American Specialty Agriculture Act - Amends the Immigration and Nationality Act to establish an H-2C nonimmigrant visa for an alien having a residence in a foreign country which he or she has no intention of abandoning and who is coming temporarily (10-month maximum per contract period) to the United States to perform agricultural labor or services, including the pressing of apples for cider on a farm.
Requires an employer or employer association to file an H-2C petition with the Department of Agriculture (USDA) which shall include specified employment-related attestations.
Sets forth provisions regarding: (1) penalties; (2) working conditions, wages, and transportation reimbursement; (3) admissions and extensions of stay; (4) abandonment of employment and worker replacement; (5) legal assistance; and (6) arbitration and mediation.
Requires the Secretary of Agriculture to conduct investigations and random audits of employer work sites.
Requires an employer to guarantee to offer the worker employment for the hourly equivalent of at least 50% of the work hours during the total anticipated period of employment.
Limits the number of annual fiscal year H-2C admissions. Prohibits the admission of spouses and children of H-2C workers.
Extends coverage under the Migrant and Seasonal Agricultural Worker Protection Act to H-2C workers.
Makes the provisions of this Act effective two years after its enactment. Terminates authority to petition for H-2A temporary agricultural workers two years after enactment of this Act.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2847 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2847
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 7, 2011
Mr. Smith of Texas introduced the following bill; which was referred to
the Committee on the Judiciary, and in addition to the Committee on
Education and the Workforce, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as
fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Specialty Agriculture
Act''.
SEC. 2. H-2C TEMPORARY AGRICULTURAL WORK VISA PROGRAM.
Section 101(a)(15)(H) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)) is amended by striking ``; or (iii)'' and
inserting ``, or (c) having a residence in a foreign country which he
has no intention of abandoning who is coming temporarily to the United
States to perform agricultural labor or services that are defined as
agricultural labor in section 3121(g) of the Internal Revenue Code of
1986, as agriculture in section 3(f) of the Fair Labor Standards Act of
1938 (29 U.S.C. 203(f)), and the pressing of apples for cider on a
farm; or (iii)''.
SEC. 3. ADMISSION OF TEMPORARY H-2C WORKERS.
(a) Procedure for Admission.--Chapter 2 of title II of the
Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
inserting after section 218 the following:
``SEC. 218A. ADMISSION OF TEMPORARY H-2C WORKERS.
``(a) Definitions.--In this section:
``(1) Area of employment.--The term `area of employment'
means the area within normal commuting distance of the worksite
or physical location where the work of the H-2C worker is or
will be performed. If such work site or location is within a
Metropolitan Statistical Area, any place within such area shall
be considered to be within the area of employment.
``(2) Displace.--The term `displace' means to lay off a
worker from a job that is essentially equivalent to the job for
which an H-2C worker is sought. A job shall not be considered
to be `essentially equivalent' to another job unless the job--
``(A) involves essentially the same
responsibilities as such other job;
``(B) was held by a United States worker with
substantially equivalent qualifications and experience;
and
``(C) is located in the same area of employment as
the other job.
``(3) Eligible individual.--The term `eligible individual'
means an individual who is not an unauthorized alien (as
defined in section 274A(h)(3)) with respect to the employment
of the individual.
``(4) Employer.--The term `employer' means an employer who
hires workers to perform agricultural employment.
``(5) H-2C worker.--The term `H-2C worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(c).
``(6) Lay off.--
``(A) In general.--The term `lay off'--
``(i) means to cause a worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in paragraph (3) of
subsection (b)); and
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under subsection (b)(7),
with either employer described in such
subsection) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
``(B) Construction.--Nothing in this paragraph is
intended to limit an employee's rights under a
collective bargaining agreement or other employment
contract.
