workers who are not
entitled to it under the temporary labor certification
regulations in effect on June 1, 1986. The
determination as to whether the housing furnished by an
employer for an H-2A worker meets the requirements
imposed by this paragraph must be made prior to the
date specified in paragraph (3)(A) by which the
Secretary of Labor is required to make a certification
described in subsection (a)(1) with respect to a
petition for the importation of such worker.
[(d) Roles of Agricultural Associations.--
[(1) Permitting filing by agricultural
associations.--A petition to import an alien as a
temporary agricultural worker, and an application for a
labor certification with respect to such a worker, may
be filed by an association of agricultural producers
which use agricultural services.
[(2) Treatment of associations acting as employers.--
If an association is a joint or sole employer of
temporary agricultural workers, the certifications
granted under this section to the association may be
used for the certified job opportunities of any of its
producer members and such workers may be transferred
among its producer members to perform agricultural
services of a temporary or seasonal nature for which
the certifications were granted.
[(3) Treatment of violations.--
[(A) Member's violation does not necessarily
disqualify association or other members.--If an
individual producer member of a joint employer
association is determined to have committed an
act that under subsection (b)(2) results in the
denial of certification with respect to the
member, the denial shall apply only to that
member of the association unless the Secretary
determines that the association or other member
participated in, had knowledge of, or reason to
know of, the violation.
[(B) Association's violation does not
necessarily disqualify members.--(i) If an
association representing agricultural producers
as a joint employer is determined to have
committed an act that under subsection (b)(2)
results in the denial of certification with
respect to the association, the denial shall
apply only to the association and does not
apply to any individual producer member of the
association unless the Secretary determines
that the member participated in, had knowledge
of, or reason to know of, the violation.
[(ii) If an association of agricultural
producers certified as a sole employer is
determined to have committed an act that under
subsection (b)(2) results in the denial of
certification with respect to the association,
no individual producer member of such
association may be the beneficiary of the
services of temporary alien agricultural
workers admitted under this section in the
commodity and occupation in which such aliens
were employed by the association which was
denied certification during the period such
denial is in force, unless such producer member
employs such aliens in the commodity and
occupation in question directly or through an
association which is a joint employer of such
workers with the producer member.
[(e) Expedited Administrative Appeals of Certain
Determinations.--(1) Regulations shall provide for an expedited
procedure for the review of a denial of certification under
subsection (a)(1) or a revocation of such a certification or,
at the applicant's request, for a de novo administrative
hearing respecting the denial or revocation.
[(2) The Secretary of Labor shall expeditiously, but in no
case later than 72 hours after the time a new determination is
requested, make a new determination on the request for
certification in the case of an H-2A worker if able, willing,
and qualified eligible individuals are not actually available
at the time such labor or services are required and a
certification was denied in whole or in part because of the
availability of qualified workers. If the employer asserts that
any eligible individual who has been referred is not able,
willing, or qualified, the burden of proof is on the employer
to establish that the individual referred is not able, willing,
or qualified because of employment-related reasons.
[(f) Violators Disqualified for 5 Years.--An alien may not be
admitted to the United States as a temporary agricultural
worker if the alien was admitted to the United States as such a
worker within the previous five-year period and the alien
during that period violated a term or condition of such
previous admission.
[(g) Authorizations of Appropriations.--(1) There are
authorized to be appropriated for each fiscal year, beginning
with fiscal year 1987, $10,000,000 for the purposes--
[(A) of recruiting domestic workers for temporary
labor and services which might otherwise be performed
by nonimmigrants described in section
101(a)(15)(H)(ii)(a), and
[(B) of monitoring terms and conditions under which
such nonimmigrants (and domestic workers employed by
the same employers) are employed in the United States.
[(2) The Secretary of Labor is authorized to take such
actions, including imposing appropriate penalties and seeking
appropriate injunctive relief and specific performance of
contractual obligations, as may be necessary to assure employer
compliance with terms and conditions of employment under this
section.
[(3) There are authorized to be appropriated for each fiscal
year, beginning with fiscal year 1987, such sums as may be
necessary for the purpose of enabling the Secretary of Labor to
make determinations and certifications under this section and
under section 212(a)(5)(A)(i).
[(4) There are authorized to be appropriated for each fiscal
year, beginning with fiscal year 1987, such sums as may be
necessary for the purposes of enabling the Secretary of
Agriculture to carry out the Secretary's duties and
responsibilities under this section.
[(h) Miscellaneous Provisions.--(1) The Attorney General
shall provide for such endorsement of entry and exit documents
of nonimmigrants described in section 101(a)(15)(H)(ii) as may
be necessary to carry out this section and to provide notice
for purposes of section 274A.
[(2) The provisions of subsections (a) and (c) of section 214
and the provisions of this section preempt any State or local
law regulating admissibility of nonimmigrant workers.
[(i) Definitions.--For purposes of this section:
[(1) The term ``eligible individual'' means, with
respect to employment, an individual who is not an
unauthorized alien (as defined in section 274A(h)(3)
with respect to that employment.
[(2) The term ``H-2A worker'' means a nonimmigrant
described in section 101(a)(15)(H)(ii)(a).]
SEC. 218. ADMISSION OF TEMPORARY H-2A WORKERS.
(a) Labor Certification Conditions.--The Secretary of
Homeland Security may not approve a petition to admit an H-2A
worker unless the Secretary of Labor has certified that--
(1) there are not sufficient United States workers
who are able, willing and qualified, and who will be
available at the time and place needed, to perform the
agricultural labor or services described in the
petition; and
(2) the employment of the H-2A worker in such labor
or services will not adversely affect the wages and
working conditions of workers in the United States who
are similarly employed.
(b) H-2a Petition Requirements.--An employer filing a
petition for an H-2A worker to perform agricultural labor or
services shall attest to and demonstrate compliance, as and
when appropriate, with all applicable requirements under this
section, including the following:
(1) Need for labor or services.--The employer has
described the need for agricultural labor or services
in a job order that includes a description of the
nature and location of the work to be performed, the
anticipated period or periods (expected start and end
dates) for which the workers will be needed, and the
number of job opportunities in which the employer seeks
to employ the workers.
(2) Nondisplacement of united states workers.--The
employer has not and will not displace United States
workers employed by the employer during the period of
employment of the H-2A worker and during the 60-day
period immediately preceding such period of employment
in the job for which the employer seeks approval to
employ the H-2A worker.
(3) Strike or lockout.--Each place of employment
described in the petition is not, at the time of filing
the petition and until the petition is approved,
subject to a strike or lockout in the course of a labor
dispute.
(4) Recruitment of united states workers.--The
employer shall engage in the recruitment of United
States workers as described in subsection (c) and shall
hire such workers who are able, willing and qualified,
and who will be available at the time and place needed,
to perform the agricultural labor or services described
in the petition. The employer may reject a United
States worker only for lawful, job-related reasons.
(5) Wages, benefits, and working conditions.--The
employer shall offer and provide, at a minimum, the
wages, benefits, and working conditions required by
this section to the H-2A worker and all United States
workers who are similarly employed. The employer--
(A) shall offer such United States workers
not less than the same benefits, wages, and
working conditions that the employer is
offering or will provide to the H-2A worker;
and
(B) may not impose on such United States
workers any restrictions or obligations that
will not be imposed on the H-2A worker.
(6) Workers' compensation.--If the job opportunity is
not covered by or is exempt from the State workers'
compensation law, the employer shall provide, at no
cost to the worker, insurance covering injury and
disease arising out of, and in the course of, the
worker's employment which will provide benefits at
least equal to those provided under the State workers'
compensation law.
(7) Compliance with labor and employment laws.--The
employer shall comply with all applicable Federal,
State and local employment-related laws and
regulations.
(c) Recruiting Requirements.--
(1) In general.--The employer may satisfy the
recruitment requirement described in subsection (b)(4)
by satisfying all of the following:
(A) Job order.--As provided in subsection
(h)(1), the employer shall complete a job order
for posting on the electronic job registry
maintained by the Secretary of Labor and for
distribution by the appropriate State workforce
agency. Such posting shall remain on the job
registry as an active job order through the
period described in paragraph (2)(B).
(B) Former workers.--At least 45 days before
each start date identified in the petition, the
employer shall--
(i) make reasonable efforts to
contact any United States worker the
employer employed in the previous year
in the same occupation and area of
intended employment for which an H-2A
worker is sought (excluding workers who
were terminated for cause or abandoned
the worksite); and
(ii) post such job opportunity in a
conspicuous location or locations at
the place of employment.
(C) Positive recruitment.--During the period
of recruitment, the employer shall complete any
other positive recruitment steps within a
multi-State region of traditional or expected
labor supply where the Secretary of Labor finds
that there are a significant number of
qualified United States workers who, if
recruited, would be willing to make themselves
available for work at the time and place
needed.
(2) Period of recruitment.--
(A) In general.--For purposes of this
subsection, the period of recruitment begins on
the date on which the job order is posted on
the online job registry and ends on the date
that H-2A workers depart for the employer's
place of employment. For a petition involving
more than 1 start date under subsection
(h)(1)(C), the end of the period of recruitment
shall be determined by the date of departure of
the H-2A workers for the final start date
identified in the petition.
(B) Requirement to hire us workers.--
(i) In general.--Notwithstanding the
limitations of subparagraph (A), the
employer will provide employment to any
qualified United States worker who
applies to the employer for any job
opportunity included in the petition
until the later of--
(I) the date that is 30 days
after the date on which work
begins; or
(II) the date on which--
(aa) 33 percent of
the work contract for
the job opportunity has
elapsed; or
(bb) if the employer
is a labor contractor,
50 percent of the work
contract for the job
opportunity has
elapsed.
(ii) Staggered entry.--For a petition
involving more than 1 start date under
subsection (h)(1)(C), each start date
designated in the petition shall
establish a separate job opportunity.
An employer may not reject a United
States worker because the worker is
unable or unwilling to fill more than 1
job opportunity included in the
petition.
(iii) Exception.--Notwithstanding
clause (i), the employer may offer a
job opportunity to an H-2A worker
instead of an alien granted certified
agricultural worker status under title
I of the Farm Workforce Modernization
Act of 2019 if the H-2A worker was
employed by the employer in each of 3
years during the most recent 4-year
period.
(3) Recruitment report.--
(A) In general.--The employer shall maintain
a recruitment report through the applicable
period described in paragraph (2)(B) and submit
regular updates through the electronic platform
on the results of recruitment. The employer
shall retain the recruitment report, and all
associated recruitment documentation, for a
period of 3 years from the date of
certification.
(B) Burden of proof.--If the employer asserts
that any eligible individual who has applied or
been referred is not able, willing or
qualified, the employer bears the burden of
proof to establish that the individual is not
able, willing or qualified because of a lawful,
employment-related reason.
(d) Wage Requirements.--
(1) In general.--Each employer under this section
will offer the worker, during the period of authorized
employment, wages that are at least the greatest of--
(A) the agreed-upon collective bargaining
wage;
(B) the adverse effect wage rate (or any
successor wage established under paragraph
(7));
(C) the prevailing wage (hourly wage or piece
rate); or
(D) the Federal or State minimum wage.
(2) Adverse effect wage rate determinations.--
(A) In general.--Except as provided under
subparagraph (B), the applicable adverse effect
wage rate for each State and occupational
classification for a calendar year shall be as
follows:
(i) The annual average hourly wage
for the occupational classification in
the State or region as reported by the
Secretary of Agriculture based on a
wage survey conducted by such
Secretary.
(ii) If a wage described in clause
(i) is not reported, the national
annual average hourly wage for the
occupational classification as reported
by the Secretary of Agriculture based
on a wage survey conducted by such
Secretary.
(iii) If a wage described in clause
(i) or (ii) is not reported, the
Statewide annual average hourly wage
for the standard occupational
classification as reported by the
Secretary of Labor based on a wage
survey conducted by such Secretary.
(iv) If a wage described in clause
(i), (ii), or (iii) is not reported,
the national average hourly wage for
the occupational classification as
reported by the Secretary of Labor
based on a wage survey conducted by
such Secretary.
(B) Limitations on wage fluctuations.--
(i) Wage freeze for calendar year
2020.--For calendar year 2020, the
adverse effect wage rate for each State
and occupational classification under
this subsection shall be the adverse
effect wage rate that was in effect for
H-2A workers in the applicable State in
calendar year 2019.
(ii) Calendar years 2021 through
2029.--For each of calendar years 2021
through 2029, the adverse effect wage
rate for each State and occupational
classification under this subsection
shall be the wage calculated under
subparagraph (A), except that such wage
may not--
(I) be more than 1.5 percent
lower than the wage in effect
for H-2A workers in the
applicable State and
occupational classification in
the immediately preceding
calendar year;
(II) except as provided in
clause (III), be more than 3.25
percent higher than the wage in
effect for H-2A workers in the
applicable State and
occupational classification in
the immediately preceding
calendar year; and
(III) if the application of
clause (II) results in a wage
that is lower than 110 percent
of the applicable Federal or
State minimum wage, be more
than 4.25 percent higher than
the wage in effect for H-2A
workers in the applicable State
and occupational classification
in the immediately preceding
calendar year.
(iii) Calendar years after 2029.--For
any calendar year after 2029, the
applicable wage rate described in
paragraph (1)(B) shall be the wage rate
established pursuant to paragraph
(7)(D). Until such wage rate is
effective, the adverse effect wage rate
for each State and occupational
classification under this subsection
shall be the wage calculated under
subparagraph (A), except that such wage
may not be more than 1.5 percent lower
or 3.25 percent higher than the wage in
effect for H-2A workers in the
applicable State and occupational
classification in the immediately
preceding calendar year.
(3) Multiple occupations.--If the primary job duties
for the job opportunity described in the petition do
not fall within a single occupational classification,
the applicable wage rates under subparagraphs (B) and
(C) of paragraph (1) for the job opportunity shall be
based on the highest such wage rates for all applicable
occupational classifications.
(4) Publication; wages in effect.--
(A) Publication.--Prior to the start of each
calendar year, the Secretary of Labor shall
publish the applicable adverse effect wage rate
(or successor wage rate, if any), and
prevailing wage if available, for each State
and occupational classification through notice
in the Federal Register.
(B) Job orders in effect.--Except as provided
in subparagraph (C), publication by the
Secretary of Labor of an updated adverse effect
wage rate or prevailing wage for a State and
occupational classification shall not affect
the wage rate guaranteed in any approved job
order for which recruitment efforts have
commenced at the time of publication.
(C) Exception for year-round jobs.--If the
Secretary of Labor publishes an updated adverse
effect wage rate or prevailing wage for a State
and occupational classification concerning a
petition described in subsection (i), and the
updated wage is higher than the wage rate
guaranteed in the work contract, the employer
shall pay the updated wage not later than 14
days after publication of the updated wage in
the Federal Register.
(5) Workers paid on a piece rate or other incentive
basis.--If an employer pays by the piece rate or other
incentive method and requires 1 or more minimum
productivity standards as a condition of job retention,
such standards shall be specified in the job order and
shall be no more than those normally required (at the
time of the first petition for H-2A workers) by other
employers for the activity in the area of intended
employment, unless the Secretary of Labor approves a
higher minimum standard resulting from material changes
in production methods.
(6) Guarantee of employment.--
(A) Offer to worker.--The employer shall
guarantee the worker employment for the hourly
equivalent of at least three-fourths of the
work days of the total period of employment,
beginning with the first work day after the
arrival of the worker at the place of
employment and ending on the date specified in
the job offer. For purposes of this
subparagraph, the hourly equivalent means the
number of hours in the work days as stated in
the job offer and shall exclude the worker's
Sabbath and Federal holidays. If the employer
affords the worker less employment than that
required under this paragraph, the employer
shall pay the worker the amount which the
worker would have earned had the worker, in
fact, worked for the guaranteed number of
hours.
(B) Failure to work.--Any hours which the
worker fails to work, up to a maximum of the
number of hours specified in the job offer for
a work day, when the worker has been offered an
opportunity to do so, and all hours of work
actually performed (including voluntary work in
excess of the number of hours specified in the
job offer in a work day, on the worker's
Sabbath, or on Federal holidays) may be counted
by the employer in calculating whether the
period of guaranteed employment has been met.
(C) Abandonment of employment; termination
for cause.--If the worker voluntarily abandons
employment without good cause before the end of
the contract period, or is terminated for
cause, the worker is not entitled to the
guarantee of employment described in
subparagraph (A).
(D) Contract impossibility.--If, before the
expiration of the period of employment
specified in the job offer, the services of the
worker are no longer required for reasons
beyond the control of the employer due to any
form of natural disaster before the guarantee
in subparagraph (A) is fulfilled, the employer
may terminate the worker's employment. In the
event of such termination, the employer shall
fulfill the employment guarantee in
subparagraph (A) for the work days that have
elapsed from the first work day after the
arrival of the worker to the termination of
employment. The employer shall make efforts to
transfer a United States worker to other
comparable employment acceptable to the worker.
If such transfer is not affected, the employer
shall provide the return transportation
required in subsection (f)(2).
(7) Wage standards after 2029.--
(A) Study of adverse effect wage rate.--
Beginning in fiscal year 2026, the Secretary of
Agriculture and Secretary of Labor shall
jointly conduct a study that addresses--
(i) whether the employment of H-2A
workers has depressed the wages of
United States farm workers;
(ii) whether an adverse effect wage
rate is necessary to protect the wages
of United States farm workers in
occupations in which H-2A workers are
employed;
(iii) whether alternative wage
standards would be sufficient to
prevent wages in occupations in which
H-2A workers are employed from falling
below the wage level that would have
prevailed in the absence of H-2A
employment;
(iv) whether any changes are
warranted in the current methodologies
for calculating the adverse effect wage
rate and the prevailing wage rate; and
(v) recommendations for future wage
protection under this section.
(B) Final report.--Not later than October 1,
2027, the Secretary of Agriculture and
Secretary of Labor shall jointly prepare and
submit a report to the Congress setting forth
the findings of the study conducted under
subparagraph (A) and recommendations for future
wage protections under this section.
(C) Consultation.--In conducting the study
under subparagraph (A) and preparing the report
under subparagraph (B), the Secretary of
Agriculture and Secretary of Labor shall
consult with representatives of agricultural
employers and an equal number of
representatives of agricultural workers, at the
national, State and local level.
(D) Wage determination after 2029.--Upon
publication of the report described in
subparagraph (B), the Secretary of Labor, in
consultation with and the approval of the
Secretary of Agriculture, shall make a rule to
establish a process for annually determining
the wage rate for purposes of paragraph (1)(B)
for fiscal years after 2029. Such process shall
be designed to ensure that the employment of H-
2A workers does not undermine the wages and
working conditions of similarly employed United
States workers.
(e) Housing Requirements.--Employers shall furnish housing in
accordance with regulations established by the Secretary of
Labor. Such regulations shall be consistent with the following:
(1) In general.--The employer shall be permitted at
the employer's option to provide housing meeting
applicable Federal standards for temporary labor camps
or to secure housing which meets the local standards
for rental and/or public accommodations or other
substantially similar class of habitation: Provided,
That in the absence of applicable local standards,
State standards for rental and/or public accommodations
or other substantially similar class of habitation
shall be met: Provided further, That in the absence of
applicable local or State standards, Federal temporary
labor camp standards shall apply.
(2) Family housing.--Except as otherwise provided in
subsection (i)(5), the employer shall provide family
housing to workers with families who request it when it
is the prevailing practice in the area and occupation
of intended employment to provide family housing.
(3) United states workers.--Notwithstanding
paragraphs (1) and (2), an employer is not required to
provide housing to United States workers who are
reasonably able to return to their residence within the
same day.
(4) Timing of inspection.--
(A) In general.--The Secretary of Labor or
designee shall make a determination as to
whether the housing furnished by an employer
for a worker meets the requirements imposed by
this subsection prior to the date on which the
Secretary of Labor is required to make a
certification with respect to a petition for
the admission of such worker.
(B) Timely inspection.--The Secretary of
Labor shall provide a process for--
(i) an employer to request inspection
of housing up to 60 days before the
date on which the employer will file a
petition under this section; and
(ii) annual inspection of housing for
workers who are engaged in agricultural
employment that is not of a seasonal or
temporary nature.
(f) Transportation Requirements.--
(1) Travel to place of employment.--A worker who
completes 50 percent of the period of employment
specified in the job order shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the place from which the worker
came to work for the employer (or place of last
employment, if the worker traveled from such place) to
the place of employment.
(2) Travel from place of employment.--For a worker
who completes the period of employment specified in the
job order or who is terminated without cause, the
employer shall provide or pay for the worker's
transportation and subsistence from the place of
employment to the place from which the worker,
disregarding intervening employment, came to work for
the employer, or to the place of next employment, if
the worker has contracted with a subsequent employer
who has not agreed to provide or pay for the worker's
transportation and subsistence to such subsequent
employer's place of employment.
(3) Limitation.--
(A) Amount of reimbursement.--Except as
provided in subparagraph (B), the amount of
reimbursement provided under paragraph (1) or
(2) to a worker need not exceed the lesser of--
(i) the actual cost to the worker of
the transportation and subsistence
involved; or
(ii) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
(B) Distance traveled.--For travel to or from
the worker's home country, if the travel
distance between the worker's home and the
relevant consulate is 50 miles or less,
reimbursement for transportation and
subsistence may be based on transportation to
or from the consulate.
(g) Heat Illness Prevention Plan.--The employer shall
maintain a reasonable plan that describes the employer's
procedures for the prevention of heat illness, including
appropriate training, access to water and shade, the provision
of breaks, and the protocols for emergency response. Such plan
shall--
(1) be in writing in English and, to the extent
necessary, any language common to a significant portion
of the workers if they are not fluent in English; and
(2) be posted at a conspicuous location at the
worksite and provided to employees prior to the
commencement of labor or services.
(h) H-2a Petition Procedures.--
(1) Submission of petition and job order.--
(A) In general.--The employer shall submit
information required for the adjudication of
the H-2A petition, including a job order,
through the electronic platform no more than 75
calendar days and no fewer than 60 calendar
days before the employer's first date of need
specified in the petition.
(B) Filing by agricultural associations.--An
association of agricultural producers that use
agricultural services may file an H-2A petition
under subparagraph (A). If an association is a
joint or sole employer of workers who perform
agricultural labor or services, H-2A workers
may be used for the approved job opportunities
of any of the association's producer members
and such workers may be transferred among its
producer members to perform the agricultural
labor or services for which the petition was
approved.
(C) Petitions involving staggered entry.--
(i) In general.--Except as provided
in clause (ii), an employer may file a
petition involving employment in the
same occupational classification and
same area of intended employment with
multiple start dates if--
(I) the petition involves
temporary or seasonal
employment and no more than 10
start dates;
(II) the multiple start dates
share a common end date that is
no longer than 1 year after the
first start date;
(III) no more than 120 days
separate the first start date
and the final start date listed
in the petition; and
(IV) the need for multiple
start dates arises from
variations in labor needs
associated with the job
opportunity identified in the
petition.
(ii) Labor contractors.--A labor
contractor may not file a petition
described in clause (i) unless the
labor contractor--
(I) is filing as a joint
employer with its contractees,
or is operating in a State in
which joint employment and
liability between the labor
contractor and its contractees
is otherwise established; or
(II) has posted and is
maintaining a premium surety
bond as described in subsection
(l)(1).
(2) Labor certification.--
(A) Review of job order.--
(i) In general.--The Secretary of
Labor, in consultation with the
relevant State workforce agency, shall
review the job order for compliance
with this section and notify the
employer through the electronic
platform of any deficiencies not later
than 7 business days from the date the
employer submits the necessary
information required under paragraph
(1)(A). The employer shall be provided
5 business days to respond to any such
notice of deficiency.
(ii) Standard.--The job order must
include all material terms and
conditions of employment, including the
requirements of this section, and must
be otherwise consistent with the
minimum standards provided under
Federal, State or local law. In
considering the question of whether a
specific qualification is appropriate
in a job order, the Secretary of Labor
shall apply the normal and accepted
qualification required by non-H-2A
employers in the same or comparable
occupations and crops.
(iii) Emergency procedures.--The
Secretary of Labor shall establish
emergency procedures for the curing of
deficiencies that cannot be resolved
during the period described in clause
(i).
(B) Approval of job order.--
(i) In general.--Upon approval of the
job order, the Secretary of Labor shall
immediately place for public
examination a copy of the job order on
the online job registry, and the State
workforce agency serving the area of
intended employment shall commence the
recruitment of United States workers.
(ii) Referral of united states
workers.--The Secretary of Labor and
State workforce agency shall keep the
job order active until the end of the
period described in subsection (c)(2)
and shall refer to the employer each
United States worker who applies for
the job opportunity.
(C) Review of information for deficiencies.--
Within 7 business days of the approval of the
job order, the Secretary of Labor shall review
the information necessary to make a labor
certification and notify the employer through
the electronic platform if such information
does not meet the standards for approval. Such
notification shall include a description of any
deficiency, and the employer shall be provided
5 business days to cure such deficiency.
(D) Certification and authorization of
workers.--Not later than 30 days before the
date that labor or services are first required
to be performed, the Secretary of Labor shall
issue the requested labor certification if the
Secretary determines that the requirements for
certification set forth in this section have
been met.
(E) Expedited administrative appeals of
certain determinations.--The Secretary of Labor
shall by regulation establish a procedure for
an employer to request the expedited review of
a denial of a labor certification under this
section, or the revocation of such a
certification. Such procedure shall require the
Secretary to expeditiously, but no later than
72 hours after expedited review is requested,
issue a de novo determination on a labor
certification that was denied in whole or in
part because of the availability of able,
willing and qualified workers if the employer
demonstrates, consistent with subsection
(c)(3)(B), that such workers are not actually
available at the time or place such labor or
services are required.
(3) Petition decision.--
(A) In general.--Not later than 7 business
days after the Secretary of Labor issues the
certification, the Secretary of Homeland
Security shall issue a decision on the petition
and shall transmit a notice of action to the
petitioner via the electronic platform.
(B) Approval.--Upon approval of a petition
under this section, the Secretary of Homeland
Security shall ensure that such approval is
noted in the electronic platform and is
available to the Secretary of State and U.S.
Customs and Border Protection, as necessary, to
facilitate visa issuance and admission.
(C) Partial approval.--A petition for
multiple named beneficiaries may be partially
approved with respect to eligible beneficiaries
notwithstanding the ineligibility, or potential
ineligibility, of one or more other
beneficiaries.
(D) Post-certification amendments.--The
Secretary of Labor shall provide a process for
amending a request for labor certification in
conjunction with an H-2A petition, subsequent
to certification by the Secretary of Labor, in
cases in which the requested amendment does not
materially change the petition (including the
job order).
(4) Roles of agricultural associations.--
(A) Member's violation does not necessarily
disqualify association or other members.--If an
individual producer member of a joint employer
association is determined to have committed an
act that results in the denial of a petition
with respect to the member, the denial shall
apply only to that member of the association
unless the Secretary of Labor determines that
the association or other member participated
in, had knowledge of, or reason to know of, the
violation.
(B) Association's violation does not
necessarily disqualify members.--
(i) If an association representing
agricultural producers as a joint
employer is determined to have
committed an act that results in the
denial of a petition with respect to
the association, the denial shall apply
only to the association and does not
apply to any individual producer member
of the association unless the Secretary
of Labor determines that the member
participated in, had knowledge of, or
reason to know of, the violation.
(ii) If an association of
agricultural producers certified as a
sole employer is determined to have
committed an act that results in the
denial of a petition with respect to
the association, no individual producer
member of such association may be the
beneficiary of the services of H-2A
workers in the commodity and occupation
in which such aliens were employed by
the association which was denied during
the period such denial is in force,
unless such producer member employs
such aliens in the commodity and
occupation in question directly or
through an association which is a joint
employer of such workers with the
producer member.
(5) Special procedures.--The Secretary of Labor, in
consultation with the Secretary of Agriculture and
Secretary of Homeland Security, may by regulation
establish alternate procedures that reasonably modify
program requirements under this section, when the
Secretary determines that such modifications are
required due to the unique nature of the work involved.
(6) Construction occupations.--An employer may not
file a petition under this section on behalf of a
worker if the majority of the worker's duties will fall
within a construction or extraction occupational
classification.
(i) Non-temporary or -seasonal Needs.--
(1) In general.--Notwithstanding the requirement in
section 101(a)(15)(H)(ii)(a) that the agricultural
labor or services performed by an H-2A worker be of a
temporary or seasonal nature, the Secretary of Homeland
Security may, consistent with the provisions of this
subsection, approve a petition for an H-2A worker to
perform agricultural services or labor that is not of a
temporary or seasonal nature.
(2) Numerical limitations.--
(A) First 3 fiscal years.--The total number
of aliens who may be issued visas or otherwise
provided H-2A nonimmigrant status under
paragraph (1) for the first fiscal year during
which the first visa is issued under such
paragraph and for each of the following two
fiscal years may not exceed 20,000.
(B) Fiscal years 4 through 10.--
(i) In general.--The total number of
aliens who may be issued visas or
otherwise provided H-2A nonimmigrant
status under paragraph (1) for the
first fiscal year following the fiscal
years referred to in subparagraph (A)
and for each of the following six
fiscal years may not exceed a numerical
limitation jointly imposed by the
Secretary of Agriculture and Secretary
of Labor in accordance with clause
(ii).
(ii) Annual adjustments.--For each
fiscal year referred to in clause (i),
the Secretary of Agriculture and
Secretary of Labor, in consultation
with the Secretary of Homeland
Security, shall establish a numerical
limitation for purposes of clause (i).
Such numerical limitation may not be
lower 20,000 and may not vary by more
than 12.5 percent compared to the
numerical limitation applicable to the
immediately preceding fiscal year. In
establishing such numerical limitation,
the Secretaries shall consider
appropriate factors, including--
(I) a demonstrated shortage
of agricultural workers;
(II) the level of
unemployment and
underemployment of agricultural
workers during the preceding
fiscal year;
(III) the number of H-2A
workers sought by employers
during the preceding fiscal
year to engage in agricultural
labor or services not of a
temporary or seasonal nature;
(IV) the number of such H-2A
workers issued a visa in the
most recent fiscal year who
remain in the United States in
compliance with the terms of
such visa;
(V) the estimated number of
United States workers,
including workers who obtained
certified agricultural worker
status under title I of the
Farm Workforce Modernization
Act of 2019, who worked during
the preceding fiscal year in
agricultural labor or services
not of a temporary or seasonal
nature;
(VI) the number of such
United States workers who
accepted jobs offered by
employers using the online job
registry during the preceding
fiscal year;
(VII) any growth or
contraction of the United
States agricultural industry
that has increased or decreased
the demand for agricultural
workers; and
(VIII) any changes in the
real wages paid to agricultural
workers in the United States as
an indication of a shortage or
surplus of agricultural labor.
(C) Subsequent fiscal years.--For each fiscal
year following the fiscal years referred to in
subparagraph (B), the Secretary of Agriculture
and Secretary of Labor shall jointly determine,
in consultation with the Secretary of Homeland
Security, and after considering appropriate
factors, including those factors listed in
subclauses (I) through (VIII) of subparagraph
(B)(ii), whether to establish a numerical
limitation for that fiscal year. If a numerical
limitation is so established--
(i) such numerical limitation may not
be lower than highest number of aliens
admitted under this subsection in any
of the three fiscal years immediately
preceding the fiscal year for which the
numerical limitation is to be
established; and
(ii) the total number of aliens who
may be issued visas or otherwise
provided H-2A nonimmigrant status under
paragraph (1) for that fiscal year may
not exceed such numerical limitation.
(D) Emergency procedures.--The Secretary of
Agriculture and Secretary of Labor, in
consultation with the Secretary of Homeland
Security, shall jointly establish by regulation
procedures for immediately adjusting a
numerical limitation imposed under subparagraph
(B) or (C) to account for significant labor
shortages.
(3) Allocation of visas.--
(A) Bi-annual allocation.--The annual
allocation of visas described in paragraph (2)
shall be evenly allocated between two halves of
the fiscal year unless the Secretary of
Homeland Security, in consultation with the
Secretary of Agriculture and Secretary of
Labor, determines that an alternative
allocation would better accommodate demand for
visas. Any unused visas in the first half of
the fiscal year shall be added to the
allocation for the subsequent half of the same
fiscal year.
