Agricultural Guestworker Act or the AG Act
This bill amends the Immigration and Nationality Act to establish a new H-2C nonimmigrant visa for aliens having a residence in a foreign country which they have no intention of abandoning and who are coming temporarily to the United States to perform agricultural labor or services.
An employer seeking to employ aliens as H-2C workers must file a petition with the Department of Homeland Security and provide required information.
The maximum period of authorized status for temporary or seasonal H-2C workers is 18 months. For aliens not employed as temporary or seasonal workers, the maximum initial period is 36 months with subsequent periods of 18 months.
A trust fund is established to provide a monetary incentive for H-2C workers to return to their countries of origin upon expiration of their visas.
The bill establishes annual fiscal year H-2C admission limits.
The bill also sets forth provisions regarding: (1) penalties for failure to pay wages or required benefits, (2) working conditions and wages, (3) admissions and extensions of stay, (4) abandonment of employment and worker replacement, (5) protection of U.S. workers, and (6) arbitration and mediation of employment-related claims of H-2C workers.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4092 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 4092
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 23, 2017
Mr. Goodlatte (for himself, Mr. Marshall, Mr. Arrington, Mr. Cramer,
Mr. Thompson of Pennsylvania, Mr. Duffy, Mr. Rouzer, Mr. Bishop of
Utah, Mr. Gibbs, Mr. Gallagher, and Mr. Barr) introduced the following
bill; which was referred to the Committee on the Judiciary, and in
addition to the Committees on Education and the Workforce, and Ways and
Means, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To create a nonimmigrant H-2C work visa program for agricultural
workers, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as--
(1) the ``Agricultural Guestworker Act''; or
(2) the ``AG Act''.
SEC. 2. H-2C TEMPORARY AGRICULTURAL WORK VISA PROGRAM.
(a) In General.--Section 101(a)(15)(H) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking ``; or
(iii)'' and inserting ``, or (c) having a residence in a foreign
country which he has no intention of abandoning who is coming
temporarily to the United States to perform agricultural labor or
services; or (iii)''.
(b) Definition.--Section 101(a) of such Act (8 U.S.C. 1101(a)) is
amended by adding at the end the following:
``(53) The term `agricultural labor or services' has the meaning
given such term by the Secretary of Agriculture in regulations and
includes--
``(A) agricultural labor as defined in section 3121(g) of
the Internal Revenue Code of 1986;
``(B) agriculture as defined in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f));
``(C) the handling, planting, drying, packing, packaging,
processing, freezing, or grading prior to delivery for storage
of any agricultural or horticultural commodity in its
unmanufactured state;
``(D) all activities required for the preparation,
processing or manufacturing of a product of agriculture (as
such term is defined in such section 3(f)) for further
distribution;
``(E) forestry-related activities;
``(F) aquaculture activities; and
``(G) the primary processing of fish or shellfish.''.
SEC. 3. ADMISSION OF TEMPORARY H-2C WORKERS.
(a) Procedure for Admission.--Chapter 2 of title II of the
Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
inserting after section 218 the following:
``SEC. 218A. ADMISSION OF TEMPORARY H-2C WORKERS.
``(a) Definitions.--In this section and section 218B:
``(1) Displace.--The term `displace' means to lay off a
United States worker from the job for which H-2C workers are
sought.
``(2) Job.--The term `job' refers to all positions with an
employer that--
``(A) involve essentially the same
responsibilities;
``(B) are held by workers with substantially
equivalent qualifications and experience; and
``(C) are located in the same place or places of
employment.
``(3) Employer.--The term `employer' includes a single or
joint employer, including an association acting as a joint
employer with its members, who hires workers to perform
agricultural labor or services.
``(4) Forestry-related activities.--The term `forestry-
related activities' includes tree planting, timber harvesting,
logging operations, brush clearing, vegetation management,
herbicide application, the maintenance of rights-of-way
(including for roads, trails, and utilities), regardless of
whether such right-of-way is on forest land, and the harvesting
of pine straw.
``(5) H-2C worker.--The term `H-2C worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(c).
``(6) Lay off.--
``(A) In general.--The term `lay off'--
``(i) means to cause a worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in paragraph (4) of
subsection (b)); and
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar position
with the same employer at equivalent or higher
wages and benefits than the position from which
the employee was discharged, regardless of
whether or not the employee accepts the offer.
``(B) Construction.--Nothing in this paragraph is
intended to limit an employee's rights under a
collective bargaining agreement or other employment
contract.
``(7) United states worker.--The term `United States
worker' means any worker who is--
``(A) a citizen or national of the United States;
or
``(B) an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207, or is granted asylum under section 208.
``(8) Special procedures industry.--The term `special
procedures industry' includes sheepherding, goat herding, and
the range production of livestock, itinerant commercial
beekeeping and pollination, itinerant animal shearing, and
custom combining and harvesting.
``(b) Petition.--An employer that seeks to employ aliens as H-2C
workers under this section shall file with the Secretary of Homeland
Security a petition attesting to the following:
``(1) Offer of employment.--The employer will offer
employment to the aliens on a contractual basis as H-2C workers
under this section for a specific period of time during which
the aliens may not work on an at-will basis (as provided for in
section 218B), and such contract shall only be required to
include a description of each place of employment, period of
employment, wages and other benefits to be provided, and the
duties of the positions.