``(7) Prevailing wage.--The term `prevailing wage' means
the wage rate paid to workers in the same occupation in the
area of employment that is calculated using the same
methodology used by the Department of Labor to determine
prevailing wages for the purpose of the program described in
section 101(a)(15)(H)(ii)(b) on January 1, 2011, except that if
the wage rate is determined by means of a governmental survey,
the survey shall provide at least four levels of wages
commensurate with factors such as experience, qualifications,
and the level of supervision (except that where an existing
government survey has only 2 levels, 2 intermediate levels may
be created by dividing by 3, the difference between the 2
levels offered, adding the quotient thus obtained to the first
level and subtracting that quotient from the second level), and
that if the wage rate is determined by a survey that provides
at least four levels of wages commensurate with factors such as
experience, qualifications and the level of supervision, the
prevailing wage shall be equal to the first wage level.
``(8) United states worker.--The term `United States
worker' means any worker who is--
``(A) a citizen or national of the United States;
or
``(B) an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207, is granted asylum under section 208, or is
an immigrant otherwise authorized, by this Act or by
the Secretary of Homeland Security, to be employed.
``(b) Petition.--An employer, or an association acting as an agent
or joint employer for its members, that seeks the admission into the
United States of an H-2C worker shall file with the Secretary of
Agriculture a petition attesting to the following:
``(1) Temporary work or services.--
``(A) In general.--The employer is seeking to
employ a specific number of agricultural workers on a
temporary basis and will provide compensation to such
workers at a specified wage rate.
``(B) Definition.--For purposes of this paragraph,
a worker is employed on a temporary basis if the
employer intends to employ the worker for no longer
than 10 months during any contract period.
``(2) Benefits, wages, and working conditions.--The
employer will provide, at a minimum, the benefits, wages, and
working conditions required by subsection (k) to all workers
employed in the jobs for which the H-2C worker is sought and to
all other temporary workers in the same occupation at the place
of employment.
``(3) Nondisplacement of united states workers.--The
employer did not displace and will not displace a United States
worker employed by the employer during the period of employment
of the H-2C worker and during the 30-day period immediately
preceding such period of employment in the occupation at the
place of employment for which the employer seeks approval to
employ H-2C workers.
``(4) Recruitment.--
``(A) In general.--The employer--
``(i) conducted adequate recruitment in the
area of intended employment before filing the
attestation; and
``(ii) was unsuccessful in locating a
qualified United States worker for the job
opportunity for which the H-2C worker is
sought.
``(B) Other requirements.--The recruitment
requirement under subparagraph (A) is satisfied if the
employer places--
``(i) a local job order with the State
workforce agency serving the local area where
the work will be performed, except that nothing
in this clause shall require the employer to
file an interstate job order under section 653
of title 20, Code of Federal Regulations; and
``(ii) a Sunday advertisement in a
newspaper of general circulation in the area of
intended employment.
``(C) Advertisement requirement.--The advertisement
requirement under subparagraph (B)(ii) is satisfied if
the advertisement--
``(i) names the employer;
``(ii) directs applicants to contact the
employer or their representative;
``(iii) provides a description of the
vacancy that is specific enough to apprise
United States workers of the job opportunity
for which certification is sought;
``(iv) describes the geographic area with
enough specificity to apprise applicants of any
travel requirements and where applicants will
likely have to reside to perform the job; and
``(v) states the rate of pay, which shall
not be less than the wage as described in
subsection (k)(2)(A).
``(D) End of recruitment requirement.--The
requirement to recruit United States workers shall
terminate on the first day of the contract period that
work begins.
``(5) Offers to united states workers.--The employer has
offered or will offer the job for which the H-2C worker is
sought to any eligible United States worker who--
``(A) applies;
``(B) is qualified for the job; and
``(C) will be available at the time and place of
need.
This requirement shall not apply to a United States worker who
applies for the job on or after the first day of the contract
period that work begins.
``(6) Provision of insurance.--If the job for which the H-
2C worker is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker unless State law provides otherwise, insurance covering
injury and disease arising out of, and in the course of, the
worker's employment, which will provide benefits at least equal
to those provided under the State workers' compensation law for
comparable employment.