(B) Reserve for dairy labor or services.--
(i) In general.--Of the visa numbers
made available in each half of the
fiscal year pursuant to subparagraph
(A), 50 percent of such visas shall be
reserved for employers filing petitions
seeking H-2A workers to engage in
agricultural labor or services in the
dairy industry.
(ii) Exception.--If, after four
months have elapsed in one half of the
fiscal year, the Secretary of Homeland
Security determines that application of
clause (i) will result in visas going
unused during that half of the fiscal
year, clause (i) shall not apply to
visas under this paragraph during the
remainder of such calendar half.
(4) Annual round trip home.--
(A) In general.--In addition to the other
requirements of this section, an employer shall
provide H-2A workers employed under this
subsection, at no cost to such workers, with
annual round trip travel, including
transportation and subsistence during travel,
to their homes in their communities of origin.
The employer must provide such travel within 14
months of the initiation of the worker's
employment, and no more than 14 months can
elapse between each required period of travel.
(B) Limitation.--The cost of travel under
subparagraph (A) need not exceed the lesser
of--
(i) the actual cost to the worker of
the transportation and subsistence
involved; or
(ii) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
(5) Family housing.--An employer seeking to employ an
H-2A worker pursuant to this subsection shall offer
family housing to workers with families if such workers
are engaged in agricultural employment that is not of a
seasonal or temporary nature. The worker may reject
such an offer. The employer may not charge the worker
for the worker's housing, except that if the worker
accepts family housing, a prorated rent based on the
fair market value for such housing may be charged for
the worker's family members.
(6) Workplace safety plan for dairy employees.--
(A) In general.--If an employer is seeking to
employ a worker in agricultural labor or
services in the dairy industry pursuant to this
subsection, the employer must report incidents
consistent with the requirements under section
1904.39 of title 29, Code of Federal
Regulations, and maintain an effective worksite
safety and compliance plan to prevent workplace
accidents and otherwise ensure safety. Such
plan shall--
(i) be in writing in English and, to
the extent necessary, any language
common to a significant portion of the
workers if they are not fluent in
English; and
(ii) be posted at a conspicuous
location at the worksite and provided
to employees prior to the commencement
of labor or services.
(B) Contents of plan.--The Secretary of
Labor, in consultation with the Secretary of
Agriculture, shall establish by regulation the
minimum requirements for the plan described in
subparagraph (A). Such plan shall include
measures to--
(i) require workers (other than the
employer's family members) whose
positions require contact with animals
to complete animal care training,
including animal handling and job-
specific animal care;
(ii) protect against sexual
harassment and violence, resolve
complaints involving harassment or
violence, and protect against
retaliation against workers reporting
harassment or violence; and
(iii) contain other provisions
necessary for ensuring workplace
safety, as determined by the Secretary
of Labor, in consultation with the
Secretary of Agriculture.
(j) Eligibility for H-2a Status and Admission to the United
States.--
(1) Disqualification.--An alien shall be ineligible
for admission to the United States as an H-2A worker
pursuant to a petition filed under this section if the
alien was admitted to the United States as an H-2A
worker within the past 5 years of the date the petition
was filed and--
(A) violated a material provision of this
section, including the requirement to promptly
depart the United States when the alien's
authorized period of admission has expired,
unless the alien has good cause for such
failure to depart; or
(B) otherwise violated a term or condition of
admission into the United States as an H-2A
worker.
(2) Visa validity.--A visa issued to an H-2A worker
shall be valid for three years and shall allow for
multiple entries during the approved period of
admission.
(3) Period of authorized stay; admission.--
(A) In general.--An alien admissible as an H-
2A worker shall be authorized to stay in the
United States for the period of employment
specified in the petition approved by the
Secretary of Homeland Security under this
section. The maximum continuous period of
authorized stay for an H-2A worker is 36
months.
(B) Requirement to remain outside the united
states.--In the case of an H-2A worker whose
maximum continuous period of authorized stay
(including any extensions) has expired, the
alien may not again be eligible for such stay
until the alien remains outside the United
States for a cumulative period of at least 45
days.
(C) Exceptions.--The Secretary of Homeland
Security shall deduct absences from the United
States that take place during an H-2A worker's
period of authorized stay from the period that
the alien is required to remain outside the
United States under subparagraph (B), 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
including, but not limited to, arrival and
departure records, copies of tax returns, and
records of employment abroad.
(D) Admission.--In addition to the maximum
continuous period of authorized stay, an H-2A
worker's authorized period of admission shall
include an additional period of 10 days prior
to the beginning of the period of employment
for the purpose of traveling to the place of
employment and 45 days at the end of the period
of employment for the purpose of traveling home
or seeking an extension of status based on a
subsequent offer of employment if the worker
has not reached the maximum continuous period
of authorized stay under subparagraph (A)
(subject to the exceptions in subparagraph
(C)).
(4) Continuing h-2a workers.--
(A) Successive employment.--An H-2A worker is
authorized to start new or concurrent
employment upon the filing of a nonfrivolous H-
2A petition, or as of the requested start date,
whichever is later if--
(i) the petition to start new or
concurrent employment was filed prior
to the expiration of the H-2A worker's
period of admission as defined in
paragraph (3)(D); and
(ii) the H-2A worker has not been
employed without authorization in the
United States from the time of last
admission to the United States in H-2A
status through the filing of the
petition for new employment.
(B) Protection due to immigrant visa
backlogs.--Notwithstanding the limitations on
the period of authorized stay described in
paragraph (3), any H-2A worker who--
(i) is the beneficiary of an approved
petition, filed under section
204(a)(1)(E) or (F) for preference
status under section 203(b)(3)(A)(iii);
and
(ii) is eligible to be granted such
status but for the annual limitations
on visas under section 203(b)(3)(A),
may apply for, and the Secretary of Homeland
Security may grant, an extension of such
nonimmigrant status until the Secretary of
Homeland Security issues a final administrative
decision on the alien's application for
adjustment of status or the Secretary of State
issues a final decision on the alien's
application for an immigrant visa.
(5) Abandonment of employment.--
(A) In general.--Except as provided in
subparagraph (B), an H-2A worker who abandons
the employment which was the basis for the
worker's authorized stay, without good cause,
shall be considered to have failed to maintain
H-2A status and shall depart the United States
or be subject to removal under section
237(a)(1)(C)(i).
(B) Grace period to secure new employment.--
An H-2A worker shall not be considered to have
failed to maintain H-2A status solely on the
basis of a cessation of the employment on which
the alien's classification was based for a
period of 45 consecutive days, or until the end
of the authorized validity period, whichever is
shorter, once during each authorized validity
period.
(k) Required Disclosures.--
(1) Disclosure of work contract.--Not later than the
time the H-2A worker applies for a visa, the employer
shall provide the worker with a copy of the work
contract that includes the disclosures and rights under
this section (or in the absence of such a contract, a
copy of the job order and proof of the certification
described in subparagraphs (B) and (D) of subsection
(h)(2)). An H-2A worker moving from one H-2A employer
to a subsequent H-2A employer shall be provided with a
copy of the new employment contract no later than the
time an offer of employment is made by the subsequent
employer.
(2) Hours and earnings statements.--The employer
shall furnish to H-2A workers, on or before each
payday, in 1 or more written statements--
(A) the worker's total earnings for the pay
period;
(B) the worker's hourly rate of pay, piece
rate of pay, or both;
(C) the hours of employment offered to the
worker and the hours of employment actually
worked;
(D) if piece rates of pay are used, the units
produced daily;
(E) an itemization of the deductions made
from the worker's wages; and
(F) any other information required by
Federal, State or local law.
(3) Notice of worker rights.--The employer must post
and maintain in a conspicuous location at the place of
employment, a poster provided by the Secretary of Labor
in English, and, to the extent necessary, any language
common to a significant portion of the workers if they
are not fluent in English, which sets out the rights
and protections for workers employed pursuant to this
section.
(l) Labor Contractors; Foreign Labor Recruiters; Prohibition
on Fees.--
(1) Labor contractors.--
(A) Surety bond.--An employer that is a labor
contractor who seeks to employ H-2A workers
shall maintain a surety bond in an amount
required under subparagraph (B). Such bond
shall be payable to the Secretary of Labor or
pursuant to the resolution of a civil or
criminal proceeding, for the payment of wages
and benefits, including any assessment of
interest, owed to an H-2A worker or a similarly
employed United States worker, or a United
States worker who has been rejected or
displaced in violation of this section.
(B) Amount of bond.--The Secretary of Labor
shall annually publish in the Federal Register
a schedule of required bond amounts that are
determined by such Secretary to be sufficient
for labor contractors to discharge financial
obligations under this section based on the
number of workers the labor contractor seeks to
employ and the wages such workers are required
to be paid.
(C) Premium bond.--A labor contractor seeking
to file a petition involving more than 1 start
date under subsection (h)(1)(C) shall maintain
a surety bond that is at least 15 percent
higher than the applicable bond amount
determined by the Secretary under subparagraph
(B).
(D) Use of funds.--Any sums paid to the
Secretary under subparagraph (A) that are not
paid to a worker because of the inability to do
so within a period of 5 years following the
date of a violation giving rise to the
obligation to pay shall remain available to the
Secretary without further appropriation until
expended to support the enforcement of this
section.
(2) Foreign labor recruiting.--If the employer has
retained the services of a foreign labor recruiter, the
employer shall use a foreign labor recruiter registered
under section 251 of the Farm Workforce Modernization
Act of 2019.
(3) Prohibition against employees paying fees.--
Neither the employer nor its agents shall seek or
receive payment of any kind from any worker for any
activity related to the H-2A process, including payment
of the employer's attorneys' fees, application fees, or
recruitment costs. An employer and its agents may
receive reimbursement for costs that are the
responsibility and primarily for the benefit of the
worker, such as government-required passport fees.
(4) Third party contracts.--The contract between an
employer and any labor contractor or any foreign labor
recruiter (or any agent of such labor contractor or
foreign labor recruiter) whom the employer engages
shall include a term providing for the termination of
such contract for cause if the contractor or recruiter,
either directly or indirectly, in the placement or
recruitment of H-2A workers seeks or receives payments
or other compensation from prospective employees. Upon
learning that a labor contractor or foreign labor
recruiter has sought or collected such payments, the
employer shall so terminate any contracts with such
contractor or recruiter.
(m) Enforcement Authority.--
(1) In general.--The Secretary of Labor is authorized
to take such actions against employers, including
imposing appropriate penalties and seeking monetary and
injunctive relief and specific performance of
contractual obligations, as may be necessary to ensure
compliance with the requirements of this section and
with the applicable terms and conditions of employment.
(2) Complaint process.--
(A) Process.--The Secretary of Labor shall
establish a process for the receipt,
investigation, and disposition of complaints
alleging failure of an employer to comply with
the requirements under this section and with
the applicable terms and conditions of
employment.
(B) Filing.--A complaint referred to in
subparagraph (A) may be filed not later than 2
years after the date of the conduct that is the
subject of the complaint.
(C) Complaint not exclusive.--A complaint
filed under this paragraph is not an exclusive
remedy and the filing of such a complaint does
not waive any rights or remedies of the
aggrieved party under this law or other laws.
(D) Decision and remedies.--If the Secretary
of Labor finds, after notice and opportunity
for a hearing, that the employer failed to
comply with the requirements of this section or
the terms and conditions of employment, the
Secretary of Labor may require payment of
unpaid wages, unpaid benefits, fees assessed in
violation of this section, damages, and civil
money penalties. The Secretary is also
authorized to impose other administrative
remedies, including disqualification of the
employer from utilizing the H-2A program for a
period of up to 5 years in the event of willful
or multiple material violations. The Secretary
is authorized to permanently disqualify an
employer from utilizing the H-2A program upon a
subsequent finding involving willful or
multiple material violations.
(E) Disposition of penalties.--Civil
penalties collected under this paragraph shall
be deposited into the H-2A Labor Certification
Fee Account established under section 203 of
the Farm Workforce Modernization Act of 2019.
(3) Statutory construction.--Nothing in this
subsection may be construed as limiting the authority
of the Secretary of Labor to conduct an investigation--
(A) under any other law, including any law
affecting migrant and seasonal agricultural
workers; or
(B) in the absence of a complaint.
(4) Retaliation prohibited.--It is a violation of
this subsection for any person who has filed a petition
under this section to intimidate, threaten, restrain,
coerce, blacklist, discharge, or in any other manner
discriminate against, or to cause any person to
intimidate, threaten, restrain, coerce, blacklist, or
in any manner discriminate against, an employee,
including a former employee or an applicant for
employment, because the employee--
(A) has disclosed information to the
employer, or to any other person, that the
employee reasonably believes evidences a
violation under this section, or any rule or
regulation relating to this section;
(B) has filed a complaint concerning the
employer's compliance with the requirements
under this section or any rule or regulation
pertaining to this section;
(C) cooperates or seeks to cooperate in an
investigation or other proceeding concerning
the employer's compliance with the requirements
under this section or any rule or regulation
pertaining to this section; or
(D) has taken steps to exercise or assert any
right or protection under the provisions of
this section, or any rule or regulation
pertaining to this section, or any other
relevant Federal, State, or local law.
(5) Interagency communication.--The Secretary of
Labor, in consultation with the Secretary of Homeland
Security, Secretary of State and the Equal Employment
Opportunity Commission, shall establish mechanisms by
which the agencies and their components share
information, including by public electronic means,
regarding complaints, studies, investigations, findings
and remedies regarding compliance by employers with the
requirements of the H-2A program and other employment-
related laws and regulations.
(n) Definitions.--In this section:
(1) Displace.--The term ``displace'' means to lay off
a similarly employed United States worker, other than
for lawful job-related reasons, in the occupation and
area of intended employment for the job for which H-2A
workers are sought.
(2) H-2a worker.--The term ``H-2A worker'' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
(3) Job order.--The term ``job order'' means the
document containing the material terms and conditions
of employment, including obligations and assurances
required under this section or any other law.
(4) Online job registry.--The term ``online job
registry'' means the online job registry of the
Secretary of Labor required under section 201(b) of the
Farm Workforce Modernization Act of 2019 (or similar
successor registry).
(5) Similarly employed.--The term ``similarly
employed'', in the case of a worker, means a worker in
the same occupational classification as the
classification or classifications for which the H-2A
worker is sought.
(6) United states worker.--The term ``United States
worker'' means any worker who is--
(A) a citizen or national of the United
States;
(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 to be employed in the United States;
(C) an alien granted certified agricultural
worker status under title I of the Farm
Workforce Modernization Act of 2019; or
(D) an individual who is not an unauthorized
alien (as defined in section 274A(h)(3)) with
respect to the employment in which the worker
is engaging.
(o) Fees; Authorization of Appropriations.--
(1) Fees.--
(A) In general.--The Secretary of Homeland
Security shall impose a fee to process
petitions under this section. Such fee shall be
set at a level that is sufficient to recover
the reasonable costs of processing the
petition, including the reasonable costs of
providing labor certification by the Secretary
of Labor.
(B) Distribution.--Fees collected under
subparagraph (A) shall be deposited as
offsetting receipts into the immigration
examinations fee account in section 286(m),
except that the portion of fees assessed for
the Secretary of Labor shall be deposited into
the H-2A Labor Certification Fee Account
established pursuant to section 203(c) of the
Farm Workforce Modernization Act of 2019.
(2) Appropriations.--There are authorized to be
appropriated for each fiscal year such sums as
necessary for the purposes of--
(A) recruiting United States workers for
labor or services which might otherwise be
performed by H-2A workers, including by
ensuring that State workforce agencies are
sufficiently funded to fulfill their functions
under this section;
(B) enabling the Secretary of Labor to make
determinations and certifications under this
section and under section 212(a)(5)(A)(i);
(C) monitoring the terms and conditions under
which H-2A workers (and United States workers
employed by the same employers) are employed in
the United States; and
(D) enabling the Secretary of Agriculture to
carry out the Secretary of Agriculture's duties
and responsibilities under this section.
* * * * * * *
Chapter 8--General Penalty Provisions
* * * * * * *
unlawful employment of aliens
Sec. 274A. (a) Making Employment of Unauthorized Aliens
Unlawful.--
(1) In general.--It is unlawful for a person or other
entity--
(A) to hire, or to recruit or refer for a
fee, for employment in the United States an
alien knowing the alien is an unauthorized
alien (as defined in subsection (h)(3)) with
respect to such employment, or
(B)(i) to hire for employment in the United
States an individual without complying with the
requirements of subsection (b) or (ii) if the
person or entity is an agricultural
association, agricultural employer, or farm
labor contractor (as defined in section 3 of
the Migrant and Seasonal Agricultural Worker
Protection Act), to hire, or to recruit or
refer for a fee, for employment in the United
States an individual without complying with the
requirements of [subsection (b).] section 274B.
(2) Continuing employment.--It is unlawful for a
person or other entity, after hiring an alien for
employment in accordance with paragraph (1), to
continue to employ the alien in the United States
knowing the alien is (or has become) an unauthorized
alien with respect to such employment.
(3) Defense.--A person or entity that establishes
that it has complied in good faith with the
requirements of subsection (b) with respect to the
hiring, recruiting, or referral for employment of an
alien in the United States has established an
affirmative defense that the person or entity has not
violated paragraph (1)(A) with respect to such hiring,
recruiting, or referral.
(4) Use of labor through contract.--For purposes of
this section, a person or other entity who uses a
contract, subcontract, or exchange, entered into,
renegotiated, or extended after the date of the
enactment of this section, to obtain the labor of an
alien in the United States knowing that the alien is an
unauthorized alien (as defined in subsection (h)(3))
with respect to performing such labor, shall be
considered to have hired the alien for employment in
the United States in violation of paragraph (1)(A).
(5) Use of state employment agency documentation.--
For purposes of paragraphs (1)(B) and (3), a person or
entity shall be deemed to have complied with the
requirements of subsection (b) with respect to the
hiring of an individual who was referred for such
employment by a State employment agency (as defined by
the Attorney General), if the person or entity has and
retains (for the period and in the manner described in
subsection (b)(3)) appropriate documentation of such
referral by that agency, which documentation certifies
that the agency has complied with the procedures
specified in subsection (b) with respect to the
individual's referral.
(6) Treatment of documentation for certain
employees.--
(A) In general.--For purposes of this
section, if--
(i) an individual is a member of a
collective-bargaining unit and is
employed, under a collective bargaining
agreement entered into between one or
more employee organizations and an
association of two or more employers,
by an employer that is a member of such
association, and
(ii) within the period specified in
subparagraph (B), another employer that
is a member of the association (or an
agent of such association on behalf of
the employer) has complied with the
requirements of subsection (b) with
respect to the employment of the
individual,
the subsequent employer shall be deemed to have
complied with the requirements of subsection
(b) with respect to the hiring of the employee
and shall not be liable for civil penalties
described in subsection (e)(5).
(B) Period.--The period described in this
subparagraph is 3 years, or, if less, the
period of time that the individual is
authorized to be employed in the United States.
(C) Liability.--
(i) In general.--If any employer that
is a member of an association hires for
employment in the United States an
individual and relies upon the
provisions of subparagraph (A) to
comply with the requirements of
subsection (b) and the individual is an
alien not authorized to work in the
United States, then for the purposes of
paragraph (1)(A), subject to clause
(ii), the employer shall be presumed to
have known at the time of hiring or
afterward that the individual was an
alien not authorized to work in the
United States.
(ii) Rebuttal of presumption.--The
presumption established by clause (i)
may be rebutted by the employer only
through the presentation of clear and
convincing evidence that the employer
did not know (and could not reasonably
have known) that the individual at the
time of hiring or afterward was an
alien not authorized to work in the
United States.
(iii) Exception.--Clause (i) shall
not apply in any prosecution under
subsection (f)(1).
(7) Application to federal government.--For purposes
of this section, the term ``entity'' includes an entity
in any branch of the Federal Government.
(b) Employment Verification System.--[The requirements
referred] Except as provided in section 274E, the requirements
referred to in paragraphs (1)(B) and (3) of subsection (a) are,
in the case of a person or other entity hiring, recruiting, or
referring an individual for employment in the United States,
the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation.--
(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Attorney
General by regulation, that it has verified
that the individual is not an unauthorized
alien by examining--
(i) a document described in
subparagraph (B), or
(ii) a document described in
subparagraph (C) and a document
described in subparagraph (D).
A person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine.
If an individual provides a document or
combination of documents that reasonably
appears on its face to be genuine and that is
sufficient to meet the requirements of the
first sentence of this paragraph, nothing in
this paragraph shall be construed as requiring
the person or entity to solicit the production
of any other document or as requiring the
individual to produce such another document.
(B) Documents establishing both employment
authorization and identity.--A document
described in this subparagraph is an
individual's--
(i) United States passport;
(ii) resident alien card, alien
registration card, or other document
designated by the Attorney General, if
the document--
(I) contains a photograph of
the individual and such other
personal identifying
information relating to the
individual as the Attorney
General finds, by regulation,
sufficient for purposes of this
subsection,
(II) is evidence of
authorization of employment in
the United States, and
(III) contains security
features to make it resistant
to tampering, counterfeiting,
and fraudulent use.
(C) Documents evidencing employment
authorization.--A document described in this
subparagraph is an individual's--
(i) social security account number
card (other than such a card which
specifies on the face that the issuance
of the card does not authorize
employment in the United States); or
(ii) other documentation evidencing
authorization of employment in the
United States which the Attorney
General finds, by regulation, to be
acceptable for purposes of this
section.
(D) Documents establishing identity of
individual.--A document described in this
subparagraph is an individual's--
(i) driver's license or similar
document issued for the purpose of
identification by a State, if it
contains a photograph of the individual
or such other personal identifying
information relating to the individual
as the Attorney General finds, by
regulation, sufficient for purposes of
this section; or
(ii) in the case of individuals under
16 years of age or in a State which
does not provide for issuance of an
identification document (other than a
driver's license) referred to in clause
(i), documentation of personal identity
of such other type as the Attorney
General finds, by regulation, provides
a reliable means of identification.
(E) Authority to prohibit use of certain
documents.--If the Attorney General finds, by
regulation, that any document described in
subparagraph (B), (C), or (D) as establishing
employment authorization or identity does not
reliably establish such authorization or
identity or is being used fraudulently to an
unacceptable degree, the Attorney General may
prohibit or place conditions on its use for
purposes of this subsection.
(2) Individual attestation of employment
authorization.--The individual must attest, under
penalty of perjury on the form designated or
established for purposes of paragraph (1), that the
individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Attorney General to be hired, recruited, or
referred for such employment.
(3) Retention of verification form.--After completion
of such form in accordance with paragraphs (1) and (2),
the person or entity must retain the form and make it
available for inspection by officers of the Service,
the Special Counsel for Immigration-Related Unfair
Employment Practices, or the Department of Labor during
a period beginning on the date of the hiring,
recruiting, or referral of the individual and ending--
(A) in the case of the recruiting or referral
for a fee (without hiring) of an individual,
three years after the date of the recruiting or
referral, and
(B) in the case of the hiring of an
individual--
(i) three years after the date of
such hiring, or
(ii) one year after the date the
individual's employment is terminated,
whichever is later.
(4) Copying of documentation permitted.--
Notwithstanding any other provision of law, the person
or entity may copy a document presented by an
individual pursuant to this subsection and may retain
the copy, but only (except as otherwise permitted under
law) for the purpose of complying with the requirements
of this subsection.
(5) Limitation on use of attestation form.--A form
designated or established by the Attorney General under
this subsection and any information contained in or
appended to such form, may not be used for purposes
other than for enforcement of this Act and sections
1001, 1028, 1546, and 1621 of title 18, United States
Code.
(6) Good faith compliance.--
(A) In general.--Except as provided in
subparagraphs (B) and (C), a person or entity
is considered to have complied with a
requirement of this subsection notwithstanding
a technical or procedural failure to meet such
requirement if there was a good faith attempt
to comply with the requirement.
(B) Exception if failure to correct after
notice.--Subparagraph (A) shall not apply if--
(i) the Service (or another
enforcement agency) has explained to
the person or entity the basis for the
failure,
(ii) the person or entity has been
provided a period of not less than 10
business days (beginning after the date
of the explanation) within which to
correct the failure, and
(iii) the person or entity has not
corrected the failure voluntarily
within such period.
(C) Exception for pattern or practice
violators.--Subparagraph (A) shall not apply to
a person or entity that has or is engaging in a
pattern or practice of violations of subsection
(a)(1)(A) or (a)(2).
(c) No Authorization of National Identification Cards.--
Nothing in this section shall be construed to authorize,
directly or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
(d) Evaluation and Changes in Employment Verification
System.--
(1) Presidential monitoring and improvements in
system.--
(A) Monitoring.--The President shall provide
for the monitoring and evaluation of the degree
to which the employment verification system
established under subsection (b) provides a
secure system to determine employment
eligibility in the United States and shall
examine the suitability of existing Federal and
State identification systems for use for this
purpose.
(B) Improvements to establish secure
system.--To the extent that the system
established under subsection (b) is found not
to be a secure system to determine employment
eligibility in the United States, the President
shall, subject to paragraph (3) and taking into
account the results of any demonstration
projects conducted under paragraph (4),
implement such changes in (including additions
to) the requirements of subsection (b) as may
be necessary to establish a secure system to
determine employment eligibility in the United
States. Such changes in the system may be
implemented only if the changes conform to the
requirements of paragraph (2).
(2) Restrictions on changes in system.--Any change
the President proposes to implement under paragraph (1)
in the verification system must be designed in a manner
so the verification system, as so changed, meets the
following requirements:
(A) Reliable determination of identity.--The
system must be capable of reliably determining
whether--
(i) a person with the identity
claimed by an employee or prospective
employee is eligible to work, and
(ii) the employee or prospective
employee is claiming the identity of
another individual.
(B) Using of counterfeit-resistant
documents.--If the system requires that a
document be presented to or examined by an
employer, the document must be in a form which
is resistant to counterfeiting and tampering.
(C) Limited use of system.--Any personal
information utilized by the system may not be
made available to Government agencies,
employers, and other persons except to the
extent necessary to verify that an individual
is not an unauthorized alien.
(D) Privacy of information.--The system must
protect the privacy and security of personal
information and identifiers utilized in the
system.
(E) Limited denial of verification.--A
verification that an employee or prospective
employee is eligible to be employed in the
United States may not be withheld or revoked
under the system for any reason other than that
the employee or prospective employee is an
unauthorized alien.
(F) Limited use for law enforcement
purposes.--The system may not be used for law
enforcement purposes, other than for
enforcement of this Act or sections 1001, 1028,
1546, and 1621 of title 18, United States Code.
(G) Restriction on use of new documents.--If
the system requires individuals to present a
new card or other document (designed
specifically for use for this purpose) at the
time of hiring, recruitment, or referral, then
such document may not be required to be
presented for any purpose other than under this
Act (or enforcement of sections 1001, 1028,
1546, and 1621 of title 18, United States Code)
nor to be carried on one's person.
(3) Notice to congress before implementing changes.--
(A) In general.--The President may not
implement any change under paragraph (1) unless
at least--
(i) 60 days,
(ii) one year, in the case of a major
change described in subparagraph
(D)(iii), or
(iii) two years, in the case of a
major change described in clause (i) or
(ii) of subparagraph (D),
before the date of implementation of the
change, the President has prepared and
transmitted to the Committee on the Judiciary
of the House of Representatives and to the
Committee on the Judiciary of the Senate a
written report setting forth the proposed
change. If the President proposes to make any
change regarding social security account number
cards, the President shall transmit to the
Committee on Ways and Means of the House of
Representatives and to the Committee on Finance
of the Senate a written report setting forth
the proposed change. The President promptly
shall cause to have printed in the Federal
Register the substance of any major change
(described in subparagraph (D)) proposed and
reported to Congress.
(B) Contents of report.--In any report under
subparagraph (A) the President shall include
recommendations for the establishment of civil
and criminal sanctions for unauthorized use or
disclosure of the information or identifiers
contained in such system.
(C) Congressional review of major changes.--
(i) Hearings and review.--The
Committees on the Judiciary of the
House of Representatives and of the
Senate shall cause to have printed in
the Congressional Record the substance
of any major change described in
subparagraph (D), shall hold hearings
respecting the feasibility and
desirability of implementing such a
change, and, within the two year period
before implementation, shall report to
their respective Houses findings on
whether or not such a change should be
implemented.
(ii) Congressional action.--No major
change may be implemented unless the
Congress specifically provides, in an
appropriations or other Act, for funds
for implementation of the change.
(D) Major changes defined.--As used in this
paragraph, the term ``major change'' means a
change which would--
(i) require an individual to present
a new card or other document (designed
specifically for use for this purpose)
at the time of hiring, recruitment, or
referral,
(ii) provide for a telephone
verification system under which an
employer, recruiter, or referrer must
transmit to a Federal official
information concerning the immigration
status of prospective employees and the
official transmits to the person, and
the person must record, a verification
code, or
(iii) require any change in any card
used for accounting purposes under the
Social Security Act, including any
change requiring that the only social
security account number cards which may
be presented in order to comply with
subsection (b)(1)(C)(i) are such cards
as are in a counterfeit-resistant form
consistent with the second sentence of
section 205(c)(2)(D) of the Social
Security Act.
(E) General revenue funding of social
security card changes.--Any costs incurred in
developing and implementing any change
described in subparagraph (D)(iii) for purposes
of this subsection shall not be paid for out of
any trust fund established under the Social
Security Act.
(4) Demonstration projects.--
(A) Authority.--The President may undertake
demonstration projects (consistent with
paragraph (2)) of different changes in the
requirements of subsection (b). No such project
may extend over a period of longer than five
years.
(B) Reports on projects.--The President shall
report to the Congress on the results of
demonstration projects conducted under this
paragraph.
(e) Compliance.--
(1) Complaints and investigations.--The Attorney
General shall establish procedures--
(A) for individuals and entities to file
written, signed complaints respecting potential
violations of subsection (a) or (g)(1),
(B) for the investigation of those complaints
which, on their face, have a substantial
probability of validity,
(C) for the investigation of such other
violations of subsection (a) or (g)(1) as the
Attorney General determines to be appropriate,
and
(D) for the designation in the Service of a
unit which has, as its primary duty, the
prosecution of cases of violations of
subsection (a) or (g)(1) under this subsection.
(2) Authority in investigations.--In conducting
investigations and hearings under this subsection--
(A) immigration officers and administrative
law judges shall have reasonable access to
examine evidence of any person or entity being
investigated,
(B) administrative law judges, may, if
necessary, compel by subpoena the attendance of
witnesses and the production of evidence at any
designated place or hearing, and
(C) immigration officers designated by the
Commissioner may compel by subpoena the
attendance of witnesses and the production of
evidence at any designated place prior to the
filing of a complaint in a case under paragraph
(2).
In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon
application of the Attorney General, an appropriate
district court of the United States may issue an order
requiring compliance with such subpoena and any failure
to obey such order may be punished by such court as a
contempt thereof.
(3) Hearing.--
(A) In general.--Before imposing an order
described in paragraph (4), (5), or (6) against
a person or entity under this subsection for a
violation of subsection (a) or (g)(1), the
Attorney General shall provide the person or
entity with notice and, upon request made
within a reasonable time (of not less than 30
days, as established by the Attorney General)
of the date of the notice, a hearing respecting
the violation.
(B) Conduct of hearing.--Any hearing so
requested shall be conducted before an
administrative law judge. The hearing shall be
conducted in accordance with the requirements
of section 554 of title 5, United States Code.
The hearing shall be held at the nearest
practicable place to the place where the person
or entity resides or of the place where the
alleged violation occurred. If no hearing is so
requested, the Attorney General's imposition of
the order shall constitute a final and
unappealable order.
