116th CONGRESS
1st Session |
H. R. 5038
IN THE SENATE OF THE UNITED STATES
December 12, 2019
Received; read twice and referred to the Committee on the Judiciary
AN ACT
To amend the Immigration and Nationality Act to provide for terms and conditions for nonimmigrant
workers performing agricultural labor or services, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
(a) Short title.—This Act may be cited as the “Farm Workforce Modernization Act of 2019”.
(b) Table of contents.—The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 101. Certified agricultural worker status.
Sec. 102. Terms and conditions of certified status.
Sec. 103. Extensions of certified status.
Sec. 104. Determination of continuous presence.
Sec. 105. Employer obligations.
Sec. 106. Administrative and judicial review.
Sec. 111. Optional adjustment of status for long-term agricultural workers.
Sec. 112. Payment of taxes.
Sec. 113. Adjudication and decision; review.
Sec. 121. Definitions.
Sec. 122. Rulemaking; Fees.
Sec. 123. Background checks.
Sec. 124. Protection for children.
Sec. 125. Limitation on removal.
Sec. 126. Documentation of agricultural work history.
Sec. 127. Employer protections.
Sec. 128. Correction of social security records.
Sec. 129. Disclosures and privacy.
Sec. 130. Penalties for false statements in applications.
Sec. 131. Dissemination of information.
Sec. 132. Exemption from numerical limitations.
Sec. 133. Reports to Congress.
Sec. 134. Grant program to assist eligible applicants.
Sec. 135. Authorization of appropriations.
Sec. 201. Comprehensive and streamlined electronic H–2A platform.
Sec. 202. H–2A program requirements.
Sec. 203. Agency roles and responsibilities.
Sec. 204. Worker protection and compliance.
Sec. 205. Report on wage protections.
Sec. 206. Portable H–2A visa pilot program.
Sec. 207. Improving access to permanent residence.
Sec. 220. Short title.
Sec. 221. Permanent establishment of housing preservation and revitalization program.
Sec. 222. Eligibility for rural housing vouchers.
Sec. 223. Amount of voucher assistance.
Sec. 224. Rental assistance contract authority.
Sec. 225. Funding for multifamily technical improvements.
Sec. 226. Plan for preserving affordability of rental projects.
Sec. 227. Covered housing programs.
Sec. 228. New farmworker housing.
Sec. 229. Loan and grant limitations.
Sec. 230. Operating assistance subsidies.
Sec. 231. Eligibility of certified workers.
Sec. 251. Registration of foreign labor recruiters.
Sec. 252. Enforcement.
Sec. 253. Appropriations.
Sec. 254. Definitions.
Sec. 301. Electronic employment eligibility verification system.
Sec. 302. Mandatory electronic verification for the agricultural industry.
Sec. 303. Coordination with E–Verify Program.
Sec. 304. Fraud and misuse of documents.
Sec. 305. Technical and conforming amendments.
Sec. 306. Protection of Social Security Administration programs.
Sec. 307. Report on the implementation of the electronic employment verification system.
Sec. 308. Modernizing and streamlining the employment eligibility verification process.
Sec. 309. Rulemaking and Paperwork Reduction Act.
(1) PRINCIPAL
ALIENS.—The Secretary may grant certified agricultural worker status to
an alien who submits a completed application, including the required
processing fees, before the end of the period set forth in subsection
(c) and who—
(A)
performed agricultural labor or services in the United States for at
least 1,035 hours (or 180 work days) during the 2-year period preceding
the date of the introduction of this Act;
(i) is inadmissible or deportable from the United States; or
(ii)
is under a grant of deferred enforced departure or has temporary
protected status under section 244 of the Immigration and Nationality
Act;
(C)
subject to section 104, has been continuously present in the United
States since the date of the introduction of this Act and until the date
on which the alien is granted certified agricultural worker status; and
(D) is not otherwise ineligible for certified agricultural worker status as provided in subsection (b).
(2) DEPENDENT
SPOUSE AND CHILDREN.—The Secretary may grant certified agricultural
dependent status to the spouse or child of an alien granted certified
agricultural worker status under paragraph (1) if the spouse or child is
not ineligible for certified agricultural dependent status as provided
in subsection (b).
(1) GROUNDS
OF INADMISSIBILITY.—Except as provided in paragraph (3), an alien is
ineligible for certified agricultural worker or certified agricultural
dependent status if the Secretary determines that the alien is
inadmissible under section 212(a) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)), except that in determining inadmissibility—
(A) paragraphs (4), (5), (7), and (9)(B) of such section shall not apply;
(B)
subparagraphs (A), (C), (D), (F), and (G) of such section 212(a)(6) and
paragraphs (9)(C) and (10)(B) of such section 212(a) shall not apply
unless based on the act of unlawfully entering the United States after
the date of introduction of this Act; and
(C)
paragraphs (6)(B) and (9)(A) of such section 212(a) shall not apply
unless the relevant conduct began on or after the date of filing of the
application for certified agricultural worker status.
(2) ADDITIONAL
CRIMINAL BARS.—Except as provided in paragraph (3), an alien is
ineligible for certified agricultural worker or certified agricultural
dependent status if the Secretary determines that, excluding any offense
under State law for which an essential element is the alien’s
immigration status and any minor traffic offense, the alien has been
convicted of—
(A) any felony offense;
(B) an aggravated felony (as defined in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) at the time of the conviction);
(C)
two misdemeanor offenses involving moral turpitude, as described in
section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)(I)), unless an offense is waived by the Secretary under paragraph (3)(B); or
(D)
three or more misdemeanor offenses not occurring on the same date, and
not arising out of the same act, omission, or scheme of misconduct.
(3) WAIVERS
FOR CERTAIN GROUNDS OF INADMISSIBILITY.—For humanitarian purposes,
family unity, or if otherwise in the public interest, the Secretary may
waive the grounds of inadmissibility under—
(A) paragraph (1), (6)(E), or (10)(D) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); or
(B) subparagraphs (A) and (D) of section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)),
unless inadmissibility is based on a conviction that would otherwise
render the alien ineligible under subparagraph (A), (B), or (D) of
paragraph (2).
(1) APPLICATION
PERIOD.—Except as provided in paragraph (2), the Secretary shall accept
initial applications for certified agricultural worker status during
the 18-month period beginning on the date on which the interim final
rule is published in the Federal Register pursuant to section 122(a).
(2) EXTENSION.—If
the Secretary determines, during the initial period described in
paragraph (1), that additional time is required to process initial
applications for certified agricultural worker status or for other good
cause, the Secretary may extend the period for accepting applications
for up to an additional 12 months.
(A) IN
GENERAL.—An alien may file an application with the Secretary under this
section with the assistance of an attorney or a nonprofit religious,
charitable, social service, or similar organization recognized by the
Board of Immigration Appeals under section 292.2 of title 8, Code of
Federal Regulations. The Secretary shall also create a procedure for
accepting applications filed by qualified designated entities with the
consent of the applicant.
(B) FARM
SERVICE AGENCY OFFICES.—The Secretary, in consultation with the
Secretary of Agriculture, shall establish a process for the filing of
applications under this section at Farm Service Agency offices
throughout the United States.
(4) EVIDENCE
OF APPLICATION FILING.—As soon as practicable after receiving an
application for certified agricultural worker status, the Secretary
shall provide the applicant with a document acknowledging the receipt of
such application. Such document shall serve as interim proof of the
alien’s authorization to accept employment in the United States and
shall be accepted by an employer as evidence of employment authorization
under section 274A(b)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)(C)),
if the employer is employing the holder of such document to perform
agricultural labor or services, pending a final administrative decision
on the application.
(5) EFFECT
OF PENDING APPLICATION.—During the period beginning on the date on
which an alien applies for certified agricultural worker status under
this subtitle, and ending on the date on which the Secretary makes a
final administrative decision regarding such application, the alien and
any dependents included in the application—
(A)
may apply for advance parole, which shall be granted upon demonstrating
a legitimate need to travel outside the United States for a temporary
purpose;
(B)
may not be detained by the Secretary or removed from the United States
unless the Secretary makes a prima facie determination that such alien
is, or has become, ineligible for certified agricultural worker status;
(C) may not be considered unlawfully present under section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
(6) WITHDRAWAL
OF APPLICATION.—The Secretary shall, upon receipt of a request from the
applicant to withdraw an application for certified agricultural worker
status under this subtitle, cease processing of the application, and
close the case. Withdrawal of the application shall not prejudice any
future application filed by the applicant for any immigration benefit
under this Act or under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(1) IN
GENERAL.—Subject to section 123, the Secretary shall render a decision
on an application for certified agricultural worker status not later
than 180 days after the date the application is filed.
(2) NOTICE.—Prior to denying an application for certified agricultural worker status, the Secretary shall provide the alien with—
(A) written notice that describes the basis for ineligibility or the deficiencies in the evidence submitted; and
(B) at least 90 days to contest ineligibility or submit additional evidence.
(3) AMENDED
APPLICATION.—An alien whose application for certified agricultural
worker status is denied under this section may submit an amended
application for such status to the Secretary if the amended application
is submitted within the application period described in subsection (c)
and contains all the required information and fees that were missing
from the initial application.
(e) Alternative H–2A status.—An
alien who has not met the required period of agricultural labor or
services under subsection (a)(1)(A), but is otherwise eligible for
certified agricultural worker status under such subsection, shall be
eligible for classification as a nonimmigrant described in section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a))
upon approval of a petition submitted by a sponsoring employer, if the
alien has performed at least 575 hours (or 100 work days) of
agricultural labor or services during the 3-year period preceding the
date of the introduction of this Act. The Secretary shall create a
procedure to provide for such classification without requiring the alien
to depart the United States and obtain a visa abroad.
(1) APPROVAL.—Upon
approval of an application for certified agricultural worker status, or
an extension of such status pursuant to section 103, the Secretary
shall issue—
(A) documentary evidence of such status to the applicant; and
(B) documentary evidence of certified agricultural dependent status to any qualified dependent included on such application.
(2) DOCUMENTARY
EVIDENCE.—In addition to any other features and information as the
Secretary may prescribe, the documentary evidence described in paragraph
(1)—
(A) shall be machine-readable and tamper-resistant;
(B) shall contain a digitized photograph;
(C) shall serve as a valid travel and entry document for purposes of applying for admission to the United States; and
(D)
shall be accepted during the period of its validity by an employer as
evidence of employment authorization and identity under section
274A(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)(B)).
(3) VALIDITY
PERIOD.—Certified agricultural worker and certified agricultural
dependent status shall be valid for 5 1/2 years beginning on the date of
approval.
(4) TRAVEL AUTHORIZATION.—An alien with certified agricultural worker or certified agricultural dependent status may—
(A)
travel within and outside of the United States, including commuting to
the United States from a residence in a foreign country; and
(B)
be admitted to the United States upon return from travel abroad without
first obtaining a visa if the alien is in possession of—
(i)
valid, unexpired documentary evidence of certified agricultural worker
or certified agricultural worker dependent status as described in
subsection (a); or
(ii)
a travel document that has been approved by the Secretary and was
issued to the alien after the alien’s original documentary evidence was
lost, stolen, or destroyed.
(1) CHANGE
TO CERTIFIED AGRICULTURAL WORKER STATUS.—Notwithstanding section
101(a), an alien with valid certified agricultural dependent status may
apply to change to certified agricultural worker status, at any time, if
the alien—
(A) submits a completed application, including the required processing fees; and
(B) is not ineligible for certified agricultural worker status under section 101(b).
(2) CLARIFICATION.—Nothing
in this title prohibits an alien granted certified agricultural worker
or certified agricultural dependent status from changing status to any
other nonimmigrant classification for which the alien may be eligible.