``(7) Requirements for placement of h-2c workers with other
employers.--A nonimmigrant who is admitted into the United
States as an H-2C worker may be transferred to another employer
that has filed a petition under this subsection and is in
compliance with this section.
``(8) Strike or lockout.--There is not a strike or lockout
in the course of a labor dispute which, under regulations
promulgated by the Secretary of Agriculture, precludes the
hiring of H-2C workers.
``(9) Housing.--Except for H-2C workers who are reasonably
able to return to their permanent residence (either within or
outside the United States) within the same day, the employer
will provide housing to H-2C workers through one of the
following means:
``(A) Employer-owned housing in accordance with
regulations promulgated by the Secretary of
Agriculture.
``(B) Rental or public accommodations or other
substantially similar class of habitation in accordance
with regulations promulgated by the Secretary of
Agriculture.
``(C) Except where the Governor of the State has
certified that there is inadequate housing available in
the area of intended employment for migrant farm
workers and H-2C workers seeking temporary housing
while employed in agricultural work, the employer may
furnish the worker with a housing voucher in accordance
with regulations, if--
``(i) the employer has verified that
housing is available for the period during
which the work is to be performed, within a
reasonable commuting distance of the place of
employment, for the amount of the voucher
provided, and that the voucher is useable for
that housing;
``(ii) upon the request of a worker seeking
assistance in locating housing for which the
voucher will be accepted, the employer makes a
good faith effort to assist the worker in
identifying, locating and securing housing in
the area of intended employment; and
``(iii) payment for the housing is made
with a housing voucher that is only redeemable
by the housing owner or their agent.
An employer who provides housing through one of the foregoing
means shall not be deemed a housing provider under section 203
of the Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1823) by virtue of providing such housing.
``(10) Previous violations.--The employer has not, during
the previous two-year period, employed H-2C workers and
knowingly violated a material term or condition of approval
with respect to the employment of domestic or nonimmigrant
workers, as determined by the Secretary of Agriculture after
notice and opportunity for a hearing.
``(c) Public Examination.--Not later than 1 working day after the
date on which a petition under this section is filed, the employer
shall make a copy of each such petition available for public
examination, at the employer's principal place of business or worksite.
``(d) List.--
``(1) In general.--The Secretary of Agriculture shall
maintain a list of the petitions filed under subsection (b),
which shall--
``(A) be sorted by employer; and
``(B) include the number of H-2C workers sought,
the wage rate, the period of intended employment, and
the date of need for each alien.
``(2) Availability.--The Secretary of Agriculture shall
make the list available for public examination.
``(e) Petitioning for Admission.--
``(1) Consideration of petitions.--For petitions filed and
considered under subsection (b)--
``(A) the Secretary of Agriculture may not require
such petition to be filed more than 28 calendar days
before the first date the employer requires the labor
or services of the H-2C worker;
``(B) unless the Secretary of Agriculture
determines that the petition is incomplete or obviously
inaccurate, the Secretary, not later than 10 business
days after the date on which such petition was filed,
shall either approve or reject the petition and provide
the petitioner with notice of such action by means
ensuring same or next day delivery; and
``(C) if the Secretary determines that the petition
is incomplete or obviously inaccurate, the Secretary
shall--
``(i) within 5 business days of receipt of
the petition, notify the petitioner of the
deficiencies to be corrected by means ensuring
same or next day delivery; and
``(ii) within 10 business days of receipt
of the corrected petition, approve or deny the
petition and provide the petitioner with notice
of such action by means ensuring same or next
day delivery.
``(2) Petition agreements.--By filing an H-2C petition, a
petitioner and each employer consents to allow access to the
site where the labor is being performed to the Department of
Agriculture or the Department of Homeland Security for the
purpose of investigations to determine compliance with H-2C
requirements and the immigration laws. Notwithstanding any
other provision of law, the Departments of Agriculture and
Homeland Security cannot delegate their compliance functions to
other agencies or Departments.
