Labor Certainty for Food Security Act of 2020
This bill establishes a new H-2C nonimmigrant visa for aliens coming temporarily to the United States to perform agricultural labor, directs the Department of Homeland Security to create a mandatory electronic employment eligibility verification system, and modifies the H-2A visa program for temporary agricultural workers.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6083 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 6083
To create a nonimmigrant H-2C work visa program for agricultural
workers, to make mandatory and permanent requirements relating to use
of an electronic employment eligibility verification system, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 4, 2020
Mr. Yoho (for himself, Mr. Thompson of Pennsylvania, Mr. Dunn, Mr.
Rouzer, Mr. Barr, Mr. Budd, Mrs. Hartzler, Mr. McCaul, Mr. Case, Mr.
Kelly of Pennsylvania, and Mr. Norman) introduced the following bill;
which was referred to the Committee on the Judiciary, and in addition
to the Committees on Education and Labor, Ways and Means, and Energy
and Commerce, 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, to make mandatory and permanent requirements relating to use
of an electronic employment eligibility verification system, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Labor Certainty
for Food Security Act of 2020''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--AGRICULTURAL GUESTWORKER PROGRAM
Sec. 101. Short title.
Sec. 102. H-2C temporary agricultural work visa program.
Sec. 103. Admission of temporary H-2C workers.
Sec. 104. Mediation.
Sec. 105. Migrant and seasonal agricultural worker protection.
Sec. 106. Binding arbitration.
Sec. 107. Coverage through health exchanges; required health insurance
coverage.
Sec. 108. Establishment of an agricultural worker employment pool.
Sec. 109. Prevailing wage.
Sec. 110. Portability of H-2C status.
Sec. 111. Collection of taxes.
Sec. 112. Effective dates; regulations; defined terms.
Sec. 113. Report on compliance and violations.
Sec. 114. Electronic filing system.
TITLE II--LEGAL WORKFORCE ACT
Sec. 201. Short title.
Sec. 202. Employment eligibility verification process.
Sec. 203. Employment eligibility verification system.
Sec. 204. Recruitment, referral, and continuation of employment.
Sec. 205. Good faith defense.
Sec. 206. Preemption and States' rights.
Sec. 207. Repeal.
Sec. 208. Penalties.
Sec. 209. Fraud and misuse of documents.
Sec. 210. Protection of Social Security Administration programs.
Sec. 211. Fraud prevention.
Sec. 212. Use of employment eligibility verification photo tool.
Sec. 213. Identity Authentication Employment Eligibility Verification
pilot programs.
Sec. 214. Inspector General audits.
TITLE III--H-2A PROGRAM
Sec. 301. Administration by Department of Agriculture.
Sec. 302. Defining agricultural labor.
Sec. 303. Wage structure and other amendments to H-2A program.
Sec. 304. Biometric identification card.
Sec. 305. Effective date.
TITLE I--AGRICULTURAL GUESTWORKER PROGRAM
SEC. 101. SHORT TITLE.
This title may be cited as the ``Agricultural Guestworker Reform
Act''.
SEC. 102. 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) who is coming temporarily to the
United States to perform agricultural labor or services as an at-will
employee; 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 up
to the point it is to be sold to a warehouse for
wholesale distribution;
``(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)), or fish
or shellfish, for further distribution;
``(E) forestry-related activities up to the point
of wholesale to a distribution facility;
``(F) aquaculture activities up to the point of
wholesale distribution; and
``(G) activities related to the breeding,
management, training, and racing of equines.
For purposes of labor involving meat or poultry processing, the term
only includes the killing of animals and the breakdown of their
carcasses up to the point of wholesale distribution, and the
collection, cleaning, grading, and packaging of eggs up to the point of
wholesale distribution.''.
SEC. 103. 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) 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--
``(A) an association acting as a joint employer
with its members, who hires workers to perform
agricultural labor or services; and
``(B) any association of farmers, producers or
harvesters of aquatic products, or any federation of
such associations, which is operated on a cooperative
basis, and has the powers for processing, preparing for
market, handling, or marketing farm or aquatic
products.
``(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.
``(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 an at-will basis.
``(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
(j)(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 (m)(1)
(subject to the exceptions in subsection (m)(3)).
``(3) Benefits, wages, and working conditions.--The
employer will provide, at a minimum, the benefits, wages, and
working conditions required by subsection (j) 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
websites of all State workforce agencies on a single
webpage of the official website 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
any H-2C worker for whom the petition was filed.
``(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) 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) 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.
``(d) 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) within the appropriate time period under
subparagraph (C) or (D), the Secretary of Homeland
Security shall--
``(i) approve the petition;
``(ii) reject the petition; or
``(iii) determine that the petition is
incomplete or obviously inaccurate or that the
employer has not complied with the requirements
of subsection (b)(5)(A)(i) (which the Secretary
can ascertain by verifying whether the employer
has placed a local job order as provided for in
subsection (b)(5)(B));
``(C) if the Secretary determines that the petition
is incomplete or obviously inaccurate, or that the
employer has not complied with the requirements of
subsection (b)(5)(A)(i) (which the Secretary can
ascertain by verifying whether the employer has placed
a local job order as provided for in subsection
(b)(5)(B)), 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 reject the
petition and provide the petitioner with notice
of such action by means ensuring same or next
day delivery; and
``(D) if the Secretary does not determine that the
petition is incomplete or obviously inaccurate, the
Secretary shall not later than 10 business days after
the date on which such petition was filed, either
approve or reject 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)).
``(3) Confidentiality of information.--No information
contained in a non-fraudulent petition filed by an employer
pursuant to subsection (b) which is not otherwise available to
the Secretary of Homeland Security may be used--
``(A) in a civil or criminal prosecution or
investigation of the petitioning employer under section
274A or the Internal Revenue Code of 1986 for unlawful
employment of an alien who is the beneficiary of such
petition; or
``(B) for the purpose of initiating or proceeding
with removal proceedings with respect to an alien who
is the beneficiary of such petition, except in the case
of an alien with respect to whom a petition is denied.
``(e) 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 (h) or subsection (i)(1), the Secretary of
Agriculture shall invoke penalties pursuant to
subsections (h) and (i) 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 (h) (2) and (3) or
(i)(1), the Secretary of Agriculture shall invoke
penalties pursuant to subsections (h) and (i) against
only the association and not any individual members of
the association, unless the Secretary determines that
the member participated in the violation.
``(f) 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.
``(g) Fees.--The Secretary of Homeland Security shall require, as a
condition of approving the petition, the payment of a fee of $2,500 to
recover the reasonable cost of processing the petition.
``(h) 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.
``(i) 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.
``(j) 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,
except that if an employer chooses to provide H-2C
workers with housing or a housing allowance, the
employer need not offer housing or a housing allowance
to such United States 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 shall 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
``(iii) the actual wage level paid by the
employer to all other individuals with similar
experience and qualifications for the specific
employment in question.
``(B) Alternate wage payment systems.--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.
``(k) Nondelegation.--The Department of Agriculture and the
Department of Homeland Security shall not delegate their investigatory,
enforcement, or administrative functions relating to this section to
other agencies or departments of the Federal Government.
``(l) 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 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.
``(m) Limitation on H-2C Workers' Stay in Status.--
``(1) Maximum period.--The maximum continuous period of
authorized stay as an H-2C worker is 36 months. The employer
shall file any petition to extend the period of authorized stay
for such H-2C worker not later than 6 months before the
expiration of the period of authorized stay. In addition to the
maximum continuous period of authorized stay, an H-2C worker
may also be present for a period of not more than 7 days prior
to the beginning of authorized employment as an H-2C worker for
the purpose of travel to the place of employment.
Notwithstanding the duration of the employment requested by the
employer petitioning for the admission of an H-2C worker, if
the alien is granted a visa, at the request of the alien, the
term of the visa shall be for the maximum period described in
this subsection, except that subsection (n) shall apply to such
alien.
``(2) Exception.--There is no maximum continuous period of
authorized status as set forth in paragraph (1) for H-2C
workers who return to the workers' permanent residence outside
the United States each day.
``(n) Alternate Employment After Termination.--If an H-2C worker's
employment with a registered agricultural employer is terminated that
alien may seek employment with any other registered agricultural
employer. If the alien does not obtain such employment by not later
than 14 days after the termination of that alien's employment, the
period of authorized stay shall terminate 28 days after the date of
termination and the alien shall be required to depart the United States
unless the alien is otherwise lawfully present.
``(o) Change to H-2C Status.--
``(1) Waiver.--Until the date that is 12 months after the
issuance of final rules carrying out this Act, in the case of
an alien described in paragraph (2), the Secretary of Homeland
Security shall waive the grounds of inadmissibility under
paragraphs (5)(A), (6)(A), (6)(C), (7), (9)(B), and (9)(C) of
section 212(a), and the grounds of deportability under
paragraphs (1)(A) (with respect to the grounds of
inadmissibility waived under this paragraph), (1)(B), (1)(C),
(3)(A), and (3)(C) of section 237(a), with respect to conduct
that occurred prior to the alien first receiving status as an
H-2C worker, solely in order to provide the alien with such
status.