(c) Prohibition on public benefits, tax benefits, and health care subsidies.—Aliens
granted certified agricultural worker or certified agricultural
dependent status shall be considered lawfully present in the United
States for all purposes for the duration of their status, except that
such aliens—
(1)
shall be ineligible for Federal means-tested public benefits to the
same extent as other individuals who are not qualified aliens under
section 431 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1641);
(2) are not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986 (26 U.S.C. 36B),
and shall be subject to the rules applicable to individuals who are not
lawfully present set forth in subsection (e) of such section;
(3)
shall be subject to the rules applicable to individuals who are not
lawfully present set forth in section 1402(e) of the Patient Protection
and Affordable Care Act (42 U.S.C. 18071(e)); and
(4) shall be subject to the rules applicable to individuals not lawfully present set forth in section 5000A(d)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 5000A(d)(3)).
(1) IN
GENERAL.—The Secretary may revoke certified agricultural worker or
certified agricultural dependent status if, after providing notice to
the alien and the opportunity to provide evidence to contest the
proposed revocation, the Secretary determines that the alien no longer
meets the eligibility requirements for such status under section 101(b).
(2) INVALIDATION
OF DOCUMENTATION.—Upon the Secretary’s final determination to revoke an
alien’s certified agricultural worker or certified agricultural
dependent status, any documentation issued by the Secretary to such
alien under subsection (a) shall automatically be rendered invalid for
any purpose except for departure from the United States.
(1) PRINCIPAL
ALIENS.—The Secretary may extend certified agricultural worker status
for additional periods of 5 1/2 years to an alien who submits a
completed application, including the required processing fees, within
the 120-day period beginning 60 days before the expiration of the fifth
year of the immediately preceding grant of certified agricultural worker
status, if the alien—
(A)
except as provided in section 126(c), has performed agricultural labor
or services in the United States for at least 575 hours (or 100 work
days) for each of the prior 5 years in which the alien held certified
agricultural worker status; and
(B) has not become ineligible for certified agricultural worker status under section 101(b).
(2) DEPENDENT
SPOUSE AND CHILDREN.—The Secretary may grant or extend certified
agricultural dependent status to the spouse or child of an alien granted
an extension of certified agricultural worker status under paragraph
(1) if the spouse or child is not ineligible for certified agricultural
dependent status under section 101(b).
(3) WAIVER
FOR LATE FILINGS.—The Secretary may waive an alien’s failure to timely
file before the expiration of the 120-day period described in paragraph
(1) if the alien demonstrates that the delay was due to extraordinary
circumstances beyond the alien’s control or for other good cause.
(1) IN
GENERAL.—Certified agricultural worker status of an alien who timely
files an application to extend such status under subsection (a) (and the
status of the alien’s dependents) shall be automatically extended
through the date on which the Secretary makes a final administrative
decision regarding such application.
(2) DOCUMENTATION
OF EMPLOYMENT AUTHORIZATION.—As soon as practicable after receipt of an
application to extend certified agricultural worker status under
subsection (a), the Secretary shall issue a document to the alien
acknowledging the receipt of such application. An employer of the worker
may not refuse to accept such document as evidence of employment
authorization under section 274A(b)(1)(C) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)(1)(C)), pending a final administrative decision on the application.
(c) Notice.—Prior to denying an application to extend certified agricultural worker status, the Secretary shall provide the alien with—
(1) written notice that describes the basis for ineligibility or the deficiencies of the evidence submitted; and
(2) at least 90 days to contest ineligibility or submit additional evidence.
(a) Effect of notice To appear.—The
continuous presence in the United States of an applicant for certified
agricultural worker status under section 101 shall not terminate when
the alien is served a notice to appear under section 239(a) of the
Immigration and Nationality Act (8 U.S.C. 1229(a)).
(1) IN
GENERAL.—Except as provided in paragraphs (2) and (3), an alien shall
be considered to have failed to maintain continuous presence in the
United States under this subtitle if the alien departed the United
States for any period exceeding 90 days, or for any periods, in the
aggregate, exceeding 180 days.
(2) EXTENSIONS
FOR EXTENUATING CIRCUMSTANCES.—The Secretary may extend the time
periods described in paragraph (1) for an alien who demonstrates that
the failure to timely return to the United States was due to extenuating
circumstances beyond the alien’s control, including the serious illness
of the alien, or death or serious illness of a spouse, parent, son or
daughter, grandparent, or sibling of the alien.
(3) TRAVEL
AUTHORIZED BY THE SECRETARY.—Any period of travel outside of the United
States by an alien that was authorized by the Secretary shall not be
counted toward any period of departure from the United States under
paragraph (1).
(a) Record of employment.—An
employer of an alien in certified agricultural worker status shall
provide such alien with a written record of employment each year during
which the alien provides agricultural labor or services to such employer
as a certified agricultural worker.
(1) IN
GENERAL.—If the Secretary determines, after notice and an opportunity
for a hearing, that an employer of an alien with certified agricultural
worker status has knowingly failed to provide the record of employment
required under subsection (a), or has provided a false statement of
material fact in such a record, the employer shall be subject to a civil
penalty in an amount not to exceed $500 per violation.
(2) LIMITATION.—The
penalty under paragraph (1) for failure to provide employment records
shall not apply unless the alien has provided the employer with evidence
of employment authorization described in section 102 or 103.
(3) DEPOSIT
OF CIVIL PENALTIES.—Civil penalties collected under this paragraph
shall be deposited into the Immigration Examinations Fee Account under
section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)).
(a) Administrative review.—The
Secretary shall establish a process by which an applicant may seek
administrative review of a denial of an application for certified
agricultural worker status under this subtitle, an application to extend
such status, or a revocation of such status.
(b) Admissibility in immigration court.—Each
record of an alien’s application for certified agricultural worker
status under this subtitle, application to extend such status,
revocation of such status, and each record created pursuant to the
administrative review process under subsection (a) is admissible in
immigration court, and shall be included in the administrative record.
(c) Judicial review.—Notwithstanding
any other provision of law, judicial review of the Secretary’s decision
to deny an application for certified agricultural worker status, an
application to extend such status, or the decision to revoke such
status, shall be limited to the review of an order of removal under
section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
(1) PRINCIPAL
ALIENS.—The Secretary may adjust the status of an alien from that of a
certified agricultural worker to that of a lawful permanent resident if
the alien submits a completed application, including the required
processing and penalty fees, and the Secretary determines that—
(A)
except as provided in section 126(c), the alien performed agricultural
labor or services for not less than 575 hours (or 100 work days) each
year—
(i)
for at least 10 years prior to the date of the enactment of this Act
and for at least 4 years in certified agricultural worker status; or
(ii)
for fewer than 10 years prior to the date of the enactment of this Act
and for at least 8 years in certified agricultural worker status; and
(B) the alien has not become ineligible for certified agricultural worker status under section 101(b).
(A) IN
GENERAL.—The spouse and each child of an alien described in paragraph
(1) whose status has been adjusted to that of a lawful permanent
resident may be granted lawful permanent residence under this subtitle
if—
(i)
the qualifying relationship to the principal alien existed on the date
on which such alien was granted adjustment of status under this
subtitle; and
(ii) the spouse or child is not ineligible for certified agricultural worker dependent status under section 101(b).
(B) PROTECTIONS
FOR SPOUSES AND CHILDREN.—The Secretary of Homeland Security shall
establish procedures to allow the spouse or child of a certified
agricultural worker to self-petition for lawful permanent residence
under this subtitle in cases involving—
(i)
the death of the certified agricultural worker, so long as the spouse
or child submits a petition not later than 2 years after the date of the
worker’s death; or
(ii) the spouse or a child being battered or subjected to extreme cruelty by the certified agricultural worker.
(3) DOCUMENTATION
OF WORK HISTORY.—An applicant for adjustment of status under this
section shall not be required to resubmit evidence of work history that
has been previously submitted to the Secretary in connection with an
approved extension of certified agricultural worker status.
(b) Penalty fee.—In
addition to any processing fee that the Secretary may assess in
accordance with section 122(b), a principal alien seeking adjustment of
status under this subtitle shall pay a $1,000 penalty fee, which shall
be deposited into the Immigration Examinations Fee Account pursuant to
section 286(m) of the Immigration and Nationality Act (8 U.S.C.1356(m)).
(c) Effect of pending application.—During
the period beginning on the date on which an alien applies for
adjustment of status under this subtitle, and ending on the date on
which the Secretary makes a final administrative decision regarding such
application, the alien and any dependents included on the application—
(1)
may apply for advance parole, which shall be granted upon demonstrating
a legitimate need to travel outside the United States for a temporary
purpose;
(2)
may not be detained by the Secretary or removed from the United States
unless the Secretary makes a prima facie determination that such alien
is, or has become, ineligible for adjustment of status under subsection
(a);
(3) may not be considered unlawfully present under section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
(4) may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
(d) Evidence of application filing.—As
soon as practicable after receiving an application for adjustment of
status under this subtitle, the Secretary shall provide the applicant
with a document acknowledging the receipt of such application. Such
document shall serve as interim proof of the alien’s authorization to
accept employment in the United States and shall be accepted by an
employer as evidence of employment authorization under section
274A(b)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)(C)), pending a final administrative decision on the application.
(e) Withdrawal of application.—The
Secretary shall, upon receipt of a request to withdraw an application
for adjustment of status under this subtitle, cease processing of the
application, and close the case. Withdrawal of the application shall not
prejudice any future application filed by the applicant for any
immigration benefit under this Act or under the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
(a) In general.—An
alien may not be granted adjustment of status under this subtitle
unless the applicant has satisfied any applicable Federal tax liability.
(b) Compliance.—An
alien may demonstrate compliance with subsection (a) by submitting such
documentation as the Secretary, in consultation with the Secretary of
the Treasury, may require by regulation.
(a) In general.—Subject
to the requirements of section 123, the Secretary shall render a
decision on an application for adjustment of status under this subtitle
not later than 180 days after the date on which the application is
filed.
(b) Notice.—Prior to denying an application for adjustment of status under this subtitle, the Secretary shall provide the alien with—
(1) written notice that describes the basis for ineligibility or the deficiencies of the evidence submitted; and
(2) at least 90 days to contest ineligibility or submit additional evidence.
(c) Administrative review.—The
Secretary shall establish a process by which an applicant may seek
administrative review of a denial of an application for adjustment of
status under this subtitle.
(d) Judicial review.—Notwithstanding
any other provision of law, an alien may seek judicial review of a
denial of an application for adjustment of status under this title in an
appropriate United States district court.
In this title:
(1) IN
GENERAL.—Except as otherwise provided, any term used in this title that
is used in the immigration laws shall have the meaning given such term
in the immigration laws (as such term is defined in section 101 of the
Immigration and Nationality Act (8 U.S.C. 1101)).
(A) agricultural labor or services as such term is used in section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), without regard to whether the labor or services are of a seasonal or temporary nature; and
(B)
agricultural employment as such term is defined in section 3 of the
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802), without regard to whether the specific service or activity is temporary or seasonal.
(3) APPLICABLE
FEDERAL TAX LIABILITY.—The term “applicable Federal tax liability”
means all Federal income taxes assessed in accordance with section 6203
of the Internal Revenue Code of 1986 beginning on the date on which the
applicant was authorized to work in the United States as a certified
agricultural worker.
(4) APPROPRIATE
UNITED STATES DISTRICT COURT.—The term “appropriate United States
district court” means the United States District Court for the District
of Columbia or the United States district court with jurisdiction over
the alien’s principal place of residence.
(5) CHILD.—The term “child” has the meaning given such term in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)).
(6) CONVICTED
OR CONVICTION.—The term “convicted” or “conviction” does not include a
judgment that has been expunged or set aside, that resulted in a
rehabilitative disposition, or the equivalent.
(7) EMPLOYER.—The
term “employer” means any person or entity, including any labor
contractor or any agricultural association, that employs workers in
agricultural labor or services.