``(2) Temporary labor or services.--
``(A) In general.--The employer is seeking to
employ a specific number of H-2C workers on a temporary
basis and will provide compensation to such workers at
a wage rate no less than that set forth in subsection
(k)(2).
``(B) Definition.--For purposes of this paragraph,
a worker is employed on a temporary basis if the
employer intends to employ the worker for no longer
than the time period set forth in subsection (n)(1)
(subject to the exceptions in subsection (n)(3)).
``(3) Benefits, wages, and working conditions.--The
employer will provide, at a minimum, the benefits, wages, and
working conditions required by subsection (k) to all workers
employed in the job for which the H-2C workers are sought.
``(4) Nondisplacement of united states workers.--The
employer did not displace and will not displace United States
workers employed by the employer during the period of
employment of the H-2C workers and during the 30-day period
immediately preceding such period of employment in the job for
which the employer seeks approval to employ H-2C workers.
``(5) Recruitment.--
``(A) In general.--The employer--
``(i) conducted adequate recruitment before
filing the petition; and
``(ii) was unsuccessful in locating
sufficient numbers of willing and qualified
United States workers for the job for which the
H-2C workers are sought.
``(B) Other requirements.--The recruitment
requirement under subparagraph (A) is satisfied if the
employer places a local job order with the State
workforce agency serving each place of employment,
except that nothing in this subparagraph shall require
the employer to file an interstate job order under
section 653 of title 20, Code of Federal Regulations.
The State workforce agency shall post the job order on
its official agency website for a minimum of 30 days
and not later than 3 days after receipt using the
employment statistics system authorized under section
15 of the Wagner-Peyser Act (29 U.S.C. 49l-2). The
Secretary of Labor shall include links to the official
Web sites of all State workforce agencies on a single
webpage of the official Web site of the Department of
Labor.
``(C) End of recruitment requirement.--The
requirement to recruit United States workers for a job
shall terminate on the first day that work begins for
the H-2C workers.
``(6) Offers to united states workers.--The employer has
offered or will offer the job for which the H-2C workers are
sought to any eligible United States workers who--
``(A) apply;
``(B) are qualified for the job; and
``(C) will be available at the time, at each place,
and for the duration, of need.
This requirement shall not apply to United States workers who
apply for the job on or after the first day that work begins
for the H-2C workers.
``(7) Provision of insurance.--If the job for which the H-
2C workers are sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
workers unless State law provides otherwise, insurance covering
injury and disease arising out of, and in the course of, the
workers' employment, which will provide benefits at least equal
to those provided under the State workers compensation law for
comparable employment.
``(8) Strike or lockout.--The job that is the subject of
the petition is not vacant because the former workers in that
job are on strike or locked out in the course of a labor
dispute.
``(c) Public Examination.--Not later than 1 working day after the
date on which a petition under this section is filed, the employer
shall make the petition available for public examination, at the
employer's principal place of employment.
``(d) List.--
``(1) In general.--The Secretary of Homeland Security shall
maintain a list of the petitions filed under this subsection,
which shall--
``(A) be sorted by employer; and
``(B) include the number of H-2C workers sought,
the wage rate, the period of employment, each place of
employment, and the date of need for each alien.
``(2) Availability.--The Secretary of Homeland Security
shall make the list available for public examination.
``(e) Petitioning for Admission.--
``(1) Consideration of petitions.--For petitions filed and
considered under this subsection--
``(A) the Secretary of Homeland Security may not
require such petition to be filed more than 28 days
before the first date the employer requires the labor
or services of H-2C workers;
``(B) unless the Secretary of Homeland Security
determines that the petition is incomplete or obviously
inaccurate, the Secretary, not later than 10 business
days after the date on which such petition was filed,
shall either approve or reject the petition and provide
the petitioner with notice of such action by means
ensuring same or next day delivery; and
``(C) if the Secretary determines that the petition
is incomplete or obviously inaccurate, the Secretary
shall--
``(i) within 5 business days of receipt of
the petition, notify the petitioner of the
deficiencies to be corrected by means ensuring
same or next day delivery; and
``(ii) within 5 business days of receipt of
the corrected petition, approve or deny the
petition and provide the petitioner with notice
of such action by means ensuring same or next
day delivery.
``(2) Access.--By filing an H-2C petition, the petitioner
and each employer (if the petitioner is an association that is
a joint employer of workers who perform agricultural labor or
services) consent to allow access to each place of employment
to the Department of Agriculture and the Department of Homeland
Security for the purpose of investigations and audits to
determine compliance with the immigration laws (as defined in
section 101(a)(17)).
``(f) Roles of Agricultural Associations.--
``(1) Treatment of associations acting as employers.--If an
association is a joint employer of workers who perform
agricultural labor or services, H-2C workers may be transferred
among its members to perform the agricultural labor or services
on a temporary basis for which the petition was approved.
``(2) Treatment of violations.--
``(A) Individual member.--If an individual member
of an association that is a joint employer commits a
violation described in paragraph (2) or (3) of
subsection (i) or subsection (j)(1), the Secretary of
Agriculture shall invoke penalties pursuant to
subsections (i) and (j) against only that member of the
association unless the Secretary of Agriculture
determines that the association participated in, had
knowledge of, or had reason to know of the violation.