``(2) Alien described.--An alien described in this
paragraph is an alien who--
``(A) was unlawfully present in the United States
on March 4, 2020; and
``(B) performed agricultural labor or services in
the United States for at least 5.75 hours during each
of at least 225 days during the 2-year period ending on
March 4, 2020.
``(3) Special approval procedures.--The Secretary shall
grant parole to any alien described in paragraph (2) who makes
an application therefore, for a period beginning on the date of
enactment of this Act and ending on the date that is 12 months
after the issuance of final rules carrying out this Act. Such a
parolee may be authorized for employment only to perform
agricultural labor or services during the term of such parole.
In the case of any alien who applies for parole under this
paragraph the Secretary shall make a determination as to the
admissibility of such alien except with regard to the grounds
of inadmissibility waived under paragraph (1). Such parole may
not extend past the final disposition of any application under
this subsection.
``(4) Fine.--Before an alien described in paragraph (2) can
be provided with nonimmigrant status under section
101(a)(15)(H)(ii)(c), the alien shall pay a fine of $2,500,
which shall be deposited into a trust fund that shall be
available to the Secretary of Agriculture for purposes of
administering this section.
``(5) Immediate relatives.--
``(A) Parole and nonimmigrant status.--The spouse
or child of an alien described under paragraph (2) and
who are cohabitating with that alien at the time of
application--
``(i) shall be granted parole under this
subsection when such alien receives parole,
under the same terms and conditions, except
that the spouse or child may not be authorized
for employment; and
``(ii) for the term that such alien is
provided with status as an H-2C worker, shall
be provided nonimmigrant status equivalent to
the status of the status accorded a spouse or
child if accompanying or following to join an
alien who had status under section
101(a)(15)(H).
``(B) Waivers.--For purposes of this paragraph, the
Secretary shall apply paragraph (1) to such spouse or
child as though the spouse or child was the alien
described in paragraph (2).
``(C) Documentation.--The Secretary of Homeland
Security shall provide the spouse or child with
documentation of such status.
``(p) Flexibility With Respect to Start Dates.--Upon approval of a
petition with regard to jobs that are of a temporary or seasonal
nature, the employer may begin the employment of petitioned-for H-2C
workers up to ten months after the first date the employer requires the
labor or services of H-2C workers. An employer may file a petition
involving employment in the same occupational classification and same
area of intended employment with multiple start dates.
``(q) Transportation.--An employer may, but is not required to,
offer transportation to an H-2C worker, and may also charge a
reasonable fee for the same. Any transportation offered shall comply
with all applicable requirements of Federal and State law.
``(r) Adjustment of Status.--In applying section 245 to an alien
who is an H-2C worker who was the beneficiary of a waiver under
subsection (o)(1)--
``(1) such alien shall be deemed to have been inspected and
admitted into the United States; and
``(2) in determining the alien's admissibility as an
immigrant, paragraphs (5)(A), (6)(A), (6)(C), (7), (9)(B), and
(9)(C)(i)(I) of section 212(a) shall not apply with respect to
conduct that occurred prior to the alien first receiving status
as an H-2C worker.
``(s) Biometric Identification Card.--An H-2C worker shall be
issued, upon being approved for status as an H-2C worker, an encrypted,
machine-readable electronic identification card to be known as a
`guestworker identification card' which shall--
``(1) have an electronic identification strip to be used
for all H-2C workers;
``(2) have a 15-digit numerical identification code that
may be used for tax withholdings and for verifying an H-2C
worker's employment approval for agriculture specifically;
``(3) include a photograph on the front, and such other
information as the Secretary determines necessary stored on a
card containing microprocessors for data storage including,
fingerprints, retinal scans, DNA, blood type, and facial
recognition;
``(4) be eligible for replacement not more than once in a
3-year period;
``(5) include the start and end date of the period of
approved stay of the H-2C worker and a statement that the H-2C
worker is a year-round worker;
``(6) have physical and electronic security features to
prevent fraudulent uses or any misuse as determined by the
Secretary; and
``(7) have the H-2C worker's program identification number
clearly visible.
``(t) Card Reader.--
``(1) In general.--The Secretary of Homeland Security shall
develop or otherwise designate a card reader for H-2C workers
to check in and verify their place of employment for purposes
of verification under section 274A using the guestworker
identification card, and acquire a sufficient number of such
readers.
``(2) Placement.--Each U.S. Postal Service office shall
reserve a space to place such a card reader. After the card
reader has been developed or selected, the Secretary of
Homeland Security shall place the card readers at each USPS
office. Employers may also reserve a space at the jobsite to
place a card reader. The Secretary of Homeland Security, in
coordination with the Secretary of Agriculture, shall develop a
process by which employers may request the card readers. The
Secretary of Homeland Security may, in order to recover the
cost of the card reader, charge an employer a fee to place the
card reader at the jobsite.
``(3) Check in required.--An H-2C worker shall be required
to check in at a guestworker identification card reader at the
closest, or most convenient, Post Office or at his place of
employment within the first 72 hours of entering the United
States to verify employment. The H-2C worker shall check in at
the beginning of each quarter of the calendar year, and the H-
2C worker shall check in within 7 days of each quarter. If an
H-2C worker fails to check in, the employer will be notified in
writing and electronically, and the H-2C worker will be
required to contact the Secretary of Agriculture within 7 days
to explain the occurrence. If an H-2C worker fails to check in
for 2 consecutive quarters, the H-2C worker will be removed
from the program, ineligible to reapply to the program for 3
years, and will be required to return to his home country. The
information collected by the Department of Homeland Security,
or the Department of Agriculture, by the guestworker
identification card reader may only be used to verify
compliance with this section or other reporting requirements
under this section, section 214(s), and section 113 of the
Labor Certainty for Food Security Act of 2020.
``(4) Rule of construction.--Nothing in this subsection may
be construed to require an H-2A worker to check in under this
subsection.
``(u) Social Security Numbers.--An H-2C worker may not be issued a
social security account number. In any case where such number would be
necessary, the guestworker identification number issued by the
Secretary of Agriculture shall be used.
``(v) Expedited Approval for Certain H-2C Workers.--The Secretary
of Homeland Security shall establish a process for expediting
consideration of any petition for a worker who has previously been the
subject of two consecutive petitions that were approved.
``(w) Establishment and Expansion of Consulates.--The Secretary of
State is authorized to take such steps as may be necessary in order to
expand and establish consulates in foreign countries in which aliens
are likely to apply to become seasonal agricultural workers under the
program.
``(x) Eligibility for Financial Assistance.--An H-2C worker is not
eligible for any financial assistance program under Federal law
(whether through grant, loan, guarantee, or otherwise) on the basis of
financial need.''.
(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) (except as otherwise
provided under section 218A(o)(5));''.
(c) Secretary of Agriculture Review of Agricultural Work Needs.--
Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is
amended by adding at the end the following:
``(s) Secretary of Agriculture Review of Agricultural Work Needs.--
``(1) In general.--The Secretary of Agriculture shall
conduct a review, on a continual basis, of--
``(A) whether there are indicators of a shortage or
surplus of workers performing agricultural labor or
services;
``(B) the growth or contraction in the United
States agricultural industry and whether such growth or
contraction has increased or decreased the demand for
workers to perform agricultural labor or services;
``(C) the level of unemployment and underemployment
of United States workers (as defined in section
218A(a)) in agricultural labor or services;
``(D) the number of H-2C workers (as defined in
section 218A(a)) who in the preceding fiscal year had
to depart from the United States or be subject to
removal under section 237(a)(1)(C)(i) because they
could not find additional employment;
``(E) the number of H-2C workers who in the
preceding calendar year received a final order of
removal for violations under the immigration laws; and
``(F) the estimated number of nonimmigrant
agricultural workers issued a visa or otherwise
provided nonimmigrant status pursuant to section
101(a)(15)(H)(ii) (a) or (c) during preceding fiscal
years who remain in the United States out of compliance
with the terms of their status.
``(2) Annual report.--Each employer of H-2C workers shall
report to the Secretary the number of H-2C workers that are
anticipated to be needed for the following calendar year.''.
(d) 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)''.
(e) 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. 104. 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. 105. 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. 106. 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 this Act.
SEC. 107. COVERAGE THROUGH HEALTH EXCHANGES; REQUIRED HEALTH INSURANCE
COVERAGE.
(a) Coverage Through Health Exchanges.--In applying section
1312(f)(3) of the Patient Protection and Affordable Care Act (42 U.S.C.
18032(f)(3)), an H-2C worker (as defined in section 218A(a)(5) of the
Immigration and Nationality Act, as added by this Act) shall not be
treated as an individual who is, or is reasonably expected to be, a
citizen or national of the United States or an alien lawfully present
in the United States.
(b) Requirement Regarding Health Insurance Coverage.--
(1) In general.--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 shall, in the case that
qualifying health coverage is offered in the State of
employment or State of residence of such alien and the alien is
eligible for such coverage, for the period of employment
specified in section 218A(b)(1) of the Immigration and
Nationality Act, be enrolled under qualifying health coverage.
(2) Qualifying health coverage.--For purposes of paragraph
(1), the term ``qualifying health coverage means'', with
respect to an alien described in such paragraph, the higher of
the following levels of coverage applicable to such alien:
(A) At a minimum, catastrophic health insurance
coverage that provides coverage of such individual with
respect to at least the State of employment and State
of residence of the alien.