(A) a qualified farm labor organization or an association of employers designated by the Secretary; or
(B)
any other entity that the Secretary designates as having substantial
experience, demonstrated competence, and a history of long-term
involvement in the preparation and submission of application for
adjustment of status under title II of the Immigration and Nationality
Act (8 U.S.C. 1151 et seq.).
(9) SECRETARY.—The term “Secretary” means the Secretary of Homeland Security.
(10) WORK
DAY.—The term “work day” means any day in which the individual is
employed 5.75 or more hours in agricultural labor or services.
(a) Rulemaking.—Not
later than 180 days after the date of the enactment of this Act, the
Secretary shall publish in the Federal Register, an interim final rule
implementing this title. Notwithstanding section 553 of title 5, United
States Code, the rule shall be effective, on an interim basis,
immediately upon publication, but may be subject to change and revision
after public notice and opportunity for comment. The Secretary shall
finalize such rule not later than 1 year after the date of the enactment
of this Act.
(1) IN
GENERAL.—The Secretary may require an alien applying for any benefit
under this title to pay a reasonable fee that is commensurate with the
cost of processing the application.
(i)
request a waiver of any fee that the Secretary may assess under this
title if the alien demonstrates to the satisfaction of the Secretary
that the alien is unable to pay the prescribed fee; or
(ii) pay any fee or penalty that the Secretary may assess under this title in installments.
(B) CLARIFICATION.—Nothing
in this section shall be read to prohibit an employer from paying any
fee or penalty that the Secretary may assess under this title on behalf
of an alien and the alien’s spouse or children.
(a) Submission of biometric and biographic data.—The
Secretary may not grant or extend certified agricultural worker or
certified agricultural dependent status under subtitle A, or grant
adjustment of status to that of a lawful permanent resident under
subtitle B, unless the alien submits biometric and biographic data, in
accordance with procedures established by the Secretary. The Secretary
shall provide an alternative procedure for aliens who cannot provide all
required biometric or biographic data because of a physical impairment.
(b) Background checks.—The
Secretary shall use biometric, biographic, and other data that the
Secretary determines appropriate to conduct security and law enforcement
background checks and to determine whether there is any criminal,
national security, or other factor that would render the alien
ineligible for status under this title. An alien may not be granted any
such status under this title unless security and law enforcement
background checks are completed to the satisfaction of the Secretary.
(a) In general.—Except
as provided in subsection (b), for purposes of eligibility for
certified agricultural dependent status or lawful permanent resident
status under this title, a determination of whether an alien is a child
shall be made using the age of the alien on the date on which the
initial application for certified agricultural worker status is filed
with the Secretary of Homeland Security.
(b) Limitation.—Subsection
(a) shall apply for no more than 10 years after the date on which the
initial application for certified agricultural worker status is filed
with the Secretary of Homeland Security.
(a) In general.—An
alien who appears to be prima facie eligible for status under this
title shall be given a reasonable opportunity to apply for such status.
Such an alien may not be placed in removal proceedings or removed from
the United States until a final administrative decision establishing
ineligibility for such status is rendered.
(b) Aliens in removal proceedings.—Notwithstanding
any other provision of the law, the Attorney General shall (upon motion
by the Secretary with the consent of the alien, or motion by the alien)
terminate removal proceedings, without prejudice, against an alien who
appears to be prima facie eligible for status under this title, and
provide such alien a reasonable opportunity to apply for such status.
(c) Effect of final order.—An
alien present in the United States who has been ordered removed or has
been permitted to depart voluntarily from the United States may,
notwithstanding such order or permission to depart, apply for status
under this title. Such alien shall not be required to file a separate
motion to reopen, reconsider, or vacate the order of removal. If the
Secretary approves the application, the Secretary shall notify the
Attorney General of such approval, and the Attorney General shall cancel
the order of removal. If the Secretary renders a final administrative
decision to deny the application, the order of removal or permission to
depart shall be effective and enforceable to the same extent as if the
application had not been made, only after all available administrative
and judicial remedies have been exhausted.
(d) Effect of departure.—Section 101(g) of the Immigration and Nationality Act (8 U.S.C. 1101(g)) shall not apply to an alien who departs the United States—
(1) with advance permission to return to the United States granted by the Secretary under this title; or
(2) after having been granted certified agricultural worker status or lawful permanent resident status under this title.
(a) Burden of proof.—An
alien applying for certified agricultural worker status under subtitle A
or adjustment of status under subtitle B has the burden of proving by a
preponderance of the evidence that the alien has worked the requisite
number of hours or days required under section 101, 103, or 111, as
applicable. The Secretary shall establish special procedures to properly
credit work in cases in which an alien was employed under an assumed
name.
(b) Evidence.—An
alien may meet the burden of proof under subsection (a) by producing
sufficient evidence to show the extent of such employment as a matter of
just and reasonable inference. Such evidence may include—
(1)
an annual record of certified agricultural worker employment as
described in section 105(a), or other employment records from employers;
(2) employment records maintained by collective bargaining associations;
(3) tax records or other government records;
(4) sworn affidavits from individuals who have direct knowledge of the alien’s work history; or
(5) any other documentation designated by the Secretary for such purpose.
(1) IN
GENERAL.—In determining whether an alien has met the requirement under
section 103(a)(1)(A) or 111(a)(1)(A), the Secretary may credit the alien
with not more than 575 hours (or 100 work days) of agricultural labor
or services in the United States if the alien was unable to perform the
required agricultural labor or services due to—
(A) pregnancy, illness, disease, disabling injury, or physical limitation of the alien;
(B) injury, illness, disease, or other special needs of the alien’s child or spouse;
(C) severe weather conditions that prevented the alien from engaging in agricultural labor or services; or
(i) the termination was without just cause; and
(ii) the alien was unable to find alternative agricultural employment after a reasonable job search.
(2) EFFECT
OF DETERMINATION.—A determination under paragraph (1)(D) shall not be
conclusive, binding, or admissible in a separate or subsequent judicial
or administrative action or proceeding between the alien and a current
or prior employer of the alien or any other party.
(a) Continuing employment.—An
employer that continues to employ an alien knowing that the alien
intends to apply for certified agricultural worker status under subtitle
A shall not violate section 274A(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1324a(a)(2))
by continuing to employ the alien for the duration of the application
period under section 101(c), and with respect to an alien who applies
for certified agricultural status, for the duration of the period during
which the alien’s application is pending final determination.
(b) Use of employment records.—Copies
of employment records or other evidence of employment provided by an
alien or by an alien’s employer in support of an alien’s application for
certified agricultural worker or adjustment of status under this title
may not be used in a civil or criminal prosecution or investigation of
that employer under section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a)
or the Internal Revenue Code of 1986 for the prior unlawful employment
of that alien regardless of the outcome of such application.
(c) Additional protections.—Employers
that provide unauthorized aliens with copies of employment records or
other evidence of employment in support of an application for certified
agricultural worker status or adjustment of status under this title
shall not be subject to civil and criminal liability pursuant to such
section 274A for employing such unauthorized aliens. Records or other
evidence of employment provided by employers in response to a request
for such records for the purpose of establishing eligibility for status
under this title may not be used for any purpose other than establishing
such eligibility.
(d) Limitation on protection.—The
protections for employers under this section shall not apply if the
employer provides employment records to the alien that are determined to
be fraudulent.
(1) in subparagraph (B)(ii), by striking “or” at the end;
(2) in subparagraph (C), by inserting “or” at the end;
(3) by inserting after subparagraph (C) the following:
“(D)
who is granted certified agricultural worker status, certified
agricultural dependent status, or lawful permanent resident status under
title I of the Farm Work Modernization Act of 2019,”; and
(4)
in the undesignated matter following subparagraph (D), as added by
paragraph (3), by striking “1990.” and inserting “1990, or in the case
of an alien described in subparagraph (D), if such conduct is alleged to
have occurred before the date on which the alien was granted status
under title I of the Farm Work Modernization Act of 2019.”.
(b) Effective date.—The
amendments made by subsection (a) shall take effect on the first day of
the seventh month that begins after the date of the enactment of this
Act.
(1) SOCIAL SECURITY ACT.—Section 210(a)(1) of the Social Security Act (42 U.S.C. 410(a)(1))
is amended by inserting before the semicolon the following: “(other
than aliens granted certified agricultural worker status or certified
agricultural dependent status under title I of the Farm Work
Modernization Act of 2019”.
(2) INTERNAL REVENUE CODE OF 1986.—Section 3121(b)(1)
of the Internal Revenue Code of 1986 is amended by inserting before the
semicolon the following: “(other than aliens granted certified
agricultural worker status or certified agricultural dependent status
under title I of the Farm Work Modernization Act of 2019”.
(3) EFFECTIVE
DATE.—The amendments made by this subsection shall apply with respect
to service performed after the date of the enactment of this Act.
(d) Automated system To assign Social Security account numbers.—Section 205(c)(2)(B) of the Social Security Act (42 U.S.C. 405(c)(2)(B)) is amended by adding at the end the following:
“(iv)
The Commissioner of Social Security shall, to the extent practicable,
coordinate with the Secretary of the Department of Homeland Security to
implement an automated system for the Commissioner to assign social
security account numbers to aliens granted certified agricultural worker
status or certified agricultural dependent status under title I of the
Farm Work Modernization Act of 2019. An alien who is granted such
status, and who was not previously assigned a social security account
number, shall request assignment of a social security account number and
a social security card from the Commissioner through such system. The
Secretary shall collect and provide to the Commissioner such information
as the Commissioner deems necessary for the Commissioner to assign a
social security account number, which information may be used by the
Commissioner for any purpose for which the Commissioner is otherwise
authorized under Federal law. The Commissioner may maintain, use, and
disclose such information only as permitted by the Privacy Act and other
Federal law.”.
(a) In general.—The
Secretary may not disclose or use information provided in an
application for certified agricultural worker status or adjustment of
status under this title (including information provided during
administrative or judicial review) for the purpose of immigration
enforcement.
(b) Referrals prohibited.—The
Secretary, based solely on information provided in an application for
certified agricultural worker status or adjustment of status under this
title (including information provided during administrative or judicial
review), may not refer an applicant to U.S. Immigration and Customs
Enforcement, U.S. Customs and Border Protection, or any designee of
either such entity.
(c) Exceptions.—Notwithstanding
subsections (a) and (b), information provided in an application for
certified agricultural worker status or adjustment of status under this
title may be shared with Federal security and law enforcement agencies—
(1) for assistance in the consideration of an application under this title;
(2) to identify or prevent fraudulent claims or schemes;
(3) for national security purposes; or
(4) for the investigation or prosecution of any felony not related to immigration status.
(d) Penalty.—Any
person who knowingly uses, publishes, or permits information to be
examined in violation of this section shall be fined not more than
$10,000.
(e) Privacy.—The
Secretary shall ensure that appropriate administrative and physical
safeguards are in place to protect the security, confidentiality, and
integrity of personally identifiable information collected, maintained,
and disseminated pursuant to this title.
(1)
files an application for certified agricultural worker status or
adjustment of status under this title and knowingly falsifies, conceals,
or covers up a material fact or makes any false, fictitious, or
fraudulent statements or representations, or makes or uses any false
writing or document knowing the same to contain any false, fictitious,
or fraudulent statement or entry; or
(2) creates or supplies a false writing or document for use in making such an application,
(b) Inadmissibility.—An
alien who is convicted under subsection (a) shall be deemed
inadmissible to the United States under section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).
(c) Deposit.—Fines
collected under subsection (a) shall be deposited into the Immigration
Examinations Fee Account pursuant to section 286(m) of the Immigration
and Nationality Act (8 U.S.C. 1356(m)).
(a) In general.—Beginning not later than the first day of the application period described in section 101(c)—
(1)
the Secretary of Homeland Security, in cooperation with qualified
designated entities, shall broadly disseminate information described in
subsection (b); and
(2)
the Secretary of Agriculture, in consultation with the Secretary of
Homeland Security, shall disseminate to agricultural employers a
document containing the information described in subsection (b) for
posting at employer worksites.