``(B) Association of agricultural employers.--If an
association that is a joint employer commits a
violation described in subsections (i)(2) and (3) or
(j)(1), the Secretary of Agriculture shall invoke
penalties pursuant to subsections (i) and (j) against
only the association and not any individual members of
the association, unless the Secretary determines that
the member participated in the violation.
``(g) Expedited Administrative Appeals.--The Secretary of Homeland
Security shall promulgate regulations to provide for an expedited
procedure for the review of a denial of a petition under this section
by the Secretary. At the petitioner's request, the review shall include
a de novo administrative hearing at which new evidence may be
introduced.
``(h) Fees.--The Secretary of Homeland Security shall require, as a
condition of approving the petition, the payment of a fee to recover
the reasonable cost of processing the petition.
``(i) Enforcement.--
``(1) Investigations and audits.--The Secretary of
Agriculture shall be responsible for conducting investigations
and audits, including random audits, of employers to ensure
compliance with the requirements of the H-2C program. All
monetary fines levied against employers shall be paid to the
Department of Agriculture and used to enhance the Department of
Agriculture's investigative and auditing abilities to ensure
compliance by employers with their obligations under this
section.
``(2) Violations.--If the Secretary of Agriculture finds,
after notice and opportunity for a hearing, a failure to
fulfill an attestation required by this subsection, or a
material misrepresentation of a material fact in a petition
under this subsection, the Secretary--
``(A) may impose such administrative remedies
(including civil money penalties in an amount not to
exceed $1,000 per violation) as the Secretary
determines to be appropriate; and
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 1 year.
``(3) Willful violations.--If the Secretary of Agriculture
finds, after notice and opportunity for a hearing, a willful
failure to fulfill an attestation required by this subsection,
or a willful misrepresentation of a material fact in a petition
under this subsection, the Secretary--
``(A) may impose such administrative remedies
(including civil money penalties in an amount not to
exceed $5,000 per violation, or not to exceed $15,000
per violation if in the course of such failure or
misrepresentation the employer displaced one or more
United States workers employed by the employer during
the period of employment of H-2C workers or during the
30-day period immediately preceding such period of
employment) in the job the H-2C workers are performing
as the Secretary determines to be appropriate;
``(B) may disqualify the employer from the
employment of H-2C workers for a period of 2 years;
``(C) may, for a subsequent failure to fulfill an
attestation required by this subsection, or a
misrepresentation of a material fact in a petition
under this subsection, disqualify the employer from the
employment of H-2C workers for a period of 5 years; and
``(D) may, for a subsequent willful failure to
fulfill an attestation required by this subsection, or
a willful misrepresentation of a material fact in a
petition under this subsection, permanently disqualify
the employer from the employment of H-2C workers.
``(j) Failure To Pay Wages or Required Benefits.--
``(1) In general.--If the Secretary of Agriculture finds,
after notice and opportunity for a hearing, that the employer
has failed to provide the benefits, wages, and working
conditions that the employer has attested that it would provide
under this subsection, the Secretary shall require payment of
back wages, or such other required benefits, due any United
States workers or H-2C workers employed by the employer.
``(2) Amount.--The back wages or other required benefits
described in paragraph (1)--
``(A) shall be equal to the difference between the
amount that should have been paid and the amount that
was paid to such workers; and
``(B) shall be distributed to the workers to whom
such wages or benefits are due.
``(k) Minimum Wages, Benefits, and Working Conditions.--
``(1) Preferential treatment of h-2c workers prohibited.--
``(A) In general.--Each employer seeking to hire
United States workers for the job the H-2C workers will
perform shall offer such United States workers not less
than the same benefits, wages, and working conditions
that the employer will provide to the H-2C workers. No
job offer may impose on United States workers any
restrictions or obligations which will not be imposed
on H-2C workers.
``(B) Interpretation.--Every interpretation and
determination made under this section or under any
other law, regulation, or interpretative provision
regarding the nature, scope, and timing of the
provision of these and any other benefits, wages, and
other terms and conditions of employment shall be made
so that--
``(i) the services of workers to their
employers and the employment opportunities
afforded to workers by the employers, including
those employment opportunities that require
United States workers or H-2C workers to travel
or relocate in order to accept or perform
employment--
``(I) mutually benefit such
workers, as well as their families, and
employers; and
``(II) principally benefit neither
employer nor employee; and
``(ii) employment opportunities within the
United States benefit the United States
economy.
``(2) Required wages.--
``(A) In general.--Each employer petitioning for H-
2C workers under this subsection will offer the H-2C
workers, during the period of authorized employment as
H-2C workers, wages that are at least the greatest of--
``(i) the applicable State or local minimum
wage;
``(ii) 115 percent of the Federal minimum
wage, or 150 percent of the Federal minimum
wage in the case of H-2C workers who perform
agricultural labor or services consisting of
meat or poultry processing; or
``(iii) the actual wage level paid by the
employer to all other individuals in the job.
``(B) Special rule.--An employer can utilize a
piece rate or other alternative wage payment system so
long as the employer guarantees each worker a wage rate
that equals or exceeds the amount required under
subparagraph (A) for the total hours worked in each pay
period. Compensation from a piece rate or other
alternative wage payment system shall include time
spent during rest breaks, moving from job to job, clean
up, or any other nonproductive time, provided that such
time does not exceed 20 percent of the total hours in
the work day.