(B) In the case of an alien whose State of
residence or State of employment requires such an alien
to maintain coverage under health insurance, such
health insurance.
(3) Additional health coverage.--H-2C workers or employers
thereof may pay for additional health insurance, which must be
a reasonable and fair price, subject to State and Federal
requirements under law.
SEC. 108. ESTABLISHMENT OF AN AGRICULTURAL WORKER EMPLOYMENT POOL.
The Secretary of Agriculture shall establish an agricultural worker
employment pool and an electronic internet-based portal to assist H-2C
workers (as such term is defined in section 218A of the Immigration and
Nationality Act), prospective H-2C workers, and employers to identify
job opportunities in the H-2C program and willing, able, and available
workers for the program, respectively, and may charge a fee for the use
of such portal.
SEC. 109. PREVAILING WAGE.
Section 212(p) of the Immigration and Nationality Act (8 U.S.C.
1182(p)) is amended--
(1) in paragraph (1), by inserting after ``subsections
(a)(5)(A) and (s)(1)(A)(i)(II)'' the following: ``of this
section and section 218A(j)(2)(B)(ii)''; and
(2) in paragraph (3), by inserting after ``subsections
(a)(5)(A) and (s)(1)(A)(i)(II)'' the following: ``of this
section and section 218A(j)(2)(B)(ii)''.
SEC. 110. PORTABILITY OF H-2C STATUS.
Section 214(n)(1) of the Immigration and Nationality Act (8 U.S.C.
1184(n)(1)) is amended by inserting after ``section
101(a)(15)(H)(i)(b)'' the following: ``or 101(a)(15)(H)(ii)(c)''.
SEC. 111. COLLECTION OF TAXES.
For purposes of chapters 2, 3, 21 and 23 of the Internal Revenue
Code of 1986, any remuneration paid by any person to an individual for
services as an H-2C worker shall be treated in the same manner as wages
with respect to employment of such individual. Notwithstanding any
other provision of law, an H-2C worker shall be ineligible for any
benefit payable under title XVIII of the Social Security Act.
SEC. 112. EFFECTIVE DATES; REGULATIONS; DEFINED TERMS.
(a) In General.--Sections 102 and sections 104 through 106 of this
title, subsections (a) and (c) through (f) of section 103 of this
title, and the amendments made by the sections, shall take effect on
the date on which the Secretary issues the rules under paragraph (3),
and the Secretary of Homeland Security shall accept petitions pursuant
to section 218A of the Immigration and Nationality Act, as inserted by
this title, beginning no later than that date. Sections 107 and 109 of
this title shall take effect on the date of the enactment of this Act.
(b) At-Will Employment.--Section 103(b) of this Act and the
amendments made by that subsection shall take effect when--
(1) 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 using the verification system set forth
in section 274A(d) of such Act, as amended by section 203 of
title II, to seek verification of the employment eligibility of
an individual; and
(2) such verification system, in providing confirmation of
an individual's employment eligibility, indicates whether an
individual is eligible to be employed only to perform
agricultural labor or services as a nonimmigrant who has been
issued a visa or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality
Act.
(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 title.
(d) Defined Terms.--Terms used in this title have the meanings
given such terms in section 101 and section 218A of the Immigration and
Nationality Act.
SEC. 113. REPORT ON COMPLIANCE AND VIOLATIONS.
Not later than 1 year after the first day on which employers can
file petitions pursuant to section 218A of the Immigration and
Nationality Act, as added by section 103(a) of this Act, the Secretary
of Homeland Security, in consultation with the Secretary of
Agriculture, shall submit to the Committees on the Judiciary of the
House of Representatives and the Senate a report on compliance by H-2C
workers with the requirements of this Act and the Immigration and
Nationality Act, as amended by this Act. In the case of a violation of
a term or condition of the temporary agricultural work visa program
established by this Act, the report shall identify the provision or
provisions of law violated.
SEC. 114. ELECTRONIC FILING SYSTEM.
The Secretary of Homeland Security, in coordination with the
Secretary of Agriculture, shall establish an electronic filing system
for petitions under section 218A of the Immigration and Nationality
Act, as added by section 103(a) of this Act, and for applications and
petitions for or relating to status under section 101(a)(15)(H)(ii)(a).
An employer shall be able to file any administrative appeal of a
determination on such a petition or application through the system.
TITLE II--LEGAL WORKFORCE ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Legal Workforce Act''.
SEC. 202. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
(a) In General.--Section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)) is amended to read as follows:
``(b) Employment Eligibility Verification Process.--
``(1) New hires, recruitment, and referral.--The
requirements referred to in paragraphs (1)(B) and (3) of
subsection (a) are, in the case of a person or other entity
hiring, recruiting, or referring an individual for employment
in the United States, the following:
``(A) Attestation after examination of
documentation.--
``(i) Attestation.--During the verification
period (as defined in subparagraph (E)), the
person or entity shall attest, under penalty of
perjury and on a form, including electronic and
telephonic formats, designated or established
by the Secretary by regulation not later than 6
months after the date of the enactment of the
Legal Workforce Act, that it has verified that
the individual is not an unauthorized alien
by--
``(I) obtaining from the individual
the individual's social security
account number, guestworker
identification number, or United States
passport number and recording the
number on the form (if the individual
claims to have been issued such a
number), and, if the individual does
not attest to United States nationality
under subparagraph (B), obtaining such
identification or authorization number
established by the Department of
Homeland Security for the alien as the
Secretary of Homeland Security may
specify, and recording such number on
the form; and
``(II) examining--
``(aa) a document relating
to the individual presenting it
described in clause (ii); or
``(bb) a document relating
to the individual presenting it
described in clause (iii) and a
document relating to the
individual presenting it
described in clause (iv).
``(ii) Documents evidencing employment
authorization and establishing identity.--A
document described in this subparagraph is an
individual's--
``(I) unexpired United States
passport or passport card;
``(II) unexpired permanent resident
card that contains a photograph;
``(III) unexpired employment
authorization card that contains a
photograph;
``(IV) in the case of a
nonimmigrant alien authorized to work
for a specific employer incident to
status, a foreign passport with Form I-
94 or Form I-94A, or other
documentation as designated by the
Secretary specifying the alien's
nonimmigrant status as long as the
period of status has not yet expired
and the proposed employment is not in
conflict with any restrictions or
limitations identified in the
documentation;
``(V) passport from the Federated
States of Micronesia (FSM) or the
Republic of the Marshall Islands (RMI)
with Form I-94 or Form I-94A, or other
documentation as designated by the
Secretary, indicating nonimmigrant
admission under the Compact of Free
Association Between the United States
and the FSM or RMI; or
``(VI) other document designated by
the Secretary of Homeland Security, if
the document--
``(aa) contains a
photograph of the individual
and biometric identification
data from the individual and
such other personal identifying
information relating to the
individual as the Secretary of
Homeland Security finds, by
regulation, sufficient for
purposes of this clause;
``(bb) is evidence of
authorization of employment in
the United States; and
``(cc) contains security
features to make it resistant
to tampering, counterfeiting,
and fraudulent use.
``(iii) Documents evidencing employment
authorization.--A document described in this
subparagraph is an individual's social security
account number card (other than such a card
which specifies on the face that the issuance
of the card does not authorize employment in
the United States).
``(iv) Documents establishing identity of
individual.--A document described in this
subparagraph is--
``(I) an individual's unexpired
driver's license or identification card
if it was issued by a State or American
Samoa and contains a photograph and
information such as name, date of
birth, gender, height, eye color, and
address;
``(II) an individual's unexpired
U.S. military identification card; or
``(III) an individual's unexpired
Native American tribal identification
document issued by a tribal entity
recognized by the Bureau of Indian
Affairs.
``(v) Authority to prohibit use of certain
documents.--If the Secretary of Homeland
Security finds, by regulation, that any
document described in clause (i), (ii), or
(iii) as establishing employment authorization
or identity does not reliably establish such
authorization or identity or is being used
fraudulently to an unacceptable degree, the
Secretary may prohibit or place conditions on
its use for purposes of this paragraph.
``(vi) Signature.--Such attestation may be
manifested by either a handwritten or
electronic signature.
``(B) Individual attestation of employment
authorization.--During the verification period (as
defined in subparagraph (E)), the individual shall
attest, under penalty of perjury on the form designated
or established for purposes of subparagraph (A), that
the individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Secretary of Homeland Security to be hired,
recruited, or referred for such employment. Such
attestation may be manifested by either a handwritten
or electronic signature. The individual shall also
provide that individual's social security account
number or United States passport number (if the
individual claims to have been issued such a number),
and, if the individual does not attest to United States
nationality under this subparagraph, such
identification or authorization number established by
the Department of Homeland Security for the alien as
the Secretary may specify.
``(C) Retention of verification form and
verification.--
``(i) In general.--After completion of such
form in accordance with subparagraphs (A) and
(B), the person or entity shall--
``(I) retain a paper, microfiche,
microfilm, or electronic version of the
form and make it available for
inspection by officers of the
Department of Homeland Security, the
Department of Justice, or the
Department of Labor during a period
beginning on the date of the recruiting
or referral of the individual, or, in
the case of the hiring of an
individual, the date on which the
verification is completed, and ending--
``(aa) in the case of the
recruiting or referral of an
individual, 3 years after the
date of the recruiting or
referral; and
``(bb) in the case of the
hiring of an individual, the
later of 3 years after the date
the verification is completed
or one year after the date the
individual's employment is
terminated; and
``(II) during the verification
period (as defined in subparagraph
(E)), make an inquiry, as provided in
subsection (d), using the verification
system to seek verification of the
identity and employment eligibility of
an individual.