(1) the benefits that aliens may receive under this title; and
(2) the requirements that an alien must meet to receive such benefits.
The numerical limitations under title II of the Immigration and Nationality Act (8 U.S.C. 1151
et seq.) shall not apply to the adjustment of aliens to lawful
permanent resident status under this title, and such aliens shall not be
counted toward any such numerical limitation.
Not later than 180 days after the
publication of the final rule under section 122(a), and annually
thereafter for the following 10 years, the Secretary shall submit a
report to Congress that identifies, for the previous fiscal year—
(1)
the number of principal aliens who applied for certified agricultural
worker status under subtitle A, and the number of dependent spouses and
children included in such applications;
(2)
the number of principal aliens who were granted certified agricultural
worker status under subtitle A, and the number of dependent spouses and
children who were granted certified agricultural dependent status;
(3)
the number of principal aliens who applied for an extension of their
certified agricultural worker status under subtitle A, and the number of
dependent spouses and children included in such applications;
(4)
the number of principal aliens who were granted an extension of
certified agricultural worker status under subtitle A, and the number of
dependent spouses and children who were granted certified agricultural
dependent status under such an extension;
(5)
the number of principal aliens who applied for adjustment of status
under subtitle B, and the number of dependent spouses and children
included in such applications;
(6)
the number of principal aliens who were granted lawful permanent
resident status under subtitle B, and the number of spouses and children
who were granted such status as dependents;
(7)
the number of principal aliens included in petitions described in
section 101(e), and the number of dependent spouses and children
included in such applications; and
(8)
the number of principal aliens who were granted H–2A status pursuant to
petitions described in section 101(e), and the number of dependent
spouses and children who were granted H–4 status.
(a) Establishment.—The
Secretary shall establish a program to award grants, on a competitive
basis, to eligible nonprofit organizations to assist eligible applicants
under this title by providing them with the services described in
subsection (c).
(b) Eligible nonprofit organization.—For purposes of this section, the term “eligible nonprofit organization” means an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (excluding a recipient of funds under title X of the Economic Opportunity Act of 1964 (42 U.S.C. 2996
et seq.)) that has demonstrated qualifications, experience, and
expertise in providing quality services to farm workers or aliens.
(c) Use of funds.—Grant funds awarded under this section may be used for the design and implementation of programs that provide—
(1)
information to the public regarding the eligibility and benefits of
certified agricultural worker status authorized under this title; and
(2)
assistance, within the scope of authorized practice of immigration law,
to individuals submitting applications for certified agricultural
worker status or adjustment of status under this title, including—
(A) screening prospective applicants to assess their eligibility for such status;
(B) completing applications, including providing assistance in obtaining necessary documents and supporting evidence; and
(C)
providing any other assistance that the Secretary determines useful to
assist aliens in applying for certified agricultural worker status or
adjustment of status under this title.
(d) Source of funds.—In
addition to any funds appropriated to carry out this section, the
Secretary may use up to $10,000,000 from the Immigration Examinations
Fee Account under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) to carry out this section.
(e) Eligibility for services.—Section 504(a)(11) of Public Law 104–134
(110 Stat. 1321–53 et seq.) shall not be construed to prevent a
recipient of funds under title X of the Economic Opportunity Act of 1964
(42 U.S.C. 2996
et seq.) from providing legal assistance directly related to an
application for status under this title or to an alien granted such
status.
There is authorized to be appropriated
to the Secretary, such sums as may be necessary to implement this title,
including any amounts needed for costs associated with the initiation
of such implementation, for each of fiscal years 2020 through 2022.
(1) IN
GENERAL.—Not later than 12 months after the date of the enactment of
this Act, the Secretary of Homeland Security, in consultation with the
Secretary of Labor, the Secretary of Agriculture, the Secretary of
State, and United States Digital Service, shall ensure the establishment
of an electronic platform through which a petition for an H–2A worker
may be filed. Such platform shall—
(A)
serve as a single point of access for an employer to input all
information and supporting documentation required for obtaining labor
certification from the Secretary of Labor and the adjudication of the
H–2A petition by the Secretary of Homeland Security;
(B)
serve as a single point of access for the Secretary of Homeland
Security, the Secretary of Labor, and State workforce agencies to
concurrently perform their respective review and adjudicatory
responsibilities in the H–2A process;
(C) facilitate communication between employers and agency adjudicators, including by allowing employers to—
(i) receive and respond to notices of deficiency and requests for information;
(ii) submit requests for inspections and licensing;
(iii) receive notices of approval and denial; and
(iv) request reconsideration or appeal of agency decisions; and
(D)
provide information to the Secretary of State and U.S. Customs and
Border Protection necessary for the efficient and secure processing of
H–2A visas and applications for admission.
(2) OBJECTIVES.—In
developing the platform described in paragraph (1), the Secretary of
Homeland Security, in consultation with the Secretary of Labor, the
Secretary of Agriculture, the Secretary of State, and United States
Digital Service, shall streamline and improve the H–2A process,
including by—
(A) eliminating the need for employers to submit duplicate information and documentation to multiple agencies;
(B) eliminating redundant processes, where a single matter in a petition is adjudicated by more than one agency;
(C)
reducing the occurrence of common petition errors, and otherwise
improving and expediting the processing of H–2A petitions; and
(D) ensuring compliance with H–2A program requirements and the protection of the wages and working conditions of workers.
(b) Online job registry.—The
Secretary of Labor shall maintain a national, publicly-accessible
online job registry and database of all job orders submitted by H–2A
employers. The registry and database shall—
(1)
be searchable using relevant criteria, including the types of jobs
needed to be filled, the date(s) and location(s) of need, and the
employer(s) named in the job order;
(2)
provide an interface for workers in English, Spanish, and any other
language that the Secretary of Labor determines to be appropriate; and
(3) provide for public access of job orders approved under section 218(h)(2) of the Immigration and Nationality Act.
Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is amended to read as follows:
“(a) Labor certification conditions.—The
Secretary of Homeland Security may not approve a petition to admit an
H–2A worker unless the Secretary of Labor has certified that—
“(1)
there are not sufficient United States workers who are able, willing
and qualified, and who will be available at the time and place needed,
to perform the agricultural labor or services described in the petition;
and
“(2)
the employment of the H–2A worker in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States who are similarly employed.
“(b) H–2A petition requirements.—An
employer filing a petition for an H–2A worker to perform agricultural
labor or services shall attest to and demonstrate compliance, as and
when appropriate, with all applicable requirements under this section,
including the following:
“(1) NEED
FOR LABOR OR SERVICES.—The employer has described the need for
agricultural labor or services in a job order that includes a
description of the nature and location of the work to be performed, the
anticipated period or periods (expected start and end dates) for which
the workers will be needed, and the number of job opportunities in which
the employer seeks to employ the workers.
“(2) NONDISPLACEMENT
OF UNITED STATES WORKERS.—The employer has not and will not displace
United States workers employed by the employer during the period of
employment of the H–2A worker and during the 60-day period immediately
preceding such period of employment in the job for which the employer
seeks approval to employ the H–2A worker.
“(3) STRIKE
OR LOCKOUT.—Each place of employment described in the petition is not,
at the time of filing the petition and until the petition is approved,
subject to a strike or lockout in the course of a labor dispute.
“(4) RECRUITMENT
OF UNITED STATES WORKERS.—The employer shall engage in the recruitment
of United States workers as described in subsection (c) and shall hire
such workers who are able, willing and qualified, and who will be
available at the time and place needed, to perform the agricultural
labor or services described in the petition. The employer may reject a
United States worker only for lawful, job-related reasons.
“(5) WAGES,
BENEFITS, AND WORKING CONDITIONS.—The employer shall offer and provide,
at a minimum, the wages, benefits, and working conditions required by
this section to the H–2A worker and all workers who are similarly
employed. The employer—
“(A)
shall offer such similarly employed workers not less than the same
benefits, wages, and working conditions that the employer is offering or
will provide to the H–2A worker; and
“(B)
may not impose on such similarly employed workers any restrictions or
obligations that will not be imposed on the H–2A worker.
“(6) WORKERS’
COMPENSATION.—If the job opportunity is not covered by or is exempt
from the State workers’ compensation law, the employer shall provide, at
no cost to the worker, insurance covering injury and disease arising
out of, and in the course of, the worker’s employment which will provide
benefits at least equal to those provided under the State workers’
compensation law.
“(7) COMPLIANCE
WITH LABOR AND EMPLOYMENT LAWS.—The employer shall comply with all
applicable Federal, State and local employment-related laws and
regulations.
“(8) COMPLIANCE
WITH FOREIGN LABOR RECRUITMENT LAWS.—The employer shall comply with
subtitle C of title II of the Farm Workforce Modernization Act of 2019.
“(1) IN
GENERAL.—The employer may satisfy the recruitment requirement described
in subsection (b)(4) by satisfying all of the following:
“(A) JOB
ORDER.—As provided in subsection (h)(1), the employer shall complete a
job order for posting on the electronic job registry maintained by the
Secretary of Labor and for distribution by the appropriate State
workforce agency. Such posting shall remain on the job registry as an
active job order through the period described in paragraph (2)(B).
“(B) FORMER WORKERS.—At least 45 days before each start date identified in the petition, the employer shall—
“(i)
make reasonable efforts to contact any United States worker the
employer employed in the previous year in the same occupation and area
of intended employment for which an H–2A worker is sought (excluding
workers who were terminated for cause or abandoned the worksite); and
“(ii) post such job opportunity in a conspicuous location or locations at the place of employment.
“(C) POSITIVE
RECRUITMENT.—During the period of recruitment, the employer shall
complete any other positive recruitment steps within a multi-State
region of traditional or expected labor supply where the Secretary of
Labor finds that there are a significant number of qualified United
States workers who, if recruited, would be willing to make themselves
available for work at the time and place needed.
“(A) IN
GENERAL.—For purposes of this subsection, the period of recruitment
begins on the date on which the job order is posted on the online job
registry and ends on the date that H–2A workers depart for the
employer’s place of employment. For a petition involving more than one
start date under subsection (h)(1)(C), the end of the period of
recruitment shall be determined by the date of departure of the H–2A
workers for the final start date identified in the petition.
“(i) IN
GENERAL.—Notwithstanding the limitations of subparagraph (A), the
employer will provide employment to any qualified United States worker
who applies to the employer for any job opportunity included in the
petition until the later of—
“(I) the date that is 30 days after the date on which work begins; or
“(aa) 33 percent of the work contract for the job opportunity has elapsed; or
“(bb) if the employer is a labor contractor, 50 percent of the work contract for the job opportunity has elapsed.
“(ii) STAGGERED
ENTRY.—For a petition involving more than one start date under
subsection (h)(1)(C), each start date designated in the petition shall
establish a separate job opportunity. An employer may not reject a
United States worker because the worker is unable or unwilling to fill
more than one job opportunity included in the petition.
“(iii) EXCEPTION.—Notwithstanding
clause (i), the employer may offer a job opportunity to an H–2A worker
instead of an alien granted certified agricultural worker status under
title I of the Farm Workforce Modernization Act of 2019 if the H–2A
worker was employed by the employer in each of 3 years during the most
recent 4-year period.
“(A) IN
GENERAL.—The employer shall maintain a recruitment report through the
applicable period described in paragraph (2)(B) and submit regular
updates through the electronic platform on the results of recruitment.
The employer shall retain the recruitment report, and all associated
recruitment documentation, for a period of 3 years from the date of
certification.
“(B) BURDEN
OF PROOF.—If the employer asserts that any eligible individual who has
applied or been referred is not able, willing or qualified, the employer
bears the burden of proof to establish that the individual is not able,
willing or qualified because of a lawful, employment-related reason.