(C) Issuance of orders.--If the
administrative law judge determines, upon the
preponderance of the evidence received, that a
person or entity named in the complaint has
violated subsection (a) or (g)(1), the
administrative law judge shall state his
findings of fact and issue and cause to be
served on such person or entity an order
described in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money penalty
for hiring, recruiting, and referral violations.--With
respect to a violation of subsection (a)(1)(A) or
(a)(2), the order under this subsection--
(A) shall require the person or entity to
cease and desist from such violations and to
pay a civil penalty in an amount of--
(i) not less than $250 and not more
than $2,000 for each unauthorized alien
with respect to whom a violation of
either such subsection occurred,
(ii) not less than $2,000 and not
more than $5,000 for each such alien in
the case of a person or entity
previously subject to one order under
this paragraph, or
(iii) not less than $3,000 and not
more than $10,000 for each such alien
in the case of a person or entity
previously subject to more than one
order under this paragraph; and
(B) may require the person or entity--
(i) to comply with the requirements
of subsection (b) (or subsection (d) if
applicable) with respect to individuals
hired (or recruited or referred for
employment for a fee) during a period
of up to three years, and
(ii) to take such other remedial
action as is appropriate.
In applying this subsection in the case of a
person or entity composed of distinct,
physically separate subdivisions each of which
provides separately for the hiring, recruiting,
or referring for employment, without reference
to the practices of, and not under the control
of or common control with, another subdivision,
each such subdivision shall be considered a
separate person or entity.
(5) Order for civil money penalty for paperwork
violations.--With respect to a violation of subsection
(a)(1)(B), the order under this subsection shall
require the person or entity to pay a civil penalty in
an amount of not less than $100 and not more than
$1,000 for each individual with respect to whom such
violation occurred. In determining the amount of the
penalty, due consideration shall be given to the size
of the business of the employer being charged, the good
faith of the employer, the seriousness of the
violation, whether or not the individual was an
unauthorized alien, and the history of previous
violations.
(6) Order for prohibited indemnity bonds.--With
respect to a violation of subsection (g)(1), the order
under this subsection may provide for the remedy
described in subsection (g)(2).
(7) Administrative appellate review.--The decision
and order of an administrative law judge shall become
the final agency decision and order of the Attorney
General unless either (A) within 30 days, an official
delegated by regulation to exercise review authority
over the decision and order modifies or vacates the
decision and order, or (B) within 30 days of the date
of such a modification or vacation (or within 60 days
of the date of decision and order of an administrative
law judge if not so modified or vacated) the decision
and order is referred to the Attorney General pursuant
to regulations, in which case the decision and order of
the Attorney General shall become the final agency
decision and order under this subsection. The Attorney
General may not delegate the Attorney General's
authority under this paragraph to any entity which has
review authority over immigration-related matters.
(8) Judicial review.--A person or entity adversely
affected by a final order respecting an assessment may,
within 45 days after the date the final order is
issued, file a petition in the Court of Appeals for the
appropriate circuit for review of the order.
(9) Enforcement of orders.--If a person or entity
fails to comply with a final order issued under this
subsection against the person or entity, the Attorney
General shall file a suit to seek compliance with the
order in any appropriate district court of the United
States. In any such suit, the validity and
appropriateness of the final order shall not be subject
to review.
(f) Criminal Penalties and Injunctions for Pattern or
Practice Violations.--
(1) Criminal penalty.--Any person or entity which
engages in a pattern or practice of violations of
subsection (a)(1)(A) or (a)(2) shall be fined not more
than $3,000 for each unauthorized alien with respect to
whom such a violation occurs, imprisoned for not more
than six months for the entire pattern or practice, or
both, notwithstanding the provisions of any other
Federal law relating to fine levels.
(2) Enjoining of pattern or practice violations.--
Whenever the Attorney General has reasonable cause to
believe that a person or entity is engaged in a pattern
or practice of employment, recruitment, or referral in
violation of paragraph (1)(A) or (2) of subsection (a),
the Attorney General may bring a civil action in the
appropriate district court of the United States
requesting such relief, including a permanent or
temporary injunction, restraining order, or other order
against the person or entity, as the Attorney General
deems necessary.
(g) Prohibition of Indemnity Bonds.--
(1) Prohibition.--It is unlawful for a person or
other entity, in the hiring, recruiting, or referring
for employment of any individual, to require the
individual to post a bond or security, to pay or agree
to pay an amount, or otherwise to provide a financial
guarantee or indemnity, against any potential liability
arising under this section relating to such hiring,
recruiting, or referring of the individual.
(2) Civil penalty.--Any person or entity which is
determined, after notice and opportunity for an
administrative hearing under subsection (e), to have
violated paragraph (1) shall be subject to a civil
penalty of $1,000 for each violation and to an
administrative order requiring the return of any
amounts received in violation of such paragraph to the
employee or, if the employee cannot be located, to the
general fund of the Treasury.
(h) Miscellaneous Provisions.--
(1) Documentation.--In providing documentation or
endorsement of authorization of aliens (other than
aliens lawfully admitted for permanent residence)
authorized to be employed in the United States, the
Attorney General shall provide that any limitations
with respect to the period or type of employment or
employer shall be conspicuously stated on the
documentation or endorsement.
(2) Preemption.--The provisions of this section
preempt any State or local law imposing civil or
criminal sanctions (other than through licensing and
similar laws) upon those who employ, or recruit or
refer for a fee for employment, unauthorized aliens.
(3) Definition of unauthorized alien.--As used in
this section, the term ``unauthorized alien'' means,
with respect to the employment of an alien at a
particular time, that the alien is not at that time
either (A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by this
Act or by the Attorney General.
unfair immigration-related employment practices
Sec. 274B. (a) Prohibition of Discrimination Based on
National Origin or Citizenship Status.--
(1) General rule.--It is an unfair immigration-
related employment practice for a person or other
entity to discriminate against any individual (other
than an unauthorized alien, as defined in section
274A(h)(3)) with respect to the hiring, or recruitment
or referral for a fee, including misuse of the
verification system as described in section 274E(g) of
the individual for employment or the discharging of the
individual from employment--
(A) because of such individual's national
origin, or
(B) in the case of a protected individual (as
defined in paragraph (3)), because of such
individual's citizenship status.
(2) Exceptions.--Paragraph (1) shall not apply to--
(A) a person or other entity that employs
three or fewer employees,
(B) a person's or entity's discrimination
because of an individual's national origin if
the discrimination with respect to that person
or entity and that individual is covered under
section 703 of the Civil Rights Act of 1964, or
(C) discrimination because of citizenship
status which is otherwise required in order to
comply with law, regulation, or executive
order, or required by Federal, State, or local
government contract, or which the Attorney
General determines to be essential for an
employer to do business with an agency or
department of the Federal, State, or local
government.
(3) Definition of protected individual.--As used in
paragraph (1), the term ``protected individual'' means
an individual who--
(A) is a citizen or national of the United
States, or
(B) is an alien who is lawfully admitted for
permanent residence, is granted the status of
an alien lawfully admitted for temporary
residence under section 210(a) or 245A(a)(1),
is admitted as a refugee under section 207, or
is granted asylum under section 208; but does
not include (i) an alien who fails to apply for
naturalization within six months of the date
the alien first becomes eligible (by virtue of
period of lawful permanent residence) to apply
for naturalization or, if later, within six
months after the date of the enactment of this
section and (ii) an alien who has applied on a
timely basis, but has not been naturalized as a
citizen within 2 years after the date of the
application, unless the alien can establish
that the alien is actively pursuing
naturalization, except that time consumed in
the Service's processing the application shall
not be counted toward the 2-year period.
(4) Additional exception providing right to prefer
equally qualified citizens.--Notwithstanding any other
provision of this section, it is not an unfair
immigration-related employment practice for a person or
other entity to prefer to hire, recruit, or refer an
individual who is a citizen or national of the United
States over another individual who is an alien if the
two individuals are equally qualified.
(5) Prohibition of intimidation or retaliation.--It
is also an unfair immigration-related employment
practice for a person or other entity to intimidate,
threaten, coerce, or retaliate against any individual
for the purpose of interfering with any right or
privilege secured under this section or because the
individual intends to file or has filed a charge or a
complaint, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this section. An individual so intimidated,
threatened, coerced, or retaliated against shall be
considered, for purposes of subsections (d) and (g), to
have been discriminated against.
(6) Treatment of certain documentary practices as
employment practices.--A person's or other entity's
request, for purposes of satisfying the requirements of
section 274A(b), for more or different documents than
are required under such section or refusing to honor
documents tendered that on their face reasonably appear
to be genuine shall be treated as an unfair
immigration-related employment practice if made for the
purpose or with the intent of discriminating against an
individual in violation of paragraph (1).
(b) Charges of Violations.--
(1) In general.--Except as provided in paragraph (2),
any person alleging that the person is adversely
affected directly by an unfair immigration-related
employment practice (or a person on that person's
behalf) or an officer of the Service alleging that an
unfair immigration-related employment practice has
occurred or is occurring may file a charge respecting
such practice or violation with the Special Counsel
(appointed under subsection (c)). Charges shall be in
writing under oath or affirmation and shall contain
such information as the Attorney General requires. The
Special Counsel by certified mail shall serve a notice
of the charge (including the date, place, and
circumstances of the alleged unfair immigration-related
employment practice) on the person or entity involved
within 10 days.
(2) No overlap with eeoc complaints.--No charge may
be filed respecting an unfair immigration-related
employment practice described in subsection (a)(1)(A)
if a charge with respect to that practice based on the
same set of facts has been filed with the Equal
Employment Opportunity Commission under title VII of
the Civil Rights Act of 1964, unless the charge is
dismissed as being outside the scope of such title. No
charge respecting an employment practice may be filed
with the Equal Employment Opportunity Commission under
such title if a charge with respect to such practice
based on the same set of facts has been filed under
this subsection, unless the charge is dismissed under
this section as being outside the scope of this
section.
(c) Special Counsel.--
(1) Appointment.--The President shall appoint, by and
with the advice and consent of the Senate, a Special
Counsel for Immigration-Related Unfair Employment
Practices (hereinafter in this section referred to as
the ``Special Counsel'') within the Department of
Justice to serve for a term of four years. In the case
of a vacancy in the office of the Special Counsel the
President may designate the officer or employee who
shall act as Special Counsel during such vacancy.
(2) Duties.--The Special Counsel shall be responsible
for investigation of charges and issuance of complaints
under this section and in respect of the prosecution of
all such complaints before administrative law judges
and the exercise of certain functions under subsection
(j)(1).
(3) Compensation.--The Special Counsel is entitled to
receive compensation at a rate not to exceed the rate
now or hereafter provided for grade GS-17 of the
General Schedule, under section 5332 of title 5, United
States Code.
(4) Regional offices.--The Special Counsel, in
accordance with regulations of the Attorney General,
shall establish such regional offices as may be
necessary to carry out his duties.
(d) Investigation of Charges.--
(1) By special counsel.--The Special Counsel shall
investigate each charge received and, within 120 days
of the date of the receipt of the charge, determine
whether or not there is reasonable cause to believe
that the charge is true and whether or not to bring a
complaint with respect to the charge before an
administrative law judge. The Special Counsel may, on
his own initiative, conduct investigations respecting
unfair immigration-related employment practices and,
based on such an investigation and subject to paragraph
(3), file a complaint before such a judge.
(2) Private actions.--If the Special Counsel, after
receiving such a charge respecting an unfair
immigration-related employment practice which alleges
knowing and intentional discriminatory activity or a
pattern or practice of discriminatory activity, has not
filed a complaint before an administrative law judge
with respect to such charge within such 120-day period,
the Special Counsel shall notify the person making the
charge of the determination not to file such a
complaint during such period and the person making the
charge may (subject to paragraph (3)) file a complaint
directly before such a judge within 90 days after the
date of receipt of the notice. The Special Counsel's
failure to file such a complaint within such 120-day
period shall not affect the right of the Special
Counsel to investigate the charge or to bring a
complaint before an administrative law judge during
such 90-day period.
(3) Time limitations on complaints.--No complaint may
be filed respecting any unfair immigration-related
employment practice occurring more than 180 days prior
to the date of the filing of the charge with the
Special Counsel. This subparagraph shall not prevent
the subsequent amending of a charge or complaint under
subsection (e)(1).
(e) Hearings.--
(1) Notice.--Whenever a complaint is made that a
person or entity has engaged in or is engaging in any
such unfair immigration-related employment practice, an
administrative law judge shall have power to issue and
cause to be served upon such person or entity a copy of
the complaint and a notice of hearing before the judge
at a place therein fixed, not less than five days after
the serving of the complaint. Any such complaint may be
amended by the judge conducting the hearing, upon the
motion of the party filing the complaint, in the
judge's discretion at any time prior to the issuance of
an order based thereon. The person or entity so
complained of shall have the right to file an answer to
the original or amended complaint and to appear in
person or otherwise and give testimony at the place and
time fixed in the complaint.
(2) Judges hearing cases.--Hearings on complaints
under this subsection shall be considered before
administrative law judges who are specially designated
by the Attorney General as having special training
respecting employment discrimination and, to the extent
practicable, before such judges who only consider cases
under this section.
(3) Complainant as party.--Any person filing a charge
with the Special Counsel respecting an unfair
immigration-related employment practice shall be
considered a party to any complaint before an
administrative law judge respecting such practice and
any subsequent appeal respecting that complaint. In the
discretion of the judge conducting the hearing, any
other person may be allowed to intervene in the
proceeding and to present testimony.
(f) Testimony and Authority of Hearing Officers.--
(1) Testimony.--The testimony taken by the
administrative law judge shall be reduced to writing.
Thereafter, the judge, in his discretion, upon notice
may provide for the taking of further testimony or hear
argument.
(2) Authority of administrative law judges.--In
conducting investigations and hearings under this
subsection and in accordance with regulations of the
Attorney General, the Special Counsel and
administrative law judges shall have reasonable access
to examine evidence of any person or entity being
investigated. The administrative law judges by subpoena
may compel the attendance of witnesses and the
production of evidence at any designated place or
hearing. In case of contumacy or refusal to obey a
subpoena lawfully issued under this paragraph and upon
application of the administrative law judge, an
appropriate district court of the United States may
issue an order requiring compliance with such subpoena
and any failure to obey such order may be punished by
such court as a contempt thereof.
(g) Determinations.--
(1) Order.--The administrative law judge shall issue
and cause to be served on the parties to the proceeding
an order, which shall be final unless appealed as
provided under subsection (i).
(2) Orders finding violations.--
(A) In general.--If, upon the preponderance
of the evidence, an administrative law judge
determines that any person or entity named in
the complaint has engaged in or is engaging in
any such unfair immigration-related employment
practice, then the judge shall state his
findings of fact and shall issue and cause to
be served on such person or entity an order
which requires such person or entity to cease
and desist from such unfair immigration-related
employment practice.
(B) Contents of order.--Such an order also
may require the person or entity--
(i) to comply with the requirements
of section 274A(b) with respect to
individuals hired (or recruited or
referred for employment for a fee)
during a period of up to three years;
(ii) to retain for the period
referred to in clause (i) and only for
purposes consistent with section
274A(b)(5), the name and address of
each individual who applies, in person
or in writing, for hiring for an
existing position, or for recruiting or
referring for a fee, for employment in
the United States;
(iii) to hire individuals directly
and adversely affected, with or without
back pay;
(iv)(I) except as provided in
subclauses (II) through (IV), to pay a
civil penalty of not less than $250 and
not more than $2,000 for each
individual discriminated against,
(II) except as provided in subclauses
(III) and (IV), in the case of a person
or entity previously subject to a
single order under this paragraph, to
pay a civil penalty of not less than
$2,000 and not more than $5,000 for
each individual discriminated against,
(III) except as provided in subclause
(IV), in the case of a person or entity
previously subject to more than one
order under this paragraph, to pay a
civil penalty of not less than $3,000
and not more than $10,000 for each
individual discriminated against, and
(IV) in the case of an unfair
immigration-related employment practice
described in subsection (a)(6), to pay
a civil penalty of not less than $100
and not more than $1,000 for each
individual discriminated against;
(v) to post notices to employees
about their rights under this section
and employers' obligations under
section 274A;
(vi) to educate all personnel
involved in hiring and complying with
this section or section 274A about the
requirements of this section or such
section;
(vii) to remove (in an appropriate
case) a false performance review or
false warning from an employee's
personnel file; and
(viii) to lift (in an appropriate
case) any restrictions on an employee's
assignments, work shifts, or movements.
(C) Limitation on back pay remedy.--In
providing a remedy under subparagraph (B)(iii),
back pay liability shall not accrue from a date
more than two years prior to the date of the
filing of a charge with the Special Counsel.
Interim earnings or amounts earnable with
reasonable diligence by the individual or
individuals discriminated against shall operate
to reduce the back pay otherwise allowable
under such subparagraph. No order shall require
the hiring of an individual as an employee or
the payment to an individual of any back pay,
if the individual was refused employment for
any reason other than discrimination on account
of national origin or citizenship status.
(D) Treatment of distinct entities.--In
applying this subsection in the case of a
person or entity composed of distinct,
physically separate subdivisions each of which
provides separately for the hiring, recruiting,
or referring for employment, without reference
to the practices of, and not under the control
of or common control with, another subdivision,
each such subdivision shall be considered a
separate person or entity.
(3) Orders not finding violations.--If upon the
preponderance of the evidence an administrative law
judge determines that the person or entity named in the
complaint has not engaged and is not engaging in any
such unfair immigration-related employment practice,
then the judge shall state his findings of fact and
shall issue an order dismissing the complaint.
(h) Awarding of Attorney's Fees.--In any complaint respecting
an unfair immigration-related employment practice, an
administrative law judge, in the judge's discretion, may allow
a prevailing party, other than the United States, a reasonable
attorney's fee, if the losing party's argument is without
reasonable foundation in law and fact.
(i) Review of Final Orders.--
(1) In general.--Not later than 60 days after the
entry of such final order, any person aggrieved by such
final order may seek a review of such order in the
United States court of appeals for the circuit in which
the violation is alleged to have occurred or in which
the employer resides or transacts business.
(2) Further review.--Upon the filing of the record
with the court, the jurisdiction of the court shall be
exclusive and its judgment shall be final, except that
the same shall be subject to review by the Supreme
Court of the United States upon writ of certiorari or
certification as provided in section 1254 of title 28,
United States Code.
(j) Court Enforcement of Administrative Orders.--
(1) In general.--If an order of the agency is not
appealed under subsection (i)(1), the Special Counsel
(or, if the Special Counsel fails to act, the person
filing the charge) may petition the United States
district court for the district in which a violation of
the order is alleged to have occurred, or in which the
respondent resides or transacts business, for the
enforcement of the order of the administrative law
judge, by filing in such court a written petition
praying that such order be enforced.
(2) Court enforcement order--Upon the filing of such
petition, the court shall have jurisdiction to make and
enter a decree enforcing the order of the
administrative law judge. In such a proceeding, the
order of the administrative law judge shall not be
subject to review.
(3) Enforcement decree in original review.--If, upon
appeal of an order under subsection (i)(1), the United
States court of appeals does not reverse such order,
such court shall have the jurisdiction to make and
enter a decree enforcing the order of the
administrative law judge.
(4) Awarding of attorney's fees.--In any judicial
proceeding under subsection (i) or this subsection, the
court, in its discretion, may allow a prevailing party,
other than the United States, a reasonable attorney's
fee as part of costs but only if the losing party's
argument is without reasonable foundation in law and
fact.
(k) Termination Dates.--
(1) This section shall not apply to discrimination in
hiring, recruiting, referring, or discharging of
individuals occurring after the date of any termination
of the provisions of section 274A, under subsection (l)
of that section.
(2) The provisions of this section shall terminate 30
calendar days after receipt of the last report required
to be transmitted under section 274A(j) if--
(A) the Comptroller General determines, and
so reports in such report that--
(i) no significant discrimination has
resulted, against citizens or nationals
of the United States or against any
eligible workers seeking employment,
from the implementation of section
274A, or
(ii) such section has created an
unreasonable burden on employers hiring
such workers; and
(B) there has been enacted, within such
period of 30 calendar days, a joint resolution
stating in substance that the Congress approves
the findings of the Comptroller General
contained in such report.
The provisions of subsections (m) and (n) of section
274A shall apply to any joint resolution under
subparagraph (B) in the same manner as they apply to a
joint resolution under subsection (l) of such section.
(l) Dissemination of Information Concerning Anti-
Discrimination Provisions.--
(1) Not later than 3 months after the date of the
enactment of this subsection, the Special Counsel, in
cooperation with the chairman of the Equal Employment
Opportunity Commission, the Secretary of Labor, and the
Administrator of the Small Business Administration,
shall conduct a campaign to disseminate information
respecting the rights and remedies prescribed under
this section and under title VII of the Civil Rights
Act of 1964 in connection with unfair immigration-
related employment practices. Such campaign shall be
aimed at increasing the knowledge of employers,
employees, and the general public concerning employer
and employee rights, responsibilities, and remedies
under this section and such title.
(2) In order to carry out the campaign under this
subsection, the Special Counsel--
(A) may, to the extent deemed appropriate and
subject to the availability of appropriations,
contract with public and private organizations
for outreach activities under the campaign, and
(B) shall consult with the Secretary of
Labor, the chairman of the Equal Employment
Opportunity Commission, and the heads of such
other agencies as may be appropriate.
(3) There are authorized to be appropriated to carry
out this subsection $10,000,000 for each fiscal year
(beginning with fiscal year 1991).
* * * * * * *
SEC. 274E. REQUIREMENTS FOR THE ELECTRONIC VERIFICATION OF EMPLOYMENT
ELIGIBILITY.
(a) Employment Eligibility Verification System.--
(1) In general.--The Secretary of Homeland Security
(referred to in this section as the ``Secretary'')
shall establish and administer an electronic
verification system (referred to in this section as the
``System''), patterned on 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) (as in effect on the day before the
effective date described in section 303(a)(4) of the
Farm Workforce Modernization Act of 2019), and using
the employment eligibility confirmation system
established under section 404 of such Act (8 U.S.C.
1324a note) (as so in effect) as a foundation, through
which the Secretary shall--
(A) respond to inquiries made by persons or
entities seeking to verify the identity and
employment authorization of individuals that
such persons or entities seek to hire, or to
recruit or refer for a fee, for employment in
the United States; and
(B) maintain records of the inquiries that
were made, and of verifications provided (or
not provided) to such persons or entities as
evidence of compliance with the requirements of
this section.
(2) Initial response deadline.--The System shall
provide confirmation or a tentative nonconfirmation of
an individual's identity and employment authorization
as soon as practicable, but not later than 3 calendar
days after the initial inquiry.
(3) General design and operation of system.--The
Secretary shall design and operate the System--
(A) using responsive web design and other
technologies to maximize its ease of use and
accessibility for users on a variety of
electronic devices and screen sizes, and in
remote locations;
(B) to maximize the accuracy of responses to
inquiries submitted by persons or entities;
(C) to maximize the reliability of the System
and to register each instance when the System
is unable to receive inquiries;
(D) to protect the privacy and security of
the personally identifiable information
maintained by or submitted to the System;
(E) to provide direct notification of an
inquiry to an individual with respect to whom
the inquiry is made, including the results of
such inquiry, and information related to the
process for challenging the results; and
(F) to maintain appropriate administrative,
technical, and physical safeguards to prevent
misuse of the System and unfair immigration-
related employment practices.
(4) Measures to prevent identity theft and other
forms of fraud.--To prevent identity theft and other
forms of fraud, the Secretary shall design and operate
the System with the following attributes:
(A) Photo matching tool.--The System shall
display the digital photograph of the
individual, if any, that corresponds to the
document presented by an individual to
establish identity and employment authorization
so that the person or entity that makes an
inquiry can compare the photograph displayed by
the System to the photograph on the document
presented by the individual.
(B) Individual monitoring and suspension of
identifying information.--The System shall
enable individuals to establish user accounts,
after authentication of an individual's
identity, that would allow an individual to--
(i) confirm the individual's own
employment authorization;
(ii) receive electronic notification
when the individual's social security
account number or other personally
identifying information has been
submitted to the System;
(iii) monitor the use history of the
individual's personally identifying
information in the System, including
the identities of all persons or
entities that have submitted such
identifying information to the System,
the date of each query run, and the
System response for each query run;
(iv) suspend or limit the use of the
individual's social security account
number or other personally identifying
information for purposes of the System;
and
(v) provide notice to the Department
of Homeland Security of any suspected
identity fraud or other improper use of
personally identifying information.
(C) Blocking misused social security account
numbers.--
(i) In general.--The Secretary, in
consultation with the Commissioner of
Social Security (referred to in this
section as the ``Commissioner''), shall
develop, after publication in the
Federal Register and an opportunity for
public comment, a process in which
social security account numbers that
have been identified to be subject to
unusual multiple use in the System or
that are otherwise suspected or
determined to have been compromised by
identity fraud or other misuse, shall
be blocked from use in the System
unless the individual using such number
is able to establish, through secure
and fair procedures, that the
individual is the legitimate holder of
the number.
(ii) Notice.--If the Secretary blocks
or suspends a social security account
number under this subparagraph, the
Secretary shall provide notice to the
persons or entities that have made
inquiries to the System using such
account number that the identity and
employment authorization of the
individual who provided such account
number must be re-verified.
(D) Additional identity authentication
tool.--The Secretary shall develop, after
publication in the Federal Register and an
opportunity for public comment, additional
security measures to adequately verify the
identity of an individual whose identity may
not be verified using the photo tool described
in subparagraph (A). Such additional security
measures--
(i) shall be kept up-to-date with
technological advances; and
(ii) shall be designed to provide a
high level of certainty with respect to
identity authentication.
(E) Child-lock pilot program.--The Secretary,
in consultation with the Commissioner, shall
establish a reliable, secure program through
which parents or legal guardians may suspend or
limit the use of the social security account
number or other personally identifying
information of a minor under their care for
purposes of the System. The Secretary may
implement the program on a limited pilot basis
before making it fully available to all
individuals.
(5) Responsibilities of the commissioner of social
security.--The Commissioner, in consultation with the
Secretary, shall establish a reliable, secure method,
which, within the time periods specified in paragraph
(2) and subsection (b)(4)(D)(i)(II), compares the name
and social security account number provided in an
inquiry against such information maintained by the
Commissioner in order to validate (or not validate) the
information provided by the person or entity with
respect to an individual whose identity and employment
authorization the person or entity seeks to confirm,
the correspondence of the name and number, and whether
the individual has presented a social security account
number that is not valid for employment. The
Commissioner shall not disclose or release social
security information (other than such confirmation or
nonconfirmation) under the System except as provided
under this section or section 205(c)(2)(I) of the
Social Security Act (42 U.S.C. 405).
(6) Responsibilities of the secretary of homeland
security.--
(A) In general.--The Secretary of Homeland
Security shall establish a reliable, secure
method, which, within the time periods
specified in paragraph (2) and subsection
(b)(4)(D)(i)(II), compares the name and
identification or other authorization number
(or any other information determined relevant
by the Secretary) which are provided in an
inquiry against such information maintained or
accessed by the Secretary in order to validate
(or not validate) the information provided, the
correspondence of the name and number, and
whether the individual is authorized to be
employed in the United States.
(B) Training.--The Secretary shall provide
and regularly update training materials on the
use of the System for persons and entities
making inquiries.
(C) Audit.--The Secretary shall provide for
periodic auditing of the System to detect and
prevent misuse, discrimination, fraud, and
identity theft, to protect privacy and assess
System accuracy, and to preserve the integrity
and security of the information in the System.
(D) Notice of system changes.--The Secretary
shall provide appropriate notification to
persons and entities registered in the System
of any change made by the Secretary or the
Commissioner related to permitted and
prohibited documents, and use of the System.
(7) Responsibilities of the secretary of state.--As
part of the System, the Secretary of State shall
provide to the Secretary of Homeland Security access to
passport and visa information as needed to confirm that
a passport or passport card presented under subsection
(b)(3)(A)(i) confirms the employment authorization and
identity of the individual presenting such document,
and that a passport, passport card, or visa photograph
matches the Secretary of State's records, and shall
provide such assistance as the Secretary of Homeland
Security may request in order to resolve tentative
nonconfirmations or final nonconfirmations relating to
such information.
(8) Updating information.--The Commissioner, the
Secretary of Homeland Security, and the Secretary of
State shall update records in their custody in a manner
that promotes maximum accuracy of the System and shall
provide a process for the prompt correction of
erroneous information, including instances in which it
is brought to their attention through the secondary
verification process under subsection (b)(4)(D).
(9) Mandatory and voluntary system uses.--
(A) Mandatory users.--Except as otherwise
provided under Federal or State law, such as
sections 302 and 303 of the Farm Workforce
Modernization Act of 2019, nothing in this
section shall be construed as requiring the use
of the System by any person or entity hiring,
recruiting, or referring for a fee, an
individual for employment in the United States.
(B) Voluntary users.--Beginning after the
date that is 30 days after the date on which
final rules are published under section 309(a)
of the Farm Workforce Modernization Act of
2019, a person or entity may use the System on
a voluntary basis to seek verification of the
identity and employment authorization of
individuals the person or entity is hiring,
recruiting, or referring for a fee for
employment in the United States
(C) Process for non-users.--The employment
verification process for any person or entity
hiring, recruiting, or referring for a fee, an
individual for employment in the United States
shall be governed by section 274A(b) unless the
person or entity--
(i) is required by Federal or State
law to use the System; or
(ii) has opted to use the System
voluntarily in accordance with
subparagraph (B).
(10) No fee for use.--The Secretary may not charge a
fee to an individual, person, or entity related to the
use of the System.
(b) New Hires, Recruitment, and Referral.--Notwithstanding
section 274A(b), the requirements referred to in paragraphs
(1)(B) and (3) of section 274A(a) are, in the case of a person
or entity that uses the System for the hiring, recruiting, or
referring for a fee, an individual for employment in the United
States, the following:
(1) Individual attestation of employment
authorization.--During the period beginning on the date
on which an offer of employment is accepted and ending
on the date of hire, the individual shall attest, under
penalty of perjury on a form designated by the
Secretary, that the individual is authorized to be
employed in the United States by providing on such
form--
(A) the individual's name and date of birth;
(B) the individual's social security account
number (unless the individual has applied for
and not yet been issued such a number);
(C) whether the individual is--
(i) a citizen or national of the
United States;
(ii) an alien lawfully admitted for
permanent residence; or
(iii) an alien who is otherwise
authorized by the Secretary to be
hired, recruited, or referred for
employment in the United States; and
(D) if the individual does not attest to
United States citizenship or nationality, such
identification or other authorization number
established by the Department of Homeland
Security for the alien as the Secretary may
specify.
(2) Employer attestation after examination of
documents Not later than 3 business days after the date
of hire, the person or entity shall attest, under
penalty of perjury on the form designated by the
Secretary for purposes of paragraph (1), that it has
verified that the individual is not an unauthorized
alien by--
(A) obtaining from the individual the
information described in paragraph (1) and
recording such information on the form;
(B) examining--
(i) a document described in paragraph
(3)(A); or
(ii) a document described in
paragraph (3)(B) and a document
described in paragraph (3)(C); and
(C) attesting that the information recorded
on the form is consistent with the documents
examined.
(3) Acceptable documents.--
(A) Documents establishing employment
authorization and identity.--A document
described in this subparagraph is an
individual's--
(i) United States passport or
passport card;
(ii) permanent resident card that
contains a photograph;
(iii) foreign passport containing
temporary evidence of lawful permanent
residence in the form of an official I-
551 (or successor) stamp from the
Department of Homeland Security or a
printed notation on a machine-readable
immigrant visa;
(iv) unexpired employment
authorization card that contains a
photograph;
(v) in the case of a nonimmigrant
alien authorized to engage in
employment for a specific employer
incident to status, a foreign passport
with Form I-94, Form I-94A, or other
documentation as designated by the
Secretary specifying the alien's
nonimmigrant status as long as such
status has not yet expired and the
proposed employment is not in conflict
with any restrictions or limitations
identified in the documentation;
(vi) passport from the Federated
States of Micronesia or the Republic of
the Marshall Islands with Form I-94,
Form I-94A, or other documentation as
designated by the Secretary, indicating
nonimmigrant admission under the
Compact of Free Association Between the
United States and the Federated States
of Micronesia or the Republic of the
Marshall Islands; or
(vii) other document designated by
the Secretary, by notice published in
the Federal Register, if the document--
(I) contains a photograph of
the individual, biometric
identification data, and other
personal identifying
information relating to the
individual;
(II) is evidence of
authorization for employment in
the United States; and
(III) contains security
features to make it resistant
to tampering, counterfeiting,
and fraudulent use.