``(3) Employment guarantee.--
``(A) In general.--
``(i) Requirement.--Each employer
petitioning for workers under this subsection
shall guarantee to offer the H-2C workers and
United States workers performing the same job
employment for the hourly equivalent of not
less than 50 percent of the work hours set
forth in the work contract.
``(ii) Failure to meet guarantee.--If an
employer affords the United States workers or
the H-2C workers less employment than that
required under this subparagraph, the employer
shall pay such workers the amount which the
workers would have earned if the workers had
worked for the guaranteed number of hours.
``(B) Calculation of hours.--Any hours which
workers fail to work, up to a maximum of the number of
hours specified in the work contract for a work day,
when the workers have been offered an opportunity to do
so, and all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the work contract in a work day) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Limitation.--If the workers abandon
employment before the end of the work contract period,
or are terminated for cause, the workers are not
entitled to the 50 percent guarantee described in
subparagraph (A).
``(D) Termination of employment.--
``(i) In general.--If, before the
expiration of the period of employment
specified in the work contract, the services of
the workers are no longer required due to any
form of natural disaster, including flood,
hurricane, freeze, earthquake, fire, drought,
plant or animal disease, pest infestation,
regulatory action, or any other reason beyond
the control of the employer before the
employment guarantee in subparagraph (A) is
fulfilled, the employer may terminate the
workers' employment.
``(ii) Requirements.--If a worker's
employment is terminated under clause (i), the
employer shall--
``(I) fulfill the employment
guarantee in subparagraph (A) for the
work days that have elapsed during the
period beginning on the first work day
and ending on the date on which such
employment is terminated;
``(II) make efforts to transfer the
worker to other comparable employment
acceptable to the worker; and
``(III) not later than 72 hours
after termination, notify the Secretary
of Agriculture of such termination and
stating the nature of the contract
impossibility.
``(l) Nondelegation.--The Department of Agriculture and the
Department of Homeland Security shall not delegate their investigatory,
enforcement, or administrative functions relating to this section or
section 218B to other agencies or departments of the Federal
Government.
``(m) Compliance With Bio-Security Protocols.--Except in the case
of an imminent threat to health or safety, any personnel from a Federal
agency or Federal grantee seeking to determine the compliance of an
employer with the requirements of this section or section 218B shall,
when visiting such employer's place of employment, make their presence
known to the employer and sign-in in accordance with reasonable bio-
security protocols before proceeding to any other area of the place of
employment.
``(n) Limitation on H-2C Workers' Stay in Status.--
``(1) Maximum period.--The maximum continuous period of
authorized status as an H-2C worker (including any extensions)
is 18 months for workers employed in a job that is of a
temporary or seasonal nature. For H-2C workers employed in a
job that is not of a temporary or seasonal nature, the initial
maximum continuous period of authorized status is 36 months and
subsequent maximum continuous periods of authorized status are
18 months.
``(2) Requirement to remain outside the united states.--In
the case of H-2C workers who were employed in a job of a
temporary or seasonal nature whose maximum continuous period of
authorized status as H-2C workers (including any extensions)
have expired, the aliens may not again be eligible to be H-2C
workers until they remain outside the United States for a
continuous period equal to at least \1/12\ of the duration of
their previous period of authorized status an H-2C workers. For
H-2C workers who were employed in a job not of a temporary or
seasonal nature whose maximum continuous period of authorized
status as H-2C workers (including any extensions) have expired,
the aliens may not again be eligible to be H-2C workers until
they remain outside the United States for a continuous period
equal to at least the lesser of \1/12\ of the duration of their
previous period of authorized status as H-2C workers or 45
days.
``(3) Exceptions.--
``(A) The Secretary of Homeland Security shall
deduct absences from the United States that take place
during an H-2C worker's period of authorized status
from the period that the alien is required to remain
outside the United States under paragraph (2), if the
alien or the alien's employer requests such a
deduction, and provides clear and convincing proof that
the alien qualifies for such a deduction. Such proof
shall consist of evidence such as arrival and departure
records, copies of tax returns, and records of
employment abroad.
``(B) There is no maximum continuous period of
authorized status as set forth in paragraph (1) or a
requirement to remain outside the United States as set
forth in paragraph (2) for H-2C workers employed as a
sheepherder, goatherder, in the range production of
livestock, or who return to the workers' permanent
residence outside the United States each day.
``(o) Period of Admission.--
``(1) In general.--In addition to the maximum continuous
period of authorized status, workers' authorized period of
admission shall include--
``(A) a period of not more than 7 days prior to the
beginning of authorized employment as H-2C workers for
the purpose of travel to the place of employment; and
``(B) a period of not more than 14 days after the
conclusion of their authorized employment for the
purpose of departure from the United States or a period
of not more than 30 days following the employment for
the purpose of seeking a subsequent offer of employment
by an employer pursuant to a petition under this
section (or pursuant to at-will employment under
section 218B during such times as that section is in
effect) if they have not reached their maximum
continuous period of authorized employment under
subsection (n) (subject to the exceptions in subsection
(n)(3)) unless they accept subsequent offers of
employment as H-2C workers or are otherwise lawfully
present.