“(1) IN
GENERAL.—Each employer under this section will offer the worker, during
the period of authorized employment, wages that are at least the
greatest of—
“(A) the agreed-upon collective bargaining wage;
“(B) the adverse effect wage rate (or any successor wage established under paragraph (7));
“(C) the prevailing wage (hourly wage or piece rate); or
“(D) the Federal or State minimum wage.
“(A) IN
GENERAL.—Except as provided under subparagraph (B), the applicable
adverse effect wage rate for each State and occupational classification
for a calendar year shall be as follows:
“(i)
The annual average hourly wage for the occupational classification in
the State or region as reported by the Secretary of Agriculture based on
a wage survey conducted by such Secretary.
“(ii)
If a wage described in clause (i) is not reported, the national annual
average hourly wage for the occupational classification as reported by
the Secretary of Agriculture based on a wage survey conducted by such
Secretary.
“(iii)
If a wage described in clause (i) or (ii) is not reported, the
Statewide annual average hourly wage for the standard occupational
classification as reported by the Secretary of Labor based on a wage
survey conducted by such Secretary.
“(iv)
If a wage described in clause (i), (ii), or (iii) is not reported, the
national average hourly wage for the occupational classification as
reported by the Secretary of Labor based on a wage survey conducted by
such Secretary.
“(i) WAGE
FREEZE FOR CALENDAR YEAR 2020.—For calendar year 2020, the adverse
effect wage rate for each State and occupational classification under
this subsection shall be the adverse effect wage rate that was in effect
for H–2A workers in the applicable State in calendar year 2019.
“(ii) CALENDAR
YEARS 2021 THROUGH 2029.—For each of calendar years 2021 through 2029,
the adverse effect wage rate for each State and occupational
classification under this subsection shall be the wage calculated under
subparagraph (A), except that such wage may not—
“(I)
be more than 1.5 percent lower than the wage in effect for H–2A workers
in the applicable State and occupational classification in the
immediately preceding calendar year;
“(II)
except as provided in clause (III), be more than 3.25 percent higher
than the wage in effect for H–2A workers in the applicable State and
occupational classification in the immediately preceding calendar year;
and
“(III)
if the application of clause (II) results in a wage that is lower than
110 percent of the applicable Federal or State minimum wage, be more
than 4.25 percent higher than the wage in effect for H–2A workers in the
applicable State and occupational classification in the immediately
preceding calendar year.
“(iii) CALENDAR
YEARS AFTER 2029.—For any calendar year after 2029, the applicable wage
rate described in paragraph (1)(B) shall be the wage rate established
pursuant to paragraph (7)(D). Until such wage rate is effective, the
adverse effect wage rate for each State and occupational classification
under this subsection shall be the wage calculated under subparagraph
(A), except that such wage may not be more than 1.5 percent lower or
3.25 percent higher than the wage in effect for H–2A workers in the
applicable State and occupational classification in the immediately
preceding calendar year.
“(3) MULTIPLE
OCCUPATIONS.—If the primary job duties for the job opportunity
described in the petition do not fall within a single occupational
classification, the applicable wage rates under subparagraphs (B) and
(C) of paragraph (1) for the job opportunity shall be based on the
highest such wage rates for all applicable occupational classifications.
“(A) PUBLICATION.—Prior
to the start of each calendar year, the Secretary of Labor shall
publish the applicable adverse effect wage rate (or successor wage rate,
if any), and prevailing wage if available, for each State and
occupational classification through notice in the Federal Register.
“(B) JOB
ORDERS IN EFFECT.—Except as provided in subparagraph (C), publication
by the Secretary of Labor of an updated adverse effect wage rate or
prevailing wage for a State and occupational classification shall not
affect the wage rate guaranteed in any approved job order for which
recruitment efforts have commenced at the time of publication.
“(C) EXCEPTION
FOR YEAR-ROUND JOBS.—If the Secretary of Labor publishes an updated
adverse effect wage rate or prevailing wage for a State and occupational
classification concerning a petition described in subsection (i), and
the updated wage is higher than the wage rate guaranteed in the work
contract, the employer shall pay the updated wage not later than 14 days
after publication of the updated wage in the Federal Register.
“(5) WORKERS
PAID ON A PIECE RATE OR OTHER INCENTIVE BASIS.—If an employer pays by
the piece rate or other incentive method and requires one or more
minimum productivity standards as a condition of job retention, such
standards shall be specified in the job order and shall be no more than
those normally required (at the time of the first petition for H–2A
workers) by other employers for the activity in the area of intended
employment, unless the Secretary of Labor approves a higher minimum
standard resulting from material changes in production methods.
“(A) OFFER
TO WORKER.—The employer shall guarantee the worker employment for the
hourly equivalent of at least three-fourths of the work days of the
total period of employment, beginning with the first work day after the
arrival of the worker at the place of employment and ending on the date
specified in the job offer. For purposes of this subparagraph, the
hourly equivalent means the number of hours in the work days as stated
in the job offer and shall exclude the worker’s Sabbath and Federal
holidays. If the employer affords the worker less employment than that
required under this paragraph, the employer shall pay the worker the
amount which the worker would have earned had the worker, in fact,
worked for the guaranteed number of hours.
“(B) FAILURE
TO WORK.—Any hours which the worker fails to work, up to a maximum of
the number of hours specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and all hours of work
actually performed (including voluntary work in excess of the number of
hours specified in the job offer in a work day, on the worker’s Sabbath,
or on Federal holidays) may be counted by the employer in calculating
whether the period of guaranteed employment has been met.
“(C) ABANDONMENT
OF EMPLOYMENT; TERMINATION FOR CAUSE.—If the worker voluntarily
abandons employment without good cause before the end of the contract
period, or is terminated for cause, the worker is not entitled to the
guarantee of employment described in subparagraph (A).
“(D) CONTRACT
IMPOSSIBILITY.—If, before the expiration of the period of employment
specified in the job offer, the services of the worker are no longer
required for reasons beyond the control of the employer due to any form
of natural disaster before the guarantee in subparagraph (A) is
fulfilled, the employer may terminate the worker’s employment. In the
event of such termination, the employer shall fulfill the employment
guarantee in subparagraph (A) for the work days that have elapsed from
the first work day after the arrival of the worker to the termination of
employment. The employer shall make efforts to transfer a worker to
other comparable employment acceptable to the worker. If such transfer
is not effected, the employer shall provide the return transportation
required in subsection (f)(2).
“(A) STUDY
OF ADVERSE EFFECT WAGE RATE.—Beginning in fiscal year 2026, the
Secretary of Agriculture and Secretary of Labor shall jointly conduct a
study that addresses—
“(i) whether the employment of H–2A workers has depressed the wages of United States farm workers;
“(ii)
whether an adverse effect wage rate is necessary to protect the wages
of United States farm workers in occupations in which H–2A workers are
employed;
“(iii)
whether alternative wage standards would be sufficient to prevent wages
in occupations in which H–2A workers are employed from falling below
the wage level that would have prevailed in the absence of H–2A
employment;
“(iv)
whether any changes are warranted in the current methodologies for
calculating the adverse effect wage rate and the prevailing wage rate;
and
“(v) recommendations for future wage protection under this section.
“(B) FINAL
REPORT.—Not later than October 1, 2027, the Secretary of Agriculture
and Secretary of Labor shall jointly prepare and submit a report to the
Congress setting forth the findings of the study conducted under
subparagraph (A) and recommendations for future wage protections under
this section.
“(C) CONSULTATION.—In
conducting the study under subparagraph (A) and preparing the report
under subparagraph (B), the Secretary of Agriculture and Secretary of
Labor shall consult with representatives of agricultural employers and
an equal number of representatives of agricultural workers, at the
national, State and local level.
“(D) WAGE
DETERMINATION AFTER 2029.—Upon publication of the report described in
subparagraph (B), the Secretary of Labor, in consultation with and the
approval of the Secretary of Agriculture, shall make a rule to establish
a process for annually determining the wage rate for purposes of
paragraph (1)(B) for fiscal years after 2029. Such process shall be
designed to ensure that the employment of H–2A workers does not
undermine the wages and working conditions of similarly employed United
States workers.
“(e) Housing requirements.—Employers
shall furnish housing in accordance with regulations established by the
Secretary of Labor. Such regulations shall be consistent with the
following:
“(1) IN
GENERAL.—The employer shall be permitted at the employer’s option to
provide housing meeting applicable Federal standards for temporary labor
camps or to secure housing which meets the local standards for rental
and/or public accommodations or other substantially similar class of
habitation: Provided, That in the absence of applicable local standards,
State standards for rental and/or public accommodations or other
substantially similar class of habitation shall be met: Provided
further, That in the absence of applicable local or State standards,
Federal temporary labor camp standards shall apply.
“(2) FAMILY
HOUSING.—Except as otherwise provided in subsection (i)(5), the
employer shall provide family housing to workers with families who
request it when it is the prevailing practice in the area and occupation
of intended employment to provide family housing.
“(3) UNITED
STATES WORKERS.—Notwithstanding paragraphs (1) and (2), an employer is
not required to provide housing to United States workers who are
reasonably able to return to their residence within the same day.
“(A) IN
GENERAL.—The Secretary of Labor or designee shall make a determination
as to whether the housing furnished by an employer for a worker meets
the requirements imposed by this subsection prior to the date on which
the Secretary of Labor is required to make a certification with respect
to a petition for the admission of such worker.
“(i)
an employer to request inspection of housing up to 60 days before the
date on which the employer will file a petition under this section; and
“(ii)
annual inspection of housing for workers who are engaged in
agricultural employment that is not of a seasonal or temporary nature.
“(1) TRAVEL
TO PLACE OF EMPLOYMENT.—A worker who completes 50 percent of the period
of employment specified in the job order shall be reimbursed by the
employer for the cost of the worker’s transportation and subsistence
from the place from which the worker came to work for the employer (or
place of last employment, if the worker traveled from such place) to the
place of employment.
“(2) TRAVEL
FROM PLACE OF EMPLOYMENT.—For a worker who completes the period of
employment specified in the job order or who is terminated without
cause, the employer shall provide or pay for the worker’s transportation
and subsistence from the place of employment to the place from which
the worker, disregarding intervening employment, came to work for the
employer, or to the place of next employment, if the worker has
contracted with a subsequent employer who has not agreed to provide or
pay for the worker’s transportation and subsistence to such subsequent
employer’s place of employment.
“(A) AMOUNT
OF REIMBURSEMENT.—Except as provided in subparagraph (B), the amount of
reimbursement provided under paragraph (1) or (2) to a worker need not
exceed the lesser of—
“(i) the actual cost to the worker of the transportation and subsistence involved; or
“(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
“(B) DISTANCE
TRAVELED.—For travel to or from the worker’s home country, if the
travel distance between the worker’s home and the relevant consulate is
50 miles or less, reimbursement for transportation and subsistence may
be based on transportation to or from the consulate.
“(1) IN
GENERAL.—The employer shall maintain a reasonable plan that describes
the employer’s procedures for the prevention of heat illness, including
appropriate training, access to water and shade, the provision of
breaks, and the protocols for emergency response. Such plan shall—
“(A)
be in writing in English and, to the extent necessary, any language
common to a significant portion of the workers if they are not fluent in
English; and
“(B)
be posted at a conspicuous location at the worksite and provided to
employees prior to the commencement of labor or services.
“(2) CLARIFICATION.—Nothing
in this subsection is intended to limit any other Federal or State
authority to promulgate, enforce, or maintain health and safety
standards related to heat-related illness.
“(A) IN
GENERAL.—The employer shall submit information required for the
adjudication of the H–2A petition, including a job order, through the
electronic platform no more than 75 calendar days and no fewer than 60
calendar days before the employer’s first date of need specified in the
petition.