(B) Documents establishing employment
authorization.--A document described in this
subparagraph is--
(i) an individual's social security
account number card (other than such a
card which specifies on the face that
the issuance of the card does not
authorize employment in the United
States); or
(ii) a document establishing
employment authorization that the
Secretary determines, by notice
published in the Federal Register, to
be acceptable for purposes of this
subparagraph, provided that such
documentation contains security
features to make it resistant to
tampering, counterfeiting, and
fraudulent use.
(C) Documents establishing identity.--A
document described in this subparagraph is--
(i) an individual's driver's license
or identification card if it was issued
by a State or one of the outlying
possessions of the United States and
contains a photograph and personal
identifying information relating to the
individual;
(ii) an individual's unexpired United
States military identification card;
(iii) an individual's unexpired
Native American tribal identification
document issued by a tribal entity
recognized by the Bureau of Indian
Affairs;
(iv) in the case of an individual
under 18 years of age, a parent or
legal guardian's attestation under
penalty of law as to the identity and
age of the individual; or
(v) a document establishing identity
that the Secretary determines, by
notice published in the Federal
Register, to be acceptable for purposes
of this subparagraph, if such
documentation contains a photograph of
the individual, biometric
identification data, and other personal
identifying information relating to the
individual, and security features to
make it resistant to tampering,
counterfeiting, and fraudulent use.
(D) Authority to prohibit use of certain
documents.--If the Secretary finds that any
document or class of documents described in
subparagraph (A), (B), or (C) does not reliably
establish identity or employment authorization
or is being used fraudulently to an
unacceptable degree, the Secretary may, by
notice published in the Federal Register,
prohibit or place conditions on the use of such
document or class of documents for purposes of
this section.
(4) Use of the system to screen identity and
employment authorization.--
(A) In general.--In the case of a person or
entity that uses the System for the hiring,
recruiting, or referring for a fee an
individual for employment in the United States,
during the period described in subparagraph
(B), the person or entity shall submit an
inquiry through the System described in
subsection (a) to seek verification of the
identity and employment authorization of the
individual.
(B) Verification period.--
(i) In general.--Except as provided
in clause (ii), and subject to
subsection (d), the verification period
shall begin on the date of hire and end
on the date that is 3 business days
after the date of hire, or such other
reasonable period as the Secretary may
prescribe.
(ii) Special rule.--In the case of an
alien who is authorized to be employed
in the United States and who provides
evidence from the Social Security
Administration that the alien has
applied for a social security account
number, the verification period shall
end 3 business days after the alien
receives the social security account
number.
(C) Confirmation.--If a person or entity
receives confirmation of an individual's
identity and employment authorization, the
person or entity shall record such confirmation
on the form designated by the Secretary for
purposes of paragraph (1).
(D) Tentative nonconfirmation.--
(i) In general.--In cases of
tentative nonconfirmation, the
Secretary shall provide, in
consultation with the Commissioner, a
process for--
(I) an individual to contest
the tentative nonconfirmation
not later than 10 business days
after the date of the receipt
of the notice described in
clause (ii); and
(II) the Secretary to issue a
confirmation or final
nonconfirmation of an
individual's identity and
employment authorization not
later than 30 calendar days
after the Secretary receives
notice from the individual
contesting a tentative
nonconfirmation.
(ii) Notice.--If a person or entity
receives a tentative nonconfirmation of
an individual's identity or employment
authorization, the person or entity
shall, not later than 3 business days
after receipt, notify such individual
in writing in a language understood by
the individual and on a form designated
by the Secretary, that shall include a
description of the individual's right
to contest the tentative
nonconfirmation. The person or entity
shall attest, under penalty of perjury,
that the person or entity provided (or
attempted to provide) such notice to
the individual, and the individual
shall acknowledge receipt of such
notice in a manner specified by the
Secretary.
(iii) No contest.--
(I) In general.--A tentative
nonconfirmation shall become
final if, upon receiving the
notice described in clause
(ii), the individual--
(aa) refuses to
acknowledge receipt of
such notice;
(bb) acknowledges in
writing, in a manner
specified by the
Secretary, that the
individual will not
contest the tentative
nonconfirmation; or
(cc) fails to contest
the tentative
nonconfirmation within
the 10-business-day
period beginning on the
date the individual
received such notice.
(II) Record of no contest.--
The person or entity shall
indicate in the System that the
individual did not contest the
tentative nonconfirmation and
shall specify the reason the
tentative nonconfirmation
became final under subclause
(I).
(III) Effect of failure to
contest.--An individual's
failure to contest a tentative
nonconfirmation shall not be
considered an admission of any
fact with respect to any
violation of this Act or any
other provision of law.
(iv) Contest.--
(I) In general.--An
individual may contest a
tentative nonconfirmation by
using the process for secondary
verification under clause (i),
not later than 10 business days
after receiving the notice
described in clause (ii).
Except as provided in clause
(iii), the nonconfirmation
shall remain tentative until a
confirmation or final
nonconfirmation is provided by
the System.
(II) Prohibition on
termination.--In no case shall
a person or entity terminate
employment or take any adverse
employment action against an
individual for failure to
obtain confirmation of the
individual's identity and
employment authorization until
the person or entity receives a
notice of final nonconfirmation
from the System. Nothing in
this subclause shall prohibit
an employer from terminating
the employment of the
individual for any other lawful
reason.
(III) Confirmation or final
nonconfirmation.--The
Secretary, in consultation with
the Commissioner, shall issue
notice of a confirmation or
final nonconfirmation of the
individual's identity and
employment authorization not
later than 30 calendar days
after the date the Secretary
receives notice from the
individual contesting the
tentative nonconfirmation.
(E) Final nonconfirmation.--
(i) Notice.--If a person or entity
receives a final nonconfirmation of an
individual's identity or employment
authorization, the person or entity
shall, not later than 3 business days
after receipt, notify such individual
of the final nonconfirmation in
writing, on a form designated by the
Secretary, which shall include
information regarding the individual's
right to appeal the final
nonconfirmation as provided under
subparagraph (F). The person or entity
shall attest, under penalty of perjury,
that the person or entity provided (or
attempted to provide) the notice to the
individual, and the individual shall
acknowledge receipt of such notice in a
manner designated by the Secretary.
(ii) Termination or notification of
continued employment.--If a person or
entity receives a final nonconfirmation
regarding an individual, the person or
entity may terminate employment of the
individual. If the person or entity
does not terminate such employment
pending appeal of the final
nonconfirmation, the person or entity
shall notify the Secretary of such fact
through the System. Failure to notify
the Secretary in accordance with this
clause shall be deemed a violation of
section 274A(a)(1)(A).
(iii) Presumption of violation for
continued employment.--If a person or
entity continues to employ an
individual after receipt of a final
nonconfirmation, there shall be a
rebuttable presumption that the person
or entity has violated paragraphs
(1)(A) and (a)(2) of section 274A(a).
(F) Appeal of final nonconfirmation.--
(i) Administrative appeal.--The
Secretary, in consultation with the
Commissioner, shall develop a process
by which an individual may seek
administrative review of a final
nonconfirmation. Such process shall--
(I) permit the individual to
submit additional evidence
establishing identity or
employment authorization;
(II) ensure prompt resolution
of an appeal (but in no event
shall there be a failure to
respond to an appeal within 30
days); and
(III) permit the Secretary to
impose a civil money penalty
(not to exceed $500) on an
individual upon finding that an
appeal was frivolous or filed
for purposes of delay.
(ii) Compensation for lost wages
resulting from government error or
omission.--
(I) In general.--If, upon
consideration of an appeal of a
final nonconfirmation, the
Secretary determines that the
final nonconfirmation was
issued in error, the Secretary
shall further determine whether
the final nonconfirmation was
the result of government error
or omission. If the Secretary
determines that the final
nonconfirmation was solely the
result of government error or
omission and the individual was
terminated from employment, the
Secretary shall compensate the
individual for lost wages.
(II) Calculation of lost
wages.--Lost wages shall be
calculated based on the wage
rate and work schedule that
were in effect prior to the
individual's termination. The
individual shall be compensated
for lost wages beginning on the
first scheduled work day after
employment was terminated and
ending 90 days after completion
of the administrative review
process described in this
subparagraph or the day the
individual is reinstated or
obtains other employment,
whichever occurs first.
(III) Limitation on
compensation.--No compensation
for lost wages shall be awarded
for any period during which the
individual was not authorized
for employment in the United
States.
(IV) Source of funds.--There
is established in the general
fund of the Treasury, a
separate account which shall be
known as the ``Electronic
Verification Compensation
Account''. Fees collected under
subsections (f) and (g) shall
be deposited in the Electronic
Verification Compensation
Account and shall remain
available for purposes of
providing compensation for lost
wages under this subclause.
(iii) Judicial review.--Not later
than 30 days after the dismissal of an
appeal under this subparagraph, an
individual may seek judicial review of
such dismissal in the United States
District Court in the jurisdiction in
which the employer resides or conducts
business.
(5) Retention of verification records.--
(A) In general.--After completing the form
designated by the Secretary in accordance with
paragraphs (1) and (2), the person or entity
shall retain the form in paper, microfiche,
microfilm, electronic, or other format deemed
acceptable by the Secretary, and make it
available for inspection by officers of the
Department of Homeland Security, the Department
of Justice, or the Department of Labor during
the period beginning on the date the
verification is completed and ending on the
later of--
(i) the date that is 3 years after
the date of hire; or
(ii) the date that is 1 year after
the date on which the individual's
employment is terminated.
(B) Copying of documentation permitted.--
Notwithstanding any other provision of law, a
person or entity may copy a document presented
by an individual pursuant to this section and
may retain the copy, but only for the purpose
of complying with the requirements of this
section.
(c) Reverification of Previously Hired Individuals.--
(1) Mandatory reverification.--In the case of a
person or entity that uses the System for the hiring,
recruiting, or referring for a fee an individual for
employment in the United States, the person or entity
shall submit an inquiry using the System to verify the
identity and employment authorization of--
(A) an individual with a limited period of
employment authorization, within 3 business
days before the date on which such employment
authorization expires; and
(B) an individual, not later than 10 days
after receiving a notification from the
Secretary requiring the verification of such
individual pursuant to subsection (a)(4)(C).
(2) Reverification procedures.--The verification
procedures under subsection (b) shall apply to
reverifications under this subsection, except that
employers shall--
(A) use a form designated by the Secretary
for purposes of this paragraph; and
(B) retain the form in paper, microfiche,
microfilm, electronic, or other format deemed
acceptable by the Secretary, and make it
available for inspection by officers of the
Department of Homeland Security, the Department
of Justice, or the Department of Labor during
the period beginning on the date the
reverification commences and ending on the
later of--
(i) the date that is 3 years after
the date of reverification; or
(ii) the date that is 1 year after
the date on which the individual's
employment is terminated.
(3) Limitation on reverification.--Except as provided
in paragraph (1), a person or entity may not otherwise
reverify the identity and employment authorization of a
current employee, including an employee continuing in
employment.
(d) Good Faith Compliance.--
(1) In general.--Except as otherwise provided in this
subsection, a person or entity that uses the System is
considered to have complied with the requirements of
this section notwithstanding a technical failure of the
System, or other technical or procedural failure to
meet such requirement if there was a good faith attempt
to comply with the requirement.
(2) Exception for failure to correct after notice.--
Paragraph (1) shall not apply if--
(A) the failure is not de minimis;
(B) the Secretary has provided notice to the
person or entity of the failure, including an
explanation as to why it is not de minimis;
(C) the person or entity has been provided a
period of not less than 30 days (beginning
after the date of the notice) to correct the
failure; and
(D) the person or entity has not corrected
the failure voluntarily within such period.
(3) Exception for pattern or practice violators.--
Paragraph (1) shall not apply to a person or entity
that has engaged or is engaging in a pattern or
practice of violations of paragraph (1)(A) or (2) of
section 274A(a).
(4) Defense.--In the case of a person or entity that
uses the System for the hiring, recruiting, or
referring for a fee an individual for employment in the
United States, the person or entity shall not be liable
to a job applicant, an employee, the Federal
Government, or a State or local government, under
Federal, State, or local criminal or civil law, for any
employment-related action taken with respect to an
employee in good-faith reliance on information provided
by the System. Such person or entity shall be deemed to
have established compliance with its obligations under
this section, absent a showing by the Secretary, by
clear and convincing evidence, that the employer had
knowledge that an employee is an unauthorized alien.
(e) Limitations.--
(1) No national identification card.--Nothing in this
section shall be construed to authorize, directly or
indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
(2) Use of records.--Notwithstanding any other
provision of law, nothing in this section shall be
construed to permit or allow any department, bureau, or
other agency of the United States Government to utilize
any information, database, or other records assembled
under this section for any purpose other than the
verification of identity and employment authorization
of an individual or to ensure the secure, appropriate,
and non-discriminatory use of the System.
(f) Penalties.--
(1) In general.--Except as provided in this
subsection, the provisions of subsections (e) through
(g) of section 274A shall apply with respect to
compliance with the provisions of this section and
penalties for non-compliance for persons or entitles
that use the System.
(2) Cease and desist order with civil money penalties
for hiring, recruiting, and referral violations.--
Notwithstanding the civil money penalties set forth in
section 274A(e)(4), with respect to a violation of
paragraph (1)(A) or (2) of section 274A(a) by a person
or entity that has hired, recruited, or referred for a
fee, an individual for employment in the United States,
a cease and desist order--
(A) shall require the person or entity to pay
a civil penalty in an amount, subject to
subsection (d), of--
(i) not less than $2,500 and not more
than $5,000 for each unauthorized alien
with respect to whom a violation of
either such subsection occurred;
(ii) not less than $5,000 and not
more than $10,000 for each such alien
in the case of a person or entity
previously subject to one order under
this paragraph; or
(iii) not less than $10,000 and not
more than $25,000 for each such alien
in the case of a person or entity
previously subject to more than one
order under this paragraph; and
(B) may require the person or entity to take
such other remedial action as appropriate.
(3) Order for civil money penalty for violations.--
With respect to a violation of section 274A(a)(1)(B),
the order under this paragraph shall require the person
or entity to pay a civil penalty in an amount, subject
to paragraphs (4), (5), and (6), of not less than
$1,000 and not more than $25,000 for each individual
with respect to whom such violation occurred. Failure
by a person or entity to utilize the System as required
by law or providing information to the System that the
person or entity knows or reasonably believes to be
false, shall be treated as a violation of section
274A(a)(1)(A).
(4) Exemption from penalty for good faith
violation.--
(A) In general.--A person or entity that uses
the System is presumed to have acted with
knowledge for purposes of paragraphs (1)(A) and
(2) of section 274A(a) if the person or entity
fails to make an inquiry to verify the identity
and employment authorization of the individual
through the System.
(B) Good faith exemption.--In the case of
imposition of a civil penalty under paragraph
(2)(A) with respect to a violation of paragraph
(1)(A) or (2) of section 274A(a) for hiring or
continuation of employment or recruitment or
referral by a person or entity, and in the case
of imposition of a civil penalty under
paragraph (3) for a violation of section
274A(a)(1)(B) for hiring or recruitment or
referral by a person or entity, the penalty
otherwise imposed may be waived or reduced if
the person or entity establishes that the
person or entity acted in good faith.
(5) Mitigation elements.--For purposes of paragraphs
(2)(A) and (3), when assessing the level of civil money
penalties, in addition to the good faith of the person
or entity being charged, due consideration shall be
given to the size of the business, the seriousness of
the violation, whether or not the individual was an
unauthorized alien, and the history of previous
violations.
(6) Criminal penalty.--Notwithstanding section
274A(f)(1) and the provisions of any other Federal law
relating to fine levels, any person or entity that is
required to comply with the provisions of this section
and that engages in a pattern or practice of violations
of paragraph (1) or (2) of section 274A(a), shall be
fined not more than $5,000 for each unauthorized alien
with respect to whom such a violation occurs,
imprisoned for not more than 18 months, or both.
(7) Electronic verification compensation account.--
Civil money penalties collected under this subsection
shall be deposited in the Electronic Verification
Compensation Account for the purpose of compensating
individuals for lost wages as a result of a final
nonconfirmation issued by the System that was based on
government or employer error or omission, as set forth
in subsection (b)(4)(F)(ii)(IV).
(8) Debarment.--
(A) In general.--If a person or entity is
determined by the Secretary to be a repeat
violator of paragraph (1)(A) or (2) of section
274A(a) or is convicted of a crime under
section 274A, such person or entity may be
considered for debarment from the receipt of
Federal contracts, grants, or cooperative
agreements in accordance with the debarment
standards and pursuant to the debarment
procedures set forth in the Federal Acquisition
Regulation.
(B) No contract, grant, agreement.--If the
Secretary or the Attorney General wishes to
have a person or entity considered for
debarment in accordance with this paragraph,
and such a person or entity does not hold a
Federal contract, grant or cooperative
agreement, the Secretary or Attorney General
shall refer the matter to the Administrator of
General Services to determine whether to list
the person or entity on the List of Parties
Excluded from Federal Procurement, and if so,
for what duration and under what scope.
(C) Contract, grant, agreement.--If the
Secretary or the Attorney General wishes to
have a person or entity considered for
debarment in accordance with this paragraph,
and such person or entity holds a Federal
contract, grant, or cooperative agreement, the
Secretary or Attorney General shall advise all
agencies or departments holding a contract,
grant, or cooperative agreement with the person
or entity of the Government's interest in
having the person or entity considered for
debarment, and after soliciting and considering
the views of all such agencies and departments,
the Secretary or Attorney General may refer the
matter to the appropriate lead agency to
determine whether to list the person or entity
on the List of Parties Excluded from Federal
Procurement, and if so, for what duration and
under what scope.
(D) Review.--Any decision to debar a person
or entity in accordance with this subsection
shall be reviewable pursuant to part 9.4 of the
Federal Acquisition Regulation.
(9) Preemption.--The provisions of this section
preempt any State or local law, ordinance, policy, or
rule, including any criminal or civil fine or penalty
structure, relating to the hiring, continued
employment, or status verification for employment
eligibility purposes, of unauthorized aliens, except
that a State, locality, municipality, or political
subdivision may exercise its authority over business
licensing and similar laws as a penalty for failure to
use the System as required under this section.
(g) Unfair Immigration-related Employment Practices and the
System.--
(1) In general.--In addition to the prohibitions on
discrimination set forth in section 274B, it is an
unfair immigration-related employment practice for a
person or entity, in the course of utilizing the
System--
(A) to use the System for screening an
applicant prior to the date of hire;
(B) to terminate the employment of an
individual or take any adverse employment
action with respect to that individual due to a
tentative nonconfirmation issued by the System;
(C) to use the System to screen any
individual for any purpose other than
confirmation of identity and employment
authorization as provided in this section;
(D) to use the System to verify the identity
and employment authorization of a current
employee, including an employee continuing in
employment, other than reverification
authorized under subsection (c);
(E) to use the System to discriminate based
on national origin or citizenship status;
(F) to willfully fail to provide an
individual with any notice required under this
title;
(G) to require an individual to make an
inquiry under the self-verification procedures
described in subsection (a)(4)(B) or to provide
the results of such an inquiry as a condition
of employment, or hiring, recruiting, or
referring; or
(H) to terminate the employment of an
individual or take any adverse employment
action with respect to that individual based
upon the need to verify the identity and
employment authorization of the individual as
required by subsection (b).
(2) Preemployment screening and background check.--
Nothing in paragraph (1)(A) shall be construed to
preclude a preemployment screening or background check
that is required or permitted under any other provision
of law.
(3) Civil money penalties for discriminatory
conduct.--Notwithstanding section 274B(g)(2)(B)(iv),
the penalties that may be imposed by an administrative
law judge with respect to a finding that a person or
entity has engaged in an unfair immigration-related
employment practice described in paragraph (1) are--
(A) not less than $1,000 and not more than
$4,000 for each individual discriminated
against;
(B) in the case of a person or entity
previously subject to a single order under this
paragraph, not less than $4,000 and not more
than $10,000 for each individual discriminated
against; and
(C) in the case of a person or entity
previously subject to more than one order under
this paragraph, not less than $6,000 and not
more than $20,000 for each individual
discriminated against.
(4) Electronic verification compensation account.--
Civil money penalties collected under this subsection
shall be deposited in the Electronic Verification
Compensation Account for the purpose of compensating
individuals for lost wages as a result of a final
nonconfirmation issued by the System that was based on
government error or omission, as set forth in
subsection (b)(4)(F)(ii)(IV).
(h) Clarification.--All rights and remedies provided under
any Federal, State, or local law relating to workplace rights,
including but not limited to back pay, are available to an
employee despite--
(1) the employee's status as an unauthorized alien
during or after the period of employment; or
(2) the employer's or employee's failure to comply
with the requirements of this section.
(i) Definition.--In this section, the term ``date of hire''
means the date on which employment for pay or other
remuneration commences.
* * * * * * *
----------
MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT
* * * * * * *
TITLE I--FARM LABOR CONTRACTORS
certificate of registration required
Sec. 101. (a) No person shall engage in any farm labor
contracting activity, unless such person has a certificate of
registration from the Secretary specifying which farm labor
contracting activities such person is authorized to perform.
(b) A farm labor contractor shall not hire, employ, or use
any individual to perform farm labor contracting activities
unless such individual has a certificate of registration, or a
certificate of registration as an employee of the farm labor
contractor employer, which authorizes the activity for which
such individual is hired, employed, or used. The farm labor
contractor shall be held responsible for violations of this Act
or any regulation under this Act by any employee regardless of
whether the employee possesses a certificate of registration
based on the contractor's certificate of registration.
(c) Each registered farm labor contractor and registered farm
labor contractor employee shall carry at all times while
engaging in farm labor contracting activities a certificate of
registration and, upon request, shall exhibit that certificate
to all persons with whom they intend to deal as a farm labor
contractor or farm labor contractor employee.
(d) The facilities and the services authorized by the Act of
June 6, 1933 (29 U.S.C. 49 et seq.), known as the Wagner-Peyser
Act, shall be denied to any farm labor contractor upon refusal
or failure to produce, when asked, a certificate of
registration.
(e) A farm labor contractor shall maintain a surety bond in
an amount determined by the Secretary to be sufficient for
ensuring the ability of the farm labor contractor to discharge
its financial obligations, including payment of wages and
benefits to employees. Such a bond shall be available to
satisfy any amounts ordered to be paid by the Secretary or by
court order for failure to comply with the obligations of this
Act. The Secretary of Labor shall annually publish in the
Federal Register a schedule of required bond amounts that are
determined by such Secretary to be sufficient for farm labor
contractors to discharge financial obligations based on the
number of workers to be covered.
issuance of certificate of registration
Sec. 102. The Secretary, after appropriate investigation and
approval, shall issue a certificate of registration (including
a certificate of registration as an employee of a farm labor
contractor) to any person who has filed with the Secretary a
written application containing the following:
(1) a declaration, subscribed and sworn to by the
applicant, stating the applicant's permanent place of
residence, the farm labor contracting activities for
which the certificate is requested, and such other
relevant information as the Secretary may require;
(2) a statement identifying each vehicle to be used
to transport any migrant or seasonal agricultural
worker and, if the vehicle is or will be owned or
controlled by the applicant, documentation showing that
the applicant is in compliance with the requirements of
section 401 with respect to each such vehicle;
(3) a statement identifying each facility or real
property to be used to house any migrant agricultural
worker and, if the facility or real property is or will
be owned or controlled by the applicant, documentation
showing that the applicant is in compliance with
section 203 with respect to each such facility or real
property;
(4) a set of fingerprints of the applicant; [and]
(5) a declaration, subscribed and sworn to by the
applicant, consenting to the designation by a court of
the Secretary as an agent available to accept service
of summons in any action against the applicant, if the
applicant has left the jurisdiction in which the action
is commenced or otherwise has become unavailable to
accept service[.]; and
(6) a declaration, subscribed and sworn to by the
applicant, stating whether the applicant has a
familial, contractual, or employment relationship with,
or shares vehicles, facilities, property, or employees
with, a person who has been refused issuance or renewal
of a certificate, or has had a certificate suspended or
revoked, pursuant to section 103.
registration determinations
Sec. 103. (a) In accordance with regulations, the Secretary
may refuse to issue or renew, or may suspend or revoke, a
certificate of registration (including a certificate of
registration as an employee of a farm labor contractor) if the
applicant or holder--
(1) has knowingly made any misrepresentation in the
application for such certificate;
(2) is not the real party in interest in the
application or certificate of registration and the real
party in interest is a person who has been refused
issuance or renewal of a certificate, has had a
certificate suspended or revoked, or does not qualify
under this section for a certificate;
(3) has failed to comply with this Act or any
regulation under this Act;
(4) has failed--
(A) to pay any court judgment obtained by the
Secretary or any other person under this Act or
any regulation under this Act or under the Farm
Labor Contractor Registration Act of 1963 or
any regulation under such Act, or
(B) to comply with any final order issued by
the Secretary as a result of a violation of
this Act or any regulation under this Act or a
violation of the Farm Labor Contractor
Registration Act of 1963 or any regulation
under such Act; [or]
(5) has been convicted within the preceding five
years--
(A) of any crime under State or Federal law
relating to gambling, or to the sale,
distribution or possession of alcoholic
beverages, in connection with or incident to
any farm labor contracting activities; or
(B) of any felony under State or Federal law
involving robbery, bribery, extortion,
embezzlement, grand larceny, burglary, arson,
violation of narcotics laws, murder, rape,
assault with intent to kill, assault which
inflicts grievous bodily injury, prostitution,
peonage, or smuggling or harboring individuals
who have entered the United States illegally;
[or]
(6) has been found to have violated paragraph (1) or
(2) of section 274A(a) of the Immigration and
Nationality Act[.];
(7) has failed to maintain a surety bond in
compliance with section 101(e); or
(8) has been disqualified by the Secretary of Labor
from importing nonimmigrants described in section
101(a)(15)(H)(ii) of the Immigration and Nationality
Act.
(b)(1) There shall be a rebuttable presumption that an
applicant for issuance or renewal of a certificate is not the
real party in interest in the application if the applicant--
(A) is the immediate family member of any person who
has been refused issuance or renewal of a certificate,
or has had a certificate suspended or revoked; and
(B) identifies a vehicle, facility, or real property
under paragraph (2) or (3) of section 102 that has been
previously listed by a person who has been refused
issuance or renewal of a certificate, or has had a
certificate suspended or revoked.
(2) An applicant described in paragraph (1) bears the burden
of demonstrating to the Secretary's satisfaction that the
applicant is the real party in interest in the application.
[(b)] (c)(1) The person who is refused the issuance or
renewal of a certificate or whose certificate is suspended or
revoked under subsection (a) shall be afforded an opportunity
for agency hearing, upon request made within thirty days after
the date of issuance of the notice of the refusal, suspension,
or revocation. In such hearing, all issues shall be determined
on the record pursuant to section 554 of title 5, United States
Code. If no hearing is requested as herein provided, the
refusal, suspension, or revocation shall constitute a final and
unappealable order.
(2) If a hearing is requested, the initial agency decision
shall be made by an administrative law judge, and such decision
shall become the final order unless the Secretary modifies or
vacates the decision. Notice of intent to modify or vacate the
decision of the administrative law judge shall be issued to the
parties within thirty days after the decision of the
administrative law judge. A final order which takes effect
under this paragraph shall be subject to review only as
provided under subsection (c).
[(c)] (d) Any person against whom an order has been entered
after an agency hearing under this section may obtain review by
the United States district court for any district in which he
is located or the United States District Court for the District
of Columbia by filing a notice of appeal in such court within
thirty days from the date of such order, and simultaneously
sending a copy of such notice by registered mail to the
Secretary. The Secretary shall promptly certify and file in
such court the record upon which the order was based. The
findings of the Secretary shall be set aside only if found to
be unsupported by substantial evidence as provided by section
706(2)(E) of title 5, United States Code. Any final decision,
order, or judgment of such District Court concerning such
review shall be subject to appeal as provided in chapter 83 of
title 28, United States Code.
* * * * * * *
----------
SECTION 305 OF PUBLIC LAW 99-603
AN ACT To amend the Immigration and Nationality Act to revise and
reform the immigration laws, and for other purposes.
SEC. 305. ELIGIBILITY OF H-2 AGRICULTURAL WORKERS FOR CERTAIN LEGAL
ASSISTANCE.
A nonimmigrant worker admitted to or permitted to remain in
the United States under section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)) for agricultural labor or service shall
be considered to be an alien described in section 101(a)(20) of
such Act (8 U.S.C. 1101(a)(20)) for purposes of establishing
eligibility for legal assistance under the Legal Services
Corporation Act (42 U.S.C. 2996 et seq.), but only with respect
to legal assistance on matters relating to wages, housing,
transportation, and [other employment rights as provided in the
worker's specific contract under which the nonimmigrant was
admitted] employment-related rights.
----------
HOUSING ACT OF 1949
* * * * * * *
TITLE V--FARM HOUSING
* * * * * * *
program levels and authorizations
Sec. 513. (a) In General.--(1) The Secretary may, to the
extent approved in appropriation Acts, insure and guarantee
loans under this title during fiscal years 1993 and 1994, in
aggregate amounts not to exceed $2,446,855,600 and
$2,549,623,535, respectively, as follows:
(A) For insured or guaranteed loans under section 502
on behalf of low-income borrowers receiving assistance
under section 521(a)(1), $1,676,484,000 for fiscal year
1993 and $1,746,896,328 for fiscal year 1994.
(B) For guaranteed loans under section 502(h) on
behalf of low- and moderate-income borrowers, such sums
as may be appropriated for fiscal years 1993 and 1994.
(C) For loans under section 504, $12,400,000 for
fiscal year 1993 and $12,920,800 for fiscal year 1994.
(D) For insured loans under section 514, $16,821,600
for fiscal year 1993 and $17,528,107 for fiscal year
1994.
(E) For insured loans under section 515, $739,500,000
for fiscal year 1993 and $770,559,000 for fiscal year
1994.
(F) For loans under section 523(b)(1)(B), $800,000
for fiscal year 1993 and $833,600 for fiscal year 1994.
(G) For site loans under section 524, $850,000 for
fiscal year 1993 and $885,700 for fiscal year 1994.
(2) Notwithstanding any other provision of law, insured and
guaranteed loan authority in this title for any fiscal year
beginning after September 30, 1984, shall not be transferred or
used for any purpose not specified in this title.
(b) Authorization of Appropriations.--There are authorized to
be appropriated for fiscal years 1993 and 1994, and to remain
available until expended, the following amounts:
(1) For grants under section 502(f)(1), $1,100,000
for fiscal year 1993 and $1,146,200 for fiscal year
1994.
(2) For grants under section 504, $21,100,000 for
fiscal year 1993 and $21,986,200 for fiscal year 1994.
(3) For purposes of section 509(c), $600,000 for
fiscal year 1993 and $625,200 for fiscal year 1994.
(4) For project preparation grants under section
509(f)(6), $5,300,000 in fiscal year 1993 and
$5,522,600 in fiscal year 1994.
(5) In fiscal years 1993 and 1994, such sums as may
be necessary to meet payments on notes or other
obligations issued by the Secretary under section 511
equal to--
(A) the aggregate of the contributions made
by the Secretary in the form of credits on
principal due on loans made pursuant to section
503; and
(B) the interest due on a similar sum
represented by notes or other obligations
issued by the Secretary.
(6) For grants for service coordinators under section
515(y), $1,000,000 in fiscal year 1993 and $1,042,000
in fiscal year 1994.
(7) For financial assistance under section 516--
(A) for low-rent housing and related
facilities for domestic farm labor under
subsections (a) through (j) of such section,
$21,700,000 for fiscal year 1993 and
$22,611,400 for fiscal year 1994; and
(B) for housing for rural homeless and
migrant farmworkers under subsection (k) of
such section, $10,500,000 for fiscal year 1993
and $10,941,000 for fiscal year 1994.