``(2) Failure to depart.--H-2C workers who do not depart
the United States within the periods referred to in paragraph
(1) will be considered to have failed to maintain nonimmigrant
status as H-2C workers and shall be subject to removal under
section 237(a)(1)(C)(i). Such aliens shall be considered to be
inadmissible pursuant to section 212(a)(9)(B)(i) for having
been unlawfully present, with the aliens considered to have
been unlawfully present for 181 days as of the 15th day
following their period of employment for the purpose of
departure or as of the 31st day following their period of
employment for the purpose of seeking subsequent offers of
employment.
``(p) Abandonment of Employment.--
``(1) Report by employer.--Not later than 72 hours after an
employer learns of the abandonment of employment by H-2C
workers before the conclusion of their work contracts, the
employer shall notify the Secretary of Agriculture and the
Secretary of Homeland Security of such abandonment.
``(2) Replacement of aliens.--An employer may designate
eligible aliens to replace H-2C workers who abandon employment
notwithstanding the numerical limitation found in section
214(g)(1)(C).
``(q) Change to H-2C Status.--
``(1) In general.--An alien described in paragraph (4) is
eligible for status as an H-2C worker despite their unlawful
presence.
``(2) Waiver.--In the case of an alien described in
paragraph (4), the Secretary of Homeland Security shall waive
the grounds of inadmissibility under paragraphs (5), (6), (7),
and (9)(B) of section 212(a), and the grounds of deportability
under subparagraphs (A) through (D) of paragraph (1), and
paragraph (3), of section 237(a), with respect to conduct that
occurred prior to the alien first seeking status as an H-2C
worker, solely in order to provide the alien with such status.
``(3) Requirement to remain outside the united states.--An
alien granted status as an H-2C worker under this subsection
shall, after first being granted such status, depart the United
States for a period by not later than 180 days after being
issued a visa or otherwise being provided with status as an H-
2C worker. Failure to comply with the requirement of the
previous sentence shall be considered failure to maintain
nonimmigrant status, and beginning on the date that is 180 days
after the date on which the alien was granted such status, the
alien shall be subject to removal under section
237(a)(1)(C)(i).
``(4) Alien described.--An alien described in this
paragraph is an alien who--
``(A) was unlawfully present in the United States
on October 23, 2017; and
``(B) performed agricultural labor or services in
the United States for at least 5.75 hours during each
of at least 180 days during the 2-year period ending on
the date of the enactment of the AG Act.
``(r) Trust Fund To Assure Worker Return.--
``(1) Establishment.--There is established in the Treasury
of the United States a trust fund (in this section referred to
as the `Trust Fund') for the purpose of providing a monetary
incentive for H-2C workers to return to their country of origin
upon expiration of their visas.
``(2) Withholding of wages; payment into the trust fund.--
``(A) In general.--Notwithstanding the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and State
and local wage laws, all employers of H-2C workers
shall withhold from the wages of all H-2C workers other
than those employed as sheepherders, goatherders, in
the range production of livestock, or who return to the
their permanent residence outside the United States
each day, an amount equivalent to 10 percent of the
gross wages of each worker in each pay period and, on
behalf of each worker, transfer such withheld amount to
the Trust Fund.
``(B) Jobs that are not of a temporary or seasonal
nature.--Employers of H-2C workers employed in jobs
that are not of a temporary or seasonal nature, other
than those employed as a sheepherder, goatherder, or in
the range production of livestock, shall also pay into
the Trust Fund an amount equivalent to the Federal tax
on the wages paid to H-2C workers that the employer
would be obligated to pay under chapters 21 and 23 of
the Internal Revenue Code of 1986 had the H-2C workers
been subject to such chapters.
``(3) Distribution of funds.--Amounts paid into the Trust
Fund on behalf of an H-2C worker, and held pursuant to
paragraph (2)(A) and interest earned thereon, shall be
transferred from the Trust Fund to the Secretary of Homeland
Security, who shall distribute them to the worker if the
worker--
``(A) applies to the Secretary of Homeland Security
(or the designee of the Secretary) for payment within
120 days of the expiration of the alien's last
authorized stay in the United States as an H-2C worker,
for which they seek amounts from the Trust Fund;
``(B) establishes to the satisfaction of the
Secretary of Homeland Security that they have complied
with the terms and conditions of the H-2C program;
``(C) once approved by the Secretary of Homeland
Security for payment, physically appears at a United
States embassy or consulate in the worker's home
country; and
``(D) establishes their identity to the
satisfaction of the Secretary of Homeland Security.
``(4) Administrative expenses.--The amounts paid into the
Trust Fund and held pursuant to paragraph (2)(B), and interest
earned thereon, shall be distributed annually to the Secretary
of Agriculture and the Secretary of Homeland Security in
amounts proportionate to the expenses incurred by such
officials in the administration and enforcement of the terms of
the H-2C program.
``(5) Law enforcement.--Notwithstanding any other provision
of law, amounts paid into the Trust Fund under paragraph (2),
and interest earned thereon, that are not needed to carry out
paragraphs (3) and (4) shall, to the extent provided in advance
in appropriations Acts, be made available until expended
without fiscal year limitation to the Secretary of Homeland
Security to apprehend, detain, and remove aliens inadmissible
to or deportable from the United States.
``(6) Investment of trust fund.--
``(A) In general.--It shall be the duty of the
Secretary of the Treasury to invest such portion of the
Trust Fund as is not, in the Secretary's judgment,
required to meet current withdrawals. Such investments
may be made only in interest-bearing obligations of the
United States or in obligations guaranteed as to both
principal and interest by the United States.