``(ii) Confirmation.--
``(I) Confirmation received.--If
the person or other entity receives an
appropriate confirmation of an
individual's identity and work
eligibility under the verification
system within the time period
specified, the person or entity shall
record on the form an appropriate code
that is provided under the system and
that indicates a final confirmation of
such identity and work eligibility of
the individual.
``(II) Tentative nonconfirmation
received.--If the person or other
entity receives a tentative
nonconfirmation of an individual's
identity or work eligibility under the
verification system within the time
period specified, the person or entity
shall so inform the individual for whom
the verification is sought. If the
individual does not contest the
nonconfirmation within the time period
specified, the nonconfirmation shall be
considered final. The person or entity
shall then record on the form an
appropriate code which has been
provided under the system to indicate a
final nonconfirmation. If the
individual does contest the
nonconfirmation, the individual shall
utilize the process for secondary
verification provided under subsection
(d). The nonconfirmation will remain
tentative until a final confirmation or
nonconfirmation is provided by the
verification system within the time
period specified. In no case shall an
employer terminate employment of an
individual because of a failure of the
individual to have identity and work
eligibility confirmed under this
section until a nonconfirmation becomes
final. Nothing in this clause shall
apply to a termination of employment
for any reason other than because of
such a failure. In no case shall an
employer rescind the offer of
employment to an individual because of
a failure of the individual to have
identity and work eligibility confirmed
under this subsection until a
nonconfirmation becomes final. Nothing
in this subclause shall apply to a
rescission of the offer of employment
for any reason other than because of
such a failure.
``(III) Final confirmation or
nonconfirmation received.--If a final
confirmation or nonconfirmation is
provided by the verification system
regarding an individual, the person or
entity shall record on the form an
appropriate code that is provided under
the system and that indicates a
confirmation or nonconfirmation of
identity and work eligibility of the
individual.
``(IV) Extension of time.--If the
person or other entity in good faith
attempts to make an inquiry during the
time period specified and the
verification system has registered that
not all inquiries were received during
such time, the person or entity may
make an inquiry in the first subsequent
working day in which the verification
system registers that it has received
all inquiries. If the verification
system cannot receive inquiries at all
times during a day, the person or
entity merely has to assert that the
entity attempted to make the inquiry on
that day for the previous sentence to
apply to such an inquiry, and does not
have to provide any additional proof
concerning such inquiry.
``(V) Consequences of
nonconfirmation.--
``(aa) Termination or
notification of continued
employment.--If the person or
other entity has received a
final nonconfirmation regarding
an individual, the person or
entity may terminate employment
of the individual (or decline
to recruit or refer the
individual). If the person or
entity does not terminate
employment of the individual or
proceeds to recruit or refer
the individual, the person or
entity shall notify the
Secretary of Homeland Security
of such fact through the
verification system or in such
other manner as the Secretary
may specify.
``(bb) Failure to notify.--
If the person or entity fails
to provide notice with respect
to an individual as required
under item (aa), the failure is
deemed to constitute a
violation of subsection
(a)(1)(A) with respect to that
individual.
``(VI) Continued employment after
final nonconfirmation.--If the person
or other entity continues to employ (or
to recruit or refer) an individual
after receiving final nonconfirmation,
a rebuttable presumption is created
that the person or entity has violated
subsection (a)(1)(A).
``(D) Effective dates of new procedures.--
``(i) Hiring.--Except as provided in clause
(iii), the provisions of this paragraph shall
apply to a person or other entity hiring an
individual for employment in the United States
as follows:
``(I) With respect to employers
having 10,000 or more employees in the
United States on the date of the
enactment of the Legal Workforce Act,
on the date that is 6 months after the
date of the enactment of such Act.
``(II) With respect to employers
having 500 or more employees in the
United States, but less than 10,000
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 12
months after the date of the enactment
of such Act.
``(III) With respect to employers
having 20 or more employees in the
United States, but less than 500
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 18
months after the date of the enactment
of such Act.
``(IV) With respect to employers
having 1 or more employees in the
United States, but less than 20
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 24
months after the date of the enactment
of such Act.
``(ii) Recruiting and referring.--Except as
provided in clause (iii), the provisions of
this paragraph shall apply to a person or other
entity recruiting or referring an individual
for employment in the United States on the date
that is 12 months after the date of the
enactment of the Legal Workforce Act.
``(iii) Agricultural labor or services.--
With respect to an employee performing
agricultural labor or services, this paragraph
shall not apply with respect to the
verification of the employee until the date
that is 24 months after the date of the
enactment of the Legal Workforce Act. An
employee described in this clause shall not be
counted for purposes of clause (i).
``(iv) Transition rule.--Subject to
paragraph (4), the following shall apply to a
person or other entity hiring, recruiting, or
referring an individual for employment in the
United States until the effective date or dates
applicable under clauses (i) through (iii):
``(I) This subsection, as in effect
before the enactment of the Legal
Workforce Act.
``(II) Subtitle A of title IV of
the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note), as in effect before
the effective date in section 7(c) of
the Legal Workforce Act.
``(III) Any other provision of
Federal law requiring the person or
entity to participate in the E-Verify
Program described in section 403(a) of
the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note), as in effect before
the effective date in section 7(c) of
the Legal Workforce Act, including
Executive Order 13465 (8 U.S.C. 1324a
note; relating to Government
procurement).
``(E) Verification period defined.--
``(i) In general.--For purposes of this
paragraph:
``(I) In the case of recruitment or
referral, the term `verification
period' means the period ending on the
date recruiting or referring commences.
``(II) In the case of hiring, the
term `verification period' means the
period beginning on the date on which
an offer of employment is extended and
ending on the date that is three
business days after the date of hire,
except as provided in clause (iii). The
offer of employment may be conditioned
in accordance with clause (ii).
``(ii) Job offer may be conditional.--A
person or other entity may offer a prospective
employee an employment position that is
conditioned on final verification of the
identity and employment eligibility of the
employee using the procedures established under
this paragraph.
``(iii) Special rule.--Notwithstanding
clause (i)(II), in the case of an alien who is
authorized for employment and who provides
evidence from the Social Security
Administration that the alien has applied for a
social security account number, the
verification period ends three business days
after the alien receives the social security
account number.
``(2) Reverification for individuals with limited work
authorization.--
``(A) In general.--Except as provided in
subparagraph (B), a person or entity shall make an
inquiry, as provided in subsection (d), using the
verification system to seek reverification of the
identity and employment eligibility of all individuals
with a limited period of work authorization employed by
the person or entity during the three business days
after the date on which the employee's work
authorization expires as follows:
``(i) With respect to employers having
10,000 or more employees in the United States
on the date of the enactment of the Legal
Workforce Act, beginning on the date that is 6
months after the date of the enactment of such
Act.
``(ii) With respect to employers having 500
or more employees in the United States, but
less than 10,000 employees in the United
States, on the date of the enactment of the
Legal Workforce Act, beginning on the date that
is 12 months after the date of the enactment of
such Act.
``(iii) With respect to employers having 20
or more employees in the United States, but
less than 500 employees in the United States,
on the date of the enactment of the Legal
Workforce Act, beginning on the date that is 12
months after the date of the enactment of such
Act.
``(iv) With respect to employers having 1
or more employees in the United States, but
less than 20 employees in the United States, on
the date of the enactment of the Legal
Workforce Act, beginning on the date that is 12
months after the date of the enactment of such
Act.
``(B) Agricultural labor or services.--With respect
to an employee performing agricultural labor or
services, or an employee recruited or referred by a
farm labor contractor (as defined in section 3 of the
Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1801)), subparagraph (A) shall not apply
with respect to the reverification of the employee
until the date that is 24 months after the date of the
enactment of the Legal Workforce Act. For purposes of
the preceding sentence, the term `agricultural labor or
services' has the meaning given such term by the
Secretary of Agriculture in regulations and includes
agricultural labor as defined in section 3121(g) of the
Internal Revenue Code of 1986, agriculture as defined
in section 3(f) of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(f)), the handling, planting, drying,
packing, packaging, processing, freezing, or grading
prior to delivery for storage of any agricultural or
horticultural commodity in its unmanufactured state,
all activities required for the preparation,
processing, or manufacturing of a product of
agriculture (as such term is defined in such section
3(f)) for further distribution, and activities similar
to all the foregoing as they relate to fish or
shellfish facilities. The term does not include the
preparation of any food product that is to be served
directly to the public. An employee described in this
subparagraph shall not be counted for purposes of
subparagraph (A).
``(C) Reverification.--Paragraph (1)(C)(ii) shall
apply to reverifications pursuant to this paragraph on
the same basis as it applies to verifications pursuant
to paragraph (1), except that employers shall--
``(i) use a form designated or established
by the Secretary by regulation for purposes of
this paragraph; and
``(ii) retain a paper, microfiche,
microfilm, or electronic version of the form
and make it available for inspection by
officers of the Department of Homeland
Security, the Department of Justice, or the
Department of Labor during the period beginning
on the date the reverification commences and
ending on the date that is the later of 3 years
after the date of such reverification or 1 year
after the date the individual's employment is
terminated.