(8) For grants under section 523(f), $13,900,000 for
fiscal year 1993 and $14,483,800 for fiscal year 1994.
(9) For grants under section 533, $30,800,000 for
fiscal year 1993 and $32,093,600 for fiscal year 1994.
(c) Rental Assistance.--(1) The Secretary, to the extent
approved in appropriations Acts for fiscal years 1993 and 1994,
may enter into rental assistance payment contracts under
section 521(a)(2)(A) aggregating $414,100,000 for fiscal year
1993 and $431,492,200 for fiscal year 1994.
(2) Any authority approved in appropriation Acts for fiscal
year 1988 or any succeeding fiscal year for rental assistance
payment contracts under section 521(a)(2)(A) or contracts for
operating assistance under section 521(a)(5) shall be used by
the Secretary--
(A) to renew rental assistance payment contracts or
operating assistance contracts that expire during such
fiscal year;
(B) to provide amounts required to continue
assistance payments for the remaining period of an
existing contract, in any case in which the original
amount of assistance is used prior to the end of the
term of the contract; and
(C) to make additional rental assistance payment
contracts or operating assistance contracts for
existing or newly constructed dwelling units.
(d) Supplemental Rental Assistance Contracts.--The Secretary,
to the extent approved in appropriations Acts for fiscal years
1993 and 1994, may enter into 5-year supplemental rental
assistance contracts under section 502(c)(5)(D) aggregating
$12,178,000 for fiscal year 1993 and $12,689,476 for fiscal
year 1994.
(e) Authorization of Appropriations.--There are authorized to
be appropriated for rural housing vouchers under section 542,
$130,000,000 for fiscal year 1993 and $140,000,000 for fiscal
year 1994.
(f) Funding for Farmworker Housing.--
(1) Section 514 farmworker housing loans.--
(A) Insurance authority.--The Secretary of
Agriculture may, to the extent approved in
appropriation Acts, insure loans under section
514 (42 U.S.C. 1484) during each of fiscal
years 2020 through 2029 in an aggregate amount
not to exceed $200,000,000.
(B) Authorization of appropriations for
costs.--There is authorized to be appropriated
$75,000,000 for each of fiscal years 2020
through 2029 for costs (as such term is defined
in section 502 of the Congressional Budget Act
of 1974 (2 U.S.C. 661a)) of loans insured
pursuant the authority under subparagraph (A).
(2) Section 516 grants for farmworker housing.--There
is authorized to be appropriated $30,000,000 for each
of fiscal years 2020 through 2029 for financial
assistance under section 516 (42 U.S.C. 1486).
(3) Section 521 housing assistance.--There is
authorized to be appropriated $2,700,000,000 for each
of fiscal years 2020 through 2029 for rental assistance
agreements entered into or renewed pursuant to section
521(a)(2) (42 U.S.C. 1490a(a)(2)) or agreements entered
into in lieu of debt forgiveness or payments for
eligible households as authorized by section
502(c)(5)(D).
insurance of loans for the provision of housing and related facilities
for domestic farm labor
Sec. 514. (a) The Secretary is authorized to insure and make
commitments to insure loans made by lenders other than the
United States to the owner of any farm or any association of
farmers for the purpose of providing housing and related
facilities for domestic farm labor, or to any Indian tribe for
such purpose, or to any State (or political subdivision
thereof), or any broad-based public or private nonprofit
organization, or any limited partnership in which the general
partner is a nonprofit entity, or any nonprofit organization of
farm workers incorporated within the State for the purpose of
providing housing and related facilities for domestic farm
labor any place within the State where a need exists. All such
loans shall be made in accordance with terms and conditions
substantially identical with those specified in section 502,
except that--
(1) no such loan shall be insured in an amount in
excess of the value of the farm involved less any prior
liens in the case of a loan to an individual owner of a
farm, or the total estimated value of the structures
and facilities with respect to which the loan is made
in the case of any other loan;
(2) no such loan shall be insured if it bears
interest at a rate in excess of 1 per centum per annum;
(3) out of interest payments by the borrower the
Secretary shall retain a charge in an amount not less
than one-half of 1 per centum per annum of the unpaid
principal balance of the loan;
(4) the insurance contracts and agreements with
respect to any loan may contain provisions for
servicing the loan by the Secretary or by the lender,
and for the purchase by the Secretary of the loan if it
is not in default, on such terms and conditions as the
Secretary may prescribe; and
(5) the Secretary may take mortgages creating a lien
running to the United States for the benefit of the
insurance fund referred to in subsection (b)
notwithstanding the fact that the note may be held by
the lender or his assignee.
(b) The Secretary shall utilize the insurance fund created by
section 11 of the Bankhead Jones Farm Tenant Act (7 U.S.C.
1005a) and the provisions of section 13 (a), (b), and (c) of
such Act (7 U.S.C. 1005c (a), (b), and (c)) to discharge
obligations under insurance contracts made pursuant to this
section, and
(1) the Secretary may utilize the insurance fund to
pay taxes, insurance, prior liens, and other expenses
to protect the security for loans which have been
insured hereunder and to acquire such security property
at foreclosure sales or otherwise;
(2) the notes and security therefor acquired by the
Secretary under insurance contracts made pursuant to
this section shall become a part of the insurance fund.
Loans insured under this section may be held in the
fund and collected in accordance with their terms or
may be sold and reinsured. All proceeds from such
collections, including the liquidation of security and
the proceeds of sales, shall become a part of the
insurance fund; and
(3) of the charges retained by the Secretary out of
interest payments by the borrower, amounts not less
than one-half of 1 per centum per annum of the unpaid
principal balance of the loan shall be deposited in and
become a part of the insurance fund. The remainder of
such charges shall be deposited in the Treasury of the
United States and shall be available for administrative
expenses of the Farmers Home Administration, to be
transferred annually to and become merged with any
appropriation for such expenses.
(c) Any contract of insurance executed by the Secretary under
this section shall be an obligation of the United States and
incontestable except for fraud or misrepresentation of which
the holder of the contract has actual knowledge.
(e) Amounts made available pursuant to section 513 of this
Act shall be available for administrative expenses incurred
under this section.
(f) As used in this section--
(1) the term ``housing'' means (A) new structures
(including household furnishings) suitable for dwelling
use by domestic farm labor, and (B) existing structures
(including household furnishings) which can be made
suitable for dwelling use by domestic farm labor by
rehabilitation, alteration, conversion, or
improvements;
(2) the term ``related facilities'' means (A) new
stuctures (including household furnishings) suitable
for use as dining halls, community rooms or buildings,
or infirmaries, or for other essential services
facilities, (B) existing structures (including
household furnishings) which can be made suitable for
the above uses by rehabilitation, alteration,
conversion, or improvement and (C) necessary for an
adequate site; and
(3) the term ``domestic farm labor'' means any person
(and the family of such person) who receives a
substantial portion of his or her income from primary
production of agricultural or aquacultural commodities,
the handling of agricultural or aquacultural
commodities in the unprocessed stage, or the processing
of agricultural or aquacultural commodities, without
respect to the source of employment, except that--
(A) such person shall be a citizen of the
United States, or a person legally admitted for
permanent residence, or a person legally
admitted to the United States and authorized to
work in agriculture;
(B) such term includes any person (and the
family of such person) who is retired or
disabled, but who was domestic farm labor at
the time of retirement or becoming disabled;
and
(C) in applying this paragraph with respect
to vacant units in farm labor housing, the
Secretary shall make units available for
occupancy in the following order of priority:
(i) to active farm laborers (and
their families);
(ii) to retired or disabled farm
laborers (and their families) who were
active in the local farm labor market
at the time of retiring or becoming
disabled; and
(iii) to other retired or disabled
farm laborers (and their families).
(g) The Secretary may waive the interest rate limitation
contained in subsection (a)(2) and the requirement of section
501(c)(3) in any case in which the Secretary determines that
qualified public or private nonprofit sponsors are not
currently available and are not likely to become available
within a reasonable period of time and such waiver is necessary
to permit farmers to provide housing and related facilities for
migrant domestic farm laborers, except that the benefits
resulting from such waiver shall accrue to the tenants, and the
interest rate on a loan insured under this section and for
which the Secretary permits such waiver shall be no less than
one-eighth of 1 per centum above the average interest rate on
notes or other obligations which are issued under section 511
and have maturities comparable to such a loan.
(h) In making available assistance in any area under this
section or section 516, the Secretary shall--
(1) in determining the need for the assistance, take
into consideration the housing needs only of domestic
farm labor, including migrant farmworkers, in the area;
and
(2) in determining whether to provide such
assistance, make such determination without regard to
the extent or nature of other housing needs in the
area.
(i) Housing and related facilities constructed with loans
under this section may be used for tenants eligible for
occupancy under section 515 if the Secretary determines that--
(1) there is no longer a need in the area for farm
labor housing; or
(2) the need for such housing in the area has
diminished to the extent that the purpose of the loan,
providing housing for domestic farm labor, can no
longer be met.
(j) Per Project Limitations on Assistance.--If the Secretary,
in making available assistance in any area under this section
or section 516 (42 U.S.C. 1486), establishes a limitation on
the amount of assistance available per project, the limitation
on a grant or loan award per project shall not be less than $5
million.
* * * * * * *
loans to provide occupant-owned, rental, and cooperative housing for
low- and moderate-income persons and families
Sec. 521. (a)(1)(A) Not withstanding the provisions of
sections 502, 517(a) and 515, loans to persons of low or
moderate income under section 502 or 517(a)(1), or 526(a),
loans under section 515 or 526(c) to provide rental or
cooperative housing and related facilities for persons and
families of low or moderate income or elderly persons and
elderly families, and loans under section 526 to provide
condominium housing for persons and families of low or moderate
income, shall bear interest at a rate prescribed by the
Secretary at not less than a rate determined by the Secretary
of the Treasury upon the request of the Secretary taking into
consideration the current average market yield on outstanding
marketable obligations of the United States with remaining
periods of maturity comparable to the average maturities of
such loans, adjusted to the nearest one-eighth of 1 per centum.
Any loan guaranteed under this title shall bear interest at
such rate as may be agreed upon by the borrower and the lender.
(B) From the interest rate so determined, the Secretary may
provide the borrower with assistance in the form of credits so
as to reduce the effective interest rate to a rate not less
than 1 per centum per annum for such periods of time as the
Secretary may determine for applicants described in
subparagraph (A) if without such assistance such applicants
could not afford the dwelling or make payments on the
indebtedness of the rental or cooperative housing. In the case
of assistance provided under this subparagraph with respect to
a loan under section 502, the Secretary may not reduce, cancel,
or refuse to renew the assistance due to an increase in the
adjusted income of the borrower if the reduction, cancellation,
or nonrenewal will cause the borrower to be unable to
reasonably afford the resulting payments required under the
loan.
(C) For persons of low income under section 502 or 517(a) who
the Secretary determines are unable to afford a dwelling with
the assistance provided under subparagraph (B) and when the
Secretary determines that assisted rental housing programs (as
authorized under this title, the National Housing Act, and the
United States Housing Act of 1937) would be unsuitable in the
area in which such persons reside, the Secretary may provide
additional assistance, pursuant to amounts approved in
appropriation Acts and for such periods of time as the
Secretary may determine, which may be in an amount not to
exceed the difference between (i) the amount determined by the
Secretary to be necessary to pay the principal indebtedness,
interest, taxes, insurance, utilities, and maintenance, and
(ii) 25 per centum of the income of such applicant. The amount
of such additional assistance which may be approved in
appropriation Acts may not exceed an aggregate amount of
$100,000,000. Such additional assistance may not be so approved
with respect to any fiscal year beginning on or after October
1, 1981.
(D)(i) With respect to borrowers under section 502 or 517(a)
who have received assistance under subparagraph (B) or (C), the
Secretary shall provide for the recapture of all or a portion
of such assistance rendered upon the disposition or
nonoccupancy of the property by the borrower. In providing for
such recapture, the Secretary shall make provisions to provide
incentives for the borrower to maintain the property in a
marketable condition. Notwithstanding any other provisions of
law, any such assistance whenever rendered shall constitute a
debt secured by the Security instruments given by the borrower
to the Secretary to the extent that the Secretary may provide
for recapture of such assistance.
(ii) In determining the amount recaptured under this
subparagraph with respect to any loan made pursuant to section
502(a)(3) for the purchase of a dwelling located on land owned
by a community land trust, the Secretary shall determine any
appreciation of the dwelling based on any agreement between the
borrower and the community land trust that limits the sale
price or appreciation of the dwelling.
(E) Except for Federal or State laws relating to taxation,
the assistance rendered to any borrower under subparagraphs (B)
and (C) shall not be considered to be income or resources for
any purpose under any Federal or State laws including, but not
limited to, laws relating to welfare and public assistance
programs.
(F) Loans subject to the interest rates and assistance
provided under this paragraph (1) may be made only when the
Secretary determines the needs of the applicant for necessary
housing cannot be met with financial assistance from other
sources including assistance under the National Housing Act and
the United States Housing Act of 1937.
(G) Interest on loans under section 502 or 517(a) to victims
of a natural disaster shall not exceed the rate which would be
applicable to such loans under section 502 without regard to
this section.
(2)(A) The Secretary shall make and insure loans under this
section and sections 514, 515, and 517 to provide rental or
cooperative housing and related facilities for persons and
families of low income in multifamily housing projects, and
shall make, and contract to make, assistance payments to the
owners of such rental, congregate, or cooperative housing in
order to make available to low-income occupants of such housing
rentals at rates commensurate to income and not exceeding the
highest of (i) 30 per centum of monthly adjusted income, (ii)
10 per centum of monthly income, or (iii) if the person or
family is receiving payments for welfare assistance from a
public agency, the portion of such payments which is
specifically designated by such agency to meet the person's or
family's housing costs. Any rent or contribution of any
recipient shall not increase as a result of this section or any
other provision of Federal law or regulation by more than 10
per centum during any twelve-month period, unless the increase
above 10 per centum is attributable to increases in income
which are unrelated to this subsection or other law or
regulation.
(B) The owner of any project assisted under this paragraph or
paragraph (5) shall be required to provide at least annually a
budget of operating expenses and record of tenants' income. The
budget (and the income, in the case of a project assisted under
this paragraph) shall be used to determine the amount of the
assistance for each project.
(C) The project owner shall accumulate, safeguard, and
periodically pay to the Secretary any rental charges collected
in excess of basic rental charges as established by the
Secretary in conformity with subparagraph (A). These funds may
be credited to the appropriation and used by the Secretary for
making such assistance payments through the end of the next
fiscal year. Notwithstanding the preceding sentence, excess
funds received from tenants in projects financed under section
515 during a fiscal year shall be available during the next
succeeding fiscal year, together with funds provided under
subparagraph (D), to the extent approved in appropriations
Acts, to make assistance payments to reduce rent overburden on
behalf of tenants of any such project whose rents exceed the
levels referred to in subparagraph (A). In providing assistance
to relieve rent overburden, the Secretary shall provide
assistance with respect to very low-income and low-income
families to reduce housing rentals to the levels specified in
subparagraph (A).
(D) The Secretary, to the extent approved in appropriation
Acts, may enter into rental assistance contracts aggregating
not more than $398,000,000 in carrying out subparagraph (A)
with respect to the fiscal year ending on September 30, 1982.
(E) In order to assist elderly or handicapped persons or
families who elect to live in a shared housing arrangement in
which they benefit as a result of sharing the facilities of a
dwelling with others in a manner that effectively and
efficiently meets their housing needs and thereby reduces their
costs of housing, the Secretary shall permit rental assistance
to be used by such persons or families if the shared housing
arrangement is in a single-family dwelling. For the purpose of
this subparagraph, the Secretary shall prescribe minimum
habitability standards to assure decent, safe, and sanitary
housing for such families while taking into account the special
circumstances of shared housing.
(3)(A) In the case of loans under sections 514 and 515
approved prior to the effective date of this paragraph with
respect to which rental assistance is provided, the rent for
tenants receiving such assistance shall not exceed the highest
of (i) 30 per centum of monthly adjusted income, (ii) 10 per
centum of monthly income, or (iii) if the person or family is
receiving payments for welfare assistance from a public agency,
the portion of such payments which is specifically designated
by such agency to meet the person's or family's housing costs.
(B) In the case of a section 515 loan approved prior to the
effective date of this paragraph with respect to which interest
credits are provided, the tenant's rent shall not exceed the
highest of (i) 30 per centum of monthly adjusted income, (ii)
10 per centum of monthly income, or (iii) if the person or
family is receiving payments for welfare assistance from a
public agency, the portion of such payments which is
specifically designated by such agency to meet the person's or
family's housing costs, or, where no rental assistance
authority is available, the rent level established on a basis
of a 1 per centum interest rate on debt service.
(C) No rent for a unit financed under section 514 or 515
shall be increased as a result of this subsection or other
provision of Federal law or Federal regulation by more than 10
per centum in any twelve-month period, unless the increase
above 10 per centum is attributable to increases in income
which are unrelated to this subsection or other law, or
regulation.
(4) In the case of a loan with respect to the purchase of a
manufactured home with respect to which rental assistance is
provided, the monthly payment for principal and interest on the
manufactured home and for lot rental and utilities shall not
exceed the highest of (A) 30 per centum of monthly adjusted
income, (B) 10 per centum of monthly income, or (C) if the
person or family is receiving payments for welfare assistance
from a public agency, the portion of such payments which is
specifically designated by such agency to meet the person's or
family's housing costs.
(5) Operating assistance for migrant farmworker projects.--
(A) Authority.--In the case of housing (and related
facilities) for migrant farmworkers or domestic farm
labor legally admitted to the United States and
authorized to work in agriculture provided or assisted
with a loan under section 514 or a grant under section
516, the Secretary may, at the request of the owner of
the project, use amounts provided for rental assistance
payments under paragraph (2) to provide assistance for
the costs of operating the project. Any tenant or unit
assisted under this paragraph may not receive rental
assistance under paragraph (2).
(B) Amount.--
(i) Housing for migrant farmworkers.--In any
fiscal year, the assistance provided under this
paragraph for any project providing housing for
migrant farmworkers shall not exceed an amount
equal to 90 percent of the operating costs for
the project for the year, as determined by the
Secretary. The amount of assistance to be
provided for a project under this paragraph
shall be an amount that makes units in the
project available to migrant farmworkers in the
area of the project at rates not exceeding 30
percent of the monthly adjusted incomes of such
farmworkers, based on the prevailing incomes of
such farmworkers in the area.
(ii) Housing for other farm labor.--In any
fiscal year, the assistance provided under this
paragraph for any project providing housing for
domestic farm labor legally admitted to the
United States and authorized to work in
agriculture shall not exceed an amount equal to
50 percent of the operating costs for the
project for the year, as determined by the
Secretary. The owner of such project shall not
qualify for operating assistance unless the
Secretary certifies that the project was
unoccupied or underutilized before making units
available to such farm labor, and that a grant
under this section will not displace any farm
worker who is a United States worker.
(C) Submission of information.--The owner of a
project assisted under this paragraph shall be required
to provide to the Secretary, at least annually, a
budget of operating expenses and estimated rental
income, which the Secretary may use to determine the
amount of assistance for the project.
(D) Definitions.--For purposes of this paragraph, the
following definitions shall apply:
(i) The term ``migrant farmworker'' has the
same meaning given such term in section
516(k)(7).
(ii) The term ``operating cost'' means
expenses incurred in operating a project,
including expenses for--
(I) administration, maintenance,
repair, and security of the project;
(II) utilities, fuel, furnishings,
and equipment for the project; and
(III) maintaining adequate reserve
funds for the project.
(iii) The term ``domestic farm labor'' has
the same meaning given such term in section
514(f)(3) (42 U.S.C. 1484(f)(3)), except that
subparagraph (A) of such section shall not
apply for purposes this section.
(b) Housing and related facilities provided with loans
described in subsection (a) shall be located in rural areas;
and applicants eligible for such loans under section 502 or
517(a)(1), or for occupancy of housing provided with such loans
under section 515, shall include otherwise qualified nonrural
residents who will become rural residents.
(c) There shall be reimbursed to the Rural Housing Insurance
Fund by annual appropriations (1) the amounts by which
nonprincipal payments made from the fund during each fiscal
year to the holders of insured loans described in subsection
(a)(1) exceed interest due from the borrowers during each year,
and (2) the amount of assistance payments described in
subsections (a)(2) and (a)(5). There are authorized to be
appropriated to the Rural Housing Insurance Fund such sums as
may be necessary to reimburse such fund for the amount of
assistance payments described in subsection (a)(1)(C). The
Secretary may from time to time issue notes to the Secretary of
the Treasury under section 517(h) and section 526 to obtain
amounts equal to such unreimbursed payments, pending the annual
reimbursement by appropriation.
(d)(1) In utilizing the rental assistance payments authority
pursuant to subsection (a)(2)--
(A) the Secretary shall make such assistance
available in existing projects for units occupied by
low income families or persons to extend expiring
contracts or to provide additional assistance when
necessary to provide the full amount authorized
pursuant to existing contracts;
(B) upon request of an owner of a project financed
under section 514 or 515, the Secretary is authorized
to enter into renewal of such agreements for a period
of 20 years or the term of the loan, whichever is
shorter, subject to amounts made available in
appropriations Acts;
[(B)] (C) any such authority remaining after carrying
out subparagraph (A) shall be used in projects
receiving commitments under section 514, 515, or 516
after fiscal year 1983 for contracts to assist very
low-income families or persons to occupy the units in
such projects, except that not more than 5 percent of
the units assisted may be occupied by low income
families or persons who are not very low-income
families or persons; and
[(C)] (D) any such authority remaining after carrying
out subparagraphs (A) and (B) may be used to provide
further assistance to existing projects under section
514, 515, or 516.
(2) The Secretary shall transfer rental assistance contract
authority under this section from projects where such authority
is unused after initial rentup and not needed because of a lack
of eligible tenants in the area to projects where such
authority is needed.
(3) In the case of any rental assistance contract authority
that becomes available because of the termination of assistance
on behalf of an assisted family--
(A) at the option of the owner of the rental project,
the Secretary shall provide the owner a period of 6
months before such assistance is made available
pursuant to subparagraph (B) during which the owner may
use such assistance authority to provide assistance of
behalf of an eligible unassisted family that--
(i) is residing in the same rental project
that the assisted family resided in prior to
such termination; or
(ii) newly occupies a dwelling unit in such
rental project during such period; and
(B) except for assistance used as provided in
subparagraph (A), the Secretary shall use such
remaining authority to provide such assistance on
behalf of eligible families residing in other rental
projects originally financed under section 515 or both
sections 514 and 516 of this Act.
(e) Any rent or contribution of any recipient or any tenant
in a project assisted under subsection (a)(5) shall not
increase as a result of this section, any amendment thereto, or
any other provision of Federal law or regulation by more than
10 per centum during any twelve-month period, unless the
increase above 10 per centum is attributable to increases in
income which are unrelated to this subsection or other law or
regulation.
* * * * * * *
SEC. 542. RURAL HOUSING VOUCHER PROGRAM.
(a) In General.--To such extent or in such amounts as are
approved in appropriation Acts, the Secretary shall carry out a
rural housing voucher program to assist very low-income
families and persons to reside in rental housing in rural
areas. For such purposes, the Secretary may provide assistance
using a payment standard based on the fair market rental rate
established by the Secretary for the area. The monthly
assistance payment for any family shall be the amount by which
the payment standard for the area exceeds 30 per centum of the
family's monthly adjusted income, except that such monthly
assistance payment shall not exceed the amount which the rent
for the dwelling unit (including the amount allowed for
utilities in the case of a unit with separate utility metering)
exceeds 10 per centum of the family's monthly gross income.
(b) Coordination and Limitation.--In carrying out the rural
housing voucher program under this section, the Secretary
shall--
(1) coordinate activities under this section with
activities assisted under sections 515 and 533 of this
title; and
(2) enter into contracts for assistance for not more
than 5000 units in any fiscal year.
(c) Eligibility of Households in Sections 514, 515, and 516
Projects.--The Secretary may provide rural housing vouchers
under this section for any low-income household (including
those not receiving rental assistance) residing, for a term
longer than the remaining term of their lease in effect just
prior to prepayment, in a property financed with a loan made or
insured under section 514 or 515 (42 U.S.C. 1484, 1485) which
has been prepaid without restrictions imposed by the Secretary
pursuant to section 502(c)(5)(G)(ii)(I) (42 U.S.C.
1472(c)(5)(G)(ii)(I)), has been foreclosed, or has matured
after September 30, 2005, or residing in a property assisted
under section 514 or 516 that is owned by a nonprofit
organization or public agency.
* * * * * * *
SEC. 545. HOUSING PRESERVATION AND REVITALIZATION PROGRAM.
(a) Establishment.--The Secretary shall carry out a program
under this section for the preservation and revitalization of
multifamily rental housing projects financed under section 515
or both sections 514 and 516.
(b) Notice of Maturing Loans.--
(1) To owners.--On an annual basis, the Secretary
shall provide written notice to each owner of a
property financed under section 515 or both sections
514 and 516 that will mature within the 4-year period
beginning upon the provision of such notice, setting
forth the options and financial incentives that are
available to facilitate the extension of the loan term
or the option to decouple a rental assistance contract
pursuant to subsection (f).
(2) To tenants.--
(A) In general.--For each property financed
under section 515 or both sections 514 and 516,
not later than the date that is 2 years before
the date that such loan will mature, the
Secretary shall provide written notice to each
household residing in such property that
informs them of the date of the loan maturity,
the possible actions that may happen with
respect to the property upon such maturity, and
how to protect their right to reside in
Federally assisted housing after such maturity.
(B) Language.--Notice under this paragraph
shall be provided in plain English and shall be
translated to other languages in the case of
any property located in an area in which a
significant number of residents speak such
other languages.
(c) Loan Restructuring.--Under the program under this
section, the Secretary may restructure such existing housing
loans, as the Secretary considers appropriate, for the purpose
of ensuring that such projects have sufficient resources to
preserve the projects to provide safe and affordable housing
for low-income residents and farm laborers, by--
(1) reducing or eliminating interest;
(2) deferring loan payments;
(3) subordinating, reducing, or reamortizing loan
debt; and
(4) providing other financial assistance, including
advances, payments, and incentives (including the
ability of owners to obtain reasonable returns on
investment) required by the Secretary.
(d) Renewal of Rental Assistance.--When the Secretary offers
to restructure a loan pursuant to subsection (c), the Secretary
shall offer to renew the rental assistance contract under
section 521(a)(2) for a 20-year term that is subject to annual
appropriations, provided that the owner agrees to bring the
property up to such standards that will ensure its maintenance
as decent, safe, and sanitary housing for the full term of the
rental assistance contract.
(e) Restrictive Use Agreements.--
(1) Requirement.--As part of the preservation and
revitalization agreement for a project, the Secretary
shall obtain a restrictive use agreement that obligates
the owner to operate the project in accordance with
this title.
(2) Term.--
(A) No extension of rental assistance
contract.--Except when the Secretary enters
into a 20-year extension of the rental
assistance contract for the project, the term
of the restrictive use agreement for the
project shall be consistent with the term of
the restructured loan for the project.
(B) Extension of rental assistance
contract.--If the Secretary enters into a 20-
year extension of the rental assistance
contract for a project, the term of the
restrictive use agreement for the project shall
be for 20 years.
(C) Termination.--The Secretary may terminate
the 20-year use restrictive use agreement for a
project prior to the end of its term if the 20-
year rental assistance contract for the project
with the owner is terminated at any time for
reasons outside the owner's control.
(f) Decoupling of Rental Assistance.--
(1) Renewal of rental assistance contract.--If the
Secretary determines that a maturing loan for a project
cannot reasonably be restructured in accordance with
subsection (c) and the project was operating with
rental assistance under section 521, the Secretary may
renew the rental assistance contract, notwithstanding
any provision of section 521, for a term, subject to
annual appropriations, of at least 10 years but not
more than 20 years.
(2) Rents.--Any agreement to extend the term of the
rental assistance contract under section 521 for a
project shall obligate the owner to continue to
maintain the project as decent, safe and sanitary
housing and to operate the development in accordance
with this title, except that rents shall be based on
the lesser of--
(A) the budget-based needs of the project; or
(B) the operating cost adjustment factor as a
payment standard as provided under section 524
of the Multifamily Assisted Housing Reform and
Affordability Act of 1997 (42 U.S.C. 1437
note).
(g) Multifamily Housing Transfer Technical Assistance.--Under
the program under this section, the Secretary may provide
grants to qualified non-profit organizations and public housing
agencies to provide technical assistance, including financial
and legal services, to borrowers under loans under this title
for multifamily housing to facilitate the acquisition of such
multifamily housing properties in areas where the Secretary
determines there is a risk of loss of affordable housing.
(h) Transfer of Rental Assistance.--After the loan or loans
for a rental project originally financed under section 515 or
both sections 514 and 516 have matured or have been prepaid and
the owner has chosen not to restructure the loan pursuant to
subsection (c), a tenant residing in such project shall have 18
months prior to loan maturation or prepayment to transfer the
rental assistance assigned to the tenant's unit to another
rental project originally financed under section 515 or both
sections 514 and 516, and the owner of the initial project may
rent the tenant's previous unit to a new tenant without income
restrictions.
(i) Administrative Expenses.--Of any amounts made available
for the program under this section for any fiscal year, the
Secretary may use not more than $1,000,000 for administrative
expenses for carrying out such program.
(j) Authorization of Appropriations.--There is authorized to
be appropriated for the program under this section $200,000,000
for each of fiscal years 2020 through 2024.
----------
VIOLENCE AGAINST WOMEN ACT OF 1994
* * * * * * *
TITLE IV--VIOLENCE AGAINST WOMEN
* * * * * * *
Subtitle N--Addressing the Housing Needs of Victims of Domestic
Violence, Dating Violence, Sexual Assault, and Stalking
* * * * * * *
CHAPTER 2--HOUSING RIGHTS
SEC. 41411. HOUSING PROTECTIONS FOR VICTIMS OF DOMESTIC VIOLENCE,
DATING VIOLENCE, SEXUAL ASSAULT, AND STALKING.
(a) Definitions.--In this chapter:
(1) Affiliated individual.--The term ``affiliated
individual'' means, with respect to an individual--
(A) a spouse, parent, brother, sister, or
child of that individual, or an individual to
whom that individual stands in loco parentis;
or
(B) any individual, tenant, or lawful
occupant living in the household of that
individual.
(2) Appropriate agency.--The term ``appropriate
agency'' means, with respect to a covered housing
program, the Executive department (as defined in
section 101 of title 5, United States Code) that
carries out the covered housing program.
(3) Covered housing program.--The term ``covered
housing program'' means--
(A) the program under section 202 of the
Housing Act of 1959 (12 U.S.C. 1701q);
(B) the program under section 811 of the
Cranston-Gonzalez National Affordable Housing
Act (42 U.S.C. 8013);
(C) the program under subtitle D of title
VIII of the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C. 12901 et
seq.);
(D) the program under subtitle A of title IV
of the McKinney-Vento Homeless Assistance Act
(42 U.S.C. 11360 et seq.);
(E) the program under subtitle A of title II
of the Cranston-Gonzalez National Affordable
Housing Act (42 U.S.C. 12741 et seq.);
(F) the program under paragraph (3) of
section 221(d) of the National Housing Act (12
U.S.C. 1715l(d)) that bears interest at a rate
determined under the proviso under paragraph
(5) of such section 221(d);
(G) the program under section 236 of the
National Housing Act (12 U.S.C. 1715z-1);
(H) the programs under sections 6 and 8 of
the United States Housing Act of 1937 (42
U.S.C. 1437d and 1437f);
(I) rural housing assistance provided under
sections 514, 515, 516, 533, and 538 of the
Housing Act of 1949 (42 U.S.C. 1484, 1485,
1486, 1490m, and 1490p-2); [and]
(J) rural development housing voucher
assistance provided by the Secretary of
Agriculture pursuant to section 542 of the
Housing Act of 1949 (42 U.S.C. 1490r), without
regard to subsection (b) of such section, and
applicable appropriation Acts; and
[(J)] (K) the low income housing tax credit
program under section 42 of the Internal
Revenue Code of 1986.