``(B) Credits to trust fund.--The interest on, and
the proceeds from the sale or redemption of, any
obligations held in the Trust Fund shall be credited to
and form a part of the Trust Fund.
``(C) Report to congress.--It shall be the duty of
the Secretary of the Treasury to hold the Trust Fund,
and (after consultation with the Secretary of Homeland
Security) to report to the Congress each year on the
financial condition and the results of the operations
of the Trust Fund during the preceding fiscal year and
on its expected condition and operations during the
next fiscal year. Such report shall be printed as both
a House and a Senate document of the session of the
Congress in which the report is made.
``(s) Procedures for Special Procedures Industries.--
``(1) Work locations.--The Secretary of Homeland Security
shall permit an employer in a Special Procedures Industry that
does not operate at a single fixed place of employment to
provide, as part of its petition, a list of places of
employment, which--
``(A) may include an itinerary; and
``(B) may be subsequently amended at any time by
the employer, after notice to the Secretary.
``(2) Wages.--Notwithstanding subsection (k)(2), the
Secretary of Agriculture may establish monthly, weekly, or
biweekly wage rates for occupations in a Special Procedures
Industry for a State or other geographic area. For an employer
in a Special Procedures Industry that typically pays a monthly
wage, the Secretary shall require that H-2C workers be paid not
less frequently than monthly and at a rate no less than the
legally required monthly cash wage in an amount as re-
determined annually by the Secretary.
``(3) Allergy limitation.--An employer engaged in the
commercial beekeeping or pollination services industry may
require that job applicants be free from bee-related allergies,
including allergies to pollen and bee venom.''.
(b) At-Will Employment.--Chapter 2 of title II of the Immigration
and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting
after section 218A (as inserted by subsection (a)) the following:
``SEC. 218B. AT-WILL EMPLOYMENT OF TEMPORARY H-2C WORKERS.
``(a) In General.--An employer that is designated as a `registered
agricultural employer' pursuant to subsection (d) may employ aliens as
H-2C workers. However, an H-2C worker may only perform labor or
services pursuant to this section if the worker is already lawfully
present in the United States as an H-2C worker, having been admitted or
otherwise provided nonimmigrant status pursuant to section 218A, and
has completed the period of employment specified in the job offer the
worker accepted pursuant to section 218A or the employer has terminated
the worker's employment pursuant to section 218A(k)(3)(D)(i). An H-2C
worker who abandons the employment which was the basis for admission or
status pursuant to section 218A may not perform labor or services
pursuant to this section until the worker has returned to their home
country, been readmitted as an H-2C worker pursuant to section 218A and
has completed the period of employment specified in the job offer the
worker accepted pursuant to section 218A or the employer has terminated
the worker's employment pursuant to section 218A(k)(3)(D)(i).
``(b) Period of Stay.--H-2C workers performing at-will labor or
services for a registered agricultural employer are subject to the
period of admission, limitation of stay in status, and requirement to
remain outside the United States contained in subsections (o) and (n)
of section 218A, except that subsection (n)(3)(A) does not apply.
``(c) Registered Agricultural Employers.--The Secretary of
Agriculture shall establish a process to accept and adjudicate
applications by employers to be designated as registered agricultural
employers. The Secretary shall require, as a condition of approving the
application, the payment of a fee to recover the reasonable cost of
processing the application. The Secretary shall designate an employer
as a registered agricultural employer if the Secretary determines that
the employer--
``(1) employs (or plans to employ) individuals who perform
agricultural labor or services;
``(2) has not been subject to debarment from receiving
temporary agricultural labor certifications pursuant to section
101(a)(15)(H)(ii)(a) within the last three years;
``(3) has not been subject to disqualification from the
employment of H-2C workers within the last five years;
``(4) agrees to, if employing H-2C workers pursuant to this
section, fulfill the attestations contained in section 218A(b)
as if it had submitted a petition making those attestations
(excluding subsection (k)(3) of such section) and not to employ
H-2C workers who have reached their maximum continuous period
of authorized status under section 218A(n) (subject to the
exceptions contained in section 218A(n)(3)) or if the workers
have complied with the terms of section 218A(n)(2); and
``(5) agrees to notify the Secretary of Agriculture and the
Secretary of Homeland Security each time it employs H-2C
workers pursuant to this section within 72 hours of the
commencement of employment and within 72 hours of the cessation
of employment.
``(d) Length of Designation.--An employer's designation as a
registered agricultural employer shall be valid for 3 years, and the
designation can be extended upon reapplication for additional 3-year
terms. The Secretary shall revoke a designation before the expiration
of its 3-year term if the employer is subject to disqualification from
the employment of H-2C workers subsequent to being designated as a
registered agricultural employer.
``(e) Enforcement.--The Secretary of Agriculture shall be
responsible for conducting investigations and audits, including random
audits, of employers to ensure compliance with the requirements of this
section. All monetary fines levied against employers shall be paid to
the Department of Agriculture and used to enhance the Department of
Agriculture's investigatory and audit abilities to ensure compliance by
employers with their obligations under this section and section 218A.
The Secretary of Agriculture's enforcement powers and an employer's
liability described in subsections (i) through (j) of section 218A are
applicable to employers employing H-2C workers pursuant to this
section.''.
(c) Prohibition on Family Members.--Section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by
striking ``him;'' at the end and inserting ``him, except that no spouse
or child may be admitted under clause (ii)(c);''.