“(B) FILING
BY AGRICULTURAL ASSOCIATIONS.—An association of agricultural producers
that use agricultural services may file an H–2A petition under
subparagraph (A). If an association is a joint or sole employer of
workers who perform agricultural labor or services, H–2A workers may be
used for the approved job opportunities of any of the association’s
producer members and such workers may be transferred among its producer
members to perform the agricultural labor or services for which the
petition was approved.
“(i) IN
GENERAL.—Except as provided in clause (ii), an employer may file a
petition involving employment in the same occupational classification
and same area of intended employment with multiple start dates if—
“(I) the petition involves temporary or seasonal employment and no more than 10 start dates;
“(II) the multiple start dates share a common end date;
“(III) no more than 120 days separate the first start date and the final start date listed in the petition; and
“(IV)
the need for multiple start dates arises from variations in labor needs
associated with the job opportunity identified in the petition.
“(ii) LABOR CONTRACTORS.—A labor contractor may not file a petition described in clause (i) unless the labor contractor—
“(I)
is filing as a joint employer with its contractees, or is operating in a
State in which joint employment and liability between the labor
contractor and its contractees is otherwise established; or
“(II) has posted and is maintaining a premium surety bond as described in subsection (l)(1).
“(i) IN
GENERAL.—The Secretary of Labor, in consultation with the relevant
State workforce agency, shall review the job order for compliance with
this section and notify the employer through the electronic platform of
any deficiencies not later than 7 business days from the date the
employer submits the necessary information required under paragraph
(1)(A). The employer shall be provided 5 business days to respond to any
such notice of deficiency.
“(ii) STANDARD.—The
job order must include all material terms and conditions of employment,
including the requirements of this section, and must be otherwise
consistent with the minimum standards provided under Federal, State or
local law. In considering the question of whether a specific
qualification is appropriate in a job order, the Secretary of Labor
shall apply the normal and accepted qualification required by non-H–2A
employers in the same or comparable occupations and crops.
“(iii) EMERGENCY
PROCEDURES.—The Secretary of Labor shall establish emergency procedures
for the curing of deficiencies that cannot be resolved during the
period described in clause (i).
“(i) IN
GENERAL.—Upon approval of the job order, the Secretary of Labor shall
immediately place for public examination a copy of the job order on the
online job registry, and the State workforce agency serving the area of
intended employment shall commence the recruitment of United States
workers.
“(ii) REFERRAL
OF UNITED STATES WORKERS.—The Secretary of Labor and State workforce
agency shall keep the job order active until the end of the period
described in subsection (c)(2) and shall refer to the employer each
United States worker who applies for the job opportunity.
“(C) REVIEW
OF INFORMATION FOR DEFICIENCIES.—Within 7 business days of the approval
of the job order, the Secretary of Labor shall review the information
necessary to make a labor certification and notify the employer through
the electronic platform if such information does not meet the standards
for approval. Such notification shall include a description of any
deficiency, and the employer shall be provided 5 business days to cure
such deficiency.
“(D) CERTIFICATION
AND AUTHORIZATION OF WORKERS.—Not later than 30 days before the date
that labor or services are first required to be performed, the Secretary
of Labor shall issue the requested labor certification if the Secretary
determines that the requirements set forth in this section have been
met.
“(E) EXPEDITED
ADMINISTRATIVE APPEALS OF CERTAIN DETERMINATIONS.—The Secretary of
Labor shall by regulation establish a procedure for an employer to
request the expedited review of a denial of a labor certification under
this section, or the revocation of such a certification. Such procedure
shall require the Secretary to expeditiously, but no later than 72 hours
after expedited review is requested, issue a de novo determination on a
labor certification that was denied in whole or in part because of the
availability of able, willing and qualified workers if the employer
demonstrates, consistent with subsection (c)(3)(B), that such workers
are not actually available at the time or place such labor or services
are required.
“(A) IN
GENERAL.—Not later than 7 business days after the Secretary of Labor
issues the certification, the Secretary of Homeland Security shall issue
a decision on the petition and shall transmit a notice of action to the
petitioner via the electronic platform.
“(B) APPROVAL.—Upon
approval of a petition under this section, the Secretary of Homeland
Security shall ensure that such approval is noted in the electronic
platform and is available to the Secretary of State and U.S. Customs and
Border Protection, as necessary, to facilitate visa issuance and
admission.
“(C) PARTIAL
APPROVAL.—A petition for multiple named beneficiaries may be partially
approved with respect to eligible beneficiaries notwithstanding the
ineligibility, or potential ineligibility, of one or more other
beneficiaries.
“(D) POST-CERTIFICATION
AMENDMENTS.—The Secretary of Labor shall provide a process for amending
a request for labor certification in conjunction with an H–2A petition,
subsequent to certification by the Secretary of Labor, in cases in
which the requested amendment does not materially change the petition
(including the job order).
“(A) MEMBER’S
VIOLATION DOES NOT NECESSARILY DISQUALIFY ASSOCIATION OR OTHER
MEMBERS.—If an individual producer member of a joint employer
association is determined to have committed an act that results in the
denial of a petition with respect to the member, the denial shall apply
only to that member of the association unless the Secretary of Labor
determines that the association or other member participated in, had
knowledge of, or reason to know of, the violation.
“(i)
If an association representing agricultural producers as a joint
employer is determined to have committed an act that results in the
denial of a petition with respect to the association, the denial shall
apply only to the association and does not apply to any individual
producer member of the association unless the Secretary of Labor
determines that the member participated in, had knowledge of, or reason
to know of, the violation.
“(ii)
If an association of agricultural producers certified as a sole
employer is determined to have committed an act that results in the
denial of a petition with respect to the association, no individual
producer member of such association may be the beneficiary of the
services of H–2A workers in the commodity and occupation in which such
aliens were employed by the association which was denied during the
period such denial is in force, unless such producer member employs such
aliens in the commodity and occupation in question directly or through
an association which is a joint employer of such workers with the
producer member.
“(5) SPECIAL
PROCEDURES.—The Secretary of Labor, in consultation with the Secretary
of Agriculture and Secretary of Homeland Security, may by regulation
establish alternate procedures that reasonably modify program
requirements under this section, when the Secretary determines that such
modifications are required due to the unique nature of the work
involved.
“(6) CONSTRUCTION
OCCUPATIONS.—An employer may not file a petition under this section on
behalf of a worker if the majority of the worker’s duties will fall
within a construction or extraction occupational classification.
“(1) IN
GENERAL.—Notwithstanding the requirement in section
101(a)(15)(H)(ii)(a) that the agricultural labor or services performed
by an H–2A worker be of a temporary or seasonal nature, the Secretary of
Homeland Security may, consistent with the provisions of this
subsection, approve a petition for an H–2A worker to perform
agricultural services or labor that is not of a temporary or seasonal
nature.
“(A) FIRST
3 FISCAL YEARS.—The total number of aliens who may be issued visas or
otherwise provided H–2A nonimmigrant status under paragraph (1) for the
first fiscal year during which the first visa is issued under such
paragraph and for each of the following two fiscal years may not exceed
20,000.
“(i) IN
GENERAL.—The total number of aliens who may be issued visas or
otherwise provided H–2A nonimmigrant status under paragraph (1) for the
first fiscal year following the fiscal years referred to in subparagraph
(A) and for each of the following 6 fiscal years may not exceed a
numerical limitation jointly imposed by the Secretary of Agriculture and
Secretary of Labor in accordance with clause (ii).
“(ii) ANNUAL
ADJUSTMENTS.—For each fiscal year referred to in clause (i), the
Secretary of Agriculture and Secretary of Labor, in consultation with
the Secretary of Homeland Security, shall establish a numerical
limitation for purposes of clause (i). Such numerical limitation may not
be lower 20,000 and may not vary by more than 12.5 percent compared to
the numerical limitation applicable to the immediately preceding fiscal
year. In establishing such numerical limitation, the Secretaries shall
consider appropriate factors, including—
“(I) a demonstrated shortage of agricultural workers;
“(II) the level of unemployment and underemployment of agricultural workers during the preceding fiscal year;
“(III)
the number of H–2A workers sought by employers during the preceding
fiscal year to engage in agricultural labor or services not of a
temporary or seasonal nature;
“(IV)
the number of such H–2A workers issued a visa in the most recent fiscal
year who remain in the United States in compliance with the terms of
such visa;
“(V)
the estimated number of United States workers, including workers who
obtained certified agricultural worker status under title I of the Farm
Workforce Modernization Act of 2019, who worked during the preceding
fiscal year in agricultural labor or services not of a temporary or
seasonal nature;
“(VI)
the number of such United States workers who accepted jobs offered by
employers using the online job registry during the preceding fiscal
year;
“(VII)
any growth or contraction of the United States agricultural industry
that has increased or decreased the demand for agricultural workers; and
“(VIII)
any changes in the real wages paid to agricultural workers in the
United States as an indication of a shortage or surplus of agricultural
labor.
“(C) SUBSEQUENT
FISCAL YEARS.—For each fiscal year following the fiscal years referred
to in subparagraph (B), the Secretary of Agriculture and Secretary of
Labor shall jointly determine, in consultation with the Secretary of
Homeland Security, and after considering appropriate factors, including
those factors listed in subclauses (I) through (VIII) of subparagraph
(B)(ii), whether to establish a numerical limitation for that fiscal
year. If a numerical limitation is so established—
“(i)
such numerical limitation may not be lower than highest number of
aliens admitted under this subsection in any of the three fiscal years
immediately preceding the fiscal year for which the numerical limitation
is to be established; and
“(ii)
the total number of aliens who may be issued visas or otherwise
provided H–2A nonimmigrant status under paragraph (1) for that fiscal
year may not exceed such numerical limitation.
“(D) EMERGENCY
PROCEDURES.—The Secretary of Agriculture and Secretary of Labor, in
consultation with the Secretary of Homeland Security, shall jointly
establish by regulation procedures for immediately adjusting a numerical
limitation imposed under subparagraph (B) or (C) to account for
significant labor shortages.
“(A) BI-ANNUAL
ALLOCATION.—The annual allocation of visas described in paragraph (2)
shall be evenly allocated between two halves of the fiscal year unless
the Secretary of Homeland Security, in consultation with the Secretary
of Agriculture and Secretary of Labor, determines that an alternative
allocation would better accommodate demand for visas. Any unused visas
in the first half of the fiscal year shall be added to the allocation
for the subsequent half of the same fiscal year.
“(i) IN
GENERAL.—Of the visa numbers made available in each half of the fiscal
year pursuant to subparagraph (A), 50 percent of such visas shall be
reserved for employers filing petitions seeking H–2A workers to engage
in agricultural labor or services in the dairy industry.
“(ii) EXCEPTION.—If,
after 4 months have elapsed in one half of the fiscal year, the
Secretary of Homeland Security determines that application of clause (i)
will result in visas going unused during that half of the fiscal year,
clause (i) shall not apply to visas under this paragraph during the
remainder of such calendar half.
“(i) IN
GENERAL.—Notwithstanding the numerical limitations under paragraph (2),
up to 500 aliens may be issued visas or otherwise provided H–2A
nonimmigrant status under paragraph (1) in a fiscal year for range sheep
or goat herding.
“(ii) LIMITATION.—The
total number of aliens in the United States in valid H–2A status under
clause (i) at any one time may not exceed 500.
“(iii) CLARIFICATION.—Any
visas issued under this subparagraph may not be considered for purposes
of the annual adjustments under subparagraphs (B) and (C) of paragraph
(2).
“(A) IN
GENERAL.—In addition to the other requirements of this section, an
employer shall provide H–2A workers employed under this subsection, at
no cost to such workers, with annual round trip travel, including
transportation and subsistence during travel, to their homes in their
communities of origin. The employer must provide such travel within 14
months of the initiation of the worker’s employment, and no more than 14
months can elapse between each required period of travel.