``(f) Roles of Agricultural Associations.--
``(1) Permitting filing by agricultural associations.--A
petition under subsection (b) to hire an alien as a temporary
agricultural worker may be filed by an association of
agricultural employers which use agricultural services.
``(2) Treatment of associations acting as employers.--If an
association is a joint employer of temporary agricultural
workers, such workers may be transferred among its members to
perform agricultural services of a temporary nature for which
the petition was approved.
``(3) Treatment of violations.--
``(A) Individual member.--If an individual member
of a joint employer association violates any condition
for approval with respect to the member's petition, the
Secretary of Agriculture shall consider as an employer
for purposes of subsection (b)(10) and invoke penalties
pursuant to subsection (i) against only that member of
the association unless the Secretary of Agriculture
determines that the association or other member
participated in, had knowledge of, or had reason to
know of the violation.
``(B) Association of agricultural employers.--If an
association representing agricultural employers as a
joint employer violates any condition for approval with
respect to the association's petition, the Secretary of
Agriculture shall consider as an employer for purposes
of subsection (b)(10) and invoke penalties pursuant to
subsection (i) against only the association and not any
individual member of the association, unless the
Secretary determines that the member participated in,
had knowledge of, or had reason to know of the
violation.
``(g) Expedited Administrative Appeals.--The Secretary of
Agriculture shall promulgate regulations to provide for an expedited
procedure--
``(1) for the review of a denial of a petition under this
section by the Secretary; or
``(2) at the petitioner's request, for a de novo
administrative hearing at which new evidence may be introduced.
``(h) Miscellaneous Provisions.--
``(1) Endorsement of documents.--The Secretary of Homeland
Security shall provide for the endorsement of entry and exit
documents of H-2C workers as may be necessary to carry out this
section and to provide notice for purposes of section 274A.
``(2) Fees.--
``(A) In general.--The Secretary of Agriculture
shall require, as a condition of approving the
petition, the payment of a fee, in accordance with
subparagraph (B), to recover the reasonable cost of
processing petitions.
``(B) Fee by type of employee.--
``(i) Single employer.--An employer whose
petition for temporary alien agricultural
workers is approved shall, for each approved
petition, pay a fee that--
``(I) subject to subclause (II), is
equal to $100 plus $10 for each
approved H-2C worker; and
``(II) does not exceed $1,000.
``(ii) Association.--Each employer-member
of a joint employer association whose petition
for H-2C workers is approved shall, for each
such approved petition, pay a fee that--
``(I) subject to subclause (II), is
equal to $100 plus $10 for each
approved H-2C worker; and
``(II) does not exceed $1,000.
``(iii) Limitation on association fees.--A
joint employer association under clause (ii)
shall not be charged a separate fee.
``(C) Method of payment.--The fees collected under
this paragraph shall be paid by check or money order to
the Department of Agriculture. In the case of employers
of H-2C workers that are members of a joint employer
association petitioning on their behalf, the aggregate
fees for all employers of H-2C workers under the
petition may be paid by 1 check or money order.
``(i) Enforcement.--
``(1) Investigations and audits.--The Secretary of
Agriculture shall be responsible for conducting investigations
and random audits of employer work sites to ensure compliance
with the requirements of the H-2C program. All monetary fines
levied against violating employers shall be paid to the
Department of Agriculture and used to enhance the Department of
Agriculture's investigatory and auditing power.
``(2) Failure to meet conditions.--If the Secretary of
Agriculture finds, after notice and opportunity for a hearing,
a failure to meet a condition of subsection (b), or a material
misrepresentation of fact in a petition under subsection (b),
the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $1,000 per violation) as the Secretary
determines to be appropriate; and
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 1 year.