(d) Numerical Cap.--Section 214(g)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(1)) is amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(C) under section 101(a)(15)(H)(ii)(c)--
``(i) except as otherwise provided under this
subparagraph, may not exceed 40,000 for aliens issued
visas or otherwise provided nonimmigrant status under
such section for the purpose of performing agricultural
labor or services consisting or meat or poultry
processing;
``(ii) except as otherwise provided under this
subparagraph, may not exceed 410,000 for aliens issued
visas or otherwise provided nonimmigrant status under
such section for the purpose of performing agricultural
labor or services other than agricultural labor or
services consisting of meat or poultry processing;
``(iii) if the base allocation under clause (i) or
(ii) is exhausted during any fiscal year, the base
allocation under such clause for that and subsequent
fiscal years shall be increased by the lesser of 10
percent or a percentage representing the number of
petitioned-for aliens (as a percentage of the base
allocation) who would be eligible to be issued visas or
otherwise provided nonimmigrant status described in
that clause during that fiscal year but for the base
allocation being exhausted, and if the increased base
allocation is itself exhausted during a subsequent
fiscal year, the base allocation for that and
subsequent fiscal years shall be further increased by
the lesser of 10 percent or a percentage representing
the number of petitioned-for aliens (as a percentage of
the increased base allocation) who would be eligible to
be issued visas or otherwise provided nonimmigrant
status described in that clause during that fiscal year
but for the increased base allocation being exhausted
(subject to clause (iv));
``(iv) if the base allocation under clause (i) or
(ii) is not exhausted during any fiscal year, the base
allocation under such clause for subsequent fiscal
years shall be decreased by the greater of 5 percent or
a percentage representing the unutilized portion of the
base allocation (as a percentage of the base
allocation) during that fiscal year, and if in a
subsequent fiscal year the decreased base allocation is
itself not exhausted, the base allocation for fiscal
years subsequent to that fiscal year shall be further
decreased by the greater of 5 percent or a percentage
representing the unutilized portion of the decreased
base allocation (as a percentage of the decreased base
allocation) during that fiscal year (subject to clause
(iii) and except that the base allocations under
clauses (i) and (ii) shall not fall below 40,000 and
410,000, respectively); and
``(v) the numerical limitations under this
subparagraph shall not apply to any alien--
``(I) who--
``(aa) was physically present in
the United States on October 23, 2017;
and
``(bb) performed agricultural labor
or services in the United States for at
least 5.75 hours during each of at
least 180 days during the 2-year period
ending on the date of the enactment of
the AG Act; or
``(II) who has previously been issued a
visa or otherwise provided nonimmigrant status
pursuant to subclause (a) or (b) of section
101(a)(15)(H)(ii), but only to the extent that
the alien is being petitioned for by an
employer pursuant to section 218A(b) who
previously employed the alien pursuant to
subclause (a) or (b) of section
101(a)(15)(H)(ii) beginning no later than
October 23, 2017.''.
(e) Intent.--Section 214(b) of the Immigration and Nationality Act
(8 U.S.C. 1184(b)) is amended by striking ``section 101(a)(15)(H)(i)
except subclause (b1) of such section'' and inserting ``clause (i),
except subclause (b1), or (ii)(c) of section 101(a)(15)(H)''.
(f) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 218 the following:
``Sec. 218A. Admission of temporary H-2C workers.
``Sec. 218B. At-will employment of temporary H-2C workers.''.
SEC. 4. MEDIATION.
Nonimmigrants having status under section 101(a)(15)(H)(ii)(c) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c))
may not bring civil actions for damages against their employers, nor
may any other attorneys or individuals bring civil actions for damages
on behalf of such nonimmigrants against the nonimmigrants' employers,
unless at least 90 days prior to bringing an action a request has been
made to the Federal Mediation and Conciliation Service to assist the
parties in reaching a satisfactory resolution of all issues involving
all parties to the dispute and mediation has been attempted.
SEC. 5. MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION.
Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1802(8)(B)(ii)) is amended by striking
``under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and
Nationality Act.'' and inserting ``under subclauses (a) and (c) of
section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and
Nationality Act.''.
SEC. 6. BINDING ARBITRATION.
(a) Applicability.--H-2C workers may, as a condition of employment
with an employer, be subject to mandatory binding arbitration and
mediation of any grievance relating to the employment relationship. An
employer shall provide any such workers with notice of such condition
of employment at the time it makes job offers.
(b) Allocation of Costs.--Any cost associated with such arbitration
and mediation process shall be equally divided between the employer and
the H-2C workers, except that each party shall be responsible for the
cost of its own counsel, if any.
(c) Definitions.--As used in this section:
(1) The term ``condition of employment'' means a term,
condition, obligation, or requirement that is part of the job
offer, such as the term of employment, job responsibilities,
employee conduct standards, and the grievance resolution
process, and to which applicants or prospective H-2C workers
must consent or accept in order to be hired for the position.
(2) The term ``H-2C worker'' means a nonimmigrant described
in section 218A(a)(5) of the Immigration and Nationality Act,
as added by section 3(a) of this Act.
SEC. 7. ELIGIBILITY FOR HEALTH CARE SUBSIDIES AND REFUNDABLE TAX
CREDITS; REQUIRED HEALTH INSURANCE COVERAGE.