“(i) the actual cost to the worker of the transportation and subsistence involved; or
“(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
“(5) FAMILY
HOUSING.—An employer seeking to employ an H–2A worker pursuant to this
subsection shall offer family housing to workers with families if such
workers are engaged in agricultural employment that is not of a seasonal
or temporary nature. The worker may reject such an offer. The employer
may not charge the worker for the worker’s housing, except that if the
worker accepts family housing, a prorated rent based on the fair market
value for such housing may be charged for the worker’s family members.
“(A) IN
GENERAL.—If an employer is seeking to employ a worker in agricultural
labor or services in the dairy industry pursuant to this subsection, the
employer must report incidents consistent with the requirements under
section 1904.39 of title 29, Code of Federal Regulations, and maintain
an effective worksite safety and compliance plan to prevent workplace
accidents and otherwise ensure safety. Such plan shall—
“(i)
be in writing in English and, to the extent necessary, any language
common to a significant portion of the workers if they are not fluent in
English; and
“(ii)
be posted at a conspicuous location at the worksite and provided to
employees prior to the commencement of labor or services.
“(B) CONTENTS
OF PLAN.—The Secretary of Labor, in consultation with the Secretary of
Agriculture, shall establish by regulation the minimum requirements for
the plan described in subparagraph (A). Such plan shall include measures
to—
“(i)
require workers (other than the employer’s family members) whose
positions require contact with animals to complete animal care training,
including animal handling and job-specific animal care;
“(ii)
protect against sexual harassment and violence, resolve complaints
involving harassment or violence, and protect against retaliation
against workers reporting harassment or violence; and
“(iii)
contain other provisions necessary for ensuring workplace safety, as
determined by the Secretary of Labor, in consultation with the Secretary
of Agriculture.
“(C) CLARIFICATION.—Nothing
in this paragraph is intended to apply to persons or entities that are
not seeking to employ workers under this section. Nothing in this
paragraph is intended to limit any other Federal or State authority to
promulgate, enforce, or maintain health and safety standards related to
the dairy industry.
“(1) DISQUALIFICATION.—An
alien shall be ineligible for admission to the United States as an H–2A
worker pursuant to a petition filed under this section if the alien was
admitted to the United States as an H–2A worker within the past 5 years
of the date the petition was filed and—
“(A)
violated a material provision of this section, including the
requirement to promptly depart the United States when the alien’s
authorized period of admission has expired, unless the alien has good
cause for such failure to depart; or
“(B) otherwise violated a term or condition of admission into the United States as an H–2A worker.
“(2) VISA
VALIDITY.—A visa issued to an H–2A worker shall be valid for 3 years
and shall allow for multiple entries during the approved period of
admission.
“(A) IN
GENERAL.—An alien admissible as an H–2A worker shall be authorized to
stay in the United States for the period of employment specified in the
petition approved by the Secretary of Homeland Security under this
section. The maximum continuous period of authorized stay for an H–2A
worker is 36 months.
“(B) REQUIREMENT
TO REMAIN OUTSIDE THE UNITED STATES.—In the case of an H–2A worker
whose maximum continuous period of authorized stay (including any
extensions) has expired, the alien may not again be eligible for such
stay until the alien remains outside the United States for a cumulative
period of at least 45 days.
“(C) EXCEPTIONS.—The
Secretary of Homeland Security shall deduct absences from the United
States that take place during an H–2A worker’s period of authorized stay
from the period that the alien is required to remain outside the United
States under subparagraph (B), if the alien or the alien’s employer
requests such a deduction, and provides clear and convincing proof that
the alien qualifies for such a deduction. Such proof shall consist of
evidence including, but not limited to, arrival and departure records,
copies of tax returns, and records of employment abroad.
“(D) ADMISSION.—In
addition to the maximum continuous period of authorized stay, an H–2A
worker’s authorized period of admission shall include an additional
period of 10 days prior to the beginning of the period of employment for
the purpose of traveling to the place of employment and 45 days at the
end of the period of employment for the purpose of traveling home or
seeking an extension of status based on a subsequent offer of employment
if the worker has not reached the maximum continuous period of
authorized stay under subparagraph (A) (subject to the exceptions in
subparagraph (C)).
“(A) SUCCESSIVE
EMPLOYMENT.—An H–2A worker is authorized to start new or concurrent
employment upon the filing of a nonfrivolous H–2A petition, or as of the
requested start date, whichever is later if—
“(i)
the petition to start new or concurrent employment was filed prior to
the expiration of the H–2A worker’s period of admission as defined in
paragraph (3)(D); and
“(ii)
the H–2A worker has not been employed without authorization in the
United States from the time of last admission to the United States in
H–2A status through the filing of the petition for new employment.
“(B) PROTECTION
DUE TO IMMIGRANT VISA BACKLOGS.—Notwithstanding the limitations on the
period of authorized stay described in paragraph (3), any H–2A worker
who—
“(i)
is the beneficiary of an approved petition, filed under section
204(a)(1)(E) or (F) for preference status under section
203(b)(3)(A)(iii); and
“(ii) is eligible to be granted such status but for the annual limitations on visas under section 203(b)(3)(A),
may apply for, and the Secretary of Homeland Security may grant, an extension of such nonimmigrant
status until the Secretary of Homeland Security issues a final
administrative decision on the alien’s application for adjustment of
status or the Secretary of State issues a final decision on the alien’s
application for an immigrant visa.
“(A) IN
GENERAL.—Except as provided in subparagraph (B), an H–2A worker who
abandons the employment which was the basis for the worker’s authorized
stay, without good cause, shall be considered to have failed to maintain
H–2A status and shall depart the United States or be subject to removal
under section 237(a)(1)(C)(i).
“(B) GRACE
PERIOD TO SECURE NEW EMPLOYMENT.—An H–2A worker shall not be considered
to have failed to maintain H–2A status solely on the basis of a
cessation of the employment on which the alien’s classification was
based for a period of 45 consecutive days, or until the end of the
authorized validity period, whichever is shorter, once during each
authorized validity period.
“(1) DISCLOSURE
OF WORK CONTRACT.—Not later than the time the H–2A worker applies for a
visa, the employer shall provide the worker with a copy of the work
contract that includes the disclosures and rights under this section (or
in the absence of such a contract, a copy of the job order and proof of
the certification described in subparagraphs (B) and (D) of subsection
(h)(2)). An H–2A worker moving from one H–2A employer to a subsequent
H–2A employer shall be provided with a copy of the new employment
contract no later than the time an offer of employment is made by the
subsequent employer.
“(2) HOURS
AND EARNINGS STATEMENTS.—The employer shall furnish to H–2A workers, on
or before each payday, in one or more written statements—
“(A) the worker’s total earnings for the pay period;
“(B) the worker’s hourly rate of pay, piece rate of pay, or both;
“(C) the hours of employment offered to the worker and the hours of employment actually worked;
“(D) if piece rates of pay are used, the units produced daily;
“(E) an itemization of the deductions made from the worker’s wages; and
“(F) any other information required by Federal, State or local law.
“(3) NOTICE
OF WORKER RIGHTS.—The employer must post and maintain in a conspicuous
location at the place of employment, a poster provided by the Secretary
of Labor in English, and, to the extent necessary, any language common
to a significant portion of the workers if they are not fluent in
English, which sets out the rights and protections for workers employed
pursuant to this section.
“(A) SURETY
BOND.—An employer that is a labor contractor who seeks to employ H–2A
workers shall maintain a surety bond in an amount required under
subparagraph (B). Such bond shall be payable to the Secretary of Labor
or pursuant to the resolution of a civil or criminal proceeding, for the
payment of wages and benefits, including any assessment of interest,
owed to an H–2A worker or a similarly employed United States worker, or a
United States worker who has been rejected or displaced in violation of
this section.
“(B) AMOUNT
OF BOND.—The Secretary of Labor shall annually publish in the Federal
Register a schedule of required bond amounts that are determined by such
Secretary to be sufficient for labor contractors to discharge financial
obligations under this section based on the number of workers the labor
contractor seeks to employ and the wages such workers are required to
be paid.
“(C) PREMIUM
BOND.—A labor contractor seeking to file a petition involving more than
one start date under subsection (h)(1)(C) shall maintain a surety bond
that is at least 15 percent higher than the applicable bond amount
determined by the Secretary under subparagraph (B).
“(D) USE
OF FUNDS.—Any sums paid to the Secretary under subparagraph (A) that
are not paid to a worker because of the inability to do so within a
period of 5 years following the date of a violation giving rise to the
obligation to pay shall remain available to the Secretary without
further appropriation until expended to support the enforcement of this
section.
“(2) PROHIBITION
AGAINST EMPLOYEES PAYING FEES.—Neither the employer nor its agents
shall seek or receive payment of any kind from any worker for any
activity related to the H–2A process, including payment of the
employer’s attorneys’ fees, application fees, or recruitment costs. An
employer and its agents may receive reimbursement for costs that are the
responsibility and primarily for the benefit of the worker, such as
government-required passport fees.
“(3) THIRD
PARTY CONTRACTS.—The contract between an employer and any labor
contractor or any foreign labor recruiter (or any agent of such labor
contractor or foreign labor recruiter) whom the employer engages shall
include a term providing for the termination of such contract for cause
if the contractor or recruiter, either directly or indirectly, in the
placement or recruitment of H–2A workers seeks or receives payments or
other compensation from prospective employees. Upon learning that a
labor contractor or foreign labor recruiter has sought or collected such
payments, the employer shall so terminate any contracts with such
contractor or recruiter.
“(1) IN
GENERAL.—The Secretary of Labor is authorized to take such actions
against employers, including imposing appropriate penalties and seeking
monetary and injunctive relief and specific performance of contractual
obligations, as may be necessary to ensure compliance with the
requirements of this section and with the applicable terms and
conditions of employment.
“(A) PROCESS.—The
Secretary of Labor shall establish a process for the receipt,
investigation, and disposition of complaints alleging failure of an
employer to comply with the requirements under this section and with the
applicable terms and conditions of employment.
“(B) FILING.—A
complaint referred to in subparagraph (A) may be filed not later than 2
years after the date of the conduct that is the subject of the
complaint.
“(C) COMPLAINT
NOT EXCLUSIVE.—A complaint filed under this paragraph is not an
exclusive remedy and the filing of such a complaint does not waive any
rights or remedies of the aggrieved party under this law or other laws.
“(D) DECISION
AND REMEDIES.—If the Secretary of Labor finds, after notice and
opportunity for a hearing, that the employer failed to comply with the
requirements of this section or the terms and conditions of employment,
the Secretary of Labor may require payment of unpaid wages, unpaid
benefits, fees assessed in violation of this section, damages, and civil
money penalties. The Secretary is also authorized to impose other
administrative remedies, including disqualification of the employer from
utilizing the H–2A program for a period of up to 5 years in the event
of willful or multiple material violations. The Secretary is authorized
to permanently disqualify an employer from utilizing the H–2A program
upon a subsequent finding involving willful or multiple material
violations.
“(E) DISPOSITION
OF PENALTIES.—Civil penalties collected under this paragraph shall be
deposited into the H–2A Labor Certification Fee Account established
under section 203 of the Farm Workforce Modernization Act of 2019.
“(3) STATUTORY
CONSTRUCTION.—Nothing in this subsection may be construed as limiting
the authority of the Secretary of Labor to conduct an investigation—
“(A) under any other law, including any law affecting migrant and seasonal agricultural workers; or
“(B) in the absence of a complaint.
“(4) RETALIATION
PROHIBITED.—It is a violation of this subsection for any person to
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against, or to cause any person to intimidate,
threaten, restrain, coerce, blacklist, or in any manner discriminate
against, an employee, including a former employee or an applicant for
employment, because the employee—
“(A)
has disclosed information to the employer, or to any other person, that
the employee reasonably believes evidences a violation under this
section, or any rule or regulation relating to this section;
“(B)
has filed a complaint concerning the employer’s compliance with the
requirements under this section or any rule or regulation pertaining to
this section;
“(C)
cooperates or seeks to cooperate in an investigation or other
proceeding concerning the employer’s compliance with the requirements
under this section or any rule or regulation pertaining to this section;
or
“(D)
has taken steps to exercise or assert any right or protection under the
provisions of this section, or any rule or regulation pertaining to
this section, or any other relevant Federal, State, or local law.