``(3) Previously hired individuals.--
``(A) On a mandatory basis for multiple users of
same social security account number.--In the case of an
employer who is required by this subsection to use the
verification system described in subsection (d), or has
elected voluntarily to use such system, the employer
shall make inquiries to the system in accordance with
the following:
``(i) The Commissioner of Social Security
shall notify annually employees (at the
employee address listed on the Wage and Tax
Statement) who submit a social security account
number to which more than one employer reports
income and for which there is a pattern of
unusual multiple use. The notification letter
shall identify the number of employers to which
income is being reported as well as sufficient
information notifying the employee of the
process to contact the Social Security
Administration Fraud Hotline if the employee
believes the employee's identity may have been
stolen. The notice shall not share information
protected as private, in order to avoid any
recipient of the notice from being in the
position to further commit or begin committing
identity theft.
``(ii) If the person to whom the social
security account number was issued by the
Social Security Administration has been
identified and confirmed by the Commissioner,
and indicates that the social security account
number was used without their knowledge, the
Secretary and the Commissioner shall lock the
social security account number for employment
eligibility verification purposes and shall
notify the employers of the individuals who
wrongfully submitted the social security
account number that the employee may not be
work eligible.
``(iii) Each employer receiving such
notification of an incorrect social security
account number under clause (ii) shall use the
verification system described in subsection (d)
to check the work eligibility status of the
applicable employee within 10 business days of
receipt of the notification.
``(B) On a voluntary basis.--Subject to paragraph
(2), and subparagraphs (A) through (C) of this
paragraph, beginning on the date that is 30 days after
the date of the enactment of the Legal Workforce Act,
an employer may make an inquiry, as provided in
subsection (d), using the verification system to seek
verification of the identity and employment eligibility
of any individual employed by the employer. If an
employer chooses voluntarily to seek verification of
any individual employed by the employer, the employer
shall seek verification of all individuals employed at
the same geographic location or, at the option of the
employer, all individuals employed within the same job
category, as the employee with respect to whom the
employer seeks voluntarily to use the verification
system. An employer's decision about whether or not
voluntarily to seek verification of its current
workforce under this subparagraph may not be considered
by any government agency in any proceeding,
investigation, or review provided for in this Act.
``(C) Verification.--Paragraph (1)(C)(ii) shall
apply to verifications pursuant to this paragraph on
the same basis as it applies to verifications pursuant
to paragraph (1), except that employers shall--
``(i) use a form designated or established
by the Secretary by regulation for purposes of
this paragraph; and
``(ii) retain a paper, microfiche,
microfilm, or electronic version of the form
and make it available for inspection by
officers of the Department of Homeland
Security, the Department of Justice, or the
Department of Labor during the period beginning
on the date the verification commences and
ending on the date that is the later of 3 years
after the date of such verification or 1 year
after the date the individual's employment is
terminated.
``(4) Early compliance.--
``(A) Former e-verify required users, including
federal contractors.--Notwithstanding the deadlines in
paragraphs (1) and (2), beginning on the date of the
enactment of the Legal Workforce Act, the Secretary is
authorized to commence requiring employers required to
participate in the E-Verify Program described in
section 403(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note), including employers required to participate in
such program by reason of Federal acquisition laws (and
regulations promulgated under those laws, including the
Federal Acquisition Regulation), to commence compliance
with the requirements of this subsection (and any
additional requirements of such Federal acquisition
laws and regulation) in lieu of any requirement to
participate in the E-Verify Program.
``(B) Former e-verify voluntary users and others
desiring early compliance.--Notwithstanding the
deadlines in paragraphs (1) and (2), beginning on the
date of the enactment of the Legal Workforce Act, the
Secretary shall provide for the voluntary compliance
with the requirements of this subsection by employers
voluntarily electing to participate in the E-Verify
Program described in section 403(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1324a note) before such date, as well as
by other employers seeking voluntary early compliance.
``(5) Copying of documentation permitted.--Notwithstanding
any other provision of law, the person or entity may copy a
document presented by an individual pursuant to this subsection
and may retain the copy, but only (except as otherwise
permitted under law) for the purpose of complying with the
requirements of this subsection.
``(6) Limitation on use of forms.--A form designated or
established by the Secretary of Homeland Security under this
subsection and any information contained in or appended to such
form, may not be used for purposes other than for enforcement
of this Act and any other provision of Federal criminal law.
``(7) Good faith compliance.--
``(A) In general.--Except as otherwise provided in
this subsection, a person or entity is considered to
have complied with a requirement of this subsection
notwithstanding a technical or procedural failure to
meet such requirement if there was a good faith attempt
to comply with the requirement.
``(B) Exception if failure to correct after
notice.--Subparagraph (A) shall not apply if--
``(i) the failure is not de minimus;
``(ii) the Secretary of Homeland Security
has explained to the person or entity the basis
for the failure and why it is not de minimus;
``(iii) the person or entity has been
provided a period of not less than 30 calendar
days (beginning after the date of the
explanation) within which to correct the
failure; and
``(iv) the person or entity has not
corrected the failure voluntarily within such
period.
``(C) Exception for pattern or practice
violators.--Subparagraph (A) shall not apply to a
person or entity that has or is engaging in a pattern
or practice of violations of subsection (a)(1)(A) or
(a)(2).
``(8) Single extension of deadlines upon certification.--In
a case in which the Secretary of Homeland Security has
certified to the Congress that the employment eligibility
verification system required under subsection (d) will not be
fully operational by the date that is 6 months after the date
of the enactment of the Legal Workforce Act, each deadline
established under this section for an employer to make an
inquiry using such system shall be extended by 6 months. No
other extension of such a deadline shall be made except as
authorized under paragraph (1)(D)(iv).''.
(b) Date of Hire.--Section 274A(h) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at the end the
following:
``(4) Definition of date of hire.--As used in this section,
the term `date of hire' means the date of actual commencement
of employment for wages or other remuneration, unless otherwise
specified.''.
SEC. 203. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
Section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)) is amended to read as follows:
``(d) Employment Eligibility Verification System.--
``(1) In general.--Patterned on the employment eligibility
confirmation system established under section 404 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1324a note), the Secretary of Homeland Security
shall establish and administer a verification system through
which the Secretary (or a designee of the Secretary, which may
be a nongovernmental entity)--
``(A) responds to inquiries made by persons at any
time through a toll-free telephone line and other toll-
free electronic media concerning an individual's
identity and whether the individual is authorized to be
employed; and
``(B) maintains records of the inquiries that were
made, of verifications provided (or not provided), and
of the codes provided to inquirers as evidence of their
compliance with their obligations under this section.
``(2) Initial response.--The verification system shall
provide confirmation or a tentative nonconfirmation of an
individual's identity and employment eligibility not later than
3 days prior to the date of employment per the initial inquiry.
If providing confirmation or tentative nonconfirmation, the
verification system shall provide an appropriate code
indicating such confirmation or such nonconfirmation.
``(3) Secondary confirmation process in case of tentative
nonconfirmation.--In cases of tentative nonconfirmation, the
Secretary shall specify, in consultation with the Commissioner
of Social Security, in the case of an individual with an
existing social security number or passport number, an
available secondary verification process to confirm the
validity of information provided and to provide a final
confirmation or nonconfirmation immediately. The Secretary, in
consultation with the Commissioner, may extend this deadline
once on a case-by-case basis for a period of 10 working days,
and if the time is extended, shall document such extension
within the verification system. The Secretary, in consultation
with the Commissioner, shall notify the employee and employer
of such extension. The Secretary, in consultation with the
Commissioner, shall create a standard process of such extension
and notification and shall make a description of such process
available to the public. When final confirmation or
nonconfirmation is provided, the verification system shall
provide an appropriate code indicating such confirmation or
nonconfirmation.
``(4) Design and operation of system.--The verification
system shall be designed and operated--
``(A) to maximize its reliability and ease of use
by persons and other entities consistent with
insulating and protecting the privacy and security of
the underlying information;
``(B) to respond to all inquiries made by such
persons and entities on whether individuals are
authorized to be employed and to register all times
when such inquiries are not received;
``(C) with appropriate administrative, technical,
and physical safeguards to prevent unauthorized
disclosure of personal information;
``(D) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices
based on national origin or citizenship status,
including--
``(i) the selective or unauthorized use of
the system to verify eligibility; or
``(ii) the exclusion of certain individuals
from consideration for employment as a result
of a perceived likelihood that additional
verification will be required, beyond what is
required for most job applicants;
``(E) to maximize the prevention of identity theft
use in the system; and
``(F) to limit the subjects of verification to the
following individuals:
``(i) Individuals hired, referred, or
recruited, in accordance with paragraph (1) or
(4) of subsection (b).
``(ii) Employees and prospective employees,
in accordance with paragraph (1), (2), (3), or
(4) of subsection (b).
``(iii) Individuals seeking to confirm
their own employment eligibility on a voluntary
basis.