(b) Prohibited Basis for Denial or Termination of Assistance
or Eviction.--
(1) In general.--An applicant for or tenant of
housing assisted under a covered housing program may
not be denied admission to, denied assistance under,
terminated from participation in, or evicted from the
housing on the basis that the applicant or tenant is or
has been a victim of domestic violence, dating
violence, sexual assault, or stalking, if the applicant
or tenant otherwise qualifies for admission,
assistance, participation, or occupancy.
(2) Construction of lease terms.--An incident of
actual or threatened domestic violence, dating
violence, sexual assault, or stalking shall not be
construed as--
(A) a serious or repeated violation of a
lease for housing assisted under a covered
housing program by the victim or threatened
victim of such incident; or
(B) good cause for terminating the
assistance, tenancy, or occupancy rights to
housing assisted under a covered housing
program of the victim or threatened victim of
such incident.
(3) Termination on the basis of criminal activity.--
(A) Denial of assistance, tenancy, and
occupancy rights prohibited.--No person may
deny assistance, tenancy, or occupancy rights
to housing assisted under a covered housing
program to a tenant solely on the basis of
criminal activity directly relating to domestic
violence, dating violence, sexual assault, or
stalking that is engaged in by a member of the
household of the tenant or any guest or other
person under the control of the tenant, if the
tenant or an affiliated individual of the
tenant is the victim or threatened victim of
such domestic violence, dating violence, sexual
assault, or stalking.
(B) Bifurcation.--
(i) In general.--Notwithstanding
subparagraph (A), a public housing
agency or owner or manager of housing
assisted under a covered housing
program may bifurcate a lease for the
housing in order to evict, remove, or
terminate assistance to any individual
who is a tenant or lawful occupant of
the housing and who engages in criminal
activity directly relating to domestic
violence, dating violence, sexual
assault, or stalking against an
affiliated individual or other
individual, without evicting, removing,
terminating assistance to, or otherwise
penalizing a victim of such criminal
activity who is also a tenant or lawful
occupant of the housing.
(ii) Effect of eviction on other
tenants.--If public housing agency or
owner or manager of housing assisted
under a covered housing program evicts,
removes, or terminates assistance to an
individual under clause (i), and the
individual is the sole tenant eligible
to receive assistance under a covered
housing program, the public housing
agency or owner or manager of housing
assisted under the covered housing
program shall provide any remaining
tenant or resident an opportunity to
establish eligibility for the covered
housing program. If a tenant or
resident described in the preceding
sentence cannot establish eligibility,
the public housing agency or owner or
manager of the housing shall provide
the tenant or resident a reasonable
time, as determined by the appropriate
agency, to find new housing or to
establish eligibility for housing under
another covered housing program.
(C) Rules of construction.--Nothing in
subparagraph (A) shall be construed--
(i) to limit the authority of a
public housing agency or owner or
manager of housing assisted under a
covered housing program, when notified
of a court order, to comply with a
court order with respect to--
(I) the rights of access to
or control of property,
including civil protection
orders issued to protect a
victim of domestic violence,
dating violence, sexual
assault, or stalking; or
(II) the distribution or
possession of property among
members of a household in a
case;
(ii) to limit any otherwise available
authority of a public housing agency or
owner or manager of housing assisted
under a covered housing program to
evict or terminate assistance to a
tenant for any violation of a lease not
premised on the act of violence in
question against the tenant or an
affiliated person of the tenant, if the
public housing agency or owner or
manager does not subject an individual
who is or has been a victim of domestic
violence, dating violence, or stalking
to a more demanding standard than other
tenants in determining whether to evict
or terminate;
(iii) to limit the authority to
terminate assistance to a tenant or
evict a tenant from housing assisted
under a covered housing program if a
public housing agency or owner or
manager of the housing can demonstrate
that an actual and imminent threat to
other tenants or individuals employed
at or providing service to the property
would be present if the assistance is
not terminated or the tenant is not
evicted; or
(iv) to supersede any provision of
any Federal, State, or local law that
provides greater protection than this
section for victims of domestic
violence, dating violence, sexual
assault, or stalking.
(c) Documentation.--
(1) Request for documentation.--If an applicant for,
or tenant of, housing assisted under a covered housing
program represents to a public housing agency or owner
or manager of the housing that the individual is
entitled to protection under subsection (b), the public
housing agency or owner or manager may request, in
writing, that the applicant or tenant submit to the
public housing agency or owner or manager a form of
documentation described in paragraph (3).
(2) Failure to provide certification.--
(A) In general.--If an applicant or tenant
does not provide the documentation requested
under paragraph (1) within 14 business days
after the tenant receives a request in writing
for such certification from a public housing
agency or owner or manager of housing assisted
under a covered housing program, nothing in
this chapter may be construed to limit the
authority of the public housing agency or owner
or manager to--
(i) deny admission by the applicant
or tenant to the covered program;
(ii) deny assistance under the
covered program to the applicant or
tenant;
(iii) terminate the participation of
the applicant or tenant in the covered
program; or
(iv) evict the applicant, the tenant,
or a lawful occupant that commits
violations of a lease.
(B) Extension.--A public housing agency or
owner or manager of housing may extend the 14-
day deadline under subparagraph (A) at its
discretion.
(3) Form of documentation.--A form of documentation
described in this paragraph is--
(A) a certification form approved by the
appropriate agency that--
(i) states that an applicant or
tenant is a victim of domestic
violence, dating violence, sexual
assault, or stalking;
(ii) states that the incident of
domestic violence, dating violence,
sexual assault, or stalking that is the
ground for protection under subsection
(b) meets the requirements under
subsection (b); and
(iii) includes the name of the
individual who committed the domestic
violence, dating violence, sexual
assault, or stalking, if the name is
known and safe to provide;
(B) a document that--
(i) is signed by--
(I) an employee, agent, or
volunteer of a victim service
provider, an attorney, a
medical professional, or a
mental health professional from
whom an applicant or tenant has
sought assistance relating to
domestic violence, dating
violence, sexual assault, or
stalking, or the effects of the
abuse; and
(II) the applicant or tenant;
and
(ii) states under penalty of perjury
that the individual described in clause
(i)(I) believes that the incident of
domestic violence, dating violence,
sexual assault, or stalking that is the
ground for protection under subsection
(b) meets the requirements under
subsection (b);
(C) a record of a Federal, State, tribal,
territorial, or local law enforcement agency,
court, or administrative agency; or
(D) at the discretion of a public housing
agency or owner or manager of housing assisted
under a covered housing program, a statement or
other evidence provided by an applicant or
tenant.
(4) Confidentiality.--Any information submitted to a
public housing agency or owner or manager under this
subsection, including the fact that an individual is a
victim of domestic violence, dating violence, sexual
assault, or stalking shall be maintained in confidence
by the public housing agency or owner or manager and
may not be entered into any shared database or
disclosed to any other entity or individual, except to
the extent that the disclosure is--
(A) requested or consented to by the
individual in writing;
(B) required for use in an eviction
proceeding under subsection (b); or
(C) otherwise required by applicable law.
(5) Documentation not required.--Nothing in this
subsection shall be construed to require a public
housing agency or owner or manager of housing assisted
under a covered housing program to request that an
individual submit documentation of the status of the
individual as a victim of domestic violence, dating
violence, sexual assault, or stalking.
(6) Compliance not sufficient to constitute evidence
of unreasonable act.--Compliance with subsection (b) by
a public housing agency or owner or manager of housing
assisted under a covered housing program based on
documentation received under this subsection, shall not
be sufficient to constitute evidence of an unreasonable
act or omission by the public housing agency or owner
or manager or an employee or agent of the public
housing agency or owner or manager. Nothing in this
paragraph shall be construed to limit the liability of
a public housing agency or owner or manager of housing
assisted under a covered housing program for failure to
comply with subsection (b).
(7) Response to conflicting certification.--If a
public housing agency or owner or manager of housing
assisted under a covered housing program receives
documentation under this subsection that contains
conflicting information, the public housing agency or
owner or manager may require an applicant or tenant to
submit third-party documentation, as described in
subparagraph (B), (C), or (D) of paragraph (3).
(8) Preemption.--Nothing in this subsection shall be
construed to supersede any provision of any Federal,
State, or local law that provides greater protection
than this subsection for victims of domestic violence,
dating violence, sexual assault, or stalking.
(d) Notification.--
(1) Development.--The Secretary of Housing and Urban
Development shall develop a notice of the rights of
individuals under this section, including the right to
confidentiality and the limits thereof.
(2) Provision.--Each public housing agency or owner
or manager of housing assisted under a covered housing
program shall provide the notice developed under
paragraph (1), together with the form described in
subsection (c)(3)(A), to an applicant for or tenants of
housing assisted under a covered housing program--
(A) at the time the applicant is denied
residency in a dwelling unit assisted under the
covered housing program;
(B) at the time the individual is admitted to
a dwelling unit assisted under the covered
housing program;
(C) with any notification of eviction or
notification of termination of assistance; and
(D) in multiple languages, consistent with
guidance issued by the Secretary of Housing and
Urban Development in accordance with Executive
Order 13166 (42 U.S.C. 2000d-1 note; relating
to access to services for persons with limited
English proficiency).
(e) Emergency Transfers.--Each appropriate agency shall adopt
a model emergency transfer plan for use by public housing
agencies and owners or managers of housing assisted under
covered housing programs that--
(1) allows tenants who are victims of domestic
violence, dating violence, sexual assault, or stalking
to transfer to another available and safe dwelling unit
assisted under a covered housing program if--
(A) the tenant expressly requests the
transfer; and
(B)(i) the tenant reasonably believes that
the tenant is threatened with imminent harm
from further violence if the tenant remains
within the same dwelling unit assisted under a
covered housing program; or
(ii) in the case of a tenant who is a victim
of sexual assault, the sexual assault occurred
on the premises during the 90 day period
preceding the request for transfer; and
(2) incorporates reasonable confidentiality measures
to ensure that the public housing agency or owner or
manager does not disclose the location of the dwelling
unit of a tenant to a person that commits an act of
domestic violence, dating violence, sexual assault, or
stalking against the tenant.
(f) Policies and Procedures for Emergency Transfer.--The
Secretary of Housing and Urban Development shall establish
policies and procedures under which a victim requesting an
emergency transfer under subsection (e) may receive, subject to
the availability of tenant protection vouchers, assistance
under section 8(o) of the United States Housing Act of 1937 (42
U.S.C. 1437f(o)).
(g) Implementation.--The appropriate agency with respect to
each covered housing program shall implement this section, as
this section applies to the covered housing program.
* * * * * * *
----------
HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1980
* * * * * * *
restriction on use of assisted housing
Sec. 214. (a) Notwithstanding any other provision of law, the
applicable Secretary may not make financial assistance
available for the benefit of any alien unless that alien is a
resident of the United States and is--
(1) an alien lawfully admitted for permanent
residence as an immigrant as defined by sections
101(a)(15) and 101(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15) and 8 U.S.C.
1101(a)(20)), excluding, among others, alien visitors,
tourists, diplomats, and students who enter the United
States temporarily with no intention of abandoning
their residence in a foreign country;
(2) an alien who entered the United States prior to
June 30, 1948, or such subsequent date as is enacted by
law, continuously maintained his or her residence in
the United States since then, and is not ineligible for
citizenship, but who is deemed to be lawfully admitted
for permanent residence as a result of an exercise of
discretion by the Attorney General pursuant to section
249 of the Immigration and Nationality Act (8 U.S.C.
1259);
(3) an alien who is lawfully present in the United
States pursuant to an admission under section 207 of
the Immigration and Nationality Act (8 U.S.C. 1157) or
pursuant to the granting of asylum (which has not been
terminated) under section 208 of such Act (8 U.S.C.
1158);
(4) an alien who is lawfully present in the United
States as a result of an exercise of discretion by the
Attorney General for emergent reasons or reasons deemed
strictly in the public interest pursuant to section
212(d)(5) of the Immigration and Nationality Act (8
U.S.C. 1182(d)(5));
(5) an alien who is lawfully present in the United
States as a result of the Attorney General's
withholding deportation pursuant to section 241(b)(3)
of the Immigration and Nationality Act (8 U.S.C.
1253(h));
(6) an alien lawfully admitted for temporary or
permanent residence under section 245A of the
Immigration and Nationality Act; [or]
(7) an alien granted certified agricultural worker or
certified agricultural dependent status under title I
of the Farm Workforce Modernization Act of 2019, but
solely for financial assistance made available pursuant
to section 521 or 542 of the Housing Act of 1949 (42
U.S.C. 1490a, 1490r); or
[(7)] (8) an alien who is lawfully resident in the
United States and its territories and possessions under
section 141 of the Compacts of Free Association between
the Government of the United States and the Governments
of the Marshall Islands, the Federated States of
Micronesia (48 U.S.C. 1901 note) and Palau (48 U.S.C.
1931 note) while the applicable section is in effect:
Provided, That, within Guam any any citizen or national
of the United States shall beentitled to a preference
or priority in receiving financial assistancebefore any
such alien who is otherwise eligible for assistance.
(b)(1) For purposes of this section the term ``financial
assistance'' means financial assistance made available pursuant
to the United States Housing Act of 1937, Section 235, or 236
of the National Housing Act, the direct loan program under
section 502 of the Housing Act of 1949 or section 502(c)(5)(D),
504, 521(a)(2)(A), or 542 of such Act, subtitle A of title III
of the Cranston-Gonzalez National Affordable Housing Act, or
section 101 of the Housing and Urban Development Act of 1965.
(2) If the eligibility for financial assistance of at least
one member of a family has been affirmatively established under
the program of financial assistance and under this section, and
the ineligibility of one or more family members has not been
affirmatively established under this section, any financial
assistance made available to that family by the applicable
Secretary shall be prorated, based on the number of individuals
in the family for whom eligibility has been affirmatively
established under the program of financial assistance and under
this section, as compared with the total number of individuals
who are members of the family.
(c)(1) If, following completion of the applicable hearing
process, financial assistance for any individual receiving such
assistance on the date of the enactment of the Housing and
Community Development Act of 1987 is to be terminated, the
public housing agency or other local governmental entity
involved (in the case of public housing or assistance under
section 8 of the United States Housing Act of 1937) or the
applicable Secretary (in the case of any other financial
assistance) shall take one of the following actions:
(A) Permit the continued provision of financial
assistance, if necessary to avoid the division of a
family in which the head of household or spouse is a
citizen of the United States, a national of the United
States, or an alien resident of the United States
described in any of paragraphs (1) through (6) of
subsection (a). For purposes of this paragraph, the
term ``family'' means a head of household, any spouse,
any parents of the head of household, any parents of
the spouse, and any children of the head of household
or spouse. Financial assistance continued under this
subparagraph for a family may be provided only on a
prorated basis, under which the amount of financial
assistance is based on the percentage of the total
number of members of the family that are eligible for
that assistance under the program of financial
assistance and under this section.
(B)(i) Defer the termination of financial assistance,
if necessary to permit the orderly transition of the
individual and any family members involved to other
affordable housing.
(ii) Except as provided in clause (iii), any deferral
under this subparagraph shall be for a 6-month period
and may be renewed by the public housing agency or
other entity involved for an aggregate period of 18
months. At the beginning of each deferral period, the
public housing agency or other entity involved shall
inform the individual and family members of their
ineligibility for financial assistance and offer them
other assistance in finding other affordable housing.
(iii) The time period described in clause (ii) shall
not apply in the case of a refugee under section 207 of
the Immigration and Nationality Act or an individual
seeking asylum under section 208 of that Act.
(2) Notwithstanding any other provision of law, the
applicable Secretary may not make financial assistance
available for the benefit of--
(A) any alien who--
(i) has a residence in a foreign country that
such alien has no intention of abandoning;
(ii) is a bona fide student qualified to
pursue a full course of study; and
(iii) is admitted to the United States
temporarily and solely for purposes of pursuing
such a course of study at an established
institution of learning or other recognized
place of study in the United States,
particularly designated by such alien and
approved by the Attorney General after
consultation with the Department of Education
of the United States, which institution or
place of study shall have agreed to report to
the Attorney General the termination of
attendance of each nonimmigrant student (and if
any such institution of learning or place of
study fails to make such reports promptly the
approval shall be withdrawn); and
(B) the alien spouse and minor children of any alien
described in subparagraph (A), if accompanying such
alien or following to join such alien.
(d) The following conditions apply with respect to financial
assistance being or to be provided for the benefit of an
individual:
(1)(A) There must be a declaration in writing by the
individual (or, in the case of an individual who is a
child, by another on the individual's behalf), under
penalty of perjury, stating whether or not the
individual is a citizen or national of the United
States, and, if that individual is not a citizen or
national of the United States, that the individual is
in a satisfactory immigration status. If the
declaration states that the individual is not a citizen
or national of the United States and that the
individual is younger than 62 years of age, the
declaration shall be verified by the Immigration and
Naturalization Service. If the declaration states that
the individual is a citizen or national of the United
States, the applicable Secretary, or the agency
administering assistance covered by this section, may
request verification of the declaration by requiring
presentation of documentation that the applicable
Secretary considers appropriate, including a United
States passport, resident alien card, alien
registration card, social security card, or other
documentation.
(B) In this subsection, the term ``satisfactory
immigration status'' means an immigration status which
does not make the individual ineligible for financial
assistance.
(2) If such an individual is not a citizen or
national of the United States, is not 62 years of age
or older, and is receiving financial assistance on the
date of enactment of the Use of Assisted Housing by
Aliens Act of 1996 or applying for financial assistance
on or after that date, there must be presented either--
(A) alien registration documentation or other
proof of immigration registration from the
Immigration and Naturalization Service that
contains the individual's alien admission
number or alien file number (or numbers if the
individual has more than one number), or
(B) such other documents as the applicable
Secretary determines constitutes reasonable
evidence indicating a satisfactory immigration
status.
In the case of an individual applying for financial
assistance on or after the date of enactment of the Use
of Assisted Housing by Aliens Act of 1996, the
applicable Secretary may not provide any such
assistance for the benefit of that individual before
documentation is presented and verified under paragraph
(3) or (4).
(3) If the documentation described in paragraph
(2)(A) is presented, the applicable Secretary shall
utilize the individual's alien file or alien admission
number to verify with the Immigration and
Naturalization Service the individual's immigration
status through an automated or other system (designated
by the Service for use with States) that--
(A) utilizes the individual's name, file
number, admission number, or other means
permitting efficient verification, and
(B) protects the individual's privacy to the
maximum degree possible.
(4) In the case of such an individual who is not a
citizen or national of the United States, is not 62
years of age or older, and is receiving financial
assistance on the date of enactment of the Use of
Assisted Housing by Aliens Act of 1996 or applying for
financial assistance on or after that date, if, at the
time of application or recertification for financial
assistance, the statement described in paragraph (1) is
submitted but the documentation required under
paragraph (2) is not presented or if the documentation
required under paragraph (2)(A) is presented but such
documentation is not verified under paragraph (3)--
(A) the applicable Secretary--
(i) shall provide a reasonable
opportunity, not to exceed 30 days, to
submit to the applicable Secretary
evidence indicating a satisfactory
immigration status, or to appeal to the
Immigration and Naturalization Service
the verification determination of the
Immigration and Naturalization Service
under paragraph (3),
(ii) in the case of any individual
receiving assistance on the date of
enactment of the Use of Assisted
Housing by Aliens Act of 1996, may not
delay, deny, reduce, or terminate the
eligibility of that individual for
financial assistance on the basis of
the immigration status of that
individual until the expiration of that
30-day period; and
(iii) in the case of any individual
applying for financial assistance on or
after the date of enactment of the Use
of Assisted Housing by Aliens Act of
1996, may not deny the application for
such assistance on the basis of the
immigration status of that individual
until the expiration of that 30-day
period; and
(B) if any documents or additional
information are submitted as evidence under
subparagraph (A), or if appeal is made to the
Immigration and Naturalization Service with
respect to the verification determination of
the Service under paragraph (3)--
(i) the applicable Secretary shall
transmit to the Immigration and
Naturalization Service photostatic or
other similar copies of such documents
or additional information for official
verification,
(ii) pending such verification or
appeal, the applicable Secretary may
not--
(I) in the case of any
individual receiving assistance
on the date of enactment of the
Use of Assisted Housing by
Aliens Act of 1996, delay,
deny, reduce, or terminate the
eligibility of that individual
for financial assistance on the
basis of the immigration status
of that individual; and
(II) in the case of any
individual applying for
financial assistance on or
after the date of enactment of
the Use of Assisted Housing by
Aliens Act of 1996, deny the
application for such assistance
on the basis of the immigration
status of that individual; and
(iii) the applicable Secretary shall
not be liable for the consequences of
any action, delay, or failure of the
Service to conduct such verification.
(5) If the applicable Secretary determines, after
complying with the requirements of paragraph (4), that
such an individual is not in a satisfactory immigration
status, the applicable Secretary shall--
(A) deny the application of that individual
for financial assistance or terminate the
eligibility of that individual for financial
assistance, as applicable;
(B) provide that the individual may request a
fair hearing during the 30-day period beginning
upon receipt of the notice under subparagraph
(C); and
(C) provide to the individual written notice
of the determination under this paragraph, the
right to a fair hearing process, and the time
limitation for requesting a hearing under
subparagraph (C).
(6) The applicable Secretary shall terminate the
eligibility for financial assistance of an individual
and the members of the household of the individual, for
a period of not less than 24 months, upon determining
that such individual has knowingly permitted another
individual who is not eligible for such assistance to
reside in the public or assisted housing unit of the
individual. This provision shall not apply to a family
if the ineligibility of the ineligible individual at
issue was considered in calculating any proration of
assistance provided for the family.
For purposes of this subsection, the term ``applicable
Secretary'' means the applicable Secretary, a public housing
agency, or another entity that determines the eligibility of an
individual for financial assistance.
(e) The applicable Secretary shall not take any compliance,
disallowance, penalty, or other regulatory action against an
entity with respect to any error in the entity's determination
to make an individual eligible for financial assistance based
on citizenship or immigration status--
(1) if the entity has provided such eligibility based
on a verification of satisfactory immigration status by
the Immigration and Naturalization Service,
(2) because the entity, under subsection
(d)(4)(A)(ii) (or under any alternative system for
verifying immigration status with the Immigration and
Naturalization Service authorized in the Immigration
Reform and Control Act of 1986 (Public Law 99-603)),
was required to provide a reasonable opportunity to
submit documentation, or
(3) because the entity, under subsection
(d)(4)(B)(ii) (or under any alternative system for
verifying immigration status with the Immigration and
Naturalization Service authorized in the Immigration
Reform and Control Act of 1986 (Public Law 99-603)),
was required to wait for the response to the
Immigration and Naturalization Service to the entity's
request for official verification of the immigration
status of the individual, or the response from the
Immigration and Naturalization Service to the appeal of
that individual.
(f)(1) Notwithstanding any other provision of law, no agency
or official of a State or local government shall have any
liability for the design or implementation of the Federal
verification system described in subsection (d) if the
implementation by the State or local agency or official is in
accordance with Federal rules and regulations.
(2) The verification system of the Department of Housing and
Urban Development shall not supersede or affect any consent
agreement entered into or court decree or court order entered
prior to the date of the enactment of the Housing and Community
Development Act of 1987.
(g) The applicable Secretary is authorized to pay to each
public housing agency or other entity an amount equal to 100
percent of the costs incurred by the public housing agency or
other entity in implementing and operating an immigration
status verification system under subsection (d) (or under any
alternative system for verifying immigration status with the
Immigration and Naturalization Service authorized in the
Immigration Reform and Control Act of 1986 (Public Law 99-
603)).
(h) For purposes of this section, the term ``applicable
Secretary'' means--
(1) the Secretary of Housing and Urban Development,
with respect to financial assistance administered by
such Secretary and financial assistance under subtitle
A of title III of the Cranston-Gonzalez National
Affordable Housing Act; and
(2) the Secretary of Agriculture, with respect to
financial assistance administered by such Secretary.
(i) Verification of Eligibility.--
(1) In general.--No individual or family applying for
financial assistance may receive such financial
assistance prior to the affirmative establishment and
verification of eligibility of at least the individual
or one family member under subsection (d) by the
applicable Secretary or other appropriate entity.
(2) Rules applicable to public housing agencies.--A
public housing agency (as that term is defined in
section 3 of the United States Housing Act of 1937)--
(A) may, notwithstanding paragraph (1) of
this subsection, elect not to affirmatively
establish and verify eligibility before
providing financial assistance
(B) in carrying out subsection (d)--
(i) may initiate procedures to
affirmatively establish or verify the
eligibility of an individual or family
under this section at any time at which
the public housing agency determines
that such eligibility is in question,
regardless of whether or not that
individual or family is at or near the
top of the waiting list of the public
housing agency;
(ii) may affirmatively establish or
verify the eligibility of an individual
or family under this section in
accordance with the procedures set
forth in section 274A(b)(1) of the
Immigration and Nationality Act; and
(iii) shall have access to any
relevant information contained in the
SAVE system (or any successor thereto)
that relates to any individual or
family applying for financial
assistance.
(3) Eligibility of families.--For purposes of this
subsection, with respect to a family, the term
``eligibility'' means the eligibility of each family
member.
* * * * * * *
----------
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
DIVISION C--ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT
OF 1996
SEC. 1. SHORT TITLE OF DIVISION; AMENDMENTS TO IMMIGRATION AND
NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH
ACT; TABLE OF CONTENTS OF DIVISION; SEVERABILITY.
(a) Short Title.--This division may be cited as the ``Illegal
Immigration Reform and Immigrant Responsibility Act of 1996''.
(b) Amendments to Immigration and Nationality Act.--[Omitted
amendatory text.]
(1) * * *
* * * * * * *
(c) Application of Certain Definitions.--Except as otherwise
provided in this division, for purposes of titles I andVI of
this division, the terms ``alien'', ``Attorney General'',
``border crossing identification card'', ``entry'',
``immigrant'', ``immigrant visa'', ``lawfully admitted for
permanent residence'', ``national'',``naturalization'',
``refugee'', ``State'', and ``United States'' shall havethe
meaning given such terms in section 101(a) of the
Immigrationand Nationality Act.
(d) Table of Contents of Division.--The table of contentsof
this division is as follows:
Sec. 1. Short title of division; amendments to Immigration and
Nationality Act; application of definitions of such Act; table
of contents of division; severability.
* * * * * * *
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
[Subtitle A--Pilot Programs for Employment Eligibility Confirmation
[Sec. 401. Establishment of programs.
[Sec. 402. Voluntary election to participate in a pilot program.
[Sec. 403. Procedures for participants in pilot programs.
[Sec. 404. Employment eligibility confirmation system.
[Sec. 405. Reports.]
* * * * * * *
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
[Subtitle A--Pilot Programs for Employment Eligibility Confirmation
[SEC. 401. ESTABLISHMENT OF PROGRAMS.
[(a) In General.--The Secretary of Homeland Security shall
conduct 3 pilot programs of employment eligibility confirmation
under this subtitle.
[(b) Implementation Deadline; Termination.--The Secretary of
Homeland Security shall implement the pilot programs in a
manner that permits persons and other entities to have
elections under section 402 of this division made and in effect
no later than 1 year after the date of the enactment of this
Act. Unless the Congress otherwise provides, the Secretary of
Homeland Security shall terminate a pilot program on September
30, 2015.
[(c) Scope of Operation of Pilot Programs.--The Secretary of
Homeland Security shall provide for the operation--
[(1) of the E-Verify Program (described in section
403(a) of this division) in, at a minimum, 5 of the 7
States with the highest estimated population of aliens
who are not lawfully present in the United States, and
the Secretary of Homeland Security shall expand the
operation of the program to all 50 States not later
than December 1, 2004;
[(2) of the citizen attestation pilot program
(described in section 403(b) of this division) in at
least 5 States (or, if fewer, all of the States) that
meet the condition described in section 403(b)(2)(A) of
this division; and
[(3) of the machine-readable-document pilot program
(described in section 403(c) of this division) in at
least 5 States (or, if fewer, all of the States) that
meet the condition described in section 403(c)(2) of
this division.
[(d) References in Subtitle.--In this subtitle--
[(1) Pilot program references.--The terms ``program''
or ``pilot program'' refer to any of the 3 pilot
programs provided for under this subtitle.
[(2) Confirmation system.--The term ``confirmation
system'' means the confirmation system established
under section 404 of this division.
[(3) References to section 274a.--Any reference in
this subtitle to section 274A (or a subdivision of such
section) is deemed a reference to such section (or
subdivision thereof) of the Immigration and Nationality
Act.
[(4) I-9 or similar form.--The term ``I-9 or similar
form'' means the form used for purposes of section
274A(b)(1)(A) or such other form as the Secretary of
Homeland Security determines to be appropriate.
[(5) Limited application to recruiters and
referrers.--Any reference to recruitment or referral
(or a recruiter or referrer) in relation to employment
is deemed a reference only to such recruitment or
referral (or recruiter or referrer) that is subject to
section 274A(a)(1)(B)(ii).
[(6) United states citizenship.--The term ``United
States citizenship'' includes United States
nationality.
[(7) State.--The term ``State'' has the meaning given
such term in section 101(a)(36) of the Immigration and
Nationality Act.
[SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
[(a) Voluntary Election.--Subject to subsection (c)(3)(B),
any person or other entity that conducts any hiring (or
recruitment or referral) in a State in which a pilot program is
operating may elect to participate in that pilot program.
Except as specifically provided in subsection (e), the
Secretary of Homeland Security may not require any person or
other entity to participate in a pilot program.
[(b) Benefit of Rebuttable Presumption.--
[(1) In general.--If a person or other entity is
participating in a pilot program and obtains
confirmation of identity and employment eligibility in
compliance with the terms and conditions of the program
with respect to the hiring (or recruitment or referral)
of an individual for employment in the United States,
the person or entity has established a rebuttable
presumption that the person or entity has not violated
section 274A(a)(1)(A) with respect to such hiring (or
such recruitment or referral).
[(2) Construction.--Paragraph (1) shall not be
construed as preventing a person or other entity that
has an election in effect under subsection (a) from
establishing an affirmative defense under section
274A(a)(3) if the person or entity complies with the
requirements of section 274A(a)(1)(B) but fails to
obtain confirmation under paragraph (1).
[(c) General Terms of Elections.--
[(1) In general.--An election under subsection (a)
shall be in such form and manner, under such terms and
conditions, and shall take effect, as the Secretary of
Homeland Security shall specify. The Secretary of
Homeland Security may not impose any fee as a condition
of making an election or participating in a pilot
program.
[(2) Scope of election.--
[(A) In general.--Subject to paragraph (3),
any electing person or other entity may provide
that the election under subsection (a) shall
apply (during the period in which the election
is in effect)--
[(i) to all its hiring (and all
recruitment or referral) in the State
(or States) in which the pilot program
is operating, or
[(ii) to its hiring (or recruitment
or referral) in one or more pilot
program States or one or more places of
hiring (or recruitment or referral, as
the case may be) in the pilot program
States.
[(B) Application of programs in non-pilot
program states.--In addition, the Secretary of
Homeland Security may permit a person or entity
electing the citizen attestation pilot program
(described in 403(b) of this division) or the
machine-readable-document pilot program
(described in section 403(c) of this division)
to provide that the election applies to its
hiring (or recruitment or referral) in one or
more States or places of hiring (or recruitment
or referral) in which the pilot program is not
otherwise operating but only if such States
meet the requirements of 403(b)(2)(A) and
403(c)(2) of this division, respectively.
[(3) Termination of elections.--The Secretary of
Homeland Security may terminate an election by a person
or other entity under this section because the person
or entity has substantially failed to comply with its
obligations under the pilot program. A person or other
entity may terminate an election in such form and
manner as the Secretary of Homeland Security shall
specify.
[(d) Consultation, Education, and Publicity.--
[(1) Consultation.--The Secretary of Homeland
Security shall closely consult with representatives of
employers (and recruiters and referrers) in the
development and implementation of the pilot programs,
including the education of employers (and recruiters
and referrers) about such programs.
[(2) Publicity.--The Secretary of Homeland Security
shall widely publicize the election process and pilot
programs, including the voluntary nature of the pilot
programs and the advantages to employers (and
recruiters and referrers) of making an election under
this section.