(a) Health Care Subsidies.--H-2C workers (as defined in section
218A(a)(5) of the Immigration and Nationality Act, as added by section
3(a) of this Act)--
(1) are not entitled to the premium assistance tax credit
authorized under section 36B of the Internal Revenue Code of
1986 and shall be subject to the rules applicable to
individuals who are not lawfully present set forth in
subsection (e) of such section; and
(2) shall be subject to the rules applicable to individuals
who are not lawfully present set forth in section 1402(e) of
the Patient Protection and Affordable Care Act (42 U.S.C.
18071(e)).
(b) Refundable Tax Credits.--H-2C workers (as defined in section
218A(a)(5) of the Immigration and Nationality Act, as added by section
3(a) of this Act), shall not be allowed any credit under sections 24
and 32 of the Internal Revenue Code of 1986. In the case of a joint
return, no credit shall be allowed under either such section if both
spouses are such workers or aliens.
(c) Requirement Regarding Health Insurance Coverage.--
Notwithstanding the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.) and State and local wage laws, not later than 21 days after being
issued a visa or otherwise provided nonimmigrant status under section
101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(c)), an alien must obtain health insurance coverage
accepted in their State or States of employment and residence for the
period of employment specified in section 218A(b)(1) of the Immigration
and Nationality Act. H-2C workers under section 218A or 218B of the
Immigration and Nationality Act who do not obtain and maintain the
required insurance coverage will be considered to have failed to
maintain nonimmigrant status under section 101(a)(15)(H)(ii)(c) of the
Immigration and Nationality Act and shall be subject to removal under
section 237(a)(1)(C)(i) of the Immigration and Nationality Act (8
U.S.C. 1227(a)(1)(C)(i)).
SEC. 8. EFFECTIVE DATES; SUNSET; REGULATIONS.
(a) Effective Dates.--
(1) In general.--Sections 2 and 4 through 6 of this Act,
subsections (a) and (c) through (f) of section 3 of this Act,
and the amendments made by the sections, shall take effect on
the date on which the Secretary issues the rules under
subsection (c) of this section, and the Secretary of Homeland
Security shall accept petitions pursuant to section 218A of the
Immigration and Nationality Act, as inserted by this Act,
beginning no later than that date. Section 7 of this Act shall
take effect on the date of the enactment of the Act.
(2) At-will employment.--Section 3(b) of this Act and the
amendments made by that subsection shall take effect on the
date that it becomes unlawful for all persons or other entities
to hire, or to recruit or refer for a fee, for employment in
the United States an individual (as provided in section
274A(a)(1) of the Immigration and Nationality Act (8 U.S.C.
1324a(a)(1))) without participating in the E-Verify Program
described in section 403(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note)
or an employment eligibility verification system patterned on
such program's verification system, and only if at that time
the E-Verify Program (or another program patterned after the E-
Verify Program) responds to inquiries made by such persons or
entities by providing confirmation, tentative nonconfirmation,
and final nonconfirmation of an individual's identity and
employment eligibility in such a way that indicates whether the
individual is eligible to be employed in all occupations or
only to perform agricultural labor or services under sections
218A and 219B of the Immigration and Nationality Act, as added
by section 3 of this Act, and if the latter, whether the
nonimmigrant would be in compliance with their maximum
continuous period of authorized status and requirement to
remain outside the United States under section 218A(n) of such
Act, as added by section 3(a) of this Act, and on what date the
alien would cease to be in compliance with their maximum
continuous period of authorized status.
(b) Operation and Sunset of the H-2A Program.--
(1) Application of existing regulations.--The Department of
Labor H-2A program regulations published at 73 Fed. Reg. 77110
et seq. (2008) shall be in force for all petitions approved
under sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(h)(ii)(a); 8 U.S.C.
1188) beginning on the date of the enactment of this Act,
except that the following, as in effect on the date of the
enactment of this Act, shall remain in effect, and, to the
extent that any rule published at 73 Fed. Reg. 77110 et seq. is
in conflict, such rule shall have no force and effect:
(A) Paragraph (a) and subparagraphs (1) and (3) of
paragraph (b) of section 655.200 of title 20, Code of
Federal Regulations.
(B) Section 655.201 of title 20, Code of Federal
Regulations, except the paragraphs entitled
``Production of Livestock'' and ``Range''.
(C) Paragraphs (c), (d), and (e) of section 655.210
of title 20, Code of Federal Regulations.
(D) Section 655.230 of title 20, Code of Federal
Regulations.
(E) Section 655.235 of title 20, Code of Federal
Regulations.
(F) The Special Procedures Labor Certification
Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program in effect under the
Training and Employment Guidance Letter No. 17-06,
Change 1, Attachment B, Section II, with an effective
date of October 1, 2011.
(2) Sunset.--Beginning on the date on which employers can
file petitions pursuant to section 218A of the Immigration and
Nationality Act, as added by section 3(a) of this Act, no new
petitions under sections 101(a)(15)(H)(ii)(a) and 218 of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall be accepted.
(c) Regulations.--Notwithstanding any other provision of law, not
later than the first day of the seventh month that begins after the
date of the enactment of this Act, the Secretary of Homeland Security
shall issue final rules, on an interim or other basis, to carry out
this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Immigration and Border Security.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported (Amended) by the Yeas and Nays: 17 - 16.
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