``(5) Responsibilities of commissioner of social
security.--As part of the verification system, the Commissioner
of Social Security, in consultation with the Secretary of
Homeland Security (and any designee of the Secretary selected
to establish and administer the verification system), shall
establish a reliable, secure method, which, within the time
periods specified under paragraphs (2) and (3), compares the
name and social security account number or agricultural
guestworker identification number provided in an inquiry
against such information maintained by the Commissioner in
order to validate (or not validate) the information provided
regarding an individual whose identity and employment
eligibility must be confirmed, the correspondence of the name
and number, and whether the individual has presented a social
security account number that is not valid for employment. The
Commissioner shall not disclose or release social security
information (other than such confirmation or nonconfirmation)
under the verification system except as provided for in this
section or section 205(c)(2)(I) of the Social Security Act.
``(6) Responsibilities of secretary of homeland security.--
``(A) In general.--As part of the verification
system, the Secretary of Homeland Security (in
consultation with any designee of the Secretary
selected to establish and administer the verification
system), shall establish a reliable, secure method,
which, within the time periods specified under
paragraphs (2) and (3), compares the name and alien
identification or authorization number (or any other
information as determined relevant by the Secretary)
which are provided in an inquiry against such
information maintained or accessed by the Secretary in
order to validate (or not validate) the information
provided, the correspondence of the name and number,
whether the alien is authorized to be employed in the
United States, or to the extent that the Secretary
determines to be feasible and appropriate, whether the
records available to the Secretary verify the identity
or status of a national of the United States.
``(B) Agricultural laborers.--The Secretary of
Homeland Security shall ensure that, by the date that
is 12 months after the date of the enactment of the
Legal Workforce Act, whenever the verification system
provides confirmation of an individual's employment
eligibility, it indicates whether the individual is
eligible to be employed only to perform agricultural
labor or services as a nonimmigrant who has been issued
a visa or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(ii)(c).
``(7) Updating information.--The Commissioner of Social
Security and the Secretary of Homeland Security shall update
their information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt correction
of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in paragraph (3).
``(8) Limitation on use of the verification system and any
related systems.--
``(A) No national identification card.--Nothing in
this section shall be construed to authorize, directly
or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
``(B) Critical infrastructure.--The Secretary may
authorize or direct any person or entity responsible
for granting access to, protecting, securing,
operating, administering, or regulating part of the
critical infrastructure (as defined in section 1016(e)
of the Critical Infrastructure Protection Act of 2001
(42 U.S.C. 5195c(e))) to use the verification system to
the extent the Secretary determines that such use will
assist in the protection of the critical
infrastructure.
``(9) Remedies.--If an individual alleges that the
individual would not have been dismissed from a job but for an
error of the verification mechanism, the individual may seek
compensation only through the mechanism of the Federal Tort
Claims Act, and injunctive relief to correct such error. No
class action may be brought under this paragraph.''.
SEC. 204. RECRUITMENT, REFERRAL, AND CONTINUATION OF EMPLOYMENT.
(a) Additional Changes to Rules for Recruitment, Referral, and
Continuation of Employment.--Section 274A(a) of the Immigration and
Nationality Act (8 U.S.C. 1324a(a)) is amended--
(1) in paragraph (1)(A), by striking ``for a fee'';
(2) in paragraph (1), by amending subparagraph (B) to read
as follows:
``(B) to hire, continue to employ, or to recruit or
refer for employment in the United States an individual
without complying with the requirements of subsection
(b).''; and
(3) in paragraph (2), by striking ``after hiring an alien
for employment in accordance with paragraph (1),'' and
inserting ``after complying with paragraph (1),''.
(b) Definition.--Section 274A(h) of the Immigration and Nationality
Act (8 U.S.C. 1324a(h)), as amended by this title, is further amended
by adding at the end the following:
``(5) Definition of recruit or refer.--As used in this
section, the term `refer' means the act of sending or directing
a person who is in the United States or transmitting
documentation or information to another, directly or
indirectly, with the intent of obtaining employment in the
United States for such person. Only persons or entities
referring for remuneration (whether on a retainer or
contingency basis) are included in the definition, except that
union hiring halls that refer union members or nonunion
individuals who pay union membership dues are included in the
definition whether or not they receive remuneration, as are
labor service entities or labor service agencies, whether
public, private, for-profit, or nonprofit, that refer,
dispatch, or otherwise facilitate the hiring of laborers for
any period of time by a third party. As used in this section,
the term `recruit' means the act of soliciting a person who is
in the United States, directly or indirectly, and referring the
person to another with the intent of obtaining employment for
that person. Only persons or entities referring for
remuneration (whether on a retainer or contingency basis) are
included in the definition, except that union hiring halls that
refer union members or nonunion individuals who pay union
membership dues are included in this definition whether or not
they receive remuneration, as are labor service entities or
labor service agencies, whether public, private, for-profit, or
nonprofit that recruit, dispatch, or otherwise facilitate the
hiring of laborers for any period of time by a third party.''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date that is 1 year after the date of the enactment of
this Act, except that the amendments made by subsection (a) shall take
effect 6 months after the date of the enactment of this Act insofar as
such amendments relate to continuation of employment.
SEC. 205. GOOD FAITH DEFENSE.
Section 274A(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1324a(a)(3)) is amended to read as follows:
``(3) Good faith defense.--
``(A) Defense.--An employer (or person or entity
that hires, employs, recruits, or refers (as defined in
subsection (h)(5)), or is otherwise obligated to comply
with this section) who establishes that it has complied
in good faith with the requirements of subsection (b)--
``(i) shall not be liable to a job
applicant, an employee, the Federal Government,
or a State or local government, under Federal,
State, or local criminal or civil law for any
employment-related action taken with respect to
a job applicant or employee in good-faith
reliance on information provided through the
system established under subsection (d); and
``(ii) has established compliance with its
obligations under subparagraphs (A) and (B) of
paragraph (1) and subsection (b) absent a
showing by the Secretary of Homeland Security,
by clear and convincing evidence, that the
employer had knowledge that an employee is an
unauthorized alien.
``(B) Mitigation element.--For purposes of
subparagraph (A)(i), if an employer proves by a
preponderance of the evidence that the employer uses a
reasonable, secure, and established technology to
authenticate the identity of the new employee, that
fact shall be taken into account for purposes of
determining good faith use of the system established
under subsection (d).
``(C) Failure to seek and obtain verification.--
Subject to the effective dates and other deadlines
applicable under subsection (b), in the case of a
person or entity in the United States that hires, or
continues to employ, an individual, or recruits or
refers an individual for employment, the following
requirements apply:
``(i) Failure to seek verification.--
``(I) In general.--If the person or
entity has not made an inquiry, under
the mechanism established under
subsection (d) and in accordance with
the timeframes established under
subsection (b), seeking verification of
the identity and work eligibility of
the individual, the defense under
subparagraph (A) shall not be
considered to apply with respect to any
employment, except as provided in
subclause (II).
``(II) Special rule for failure of
verification mechanism.--If such a
person or entity in good faith attempts
to make an inquiry in order to qualify
for the defense under subparagraph (A)
and the verification mechanism has
registered that not all inquiries were
responded to during the relevant time,
the person or entity can make an
inquiry until the end of the first
subsequent working day in which the
verification mechanism registers no
nonresponses and qualify for such
defense.
``(ii) Failure to obtain verification.--If
the person or entity has made the inquiry
described in clause (i)(I) but has not received
an appropriate verification of such identity
and work eligibility under such mechanism
within the time period specified under
subsection (d)(2) after the time the
verification inquiry was received, the defense
under subparagraph (A) shall not be considered
to apply with respect to any employment after
the end of such time period.''.
SEC. 206. PREEMPTION AND STATES' RIGHTS.
Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)(2)) is amended to read as follows:
``(2) Preemption.--
``(A) Single, national policy.--The provisions of
this section preempt any State or local law, ordinance,
policy, or rule, including any criminal or civil fine
or penalty structure, insofar as they may now or
hereafter relate to the hiring, continued employment,
or status verification for employment eligibility
purposes, of unauthorized aliens.
``(B) State enforcement of federal law.--
``(i) Business licensing.--A State,
locality, municipality, or political
subdivision may exercise its authority over
business licensing and similar laws as a
penalty for failure to use the verification
system described in subsection (d) to verify
employment eligibility when and as required
under subsection (b).
``(ii) General rules.--A State, at its own
cost, may enforce the provisions of this
section, but only insofar as such State follows
the Federal regulations implementing this
section, applies the Federal penalty structure
set out in this section, and complies with all
Federal rules and guidance concerning
implementation of this section. Such State may
collect any fines assessed under this section.
An employer may not be subject to enforcement,
including audit, investigation, and fines, by
both a Federal agency and a State for the same
violation under this section. Whichever entity,
the Federal agency or the State, is first to
initiate the enforcement action, has the right
of first refusal to proceed with the
enforcement action. The Secretary must provide
copies of all guidance, training, and field
instructions provided to Federal officials
implementing the provisions of this section to
each State.''.
SEC. 207. REPEAL.
(a) In General.--Subtitle A of title IV of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note)
is repealed.