``(3) Penalties for willful failure.--If the Secretary of
Agriculture finds, after notice and opportunity for a hearing,
a willful failure to meet a material condition of subsection
(b), or a willful misrepresentation of a material fact in a
petition under subsection (b), the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $5,000 per violation) as the Secretary
determines to be appropriate;
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 2 years;
``(C) may, for a subsequent violation not arising
out of the prior incident, disqualify the employer from
the employment of H-2C workers for a period of 5 years;
and
``(D) may, for a subsequent violation not arising
out of the prior incident, permanently disqualify the
employer from the employment of H-2C workers.
``(4) Penalties for displacement of united states
workers.--If the Secretary of Agriculture finds, after notice
and opportunity for a hearing, a willful failure to meet a
material condition of subsection (b) or a willful
misrepresentation of a material fact in a petition under
subsection (b), in the course of which failure or
misrepresentation the employer displaced a United States worker
employed by the employer during the period of employment on the
employer's petition under subsection (b) or during the period
of 30 days preceding such period of employment, the Secretary--
``(A) may impose such other administrative remedies
(including civil money penalties in an amount not to
exceed $15,000 per violation) as the Secretary
determines to be appropriate;
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 5 years; and
``(C) may, for a second violation, permanently
disqualify the employer from the employment of H-2C
workers.
``(j) Failure To Pay Wages or Required Benefits.--
``(1) Assessment.--If the Secretary of Agriculture finds,
after notice and opportunity for a hearing, that the employer
has failed to pay the wages, transportation, subsistence
reimbursement, or guarantee of employment attested by the
employer under subsection (b)(2), the Secretary shall assess
payment of back wages, or such other required benefits, due any
United States worker or H-2C worker employed by the employer in
the specific employment in question.
``(2) Amount.--The back wages or other required benefits
described in paragraph (1)--
``(A) shall be equal to the difference between the
amount that should have been paid and the amount that
was paid to such worker; and
``(B) shall be distributed to the worker to whom
such wages are due.
``(k) Minimum Wages, Benefits, and Working Conditions.--
``(1) Preferential treatment of aliens prohibited.--
``(A) In general.--Each employer seeking to hire
United States workers shall offer such workers not less
than the same benefits, wages, and working conditions
that the employer is offering, intends to offer, or
will provide to H-2C workers. No job offer may impose
on United States workers any restrictions or
obligations which will not be imposed on the employer's
H-2C workers.
``(B) Interpretation.--Every interpretation and
determination made under this section or under any
other law, regulation, or interpretative provision
regarding the nature, scope, and timing of the
provision of these and any other benefits, wages, and
other terms and conditions of employment shall be made
so that--
``(i) the services of workers to their
employers and the employment opportunities
afforded to workers by the employers, including
those employment opportunities that require
United States workers or H-2C workers to travel
or relocate in order to accept or perform
employment--
``(I) mutually benefit such
workers, as well as their families, and
employers; and
``(II) principally benefit neither
employer nor employee; and
``(ii) employment opportunities within the
United States benefit the United States
economy.
``(2) Required wages.--
``(A) In general.--Each employer petitioning for
workers under subsection (b) shall pay not less than
the greater of--
``(i) the prevailing wage; or
``(ii) the applicable Federal, State, or
local minimum wage, whichever is greatest.
``(B) Special rule.--An employer can utilize a
piece rate or other alternative wage payment system as
long as the employer guarantees each worker a wage rate
that equals or exceeds the amount required under
subparagraph (A).
``(3) Reimbursement of transportation costs.--
``(A) Requirement for reimbursement.--
``(i) In general.--Except for H-2C workers
who are reasonably able to return to their
permanent residence (either within or outside
the United States) within the same day, an H-2C
worker who completes 50 percent of the period
of employment of the job for which the worker
was hired, beginning on the first day of such
employment, shall be reimbursed by the employer
for the cost of the worker's transportation and
subsistence from--
``(I) the place from which the H-2C
worker was approved to enter the United
States to the location at which the
work for the employer is performed; or
``(II) if the H-2C worker traveled
from a place in the United States at
which the H-2C worker was last
employed, from such place of last
employment to the location at which the
work for the employer is performed.