[(3) Assistance through district offices.--The
Secretary of Homeland Security shall designate one or
more individuals in each District office of the
Immigration and Naturalization Service for a Service
District in which a pilot program is being
implemented--
[(A) to inform persons and other entities
that seek information about pilot programs of
the voluntary nature of such programs, and
[(B) to assist persons and other entities in
electing and participating in any pilot
programs in effect in the District, in
complying with the requirements of section
274A, and in facilitating confirmation of the
identity and employment eligibility of
individuals consistent with such section.
[(e) Select Entities Required to Participate in a Pilot
Program.--
[(1) Federal government.--
[(A) Executive departments.--
[(i) In general.--Each Department of
the Federal Government shall elect to
participate in a pilot program and
shall comply with the terms and
conditions of such an election.
[(ii) Election.--Subject to clause
(iii), the Secretary of each such
Department--
[(I) shall elect the pilot
program (or programs) in which
the Department shall
participate, and
[(II) may limit the election
to hiring occurring in certain
States (or geographic areas)
covered by the program (or
programs) and in specified
divisions within the
Department, so long as all
hiring by such divisions and in
such locations is covered.
[(iii) Role of attorney general.--The
Secretary of Homeland Security shall
assist and coordinate elections under
this subparagraph in such manner as
assures that--
[(I) a significant portion of
the total hiring within each
Department within States
covered by a pilot program is
covered under such a program,
and
[(II) there is significant
participation by the Federal
Executive branch in each of the
pilot programs.
[(B) Legislative branch.--Each Member of
Congress, each officer of Congress, and the
head of each agency of the legislative branch,
that conducts hiring in a State in which a
pilot program is operating shall elect to
participate in a pilot program, may specify
which pilot program or programs (if there is
more than one) in which the Member, officer, or
agency will participate, and shall comply with
the terms and conditions of such an election.
[(2) Application to certain violators.--An order
under section 274A(e)(4) or section 274B(g) of the
Immigration and Nationality Act may require the subject
of the order to participate in, and comply with the
terms of, a pilot program with respect to the subject's
hiring (or recruitment or referral) of individuals in a
State covered by such a program.
[(3) Consequence of failure to participate.--If a
person or other entity is required under this
subsection to participate in a pilot program and fails
to comply with the requirements of such program with
respect to an individual--
[(A) such failure shall be treated as a
violation of section 274A(a)(1)(B) with respect
to that individual, and
[(B) a rebuttable presumption is created that
the person or entity has violated section
274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution
under section 274A(f)(1).
[(f) Construction.--This subtitle shall not affect the
authority of the Secretary of Homeland Security under any other
law (including section 274A(d)(4)) to conduct demonstration
projects in relation to section 274A.
[SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
[(a) E-Verify Program.--A person or other entity that elects
to participate in the E-Verify Program described in this
subsection agrees to conform to the following procedures in the
case of the hiring (or recruitment or referral) for employment
in the United States of each individual covered by the
election:
[(1) Provision of additional information.--The person
or entity shall obtain from the individual (and the
individual shall provide) and shall record on the I-9
or similar form--
[(A) the individual's social security account
number, if the individual has been issued such
a number, and
[(B) if the individual does not attest to
United States citizenship under section
274A(b)(2), such identification or
authorization number established by the
Immigration and Naturalization Service for the
alien as the Secretary of Homeland Security
shall specify,
and shall retain the original form and make it
available for inspection for the period and in the
manner required of I-9 forms under section 274A(b)(3).
[(2) Presentation of documentation.--
[(A) In general.--The person or other entity,
and the individual whose identity and
employment eligibility are being confirmed,
shall, subject to subparagraph (B), fulfill the
requirements of section 274A(b) with the
following modifications:
[(i) A document referred to in
section 274A(b)(1)(B)(ii) (as
redesignated by section 412(a) of this
division) must be designated by the
Secretary of Homeland Security as
suitable for the purpose of
identification in a pilot program.
[(ii) A document referred to in
section 274A(b)(1)(D) must contain a
photograph of the individual.
[(iii) The person or other entity has
complied with the requirements of
section 274A(b)(1) with respect to
examination of a document if the
document reasonably appears on its face
to be genuine and it reasonably appears
to pertain to the individual whose
identity and work eligibility is being
confirmed.
[(B) Limitation of requirement to examine
documentation.--If the Secretary of Homeland
Security finds that a pilot program would
reliably determine with respect to an
individual whether--
[(i) the person with the identity
claimed by the individual is authorized
to work in the United States, and
[(ii) the individual is claiming the
identity of another person,
if a person or entity could fulfill the
requirement to examine documentation contained
in subparagraph (A) of section 274A(b)(1) by
examining a document specified in either
subparagraph (B) or (D) of such section, the
Secretary of Homeland Security may provide
that, for purposes of such requirement, only
such a document need be examined. In such case,
any reference in section 274A(b)(1)(A) to a
verification that an individual is not an
unauthorized alien shall be deemed to be a
verification of the individual's identity.
[(3) Seeking confirmation.--
[(A) In general.--The person or other entity
shall make an inquiry, as provided in section
404(a)(1) of this division, using the
confirmation system to seek confirmation of the
identity and employment eligibility of an
individual, by not later than the end of 3
working days (as specified by the Secretary of
Homeland Security) after the date of the hiring
(or recruitment or referral, as the case may
be).
[(B) Extension of time period.--If the person
or other entity in good faith attempts to make
an inquiry during such 3 working days and the
confirmation system has registered that not all
inquiries were received during such time, the
person or entity can make an inquiry in the
first subsequent working day in which the
confirmation system registers that it has
received all inquiries. If the confirmation
system cannot receive inquiries at all times
during a day, the person or entity merely has
to assert that the entity attempted to make the
inquiry on that day for the previous sentence
to apply to such an inquiry, and does not have
to provide any additional proof concerning such
inquiry.
[(4) Confirmation or nonconfirmation.--
[(A) Confirmation upon initial inquiry.--If
the person or other entity receives an
appropriate confirmation of an individual's
identity and work eligibility under the
confirmation system within the time period
specified under section 404(b) of this
division, the person or entity shall record on
the I-9 or similar form an appropriate code
that is provided under the system and that
indicates a final confirmation of such identity
and work eligibility of the individual.
[(B) Nonconfirmation upon initial inquiry and
secondary verification.--
[(i) Nonconfirmation.--If the person
or other entity receives a tentative
nonconfirmation of an individual's
identity or work eligibility under the
confirmation system within the time
period specified under 404(b) of this
division, the person or entity shall so
inform the individual for whom the
confirmation is sought.
[(ii) No contest.--If the individual
does not contest the nonconfirmation
within the time period specified in
section 404(c) of this division, the
nonconfirmation shall be considered
final. The person or entity shall then
record on the I-9 or similar form an
appropriate code which has been
provided under the system to indicate a
tentative nonconfirmation.
[(iii) Contest.--If the individual
does contest the nonconfirmation, the
individual shall utilize the process
for secondary verification provided
under section 404(c) of this division.
The nonconfirmation will remain
tentative until a final confirmation or
nonconfirmation is provided by the
confirmation system within the time
period specified in such section. In no
case shall an employer terminate
employment of an individual because of
a failure of the individual to have
identity and work eligibility confirmed
under this section until a
nonconfirmation becomes final. Nothing
in this clause shall apply to a
termination of employment for any
reason other than because of such a
failure.
[(iv) Recording of conclusion on
form.--If a final confirmation or
nonconfirmation is provided by the
confirmation system under section
404(c) of this division regarding an
individual, the person or entity shall
record on the I-9 or similar form an
appropriate code that is provided under
the system and that indicates a
confirmation or nonconfirmation of
identity and work eligibility of the
individual.
[(C) Consequences of nonconfirmation.--
[(i) Termination or notification of
continued employment.--If the person or
other entity has received a final
nonconfirmation regarding an individual
under subparagraph (B), the person or
entity may terminate employment (or
recruitment or referral) of the
individual. If the person or entity
does not terminate employment (or
recruitment or referral) of the
individual, the person or entity shall
notify the Secretary of Homeland
Security of such fact through the
confirmation system or in such other
manner as the Secretary of Homeland
Security may specify.
[(ii) Failure to notify.--If the
person or entity fails to provide
notice with respect to an individual as
required under clause (i), the failure
is deemed to constitute a violation of
section 274A(a)(1)(B) with respect to
that individual and the applicable
civil monetary penalty under section
274A(e)(5) shall be (notwithstanding
the amounts specified in such section)
no less than $500 and no more than
$1,000 for each individual with respect
to whom such violation occurred.
[(iii) Continued employment after
final nonconfirmation.--If the person
or other entity continues to employ (or
to recruit or refer) an individual
after receiving final nonconfirmation,
a rebuttable presumption is created
that the person or entity has violated
section 274A(a)(1)(A). The previous
sentence shall not apply in any
prosecution under section 274A(f)(1).
[(b) Citizen Attestation Pilot Program.--
[(1) In general.--Except as provided in paragraphs
(3) through (5), the procedures applicable under the
citizen attestation pilot program under this subsection
shall be the same procedures as those under the E-
Verify Program under subsection (a).
[(2) Restrictions.--
[(A) State document requirement to
participate in pilot program.--The Secretary of
Homeland Security may not provide for the
operation of the citizen attestation pilot
program in a State unless each driver's license
or similar identification document described in
section 274A(b)(1)(D)(i) issued by the State--
[(i) contains a photograph of the
individual involved, and
[(ii) has been determined by the
Secretary of Homeland Security to have
security features, and to have been
issued through application and issuance
procedures, which make such document
sufficiently resistant to
counterfeiting, tampering, and
fraudulent use that it is a reliable
means of identification for purposes of
this section.
[(B) Authorization to limit employer
participation.--The Secretary of Homeland
Security may restrict the number of persons or
other entities that may elect to participate in
the citizen attestation pilot program under
this subsection as the Secretary of Homeland
Security determines to be necessary to produce
a representative sample of employers and to
reduce the potential impact of fraud.
[(3) No confirmation required for certain individuals
attesting to u.s. citizenship.--In the case of a person
or other entity hiring (or recruiting or referring) an
individual under the citizen attestation pilot program,
if the individual attests to United States citizenship
(under penalty of perjury on an I-9 or similar form
which form states on its face the criminal and other
penalties provided under law for a false representation
of United States citizenship)--
[(A) the person or entity may fulfill the
requirement to examine documentation contained
in subparagraph (A) of section 274A(b)(1) by
examining a document specified in either
subparagraph (B)(i) or (D) of such section; and
[(B) the person or other entity is not
required to comply with respect to such
individual with the procedures described in
paragraphs (3) and (4) of subsection (a), but
only if the person or entity retains the form
and makes it available for inspection in the
same manner as in the case of an I-9 form under
section 274A(b)(3).
[(4) Waiver of document presentation requirement in
certain cases.--
[(A) In general.--In the case of a person or
entity that elects, in a manner specified by
the Secretary of Homeland Security consistent
with subparagraph (B), to participate in the
pilot program under this paragraph, if an
individual being hired (or recruited or
referred) attests (in the manner described in
paragraph (3)) to United States citizenship and
the person or entity retains the form on which
the attestation is made and makes it available
for inspection in the same manner as in the
case of an I-9 form under section 274A(b)(3),
the person or entity is not required to comply
with the procedures described in section
274A(b).
[(B) Restriction.--The Secretary of Homeland
Security shall restrict the election under this
paragraph to no more than 1,000 employers and,
to the extent practicable, shall select among
employers seeking to make such election in a
manner that provides for such an election by a
representative sample of employers.
[(5) Nonreviewable determinations.--The
determinations of the Secretary of Homeland Security
under paragraphs (2) and (4) are within the discretion
of the Secretary of Homeland Security and are not
subject to judicial or administrative review.
[(c) Machine-Readable-Document Pilot Program.--
[(1) In general.--Except as provided in paragraph
(3), the procedures applicable under the machine-
readable-document pilot program under this subsection
shall be the same procedures as those under the E-
Verify Program under subsection (a).
[(2) State document requirement to participate in
pilot program.--The Secretary of Homeland Security may
not provide for the operation of the machine-readable-
document pilot program in a State unless driver's
licenses and similar identification documents described
in section 274A(b)(1)(D)(i) issued by the State include
a machine-readable social security account number.
[(3) Use of machine-readable documents.--If the
individual whose identity and employment eligibility
must be confirmed presents to the person or entity
hiring (or recruiting or referring) the individual a
license or other document described in paragraph (2)
that includes a machine-readable social security
account number, the person or entity must make an
inquiry through the confirmation system by using a
machine-readable feature of such document. If the
individual does not attest to United States citizenship
under section 274A(b)(2), the individual's
identification or authorization number described in
subsection (a)(1)(B) shall be provided as part of the
inquiry.
[(d) Protection From Liability for Actions Taken on the Basis
of Information Provided by the Confirmation System.--No person
or entity participating in a pilot program shall be civilly or
criminally liable under any law for any action taken in good
faith reliance on information provided through the confirmation
system.
[SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
[(a) In General.--The Secretary of Homeland Security shall
establish a pilot program confirmation system through which the
Secretary of Homeland Security (or a designee of the Secretary
of Homeland Security, which may be a nongovernmental entity)--
[(1) responds to inquiries made by electing persons
and other entities (including those made by the
transmittal of data from machine-readable documents
under the machine-readable pilot program) at any time
through a toll-free telephone line or other toll-free
electronic media concerning an individual's identity
and whether the individual is authorized to be
employed, and
[(2) maintains records of the inquiries that were
made, of confirmations provided (or not provided), and
of the codes provided to inquirers as evidence of their
compliance with their obligations under the pilot
programs.
To the extent practicable, the Secretary of Homeland Security
shall seek to establish such a system using one or more
nongovernmental entities.
[(b) Initial Response.--The confirmation system shall provide
confirmation or a tentative nonconfirmation of an individual's
identity and employment eligibility within 3 working days of
the initial inquiry. If providing confirmation or tentative
nonconfirmation, the confirmation system shall provide an
appropriate code indicating such confirmation or such
nonconfirmation.
[(c) Secondary Verification Process in Case of Tentative
Nonconfirmation.--In cases of tentative nonconfirmation, the
Secretary of Homeland Security shall specify, in consultation
with the Commissioner of Social Security and the Commissioner
of the Immigration and Naturalization Service, an available
secondary verification process to confirm the validity of
information provided and to provide a final confirmation or
nonconfirmation within 10 working days after the date of the
tentative nonconfirmation. When final confirmation or
nonconfirmation is provided, the confirmation system shall
provide an appropriate code indicating such confirmation or
nonconfirmation.
[(d) Design and Operation of System.--The confirmation system
shall be designed and operated--
[(1) to maximize its reliability and ease of use by
persons and other entities making elections under
section 402(a) of this division consistent with
insulating and protecting the privacy and security of
the underlying information;
[(2) to respond to all inquiries made by such persons
and entities on whether individuals are authorized to
be employed and to register all times when such
inquiries are not received;
[(3) with appropriate administrative, technical, and
physical safeguards to prevent unauthorized disclosure
of personal information; and
[(4) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices
based on national origin or citizenship status,
including--
[(A) the selective or unauthorized use of the
system to verify eligibility;
[(B) the use of the system prior to an offer
of employment; or
[(C) the exclusion of certain individuals
from consideration for employment as a result
of a perceived likelihood that additional
verification will be required, beyond what is
required for most job applicants.
[(e) Responsibilities of the Commissioner of Social
Security.--As part of the confirmation system, the Commissioner
of Social Security, in consultation with the entity responsible
for administration of the system, shall establish a reliable,
secure method, which, within the time periods specified under
subsections (b) and (c), compares the name and social security
account number provided in an inquiry against such information
maintained by the Commissioner in order to confirm (or not
confirm) the validity of the information provided regarding an
individual whose identity and employment eligibility must be
confirmed, the correspondence of the name and number, and
whether the individual has presented a social security account
number that is not valid for employment. The Commissioner shall
not disclose or release social security information (other than
such confirmation or nonconfirmation).
[(f) Responsibilities of the Commissioner of the Immigration
and Naturalization Service.--As part of the confirmation
system, the Commissioner of the Immigration and Naturalization
Service, in consultation with the entity responsible for
administration of the system, shall establish a reliable,
secure method, which, within the time periods specified under
subsections (b) and (c), compares the name and alien
identification or authorization number described in section
403(a)(1)(B) of this division which are provided in an inquiry
against such information maintained by the Commissioner in
order to confirm (or not confirm) the validity of the
information provided, the correspondence of the name and
number, and whether the alien is authorized to be employed in
the United States.
[(g) Updating Information.--The Commissioners of Social
Security and the Immigration and Naturalization Service shall
update their information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt correction
of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in subsection (c).
[(h) Limitation on Use of the Confirmation System and Any
Related Systems.--
[(1) In general.--Notwithstanding any other provision
of law, nothing in this subtitle shall be construed to
permit or allow any department, bureau, or other agency
of the United States Government to utilize any
information, data base, or other records assembled
under this subtitle for any other purpose other than as
provided for under this subtitle.
[(2) No national identification card.--Nothing in
this subtitle shall be construed to authorize, directly
or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
[SEC. 405. REPORTS.
[(a) In General.--The Secretary of Homeland Security shall
submit to the Committees on the Judiciary of the House of
Representatives and of the Senate reports on the pilot programs
within 3 months after the end of the third and fourth years in
which the programs are in effect. Such reports shall--
[(1) assess the degree of fraudulent attesting of
United States citizenship,
[(2) include recommendations on whether or not the
pilot programs should be continued or modified, and
[(3) assess the benefits of the pilot programs to
employers and the degree to which they assist in the
enforcement of section 274A.
[(b) Report on Expansion.--Not later than June 1, 2004, the
Secretary of Homeland Security shall submit to the Committees
on the Judiciary of the House of Representatives and the Senate
a report--
[(1) evaluating whether the problems identified by
the report submitted under subsection (a) have been
substantially resolved; and
[(2) describing what actions the Secretary of
Homeland Security shall take before undertaking the
expansion of the E-Verify Program to all 50 States in
accordance with section 401(c)(1), in order to resolve
any outstanding problems raised in the report filed
under subsection (a).]
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 75--PASSPORTS AND VISAS
* * * * * * *
Sec. 1546. Fraud and misuse of visas, permits, and other documents
(a) Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant or nonimmigrant visa, permit,
border crossing card, alien registration receipt card, or other
document prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the United
States, or utters, uses, attempts to use, possesses, obtains,
accepts, or receives any such visa, permit, border crossing
card, alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false claim or
statement, or to have been otherwise procured by fraud or
unlawfully obtained; or
Whoever, except under direction of the Attorney General or
the Commissioner of the Immigration and Naturalization Service,
or other proper officer, knowingly possesses any blank permit,
or engraves, sells, brings into the United States, or has in
his control or possession any plate in the likeness of a plate
designed for the printing of permits, or makes any print,
photograph, or impression in the likeness of any immigrant or
nonimmigrant visa, permit or other document required for entry
into the United States, or has in his possession a distinctive
paper which has been adopted by the Attorney General or the
Commissioner of the Immigration and Naturalization Service for
the printing of such visas, permits, or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa,
permit, or other document required for entry into the United
States, or for admission to the United States personates
another, or falsely appears in the name of a deceased
individual, or evades or attempts to evade the immigration laws
by appearing under an assumed or fictitious name without
disclosing his true identity, or sells or otherwise disposes
of, or offers to sell or otherwise dispose of, or utters, such
visa, permit, or other document, to any person not authorized
by law to receive such document; or
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false statement
with respect to a material fact in any application, affidavit,
or other document required by the immigration laws or
regulations prescribed thereunder, or knowingly presents any
such application, affidavit, or other document which contains
any such false statement or which fails to contain any
reasonable basis in law or fact--
Shall be fined under this title or imprisoned not more than
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
(b) Whoever uses--
(1) an [identification document,] identification
document or document meant to establish employment
authorization, knowing (or having reason to know) that
the document was not issued lawfully for the use of the
possessor,
(2) an [identification document] identification
document or document meant to establish employment
authorization, knowing (or having reason to know) that
the document is false, or
(3) a false attestation,
for the purpose of satisfying a requirement of section 274A(b)
or section 274E(b) of the Immigration and Nationality Act,
shall be fined under this title, imprisoned not more than 5
years, or both.
(c) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a
subdivision of a State, or of an intelligence agency of the
United States, or any activity authorized under title V of the
Organized Crime Control Act of 1970 (18 U.S.C. note prec.
3481). For purposes of this section, the term ``State'' means a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
* * * * * * *
DISSENTING VIEWS
H.R. 5038\1\ presents itself as a solution to the labor
shortages experienced by the American agriculture industry, the
increasing reliance by some growers on illegal aliens to fill
those positions, a burdensome and bureaucratic H-2A program,
and the overarching need to keep American agriculture
competitive as production of our nation's food supply continues
to move overseas. These are serious concerns that require a
durable legislative solution. If Congress does not provide such
a solution that ensures a reliable labor supply, America's
farms will continue to go out of business and the vast majority
of America's food will be grown overseas.
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\1\Amendment in the Nature of a Substitute to H.R. 5038, as amended
by the Lofgren Manager's Amendment, 116th Cong. (Farm Workforce
Modernization Act (FWMA) of 2019).
---------------------------------------------------------------------------
But H.R. 5038 falls far short of such a solution. On top of
an amnesty for over a million (the actual number is unknown)
illegal immigrant farm laborers and their family members, H.R.
5038's ``reforms'' to the H-2A program would benefit labor
unions and special interest groups at the expense of American
farmers. H-2A users and other growers are concerned about
rising wages forcing them out of competition with imported
agriculture commodities and litigation exposure, yet H.R. 5038
fails to provide relief on either front. Also of concern is
that H.R. 5038 could make the agricultural labor crisis even
worse as amnestied workers reduce their hours or leave
agriculture entirely in search of jobs in other industries.
Republicans at Committee offered several amendments to
address major problems in H.R. 5038, specifically the wage
rate, additional exposure to federal court litigation for H-2A
users, and deficiencies in the amnesty. Although this bill has
been portrayed as a ``bipartisan'' product, it should be noted
that Judiciary Republicans were excluded from the bill's long-
running negotiations, no Republican amendments were accepted at
markup, and the bill did not receive any Republican votes at
markup.
Labor Shortages and Problems with the H-2A program
For years, American farmers have struggled to find
sufficient numbers of skilled U.S. workers willing to fill
positions in the agriculture sector. The Department of Labor
(DOL) has concluded that ``[a]uthorized workers appear to be
leaving farm jobs because of age or opportunities for more
stable and higher paying employment outside of agriculture, and
are being replaced almost exclusively by foreign-born
workers.''\2\ Philip Martin, professor of agricultural and
resource economics at the University of California, Davis,
estimates that fruit, vegetable, and horticulture farms hired a
total of 1,220,893 individual farmworkers in 2007, 414,542 for
more than 150 days and 806,351 for less than 150 days (a common
definition of seasonal worker).\3\ With regard to how many of
today's agricultural workers are unauthorized aliens, the
January 2018 DOL National Agricultural Workers Survey (NAWS)\4\
stated, ``Fifty-one percent of the hired crop labor force had
work authorization in 2015-2016.''\5\ Thus, NAWS found that 49
percent of those surveyed were not work authorized. And the
Department of Agriculture's Economic Research Service has noted
that ``the share of hired crop farmworkers who were not legally
authorized to work in the U.S. grew from roughly 14 percent in
1989-91 to almost 55 percent in 1999-2001. Since then it has
fluctuated around 50 percent.''\6\ This figure, however, is
based on self-attestation and is therefore likely much higher
in reality. The American Farm Bureau Federation (AFB) believes
that ``[the NAWS figure] is probably a lower-bound estimate
because the figure is based on a response volunteered by
individuals to government-authorized questioners . . . it seems
reasonable that at least some individuals would not, and did
not, volunteer the fact that they were not legally authorized
to work.''\7\ In fact, the late agricultural economist James
Holt stated that ``[w]hen workplace audits are conducted on the
ground and the authenticity of documents are examined, the
typical experience is more like 75 percent or so.''\8\
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\2\73 Fed. Reg. 8540 (2008).
\3\Philip Martin, Farm Exports and Farm Labor, 2011 Economic Policy
Institute at 6 (table 4).
\4\DOL's National Agricultural Workers Survey is the only survey
that ascertains the legal status of noncitizen farmworkers. However,
NAWS is limited to hired crop farmworkers and excludes hired livestock
farmworkers. See http://www.doleta.gov/agworker/naws.cfm.
\5\Findings From the National Agricultural Worker Survey (NAWS)
2015-2016: A Demographic ad Employment Profile of United States
Farmworkers; Jan. 2018, https://wdr.doleta.gov/research/
FullText_Documents/ETAOP_2019-01_NAWS_Research_Report_13.pdf At 4.
\6\United States Department of Agriculture, Farm Labor, Background,
https://www.ers.usda.gov/topics/farm-economy/farm-labor/#legalstatus.
\7\Hearing to Review the Labor Needs of American Agriculture Before
the House Comm. On Agriculture, 110th Cong. 2nd Sess. 110-30 (2007) at
21-22.
\8\Id. at 84.
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Farmers seeking a legal labor force have turned to the H-2A
program for a supply of highly motivated and legal foreign
workers, but have found the program to be unnecessarily
burdensome at costly, requiring many steps to obtain and retain
workers. James Holt previously testified that:
Farmers seeking to use the program must first apply
for a labor certification from [DOL] and attempt to
recruit qualified U.S. workers. If the employer's
application meets the requirements of [DOL] and
sufficient U.S. workers cannot be found, a labor
certification is issued. The employer then files a
petition with the U.S. Citizenship and Immigration
Service . . . for the admission of H-2A aliens.
Meanwhile, a supply of alien workers must be recruited.
If the employer's petition is granted, it is
transmitted to the U.S. consulate where the aliens will
apply for visas. The aliens complete visa applications
and are interviewed. They must meet the same criteria
as any other applicant for a non-immigrant visa. The
aliens who are granted visas then travel to the port of
entry and apply for admission to the U.S. Those who are
admitted travel to the employer's farm. In order for
workers to arrive by the employer's date of need, this
entire process must take place in 45 days. Once the
workers arrive, H-2A employers face a barrage of
compliance monitoring and enforcement officers,
outreach workers, social service agencies and legal
service activists. Nowhere else are so few monitored by
so many. Lawsuits are commonplace.\9\
\9\Hearing to Review the Labor Needs of American Agriculture Before
the House Comm. On Agriculture, 110th Cong. 2nd Sess. 110-30 (2007) at
17-18.
In addition to the cumbersome and bureaucratic nature of
the H-2A program, the program itself fails to meet the needs of
agricultural labor in multiple sectors. H-2A visas are only for
temporary or seasonal employment, but many agricultural jobs
are not temporary or seasonal in nature, including work at
dairies, fruit and vegetable packing facilities and processing
plants, sugar mills, and in the livestock and meat industry.
Jobs in these fields cannot be filled by H-2A workers.
Moreover, the H-2A program's definition of agricultural labor
or services is restrictive, providing that jobs on a farm ``in
handling, planting, drying, packing, packaging, processing,
freezing, grading, storing, or delivering to storage or to
market or to a carrier for transportation for market, in its
unmanufactured state, any agricultural or horticultural
commodity'' only qualify for the H-2A program if that farm's
operator ``produced more than one-half of the commodity with
respect to which such service is performed.''\10\
---------------------------------------------------------------------------
\10\20 C.F.R. sec. 655.103(c)(1)(i)(D).
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Despite clear indications that there are insufficient U.S.
workers to fill agricultural jobs, under the H-2A program, the
Department of Homeland Security (DHS) can approve an employer's
petition for an alien only after the employer has applied to
DOL for a certification that (A) there are not sufficient
workers who are able, willing, and qualified, and who will be
available at the time and place needed, to perform the labor or
services involved in the petition, and (B) the employment of
the alien in such labor or services will not adversely affect
the wages and working conditions of workers in the United
States similarly employed.\11\
---------------------------------------------------------------------------
\11\See sec. 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) (emphasis
added).
---------------------------------------------------------------------------
Employers in the H-2A program are required to pay a wage
that is ``at least the Adverse Effect Wage Rate (AEWR), the
prevailing hourly wage rate, the prevailing piece rate, the
agreed-upon collective bargaining rate, or the Federal or State
minimum wage rate, in effect at the time work is performed,
whichever is highest, for every hour or portion thereof worked
during a pay period.''\12\ The AEWR is the wage rate that is
currently paid to H-2A workers since it is currently the
highest. It is the average annual weighted hourly wage rate for
field or livestock workers for the region. H-2A employers are
also required to offer housing and transportation to all of
their workers at the employer's own expense.\13\
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\12\20 C.F.R. sec. 655.122(l)(1).
\13\20 C.F.R. sec. 1303(g).
---------------------------------------------------------------------------
Yet, even with AEWRs of $11.13-$15.03 an hour (see Table
1),\14\ and a requirement (known as the ``50 percent rule'')
that H-2A employers hire any U.S. worker who shows up until the
time that 50 percent of the work contract of the DHS-approved
foreign workers has elapsed,\15\ many agricultural employers
still cannot find enough U.S. workers willing to take the jobs.
At the Committee's February 26, 2013, hearing on agricultural
labor, Chalmers Carr, President and CEO of Titan Farms of Ridge
Spring, South Carolina, relayed his story of attempting to fill
job opportunities on his farm with domestic workers:
---------------------------------------------------------------------------
\14\83 Fed. Reg. 66302 (Dec. 26, 2018) (Employment and Training
Administration, DOL, Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United States: 2019 Adverse
Effect Wage Rates).
\15\See 20 C.F.R. 655.135(d).
From 2010 thru the end of 2012, my farm advertised
for 2000 job opportunities. Four hundred eighty-three
U.S. referrals applied for these jobs and were hired
accounting for less than 25% of my workforce need. One
hundred nine of the referrals that were hired never
showed up to work and 321 of them quit--the vast
majority in the first two days! Those who quit and
those who never reported to work account for 89% of the
workers who accepted the job! Of the 321 who reported
to work, only 31 worked the entire season. There is no
way I could have produced my peach and vegetable crops
with a domestic workforce!\16\
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\16\Agricultural Labor: From H-2A to a Workable Agricultural
Guestworker Program at 20 (written statement of Chalmers Carr).
Clearly a solution is needed to ensure that the
agricultural industry has a reliable, legal labor force, and
the H-2A program is in need of reform. Yet H.R. 5038 will not
provide a solution to either problem. H.R. 5038's amnesty
ensures that eligible aliens can and will leave the agriculture
sector for other industries. H.R. 5038 seeks to streamline the
H-2A program, but falls short of its goals. Proponents of the
bill promise wage relief for farmers and cost reduction, but
the bill in no way guarantees such relief and in fact the
opposite could happen. Instead of streamlined access to a
steady supply of legal foreign workers, H.R. 5038 subjects H-2A
users to a new private right of action that will increase costs
for the program's users.
A Flawed Amnesty of Current Illegal Workers and Family Members
Title I of H.R. 5038 is an amnesty for current illegal
agricultural workers and a green card path to citizenship
exempt from the numerical caps. The bill is flawed in its
approach, and amnestied workers, spouses, and children can and
will leave agriculture to work in other industries.
Current illegal aliens (and their spouses and children) are
eligible to receive Certified Agricultural Worker (``CAW'')
status if they:
(1) performed agricultural labor in the United States
for at least 1,035 hours (or 180 work days) during the
two-year period preceding October 30, 2019 (the date of
introduction)
(2) are removable from the United States as of
October 30, 2019
(3) are continuously present in the United States as
of October 30, 2019 and until the alien is granted CAW
status
(4) are not ineligible on criminal grounds.
Eligible aliens are protected from removal and
detention,\17\ and those who actually apply receive immediate
work authorization\18\ and the ability to travel outside the
United States with permission.\19\ CAW status may be extended
in 5\1/2\ year increments and is renewable indefinitely so long
as the primary applicant (i.e. not children or spouse) has
worked in agriculture for at least 575 hours (or 100 work days)
for each of the prior five years in which the alien was in CAW
status.\20\
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\17\H.R. 5038, Section 125.