(b) References.--Any reference in any Federal law, Executive order,
rule, regulation, or delegation of authority, or any document of, or
pertaining to, the Department of Homeland Security, Department of
Justice, or the Social Security Administration, to the employment
eligibility confirmation system established under section 404 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note) is deemed to refer to the employment eligibility
confirmation system established under section 274A(d) of the
Immigration and Nationality Act, as amended by this title.
(c) Effective Date.--This section shall take effect on the date
that is 12 months after the date of the enactment of this Act.
(d) Clerical Amendment.--The table of sections, in section 1(d) of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, is amended by striking the items relating to subtitle A of title
IV.
SEC. 208. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended--
(1) in subsection (e)(1)--
(A) by striking ``Attorney General'' each place
such term appears and inserting ``Secretary of Homeland
Security''; and
(B) in subparagraph (D), by striking ``Service''
and inserting ``Department of Homeland Security'';
(2) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before
clause (i), by inserting ``, subject to paragraph
(10),'' after ``in an amount'';
(B) in subparagraph (A)(i), by striking ``not less
than $250 and not more than $2,000'' and inserting
``not less than $2,500 and not more than $5,000'';
(C) in subparagraph (A)(ii), by striking ``not less
than $2,000 and not more than $5,000'' and inserting
``not less than $5,000 and not more than $10,000'';
(D) in subparagraph (A)(iii), by striking ``not
less than $3,000 and not more than $10,000'' and
inserting ``not less than $10,000 and not more than
$25,000''; and
(E) by moving the margin of the continuation text
following subparagraph (B) two ems to the left and by
amending subparagraph (B) to read as follows:
``(B) may require the person or entity to take such
other remedial action as is appropriate.'';
(3) in subsection (e)(5)--
(A) in the paragraph heading, strike ``paperwork'';
(B) by inserting ``, subject to paragraphs (10)
through (12),'' after ``in an amount'';
(C) by striking ``$100'' and inserting ``$1,000'';
(D) by striking ``$1,000'' and inserting
``$25,000''; and
(E) by adding at the end the following: ``Failure
by a person or entity to utilize the employment
eligibility verification system as required by law, or
providing information to the system that the person or
entity knows or reasonably believes to be false, shall
be treated as a violation of subsection (a)(1)(A).'';
(4) by adding at the end of subsection (e) the following:
``(10) Exemption from penalty for good faith violation.--In
the case of imposition of a civil penalty under paragraph
(4)(A) with respect to a violation of subsection (a)(1)(A) or
(a)(2) for hiring or continuation of employment or recruitment
or referral by person or entity and in the case of imposition
of a civil penalty under paragraph (5) for a violation of
subsection (a)(1)(B) for hiring or recruitment or referral by a
person or entity, the penalty otherwise imposed may be waived
or reduced if the violator establishes that the violator acted
in good faith.
``(11) Mitigation element.--For purposes of paragraph (4),
the size of the business shall be taken into account when
assessing the level of civil money penalty.
``(12) Authority to debar employers for certain
violations.--
``(A) In general.--If a person or entity is
determined by the Secretary of Homeland Security to be
a repeat violator of paragraph (1)(A) or (2) of
subsection (a), or is convicted of a crime under this
section, such person or entity may be considered for
debarment from the receipt of Federal contracts,
grants, or cooperative agreements in accordance with
the debarment standards and pursuant to the debarment
procedures set forth in the Federal Acquisition
Regulation.
``(B) Does not have contract, grant, agreement.--If
the Secretary of Homeland Security or the Attorney
General wishes to have a person or entity considered
for debarment in accordance with this paragraph, and
such person or entity does not hold a Federal contract,
grant or cooperative agreement, the Secretary or
Attorney General shall refer the matter to the
Administrator of General Services to determine whether
to list the person or entity on the List of Parties
Excluded from Federal Procurement, and if so, for what
duration and under what scope.
``(C) Has contract, grant, agreement.--If the
Secretary of Homeland Security or the Attorney General
wishes to have a person or entity considered for
debarment in accordance with this paragraph, and such
person or entity holds a Federal contract, grant or co-
operative agreement, the Secretary or Attorney General
shall advise all agencies or departments holding a
contract, grant, or cooperative agreement with the
person or entity of the Government's interest in having
the person or entity considered for debarment, and
after soliciting and considering the views of all such
agencies and departments, the Secretary or Attorney
General may refer the matter to any appropriate lead
agency to determine whether to list the person or
entity on the List of Parties Excluded from Federal
Procurement, and if so, for what duration and under
what scope.
``(D) Review.--Any decision to debar a person or
entity in accordance with this paragraph shall be
reviewable pursuant to part 9.4 of the Federal
Acquisition Regulation.
``(13) Office for state and local government complaints.--
The Secretary of Homeland Security shall establish an office--
``(A) to which State and local government agencies
may submit information indicating potential violations
of subsection (a), (b), or (g)(1) that were generated
in the normal course of law enforcement or the normal
course of other official activities in the State or
locality;
``(B) that is required to indicate to the
complaining State or local agency within five business
days of the filing of such a complaint by identifying
whether the Secretary will further investigate the
information provided;
``(C) that is required to investigate those
complaints filed by State or local government agencies
that, on their face, have a substantial probability of
validity;
``(D) that is required to notify the complaining
State or local agency of the results of any such
investigation conducted; and
``(E) that is required to report to the Congress
annually the number of complaints received under this
paragraph, the States and localities that filed such
complaints, and the resolution of the complaints
investigated by the Secretary.''; and
(5) by amending paragraph (1) of subsection (f) to read as
follows:
``(1) Criminal penalty.--Any person or entity which engages
in a pattern or practice of violations of subsection (a) (1) or
(2) shall be fined not more than $5,000 for each unauthorized
alien with respect to which such a violation occurs, imprisoned
for not more than 18 months, or both, notwithstanding the
provisions of any other Federal law relating to fine levels.''.
SEC. 209. FRAUD AND MISUSE OF DOCUMENTS.
Section 1546(b) of title 18, United States Code, is amended--
(1) in paragraph (1), by striking ``identification
document,'' and inserting ``identification document or document
meant to establish work authorization (including the documents
described in section 274A(b) of the Immigration and Nationality
Act),''; and
(2) in paragraph (2), by striking ``identification
document'' and inserting ``identification document or document
meant to establish work authorization (including the documents
described in section 274A(b) of the Immigration and Nationality
Act),''.
SEC. 210. PROTECTION OF SOCIAL SECURITY ADMINISTRATION PROGRAMS.
(a) Funding Under Agreement.--Effective for fiscal years beginning
on or after October 1, 2020, the Commissioner of Social Security and
the Secretary of Homeland Security shall enter into and maintain an
agreement which shall--
(1) provide funds to the Commissioner for the full costs of
the responsibilities of the Commissioner under section 274A(d)
of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as
amended by this title, including (but not limited to)--
(A) acquiring, installing, and maintaining
technological equipment and systems necessary for the
fulfillment of the responsibilities of the Commissioner
under such section 274A(d), but only that portion of
such costs that are attributable exclusively to such
responsibilities; and
(B) responding to individuals who contest a
tentative nonconfirmation provided by the employment
eligibility verification system established under such
section;
(2) provide such funds annually in advance of the
applicable quarter based on estimating methodology agreed to by
the Commissioner and the Secretary (except in such instances
where the delayed enactment of an annual appropriation may
preclude such quarterly payments); and
(3) require an annual accounting and reconciliation of the
actual costs incurred and the funds provided under the
agreement, which shall be reviewed by the Inspectors General of
the Social Security Administration and the Department of
Homeland Security.
(b) Continuation of Employment Verification in Absence of Timely
Agreement.--In any case in which the agreement required under
subsection (a) for any fiscal year beginning on or after October 1,
2020, has not been reached as of October 1 of such fiscal year, the
latest agreement between the Commissioner and the Secretary of Homeland
Security providing for funding to cover the costs of the
responsibilities of the Commissioner under section 274A(d) of the
Immigration and Nationality Act (8 U.S.C. 1324a(d)) shall be deemed in
effect on an interim basis for such fiscal year until such time as an
agreement required under subsection (a) is subsequently reached, except
that the terms of such interim agreement shall be modified by the
Director of the Office of Management and Budget to adjust for inflation
and any increase or decrease in the volume of requests under the
employment eligibility verification system. In any case in which an
interim agreement applies for any fiscal year under this subsection,
the Commissioner and the Secretary shall, not later than October 1 of
such fiscal year, notify the Committee on Ways and Means, the Committee
on the Judiciary, and the Committee on Appropriations of the House of
Representatives and the Committee on Finance, the Committee on the
Judiciary, and the Committee on Appropriations of the Senate of the
failure to reach the agreement required under subsection (a) for such
fiscal year. Until such time as the agreement required under subsection
(a) has been reached for such fiscal year, the Commissioner and the
Secretary shall, not later than the end of each 90-day period after
October 1 of such fiscal year, notify such Committees of the status of
negotiations between the Commissioner and the Secretary in order to
reach such an agreement.
SEC. 211. FRAUD PREVENTION.
(a) Blocking Misused Social Security Account Numbers.--The
Secretary of Homeland Security, in consultation with the Commissioner
of Social Security, shall establish a program in which social security
account numbers that have been identified to be subject to unusual
multiple use in the employment eligibility verification system
established under section 274A(d) of the Immigration and Nationality
Act (8 U.S.C. 1324a(d)), as amended by this title, or that are
otherwise suspected or determined to have been compromised by identity
fraud or other misuse, shall be blocked from use for such system
purposes unless the individual using such number is able to establish,
through secure and fair additional security procedures, that the
individual is the legitimate holder of the number.