``(ii) Construction.--Notwithstanding the
Fair Labor Standards Act of 1938 (29 U.S.C. 201
et seq.), the employer need not reimburse the
cost of the H-2C worker's transportation and
subsistence unless the worker has completed 50
percent of the period of employment of the job
for which the workers was hired.
``(B) Timing of reimbursement.--Reimbursement to
the worker of expenses for the cost of the worker's
transportation and subsistence to the place of
employment under subparagraph (A) shall be considered
timely if such reimbursement is made not later than the
worker's first regular payday after a worker completes
50 percent of the period of employment of the job
opportunity as provided under this paragraph.
``(C) Additional reimbursement.--Except for H-2C
workers who are reasonably able to return to their
permanent residence (either within or outside the
United States) within the same day, an H-2C worker who
completes the period of employment for the job
opportunity involved shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the work site to the place where
the worker was approved to enter the United States to
work for the employer. If the worker has contracted
with a subsequent employer, the previous and subsequent
employer shall share the cost of the worker's
transportation and subsistence from work site to work
site.
``(D) Limitation.--
``(i) Amount of reimbursement.--The amount
of reimbursement provided to a worker or alien
under this paragraph shall be equal to the
lesser of--
``(I) the actual cost to the worker
or alien of the transportation and
subsistence involved; or
``(II) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
``(ii) Distance traveled.--No reimbursement
under subparagraph (A) or (B) shall be required
if the distance traveled is 100 miles or less.
``(E) Reimbursement for laid off workers.--If the
worker is laid off or employment is terminated for
contract impossibility (as described in paragraph
(5)(D)) before the anticipated ending date of
employment, the employer shall provide--
``(i) the transportation and subsistence
reimbursement required under subparagraph (C);
and
``(ii) notwithstanding whether the worker
has completed 50 percent of the period of
employment, the transportation and subsistence
reimbursement required under subparagraph (A).
``(F) Construction.--Notwithstanding the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.), the
employer is not required to reimburse visa, passport,
consular, or international border crossing fees or any
other fees associated with the H-2C worker's lawful
admission into the United States to perform employment
that may be incurred by the worker.
``(4) Employment guarantee.--
``(A) In general.--
``(i) Requirement.--Each employer
petitioning for workers under subsection (b)
shall guarantee to offer the worker employment
for the hourly equivalent of not less than 50
percent of the work hours during the total
anticipated period of employment, beginning
with the first work day after the arrival of
the worker at the place of employment and
ending on the expiration date specified in the
job offer.
``(ii) Failure to meet guarantee.--If the
employer affords the United States worker or
the H-2C worker less employment than that
required under this subparagraph, the employer
shall pay such worker the amount which the
worker would have earned if the worker had
worked for the guaranteed number of hours.
``(iii) Period of employment.--For purposes
of this subparagraph, the term `period of
employment' means the total number of
anticipated work hours and workdays described
in the job offer and shall exclude the worker's
Sabbath and Federal holidays.
``(B) Calculation of hours.--Any hours which the
worker fails to work, up to a maximum of the number of
hours specified in the job offer for a work day, when
the worker has been offered an opportunity to do so,
and all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Limitation.--If the worker voluntarily
abandons employment before the end of the contract
period, or is terminated for cause, the worker is not
entitled to the 50 percent guarantee described in
subparagraph (A).
``(D) Termination of employment.--
``(i) In general.--If, before the
expiration of the period of employment
specified in the job offer, the services of the
worker are no longer required due to any form
of natural disaster, including flood,
hurricane, freeze, earthquake, fire, drought,
plant or animal disease, pest infestation,
regulatory action, or any other reason beyond
the control of the employer before the
employment guarantee in subparagraph (A) is
fulfilled, the employer may terminate the
worker's employment.