\18\H.R. 5038, Section 101(c)(4).
\19\H.R. 5038, Section 101(c)(5)(A).
\20\H.R. 5038, Section 103.
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A CAW worker may adjust to lawful permanent resident (green
card holder) if the alien has completed 575 hours (or 100 work
days since the bill defines a work day as having worked 5.75
hours) for at least 10 years prior to the date of enactment of
H.R. 5038, and at least 4 years in CAW status, or for at least
8 years in CAW status if the worker performed less than 10
years of work prior to the date of enactment.\21\ Thus, some
workers who receive CAW status will be eligible to receive
green cards after working only 4 more years in agriculture.
Spouses and children of an alien who adjusts status can also be
granted green cards if the qualifying relationship exists on
the date the principal alien adjusts status.\22\ The principal
alien must pay a $1,000 fee.\23\ Spouses and children can also
self-petition if they have been subject to extreme cruelty or
battery by the principal CAW worker.
---------------------------------------------------------------------------
\21\H.R. 5038, Section 111(a)(1).
\22\H.R. 5038, Section 111(a)(2).
\23\H.R. 5038, Section 111(b).
---------------------------------------------------------------------------
Rep. Lesko offered an amendment that would require the DHS
to deny green cards and revoke CAW status of the abusers before
a self-petition could be granted. This was defeated on a party
line vote of 12-7 at markup.
Work authorization qualifies the alien for jobs outside of
the agriculture industry, and because the work requirement is
only 575 hours per year for aliens who intend to renew their
CAW status, CAW workers may immediately begin working in other
industries, potentially displacing U.S. workers and undermining
wages in those industries. Spouses and children of CAW workers
have no agricultural work requirements and are immediately
eligible to work in other sectors of the economy. Once a CAW
worker has a green card, there is no requirement that the green
card holder continue working in agriculture.
Rep. Armstrong offered an amendment during markup which
would specify that CAW workers were only eligible to work in
agriculture, and not in other industries. This amendment was
defeated on a voice vote.
Although the bill purports to require aliens to have
``satisfied any applicable Federal tax liability'' in order to
adjust status to a green card,\24\ the bill defines that
liability as only the liability that arose ``beginning on the
date on which the applicant was authorized to work in the
United States as a certified agricultural worker.''\25\ Thus, a
worker can obtain a green card even if they have not satisfied
federal tax liability in the years during which they were
working illegally.
---------------------------------------------------------------------------
\24\H.R. 5038, Section 112(a).
\25\H.R. 5038, Section 121(3).
---------------------------------------------------------------------------
For either CAW status or adjustment of status to lawful
permanent resident, the Secretary can waive 575 hours (100 work
days) of agricultural labor if the alien was unable to perform
that labor because of pregnancy, illness, disease, injury, or
physical limitation of the alien; illness, injury, disease, or
special needs of the alien's child or spouse; severe weather
conditions; or termination from employment without just
cause.\26\
---------------------------------------------------------------------------
\26\H.R. 5038, Section 126(c).
---------------------------------------------------------------------------
Aliens who adjust status are exempt from the numerical caps
contained in the INA, and are not counted toward any numerical
limitation.\27\ Thus, any green card issued under this bill is
not counted against the numerical caps and is in addition to
those issued under capped and uncapped categories in any given
year.
---------------------------------------------------------------------------
\27\H.R. 5038, Section 132.
---------------------------------------------------------------------------
Under H.R. 5038, the DHS must issue a decision on an
application for CAW status or CAW adjustment within 180 days
after the application is filed, so long as background checks
are completed.\28\ However, prior to denying an application,
the DHS must give the alien written notice and at least 90 days
to contest ineligibility or submit additional evidence.\29\ 180
days is likely not enough time to process the amount of
applications that will be received by the DHS, especially when
considering the potential for fraudulent applications, and
especially considering that the DHS has to provide 90 days for
the alien to respond before denying the application. This means
the DHS as a practical matter has less than 90 days to
adjudicate each application.
---------------------------------------------------------------------------
\28\H.R. 5038, Section 101(d)(1), Section 113.
\29\H.R. 5038, Section 101(d)(2), Section 113.
---------------------------------------------------------------------------
H.R. 5038 also creates grant programs to assist eligible
applicants.\30\ Such grants, which in addition to any amount
appropriated can include up to $10,000,000 from the Immigration
Examinations Fee Account, are to be distributed to nonprofit
organizations such as unions and advocacy groups to disseminate
information about benefits under the bill and assist
individuals in applying for status, including by completing
applications and assisting in obtaining documentary
evidence.\31\ The Immigration Examinations Fee Account,
contains fees collected by USCIS from applicants for
immigration benefits (H1B, intercountry adoption,
naturalization, employment authorization, etc.) so those who
have applied for immigration benefits through legal channels
will be subsidizing the costs of the application process for
those who chose to violate U.S. law. In addition, whatever
funds are appropriated for the grant program will be U.S.
taxpayer money which will be used to pay for the application
process of legalizing illegal aliens.
---------------------------------------------------------------------------
\30\H.R. 5038, Section 134.
\31\Id.
---------------------------------------------------------------------------
Rep. Gohmert offered an amendment eliminating the grant
programs, but this amendment was defeated by voice vote.
Aliens are ineligible for CAW status if they have been
convicted of:
(1) Any felony offense;
(2) An aggravated felony (defined at INA 101(a)(43));
(3) Two crimes involving moral turpitude (unless one
is waived by the Secretary under the waiver authority
in the bill); or
(4) Three or more misdemeanor offenses not occurring
on the same date, and not arising out of the same act,
omission, or scheme of misconduct.\32\
---------------------------------------------------------------------------
\32\ H.R. 5038, Section 101(b)(2)(A)-(D).
---------------------------------------------------------------------------
Because driving under the influence of alcohol or drugs
(``DUI'') offenses are almost never crimes involving moral
turpitude,\33\ an alien can have two convictions for
misdemeanor simple DUI under this bill--and a third pending
without a conviction--and still be eligible to file for CAW
status\34\ with all the benefits that a pending application
entails.
---------------------------------------------------------------------------
\33\See Matter of Torres Varela, 23 I&N Dec. 78 (BIA 2001) (``We
specifically noted [in a prior case] that simple DUI is ordinarily a
regulatory offense that requires no culpable mental state, such as
intent or knowledge. We therefore found that a conviction for a simple
DUI offense under Arizona law was not a conviction for a crime
involving moral turpitude because it did not require a showing of a
culpable mental state . . . We find that multiple convictions for the
same DUI offense, which individually is not a crime involving moral
turpitude, do not, by themselves, aggregate into a conviction for a
crime involving moral turpitude.''); Matter of Lopez-Meza, 22 I&N Dec.
1188 (BIA 1999) (holding that a DUI offense which requires the driver
to know that he or she is prohibited from driving under any
circumstances is a crime involving moral turpitude); but see Hernandez-
Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) (Arizona's
Aggravated DUI statute is divisible and includes merely having ``actual
physical control'' of a vehicle which does not involve moral
turpitude.).
\34\H.R. 5038, Section 101(b)(2)(D).
---------------------------------------------------------------------------
Rep. Chabot offered an amendment specifying that
individuals convicted of two Driving Under the Influence
(``DUI'') offenses or one DUI involving bodily injury were not
eligible to receive CAW status under the bill. However, this
amendment failed on a party line vote 16-7.
An alien with a serious pending charge--even for a felony
or aggravated felony--who has not yet been convicted and is
otherwise eligible can file an application and receive all the
benefits that application entails, including immediate work
authorization\35\ and protection from removal and
detention.\36\ Again, merely filing the application serves as
protection from both removal and detention until it is finally
adjudicated. An alien cannot be detained under the bill unless
a prima facie determination is made that the alien is
ineligible for CAW status. But an alien who would be denied in
the exercise of discretion is still technically eligible for
that status, thus an alien with an egregious pending charge who
is released from state or local custody before conviction
cannot be detained for removal.\37\ Any alien who merely
appears prima facie eligible for CAW status cannot be placed in
removal proceedings, or may have their removal proceedings
terminated.\38\ Even if there are serious pending charges, if
there is no conviction making them ineligible, such individual
may not be placed in removal proceedings notwithstanding
removability from the United States. Aliens with final removal
orders may apply for CAW status notwithstanding such removal
orders.\39\
---------------------------------------------------------------------------
\35\ H.R. 5038, Section 101(c)(4) (``As soon as practicable after
receiving an application for certified agricultural worker status, the
Secretary shall provide the applicant with a document acknowledging the
receipt of such application. Such document shall serve as interim proof
of the alien's authorization to accept employment in the United States
. . .'').
\36\H.R. 5038, Section 101(c)(5)(B) (``may not be detained by the
Secretary or removed from the United States unless the Secretary makes
a prima facie determination that such alien is, or has become,
ineligible for certified agricultural status'').
\37\Id.
\38\H.R. 5038, Section 125(a) and (b).
\39\H.R. 5038, Section 125(c).
---------------------------------------------------------------------------
H.R. 5038 further provides that several existing grounds of
inadmissibility do not even apply to applicants for CAW
status.\40\ For example, the ground of inadmissibility for
individuals who sought to procure or obtained an immigration
benefit ``by fraud or willfully misrepresenting a material
fact'' does not apply, nor does the inadmissibility ground for
those who falsely claim to be U.S. citizens.\41\ Therefore, an
individual who committed immigration fraud or who falsely
represented themselves as a U.S. Citizen on a Form I-9 is still
eligible to apply for CAW status.
---------------------------------------------------------------------------
\40\H.R. 5038, Section 101(b)(1)(A)-(C).
\41\H.R. 5038, Section 101(b)(1)(B) (``subparagraphs . . . (C) . .
. of such section 212(a)(6) . . . shall not apply unless based on the
act of unlawfully entering the United States after the date of
introduction of this Act.''); INA 212(a)(6)(C).
---------------------------------------------------------------------------
The criminal grounds of inadmissibility contained at INA
212(a)(2) still apply, however the bill contains a waiver
authority that may be exercised ``[f]or humanitarian purposes,
family unity, or if otherwise in the public interest'' to waive
offenses including crimes involving moral turpitude, controlled
substance offenses, and inadmissibility for aliens who engage
in prostitution or commercialized vice.\42\ Note however that
the waiver may not be used to excuse an individual from the
ineligibility presented by a felony, aggravated felony, or
three or more misdemeanor offenses.\43\
---------------------------------------------------------------------------
\42\H.R. 5038, Section 101(b)(3)(B) (``subparagraphs (A) and (D) of
section 212(a)(2) of the [INA] . . .'')
\43\Id. (``. . . unless inadmissibility is based on a conviction
that would otherwise render the alien ineligible under subparagraph
(A), (B), or (D) of paragraph (2)'').
---------------------------------------------------------------------------
Importantly, H.R. 5038 does not define conviction the same
way as the INA.\44\ Instead, H.R. 5038 provides that a
conviction ``does not include a judgment that has been expunged
or set aside, that resulted in a rehabilitative disposition, or
the equivalent,'' leaving open the possibility that an alien
could have a conviction for a serious criminal offense that
would not bar him or her from eligibility for CAW status if
they received a rehabilitative sentence or an expungement.
---------------------------------------------------------------------------
\44\INA 101(a)(48)(A) (``The term `conviction' means, with respect
to an alien, a formal judgment of guilt of the alien entered by a court
or, if adjudication of guilt has been withheld, where (i) a judge or
jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilt, and (ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien's liberty to be
imposed.'').
---------------------------------------------------------------------------
H.R. 5038 also excuses individuals who failed to attend
removal proceedings, or who were removed and unlawfully
reentered after such removal. Individuals ``who without
reasonable cause fail[ed] or refus[ed] to attend'' removal
proceedings--and who would therefore be inadmissible for five
years after such alien's departure or removal--are still
eligible to apply for CAW status.\45\ Aliens who are
inadmissible because they have been previously removed from the
United States are eligible to apply for CAW status as well,
even if they unlawfully reentered after removal,\46\ so long as
they illegally reentered before November 12, 2019, the date of
introduction.\47\ Spouses and children of aliens eligible to
apply for CAW status will be eligible for such dependent status
even if they are living outside the United States subsequent to
a prior removal.\48\
---------------------------------------------------------------------------
\45\H.R. 5038, Section 101(b)(1)(B) and (C).
\46\H.R. 5038, Section 101(b)(1)(C) (``paragraphs (6)(B) [failure
to attend removal proceedings] and (9)(A) [5/10/20 year inadmissibility
after removal] of such section 212(a) shall not apply unless the
relevant conduct began on or after the date of filing of the
application for certified agricultural worker status.'').
\47\H.R. 5038, Section 101(a)(1)(C).
\48\H.R. 5038, Section 101(a)(2).
---------------------------------------------------------------------------
H.R. 5038 purports to contain anti-fraud measures,\49\ but
in fact sets up an adjudications process that incentivizes
fraud. As a threshold matter, there is an enormous incentive
for an illegal alien to file an application under this bill,
even if the individual is not eligible, as the applicant
receives immediate work authorization, protection from removal,
and the ability to travel outside the United States with
permission upon filing. Even if the application contains no
false statements, USCIS can expect to receive many applications
filed by ineligible individuals merely seeking work
authorization and protection from removal.
---------------------------------------------------------------------------
\49\H.R. 5038, Sections 130(a) (creating 5-year criminal penalty
for anyone who commits fraud in a CAW application or CAW adjustment
application), 105(b)(1) (penalty for false statement by employer in
record not to exceed $500 per violation), 127(d) (protections for
employers who provide records do not apply if records are fraudulent).
---------------------------------------------------------------------------
H.R. 5038 contains several provisions which could
incentivize fraudulent applications. For example, it contains a
provision which permits the alien to withdraw their application
without prejudice to any future application the applicant may
file, and requires the DHS to close the case and cease
processing the application.\50\ The bill also prohibits
disclosure or use of information provided in an application for
CAW status or adjustment of status ``for the purpose of
immigration enforcement''.\51\ The DHS secretary may not refer
an applicant to U.S. Immigration and Customs Enforcement or
U.S. Customs and Border Protection for enforcement action based
on information provided in an application or during
administrative or judicial review of a decision.\52\ The only
exception is sharing with other federal security and law
enforcement agencies for assistance in making a decision on an
application, identifying fraudulent claims, for national
security purposes, or for investigation or prosecution of a
felony not related to immigration status.\53\ Any person who
violates those provisions can be fined up to $10,000.\54\
Similar confidentiality provisions in the 1986 SAW legalization
program incentivized widespread fraud in the program and has
hampered law enforcement efforts.
---------------------------------------------------------------------------
\50\H.R. 5038, Sections 101(c)(6) and 111(e).
\51\H.R. 5038, Section 129(a).
\52\H.R. 5038, Section 129(b).
\53\H.R. 5038, Section 129(c).
\54\H.R. 5038, Section 129(d).
---------------------------------------------------------------------------
The documentary requirements are also very low. Although
employment records from an employer are acceptable evidence
under the bill, those are not required. In fact, evidence of
work history can be proven merely with ``sworn affidavits from
individuals who have direct knowledge of the alien's work
history'', which would presumably include the aliens
themselves.\55\ The bill further directs the DHS secretary to
``establish special procedures to properly credit work in cases
in which an alien was employed under an assumed name.''\56\ The
bill provides that the alien merely has to produce ``sufficient
evidence to show the extent of such employment as a matter of
just and reasonable inference.''\57\ The ``just and reasonable
inference'' standard, previously used by the IRCA legislation
that established the SAW legalization\58\ which was rife with
fraud, is a low standard used in establishing unpaid work for
purposes of the Fair Labor Standards Act. It merely requires an
employee to provide evidence that he or she performed work and
the amount and extent of that work--including by mere
testimonial evidence--and then an employer has the burden to
come forward with evidence of the precise amount of work
performed or with evidence to negate the reasonableness of the
inference to be drawn from the employee's evidence.\59\ This is
a relaxed burden because employees rarely keep work records as
opposed to employers. But in this case, employers are not a
required part of the application process, leaving only the
employee's word in many cases that they worked the required
time and extent of work to be eligible for CAW status.
---------------------------------------------------------------------------
\55\H.R. 5038, Section 126(b)(4).
\56\H.R. 5038, Section 126(a).
\57\H.R. 5038, Section 126(b).
\58\IRCA Section 210(b)(3)(B)(iii) (``An alien can meet such burden
of proof if the alien establishes that the alien has in fact performed
the work described . . . by producing sufficient evidence to show the
extent of that employment as a matter of just and reasonable inference.
. .'').
\59\Anderson v. Mt. Clemens, 328 U.S. 680, 687 (1946).
---------------------------------------------------------------------------
Rep. Buck offered an amendment raising the documentary
evidence standard from ``just and reasonable inference'' to
clear and convincing evidence. This amendment was defeated by
voice vote.
H-2A ``Reform''
Title II of H.R. 5038 purports to reform the H-2A program,
yet leaves open the possibility of ever increasing wages for
growers, and exposes them to new Federal Court litigation.
The bill requires the creation of an electronic platform
through which all H-2A applications and documentation will be
submitted. The Trump administration is already working on such
a platform to streamline the process since at this time those
seeking H-2A workers must submit labor certification
applications to the Department of Labor and the actual H-2A
petition to DHS.\60\ The bill also requires an electronic job
registry of H-2A jobs--something the Trump Administration has
already included in its July 2019, Notice of Proposed
Rulemaking (NPRM) aimed at updating the H-2A program.\61\
---------------------------------------------------------------------------
\60\H.R. 5038, Section 201.
\61\U.S. Department of Labor Notice of Proposed Rulemaking,
Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States, 84 FR 36168, at 36210, July 26, 2019.
---------------------------------------------------------------------------
The bill requires H-2A users to hire U.S. workers up until
the later of 30 days after the work begins or when 33 percent
of the contract time period has passed.\62\ While this is
better than the 50 percent contract time period in place
currently, it is worse than the administration's NPRM that
includes only the 30 day limit.\63\
---------------------------------------------------------------------------
\62\H.R. 5038, Section 202(c).
\63\U.S. Department of Labor Notice of Proposed Rulemaking,
Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States, 84 FR 36168, at 36172, July 26, 2019.
---------------------------------------------------------------------------
H.R. 5038 places into statute the current regulatory
requirement that an employer pay H-2A workers at least the
highest of the following applicable wage rates in effect at the
time work is performed: the agreed-upon collective bargaining
rate, the adverse effect wage rate (AEWR), the prevailing wage
rate (hourly or piece), or the Federal or State minimum
wage.\64\ The current AEWR is set regionally. But H.R. 5038
requires a process known as disaggregation which sets out that
the AEWR is calculated by state and occupational classification
(thus instead of one set wage rate for the entire day, the
employer must pay the AEWR for the time that the employee was
in the field, then the AEWR for the time that the employee was
driving a type of machinery such as a combine, then the AEWR
for the time that the employee was driving a truck on site,
etc.). The administration's NPRM also proposed disaggregation
for the AEWR--which is highly opposed by growers who claim that
it will be very difficult operationally and will, in practice,
result in employers paying the highest wage rate to each
employee.
---------------------------------------------------------------------------
\64\H.R. 5038, Section 202(d).
---------------------------------------------------------------------------
Under the bill, the AEWR must be the annual average hourly
wage: 1) in the State or region as reported by the USDA based
on a wage survey; 2) in the nation as reported by USDA based on
a wage survey; 3) in the state as reported by the DOL based on
a wage survey; or 4) in the nation as reported by the DOL--
whichever is available first in that order.\65\
---------------------------------------------------------------------------
\65\Id.
---------------------------------------------------------------------------
The bill places limits on the AEWR for FY 2020 through FY
2029 by first freezing the AEWR at the FY 2019 level for FY
2020. Then the bill limits any decreases at 1.5 percent each
year and limits increases at 3.25 percent each year through FY
2029. However, if the resulting AEWR is lower than 110% of
minimum wage, the increase is capped as 4.25 percent.\66\
---------------------------------------------------------------------------
\66\Id.
---------------------------------------------------------------------------
H.R. 5038 then requires the Secretaries of Agriculture and
Labor to conduct a study to determine a new wage rate which
should be reported and then a regulation issued to put that
wage rate in effect for after FY 2029. But there is no
requirement that the ``new'' wage rate be any different than
the current AEWR and the bill requires the ``old'' AEWR to be
kept in place until the ``new'' wage rate goes into effect.\67\
Given likely litigation and the seeming similarity between the
``old'' wage rate and the ``new'' wage rate, many growers are
extremely concerned that there will be no wage relief and no
change in the AEWR.
---------------------------------------------------------------------------
\67\Id.
---------------------------------------------------------------------------
In addition--the bill does not cap any of the other
required wage rates. The prevailing wage rate surveys will
continue to be conducted and the minimum wage rate could rise;
thus many growers see the prevailing wage or minimum wage
outpacing the bill's capped AEWR. So the entire capped AEWR on
which the bill's proponents base their claim that they provide
wage relief to growers, is tenuous. In addition, farm worker
unions like the United Farm Workers (UFW) have stated, ``. .
.it is morally wrong and un-American to lower the wages of the
hardworking men and women who sacrifice to feed the
country.''\68\ Yet the UFW was one of the main groups
negotiating this bill and they support the legislation. Would
they ever support a bill that actually provides the wage relief
that H-2A growers need?
---------------------------------------------------------------------------
\68\Press Advisory of La Union Del Pueblo Entero and United Farm
Workers, Protest over Rep. Cuellar's Support of Bill that Would Reduce
Texas Farmworker Wages by $3 per Hour, Sep. 19, 2019.
---------------------------------------------------------------------------
Growers are concerned that the wage structure in the bill
is insufficient to keep wages at a reasonable and consistent
level, particularly as only the AEWR is subject to a cap, and
even then only for ten years. At markup, Rep. Steube offered an
amendment specifying that the wage rate paid would be the
minimum of 115% of the federal minimum wage, or the actual wage
level paid to all other individuals in the job. This amendment
also failed on a party line vote of 15-8.
H.R. 5038 requires employers to provide housing for H-2A
employees as does current law. However, the bill also requires
that the employer provide family housing upon request--which is
not currently a requirement.\69\ It is foreseeable that the
provision of family housing will increase housing costs.
---------------------------------------------------------------------------
\69\H.R. 5038, Section 202(e).
---------------------------------------------------------------------------
H.R. 5038 requires employers to cover the costs of the H-2A
worker's transportation from the worker's home to the consulate
and then to the job site, as well as the trip home. This is
consistent with current H-2A requirements. The bill provides
one exception--if the worker lives within 50 miles of the U.S.
consulate, then the employer does not have to pay for travel to
the consulate.\70\ Thus this bill provides basically no
decrease in travel costs to the employer. The administration's
NPRM only requires the employer to cover the costs of travel
from the consulate to the job site and back\71\--a decrease in
costs that employers appreciate but wish would go further.
---------------------------------------------------------------------------
\70\H.R. 5038, Section 202(f).
\71\U.S. Department of Labor Notice of Proposed Rulemaking,
Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States, 84 FR 36168, at 36194-95, July 26, 2019.
---------------------------------------------------------------------------
H.R. 5038 requires H-2A employers to come up with a heat
illness prevention plan.\72\ Some growers are concerned that
this will lead to litigation. In addition, it is unclear why
only H-2A users should have to have such a plan in place as
opposed to any agricultural employer--including those who are
employing CAW workers who were amnestied.
---------------------------------------------------------------------------
\72\H.R. 5038, Section 202(g).
---------------------------------------------------------------------------
The bill also requires the H-2A petition to be submitted to
the DOL/USDA portal between 75 and 60 days before the date the
work is to commence.\73\ This ``one start date'' approach is
current law and is problematic for some growers who need
additional workers as the season goes on. The bill does permit
staggered entry over 120 days but only for seasonal employment
and only for certain employers such as those at a fixed site.
The NPRM allowed a 14-day start period and staggered entry over
120 days.\74\
---------------------------------------------------------------------------
\73\H.R. 5038, Section 202(h).
\74\U.S. Department of Labor Notice of Proposed Rulemaking,
Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States, 84 FR 36168, at 36199-200, July 26, 2019.
---------------------------------------------------------------------------
Current law requires that if an H-2A labor certification
application is incorrect or is otherwise incomplete, the DOL is
required to issue a Notice of Deficiency (NOD). The employer
can then submit a modified application or request an expedited
administrative review or de novo hearing before an
Administrative Law Judge (ALJ).\75\ The employer is also able
to request an expedited administrative review or de novo
hearing before an ALJ of a denial of the labor certification
application.\76\ H.R. 5038 seems to do away with the NOD
process and allow only and expedited review of an application
that was denied on the basis that DOL believed there were able,
willing, and qualified U.S. workers.\77\
---------------------------------------------------------------------------
\75\20 C.F.R. sec. 655.141.
\76\20 C.F.R. sec. 655.164.
\77\H.R. 5038, Section 202(h).
---------------------------------------------------------------------------
H-2A employers have long been concerned that the DOL does
not understand the agriculture industry or their farming
practices adequately enough to be able to effectively
administer the DOL part of the H-2A program. And they have
pushed for the entire H-2A program to be moved to USDA. During
markup, Rep. Steube offered an amendment to do so, but the
amendment was defeated on a voice vote.
Rep. Steube also offered an amendment to require that DOL
approve labor certification under the H-2A program for certain
workers who perform duties driving trucks as part of the
agricultural process. The amendment was withdrawn when the
Subcommittee Chair agreed to work on the issue with Rep.
Steube.
H.R. 5038 creates two different categories of H-2A visas:
an uncapped seasonal visa and a year-round visa which is
capped.
For the first three years, the year-round visa is capped at
20,000. After the first three years, the year-round cap is to
be determined by the Secretaries of Agriculture and Labor but
cannot increase more than 12.5 percent per year.\78\ This would
place the cap at year ten around 45,000. After year ten, the
Secretaries can set a cap but it must be no lower than the
highest number in the preceding three years. Note that 50
percent of the year-round visas are reserved for the dairy
industry.\79\ The year-round visa is good for three years and
the employer is required to pay for one trip (including travel
and substance during travel) every 14 months. The employer is
required to offer family housing to these workers.\80\
---------------------------------------------------------------------------
\78\H.R. 5038, Section 202(i).
\79\ Id.
\80\Id.
---------------------------------------------------------------------------
The seasonal H-2A (as opposed to the year-round) visa is
valid for three years but the authorized work period is only
for the period of employment in the H-2A petition--not to
exceed 36 months. The H-2A worker must then touch back for a
cumulative period of 45 days. The worker can stay in the U.S.
for 45 days seeking another job when one job has ended provided
that the worker has time left in the 36-month period.\81\
---------------------------------------------------------------------------
\81\H.R. 5038, Section 202(j).
---------------------------------------------------------------------------
H.R. 5038 allows any person or organization to file a
complaint with DOL regarding an H-2A employer's alleged lack of
compliance with program requirements. The DOL can then award
back wages, penalties, and damages. A complaint filed with DOL
does not preclude additional legal remedies.\82\
---------------------------------------------------------------------------
\82\H.R. 5038, Section 202(m).
---------------------------------------------------------------------------
H.R. 5038 places--for the first time--H-2A employers under
the requirements of the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA).\83\ The sole purpose for this is
to subject H-2A employers to the federal private right of
action in MSPA.\84\ Under MSPA, the court can appoint an
attorney for the plaintiffs.\85\ And the court can award
damages: ``up to and including an amount equal to the amount of
actual damages, or statutory damages of up to $500 per
plaintiff per violation, or other equitable relief. . . .''\86\
In addition, if the complaint is certified as a class action,
``the court shall award no more than the lesser of up to $500
per plaintiff per violation, or up to $500,000 or other
equitable relief.''\87\
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\83\ H.R. 5038, Section 204(b).
\84\29 U.S.C. sec. 1854.
\85\Id.
\86\Id.
\87\Id.
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The proponents of the bill claim that employers are not
disadvantaged because the lawsuits are subject to ``mandatory
mediation.'' However, a reading of the text proves that it is
not mandatory. Any party can request mediation and if
requested, the other party must ``attempt'' mediation.\88\ But
there is a 90-day limit on the mediation attempt and there is
no requirement that the claim be resolved through mediation.
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\88\H.R. 5038, Section 204(b).
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Growers are extremely concerned about the additional
Federal Court litigation exposure H-2A users will have under
this bill. At markup, Ranking Member Collins offered an
amendment to strike the provisions of H.R. 5038 that subjected
H-2A users to litigation under MSPA, but that amendment was
defeated by a vote of 16-8, with no Democrat support. After
that amendment was defeated, Ranking Member Collins offered an
amendment which left in the provisions subjecting H-2A users to
MSPA, but offered the employer a right to cure the alleged
violation and submit evidence of such cure within 5 days of
receiving the complaint. If the reviewing court was satisfied
that the deficiency had been remedied, the complaint could be
dismissed. Again, Democrats defeated this reasonable amendment
by a vote of 16-9.
The bill requires the Secretaries of DHS, Agriculture, and
Labor to create a six-year pilot program allowing portability
of H-2A workers. The program is capped at 10,000.\89\
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\89\H.R. 5038, Section 206.
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H.R. 5038 turns the temporary agricultural worker visa into
a permanent immigration program by providing a new allocation
of 40,000 green cards for H-2A per year in perpetuity.\90\
These workers must have for at least 575 hours in agriculture
in each year of a ten-year period. They can then self-petition
for their green card as opposed to an employer petitioning for
them.\91\
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\90\H.R. 5038, Section 207.
\91\Id.
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Title II, Subtitle B of H.R. 5038 contains a bill
previously introduced by Rep. Clay which is Financial Services
jurisdiction, and which amends several rural housing programs.
But sections 228-231 are new and authorize millions of new
dollars in assistance for farmworker housing. Section 231 also
makes CAW workers eligible for rental assistance and housing
vouchers.
Title II, Subtitle C creates a foreign labor contractor-
type foreign labor recruiting registration and enforcement
process that requires the recruiter to register and post bonds,
requires the employer to report recruiters it uses and any
violations of compliance, creates a complaint process within
DOL. It also authorizes a private right of action that allows
damages in the amount of actual damages plus $1000. per
plaintiff per violation, and if a class is certified the actual
damages plus $1000. per plaintiff per violation or up to
$500,000. In addition, it authorizes Legal Services Corporation
to represent an alien who files suit against an employer. This
creates a new area of legal liability for growers based on
violations of recruiters that occur abroad.
E-Verify for Agriculture Only
Title III of H.R. 5038 requires agricultural employers to
use E-Verify to determine whether their newly hired employees
are eligible to work in the United States. It phases in use in
three-month increments for businesses based on the number of
employees of the business.
While the bill contains many similar provisions to that of
the Legal Workforce Act which this Committee has marked up four
times over the last several Congresses, it has many minor and
some very significant changes.
For instance, the bill does not allow employers to use E-
Verify prior to the date of hire but rather the employer is
forced to hire the person and then determine work eligibility.
H.R. 5038 allows an employee to appeal a nonconfirmation to
federal district court as opposed to just administratively.
This means that employer must continue to invest resources into
the employee for the entire time the litigation is pending only
to have to ultimately fire that individual.
H.R. 5038 also contains a provision that is unworkable--
that DHS ensure that E-Verify provides direct notification of
an inquiry to an individual with respect to whom the inquiry is
made, meaning that DHS must notify the employee directly.\92\
This proves a fundamental misunderstanding of how E-Verify
works. The employer inputs information and makes the inquiry--
not the employee. Unless the employee provides direct contact
information, DHS cannot provide such notification. Thus, for
DHS to be required to provide it, could potentially extensively
delay the implementation of E-Verify and thus the ability to
use it.
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\92\H.R. 5038, Section 301(a).
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Conclusion
Last Congress, House Republicans put forth a bill including
agricultural guest worker reform. Rep. McClintock offered this
bill as an amendment to H.R. 5038 during the markup. The
amendment was withdrawn for germaneness purposes.
Because H.R. 5038 will not provide a durable solution to
the problems facing American agriculture, and because it
rewards illegal immigrants who have chosen to violate our
immigration laws with a green card path to citizenship, I do
not support the bill and urge my colleagues to reject it.
Sincerely,
Doug Collins,
Ranking Member.