(b) Allowing Suspension of Use of Certain Social Security Account
Numbers.--The Secretary of Homeland Security, in consultation with the
Commissioner of Social Security, shall establish a program which shall
provide a reliable, secure method by which victims of identity fraud
and other individuals may suspend or limit the use of their social
security account number or other identifying information for purposes
of the employment eligibility verification system established under
section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by this title. The Secretary may implement the
program on a limited pilot program basis before making it fully
available to all individuals.
(c) Allowing Parents To Prevent Theft of Their Child's Identity.--
The Secretary of Homeland Security, in consultation with the
Commissioner of Social Security, shall establish a program which shall
provide a reliable, secure method by which parents or legal guardians
may suspend or limit the use of the social security account number or
other identifying information of a minor under their care for the
purposes of the employment eligibility verification system established
under 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by this title. The Secretary may implement the
program on a limited pilot program basis before making it fully
available to all individuals.
SEC. 212. USE OF EMPLOYMENT ELIGIBILITY VERIFICATION PHOTO TOOL.
An employer or entity who uses the photo matching tool, if required
by the Secretary as part of the verification system, shall match,
either visually, or using facial recognition or other verification
technology approved or required by the Secretary, the photo matching
tool photograph to the photograph on the identity or employment
eligibility document provided by the individual or to the face of the
employee submitting the document for employment verification purposes,
or both, as determined by the Secretary.
SEC. 213. IDENTITY AUTHENTICATION EMPLOYMENT ELIGIBILITY VERIFICATION
PILOT PROGRAMS.
Not later than 12 months after the date of the enactment of this
Act, the Secretary of Homeland Security, after consultation with the
Commissioner of Social Security and the Director of the National
Institute of Standards and Technology, shall establish by regulation
not less than 2 Identity Authentication Employment Eligibility
Verification pilot programs, each using a separate and distinct
technology (the ``Authentication Pilots''). The purpose of the
Authentication Pilots shall be to provide for identity authentication
and employment eligibility verification with respect to enrolled new
employees which shall be available to any employer that elects to
participate in either of the Authentication Pilots. Any participating
employer may cancel the employer's participation in the Authentication
Pilot after one year after electing to participate without prejudice to
future participation. The Secretary shall report to the Committee on
the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate the Secretary's findings on the Authentication
Pilots, including the authentication technologies chosen, not later
than 12 months after commencement of the Authentication Pilots.
SEC. 214. INSPECTOR GENERAL AUDITS.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Inspector General of the Social Security
Administration shall complete audits of the following categories in
order to uncover evidence of individuals who are not authorized to work
in the United States:
(1) Workers who dispute wages reported on their social
security account number when they believe someone else has used
such number and name to report wages.
(2) Children's social security account numbers used for
work purposes.
(3) Employers whose workers present significant numbers of
mismatched social security account numbers or names for wage
reporting.
(b) Submission.--The Inspector General of the Social Security
Administration shall submit the audits completed under subsection (a)
to the Committee on Ways and Means of the House of Representatives and
the Committee on Finance of the Senate for review of the evidence of
individuals who are not authorized to work in the United States. The
Chairmen of those Committees shall then determine information to be
shared with the Secretary of Homeland Security so that such Secretary
can investigate the unauthorized employment demonstrated by such
evidence.
TITLE III--H-2A PROGRAM
SEC. 301. ADMINISTRATION BY DEPARTMENT OF AGRICULTURE.
(a) Admission of Non-Immigrants.--Section 214(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(1)) is amended in the
fifth sentence by striking ``means the Department of Labor and includes
the Department of Agriculture'' and inserting ``means the Department of
Agriculture''.
(b) Administration of Program.--Section 218 of the Immigration and
Nationality Act (8 U.S.C. 1188) (hereinafter in this title referred to
as ``section 218'') is amended by striking ``Secretary of Labor'' each
place such term appears and inserting ``Secretary of Agriculture''.
SEC. 302. DEFINING AGRICULTURAL LABOR.
(a) In General.--Section 101(a)(15)(H) of the Immigration and
Nationality Act is amended in clause (ii)(a) by striking ``agricultural
labor or services, as defined by the Secretary of Labor in regulations
and including agricultural labor defined in section 3121(g) of the
Internal Revenue Code of 1986, agriculture as defined in section 3(f)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), and the
pressing of apples for cider on a farm, of a temporary or seasonal
nature,'' and inserting ``agricultural labor or services of a temporary
nature (as such term is defined in section 218)''.
(b) Definition.--Section 218 is further amended in subsection (i)
by adding at the end the following:
``(3) Agricultural labor or services of a temporary
nature.--The term `agricultural labor or services of a
temporary or seasonal nature'--
``(A) has the meaning given such term by the
Secretary of Agriculture in regulations;
``(B) includes non-seasonal employment; and
``(C) includes--
``(i) agricultural labor as defined in
section 3121(g) of the Internal Revenue Code of
1986;
``(ii) agriculture as defined in section
3(f) of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(f));
``(iii) all activities required for the
preparation, processing or manufacturing of a
product of agriculture (as such term is defined
in such section 3(f)), or fish or shellfish,
for further distribution;
``(iv) 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, but only if the operator
of the facility where such activities are
conducted, if not the farmer, produced or
provides such services to a farmer or other
entity of which farmers are the owners,
partners or members who produced more than 50
percent of the commodity with respect to which
such service is performed;
``(v) forestry-related activities up to the
point of wholesale to a distribution facility;
``(vi) aquaculture activities up to the
point of wholesale distribution;
``(vii) activities related to the breeding,
management, training, and racing of equines;
``(viii) the pressing of apples for cider
on a farm;
``(ix) logging employment; and
``(x) the transportation of any
agricultural or horticultural product in its
unmanufactured state by any person from the
farm to a storage facility, to market, or to
any place of handling, planting, drying,
packing, packaging, processing, freezing, or
grading, including at a packing house, a
processing establishment, a gin, a seed
conditioning facility, a mill, or a grain
elevator.''.
SEC. 303. WAGE STRUCTURE AND OTHER AMENDMENTS TO H-2A PROGRAM.
Section 218 is further amended by adding at the end the following:
``(j) Wage Structure.--An H-2A worker shall be paid at a rate equal
to the highest of--
``(1) 115 percent of the Federal minimum wage;
``(2) the State minimum wage rate; or
``(3) the actual wage level paid by the employer to all
other individuals with similar experience and qualifications
for the specific employment in question.
``(k) Area of Intended Employment; No Extension of Period of
Authorized Stay.--
``(1) Area of intended employment.--The Secretary of
Agriculture may consider an increased area of employment for an
H-2A petition that is not larger than the State in which the
employer will employ the worker for the purposes of providing
housing.
``(2) No extension of period of authorized stay.--The
period of authorized stay for an H-2A worker may not exceed 10
months, and no extensions of such period may be made.
``(l) Application With Staggered Start Dates.--In the case of any
employer under this section who is applying for labor certifications
for more than 1 H-2A worker, that employer may file a single
consolidated application, subject to such terms and conditions as the
Secretary of Homeland Security may prescribe, for all such workers, and
may specify multiple dates on which the employer first requires the
labor or services of H-2A workers covered by the application.
``(m) Expedited Approval for Certain Workers.--The Secretary of
Homeland Security shall establish a process for expediting
consideration of any petition for an H-2A worker who has previously
been the subject of two consecutive petitions that were approved.''.
SEC. 304. BIOMETRIC IDENTIFICATION CARD.
Section 218 is further amended by adding at the end the following:
``(n) Biometric Identification Card.--An H-2A worker shall be
issued, upon being approved for status as an H-2A worker, an encrypted,
machine-readable electronic identification card to be known as a
`guestworker identification card' which shall--
``(1) have an electronic identification strip to be used
for all H-2A workers;
``(2) have a 15-digit numerical identification code that
may be used for tax withholdings and for verifying an H-2A
worker's employment approval for agriculture specifically;
``(3) include a photograph on the front, and such other
information as the Secretary determines necessary stored on a
card containing microprocessors for data storage including,
fingerprints, retinal scans, DNA, blood type, and facial
recognition;
``(4) be eligible for replacement not more than once in a
5-year period;
``(5) include the start and end date of the period of
approved stay of the H-2A worker and a statement that the H-2A
worker is a seasonal worker;
``(6) have physical and electronic security features to
prevent fraudulent uses or any misuse as determined by the
Secretary; and
``(7) have the H-2A worker's program identification number
clearly visible.
``(o) Social Security Numbers.--An H-2A worker may not be issued a
social security account number. In any case where such number would be
necessary, the guestworker identification number issued by the
Secretary of Agriculture shall be used.''.
SEC. 305. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect
beginning on the date that is not more than 2 years after the date of
enactment of 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 Labor, Ways and Means, and Energy and Commerce, 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 Labor, Ways and Means, and Energy and Commerce, 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 Labor, Ways and Means, and Energy and Commerce, 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 Labor, Ways and Means, and Energy and Commerce, 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.
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