``(ii) Requirements.--If a worker's
employment is terminated under clause (i), the
employer shall--
``(I) fulfill the employment
guarantee in subparagraph (A) for the
work days that have elapsed during the
period beginning on the first work day
after the arrival of the worker and
ending on the date on which such
employment is terminated;
``(II) make efforts to transfer the
United States worker to other
comparable employment acceptable to the
worker; and
``(III) not later than 24 hours
after termination, notify (or have an
association acting as an agent for the
employer notify) the Secretary of
Homeland Security of such termination.
``(l) Period of Admission.--
``(1) In general.--An H-2C worker shall be admitted for a
period of employment, not to exceed 10 months, that includes--
``(A) a period of not more than 7 days prior to the
beginning of the period of employment for the purpose
of travel to the work site; and
``(B) a period of not more than 14 days following
the period of employment for the purpose of departure
or extension based on a subsequent offer of employment.
``(2) Employment limitation.--An alien may not be employed
during the 14-day period described in paragraph (1)(B) except
in the employment for which the alien is otherwise authorized.
``(m) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)(15)(H)(ii)(c) who abandons the employment
which was the basis for such admission or status--
``(A) shall have failed to maintain nonimmigrant
status as an H-2C worker; and
``(B) shall depart the United States or be subject
to removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--Not later than 24 hours after an
employer learns of the abandonment of employment by an H-2C
worker, the employer or association acting as an agent for the
employer, shall notify the Secretary of Homeland Security of
such abandonment.
``(3) Removal.--The Secretary of Homeland Security shall
promptly remove from the United States any H-2C worker who
violates any term or condition of the worker's nonimmigrant
status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate the alien's employment
if the alien promptly departs the United States upon
termination of such employment.
``(n) Replacement of Alien.--An employer may designate an eligible
alien to replace an H-2C worker who abandons employment notwithstanding
the numerical limitation found in section 214(g)(1)(C).
``(o) Extension of Stay of H-2C Workers in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an H-2C worker who is lawfully present in the United
States, the petition filed by the employer or an association
pursuant to subsection (b) shall request an extension of the
alien's stay and, if applicable, a change in the alien's
employment.
``(2) Work authorization upon filing petition for extension
of stay.--
``(A) In general.--An alien who is lawfully present
in the United States on the date of the filing of a
petition to extend the stay of the alien may commence
or continue the employment described in a petition
under paragraph (1) until and unless the petition is
denied. The employer shall provide a copy of the
employer's petition for extension of stay to the alien.
The alien shall keep the petition with the alien's
identification and employment eligibility document, as
evidence that the petition has been filed and that the
alien is authorized to work in the United States.
``(B) Employment eligibility document.--Upon
approval of a petition for an extension of stay or
change in the alien's authorized employment, the
Secretary of Homeland Security shall provide a new or
updated employment eligibility document to the alien
indicating the new validity date, after which the alien
is not required to retain a copy of the petition.
``(C) File defined.--In this paragraph, the term
`file' means sending the petition by certified mail via
the United States Postal Service, return receipt
requested, or delivering by guaranteed commercial
delivery which will provide the employer with a
documented acknowledgment of the date of receipt of the
petition for an extension of stay.
``(3) Limitation on an individual's stay in status.--
``(A) Maximum period.--The maximum continuous
period of authorized status as an H-2C worker
(including any extensions) is 10 months.
``(B) Requirement to remains outside the united
states.--In the case of an alien outside the United
States whose period of authorized status as an H-2C
worker (including any extensions) has expired, the
alien may not again apply for admission to the United
States as an H-2C worker unless the alien has remained
outside the United States for a continuous period equal
to at least \1/5\ the duration of the alien's previous
period of authorized status as an H-2C worker
(including any extensions).''.
(b) Prohibition on Family Members.--Section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by
striking ``him;'' at the end and inserting ``him, except that no spouse
or child may be admitted under clause (ii)(c);''.
(c) Numerical Cap.--Section 214(g)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(1)) is amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(C) under section 1101(a)(15)(H)(ii)(c) may not
exceed 500,000.''.
(d) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 218 the following:
``Sec. 218A. Admission of temporary H-2C workers.''.
SEC. 4. LEGAL ASSISTANCE.
(a) In General.--A nonimmigrant worker admitted to or permitted to
remain in the United States under section 101(a)(15)(H)(ii)(c) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) 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 job
offer under which the nonimmigrant was admitted. The Legal Services
Corporation may not provide legal assistance for or on behalf of any
such alien, and may not provide financial assistance to any person or
entity that provides legal assistance for or on behalf of such alien,
unless the alien is present in the United States at the time the legal
assistance is provided.
(b) Mediation.--An H-2C worker may not bring a civil action for
damages against their employer, nor may the Legal Services Corporation
or any other attorney or individual bring a civil action for damages on
behalf of an H-2C worker, unless at least 90 days prior to bringing the
action a request has been made to the Federal Mediation and
Conciliation Service to assist the parties in reaching a satisfactory
resolution of all issues involving all parties to the dispute and
mediation has been attempted.
(c) Condition for Entry Onto Property for Legal Services
Corporation Representation.--No employer of a nonimmigrant having
status under section 101(a)(15)(H)(ii)(c) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) shall be required to
permit any recipient of a grant or contract under section 1007 of the
Legal Services Corporation Act (42 U.S.C. 2996f), or any employee of
such a recipient, to enter upon the employer's property, unless such
recipient or employee has a pre-arranged appointment with a specific
nonimmigrant having such status.
SEC. 5. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION.
Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1802(8)(B)(ii)) is amended by striking
``under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and
Nationality Act.'' and inserting ``under subclauses (a) and (c) of
section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and
Nationality Act.''.
SEC. 6. ARBITRATION AND MEDIATION.
(a) Applicability.--Any H-2C worker may, as a condition of
employment with an employer, be subject to mandatory binding
arbitration and mediation of any grievance relating to the employment
relationship. An employer shall provide any such worker with notice of
such condition of employment at the time the job offer is made.
(b) Allocation of Costs.--Any cost associated with such arbitration
and mediation process shall be equally divided between the employer and
the H-2C worker, except that each party shall be responsible for the
cost of its own counsel, if any.
(c) Definitions.--As used in this section:
(1) The term ``condition of employment'' means a term,
condition, obligation, or requirement that is part of the job
offer, such as the term of employment, the job
responsibilities, the employee conduct standards, and the
grievance resolution process, and to which an applicant or
prospective H-2C worker must consent or accept in order to be
hired for the position.
(2) The term ``H-2C worker'' means a nonimmigrant described
in section 101(a)(15)(H)(ii)(c) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(ii)(c)).
SEC. 7. EFFECTIVE DATE; SUNSET; REGULATIONS.
(a) Effective Date.--The amendments made by this Act shall take
effect on the date that is 2 years after the date of the enactment of
this Act, and the Secretary of Agriculture shall accept petitions to
import an alien under sections 101(a)(15)(H)(ii)(c) and 218A of the
Immigration and Nationality Act (as added by sections 2 and 3 of this
Act) beginning on such date.
(b) Sunset.--Beginning on the date that is 2 years after the date
of the enactment of this Act, no new petition to import an alien under
sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall
be accepted. The Department of Labor H-2A program regulations published
at 73 Fed. Reg. 77110 et seq. (2008) shall be in force for all
petitions approved under such sections beginning on the date of the
enactment of this Act.
(c) Regulations.--Not later than 18 months after the date of the
enactment of this Act, the Secretary of Agriculture shall promulgate
regulations, in accordance with the notice and comment provisions of
section 553 of title 5, United States Code, to implement the
Secretary's duties under this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Subcommittee Hearings Held.
Referred to the Subcommittee on Immigration Policy and Enforcement.
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