“(5) INTERAGENCY
COMMUNICATION.—The Secretary of Labor, in consultation with the
Secretary of Homeland Security, Secretary of State and the Equal
Employment Opportunity Commission, shall establish mechanisms by which
the agencies and their components share information, including by public
electronic means, regarding complaints, studies, investigations,
findings and remedies regarding compliance by employers with the
requirements of the H–2A program and other employment-related laws and
regulations.
“(1) DISPLACE.—The
term ‘displace’ means to lay off a similarly employed United States
worker, other than for lawful job-related reasons, in the occupation and
area of intended employment for the job for which H–2A workers are
sought.
“(2) H–2A WORKER.—The term ‘H–2A worker’ means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).
“(3) JOB
ORDER.—The term ‘job order’ means the document containing the material
terms and conditions of employment, including obligations and assurances
required under this section or any other law.
“(4) ONLINE
JOB REGISTRY.—The term ‘online job registry’ means the online job
registry of the Secretary of Labor required under section 201(b) of the
Farm Workforce Modernization Act of 2019 (or similar successor
registry).
“(5) SIMILARLY
EMPLOYED.—The term ‘similarly employed’, in the case of a worker, means
a worker in the same occupational classification as the classification
or classifications for which the H–2A worker is sought.
“(A) a citizen or national of the United States;
“(B)
an alien who is lawfully admitted for permanent residence, is admitted
as a refugee under section 207, is granted asylum under section 208, or
is an immigrant otherwise authorized to be employed in the United
States;
“(C) an alien granted certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019; or
“(D)
an individual who is not an unauthorized alien (as defined in section
274A(h)(3)) with respect to the employment in which the worker is
engaging.
“(A) IN
GENERAL.—The Secretary of Homeland Security shall impose a fee to
process petitions under this section. Such fee shall be set at a level
that is sufficient to recover the reasonable costs of processing the
petition, including the reasonable costs of providing labor
certification by the Secretary of Labor.
“(B) DISTRIBUTION.—Fees
collected under subparagraph (A) shall be deposited as offsetting
receipts into the immigration examinations fee account in section
286(m), except that the portion of fees assessed for the Secretary of
Labor shall be deposited into the H–2A Labor Certification Fee Account
established pursuant to section 203(c) of the Farm Workforce
Modernization Act of 2019 .
“(2) APPROPRIATIONS.—There are authorized to be appropriated for each fiscal year such sums as necessary for the purposes of—
“(A)
recruiting United States workers for labor or services which might
otherwise be performed by H–2A workers, including by ensuring that State
workforce agencies are sufficiently funded to fulfill their functions
under this section;
“(B)
enabling the Secretary of Labor to make determinations and
certifications under this section and under section 212(a)(5)(A)(i);
“(C)
monitoring the terms and conditions under which H–2A workers (and
United States workers employed by the same employers) are employed in
the United States; and
“(D)
enabling the Secretary of Agriculture to carry out the Secretary of
Agriculture’s duties and responsibilities under this section.”.
(a) Responsibilities of the secretary of labor.—With respect to the administration of the H–2A program, the Secretary of Labor shall be responsible for—
(A) review and process job orders;
(B)
facilitate the recruitment and referral of able, willing and qualified
United States workers who will be available at the time and place
needed;
(C) determine prevailing wages and practices; and
(D)
conduct timely inspections to ensure compliance with applicable
Federal, State, or local housing standards and Federal regulations for
H–2A housing;
(2)
determining whether the employer has met the conditions for approval of
the H–2A petition described in section 218 of the Immigration and
Nationality Act (8 U.S.C. 1188);
(3)
determining, in consultation with the Secretary of Agriculture, whether
a job opportunity is of a seasonal or temporary nature;
(4)
determining whether the employer has complied or will comply with the
H–2A program requirements set forth in section 218 of the Immigration
and Nationality Act (8 U.S.C. 1188);
(5) processing and investigating complaints consistent with section 218(m) of the Immigration and Nationality Act (8 U.S.C. 1188(m));
(6) referring any matter as appropriate to the Inspector General of the Department of Labor for investigation;
(7) ensuring that guidance to State workforce agencies to conduct wage surveys is regularly updated; and
(8)
issuing such rules and regulations as are necessary to carry out the
Secretary of Labor’s responsibilities under section 218 of the
Immigration and Nationality Act (8 U.S.C. 1188).
(b) Responsibilities of the secretary of homeland security.—With respect to the administration of the H–2A program, the Secretary of Homeland Security shall be responsible for—
(1)
adjudicating petitions for the admission of H–2A workers, which shall
include an assessment as to whether each beneficiary will be employed in
accordance with the terms and conditions of the certification and
whether any named beneficiaries qualify for such employment;
(2)
transmitting a copy of the final decision on the petition to the
employer, and in the case of approved petitions, ensuring that the
petition approval is reflected in the electronic platform to facilitate
the prompt issuance of a visa by the Department of State (if required)
and the admission of the H–2A workers to the United States;
(3)
establishing a reliable and secure method through which H–2A workers
can access information about their H–2A visa status, including
information on pending, approved, or denied petitions to extend such
status;
(4)
investigating and preventing fraud in the program, including the
utilization of H–2A workers for other than allowable agricultural labor
or services; and
(5)
issuing such rules and regulations as are necessary to carry out the
Secretary of Homeland Security’s responsibilities under section 218 of
the Immigration and Nationality Act (8 U.S.C. 1188).
(1) ESTABLISHMENT
OF ACCOUNT.—There is established in the general fund of the Treasury a
separate account, which shall be known as the “H–2A Labor Certification
Fee Account”. Notwithstanding any other provisions of law, there shall
be deposited as offsetting receipts into the account all amounts—
(A) collected as a civil penalty under section 218(m)(2)(E)of the Immigration and Nationality Act; and
(B) collected as a fee under section 218(o)(1)(B) of the Immigration and Nationality Act.
(2) USE
OF FEES.—Amounts deposited into the H–2A Labor Certification Fee
Account shall be available (except as otherwise provided in this
paragraph) without fiscal year limitation and without the requirement
for specification in appropriations Acts to the Secretary of Labor for
use, directly or through grants, contracts, or other arrangements, in
such amounts as the Secretary of Labor determines are necessary for the
costs of Federal and State administration in carrying out activities in
connection with labor certification under section 218 of the Immigration
and Nationality Act. Such costs may include personnel salaries and
benefits, equipment and infrastructure for adjudication and customer
service processes, the operation and maintenance of an on-line job
registry, and program integrity activities. The Secretary, in
determining what amounts to transfer to States for State administration
in carrying out activities in connection with labor certification under
section 218 of the Immigration and Nationality Act shall consider the
number of H–2A workers employed in that State and shall adjust the
amount transferred to that State accordingly. In addition, 10 percent of
the amounts deposited into the H–2A Labor Certification Fee Account
shall be available to the Office of Inspector General of the Department
of Labor to conduct audits and criminal investigations relating to such
foreign labor certification programs.
(3) ADDITIONAL
FUNDS.—Amounts available under paragraph (1) shall be available in
addition to any other funds appropriated or made available to the
Department of Labor under other laws, including section 218(o)(2) of the
Immigration and Nationality Act.
(a) Equality of treatment.—H–2A
workers shall not be denied any right or remedy under any Federal,
State, or local labor or employment law applicable to United States
workers engaged in agricultural employment.
(1) MIGRANT
AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT.—H–2A workers shall be
considered migrant agricultural workers for purposes of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
(2) WAIVER
OF RIGHTS PROHIBITED.—Agreements by H–2A workers to waive or modify any
rights or protections under this Act or section 218 of the Immigration
and Nationality Act (8 U.S.C. 1188)
shall be considered void or contrary to public policy except as
provided in a collective bargaining agreement with a bona fide labor
organization.
(A) FREE
MEDIATION SERVICES.—The Federal Mediation and Conciliation Service
shall be available to assist in resolving disputes arising under this
section between H–2A workers and agricultural employers without charge
to the parties.
(B) COMPLAINT.—If
an H–2A worker files a civil lawsuit alleging one or more violations of
section 218 of the Immigration and Nationality Act (8 U.S.C. 1188), the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), or the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801
et seq.), not later than 60 days after the filing of proof of service
of the complaint, a party to the lawsuit may file a request with the
Federal Mediation and Conciliation Service to assist the parties in
reaching a satisfactory resolution of all issues involving all parties
to the dispute.
(C) NOTICE.—Upon
filing a request under subparagraph (B) and giving of notice to the
parties, the parties shall attempt mediation within the period specified
in subparagraph (D), except that nothing in this paragraph shall limit
the ability of a court to order preliminary injunctive relief to protect
health and safety or to otherwise prevent irreparable harm.
(D) 90-DAY LIMIT.—The
Federal Mediation and Conciliation Service may conduct mediation or
other nonbinding dispute resolution activities for a period not to
exceed 90 days beginning on the date on which the Federal Mediation and
Conciliation Service receives a request for assistance under
subparagraph (B) unless the parties agree to an extension of such
period.
(i) IN
GENERAL.—Subject to clause (ii), there is authorized to be appropriated
to the Federal Mediation and Conciliation Service, such sums as may be
necessary for each fiscal year to carry out this subparagraph.
(ii) MEDIATION.—Notwithstanding
any other provision of law, the Director of the Federal Mediation and
Conciliation Service is authorized—
(I)
to conduct the mediation or other dispute resolution activities from
any other account containing amounts available to the Director; and
(II) to reimburse such account with amounts appropriated pursuant to clause (i).
(F) PRIVATE
MEDIATION.—If all parties agree, a private mediator may be employed as
an alternative to the Federal Mediation and Conciliation Service.
(A) REQUIREMENT.—Section 101 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1811), is amended by adding at the end the following:
“(e)
A farm labor contractor shall maintain a surety bond in an amount
determined by the Secretary to be sufficient for ensuring the ability of
the farm labor contractor to discharge its financial obligations,
including payment of wages and benefits to employees. Such a bond shall
be available to satisfy any amounts ordered to be paid by the Secretary
or by court order for failure to comply with the obligations of this
Act. The Secretary of Labor shall annually publish in the Federal
Register a schedule of required bond amounts that are determined by such
Secretary to be sufficient for farm labor contractors to discharge
financial obligations based on the number of workers to be covered.”.
(B) REGISTRATION DETERMINATIONS.—Section 103(a) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1813(a)), is amended—
(i) in paragraph (4), by striking “or” at the end;
(ii) in paragraph (5)(B), by striking “or” at the end;
(iii) in paragraph (6), by striking the period at the end and inserting “;” ; and
(iv) by adding at the end the following:
“(7) has failed to maintain a surety bond in compliance with section 101(e); or
“(8)
has been disqualified by the Secretary of Labor from importing
nonimmigrants described in section 101(a)(15)(H)(ii) of the Immigration
and Nationality Act.”.
(A) DECLARATION.—Section 102 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1812), is amended—
(i) in paragraph (4), by striking “and” at the end;
(ii) in paragraph (5), by striking the period at the end and inserting “; and”; and
(iii) by adding at the end the following:
“(6)
a declaration, subscribed and sworn to by the applicant, stating
whether the applicant has a familial, contractual, or employment
relationship with, or shares vehicles, facilities, property, or
employees with, a person who has been refused issuance or renewal of a
certificate, or has had a certificate suspended or revoked, pursuant to
section 103.”.
(B) REBUTTABLE PRESUMPTION.—Section 103 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1813),
as amended by this Act, is further amended by inserting after
subsection (a) the following new subsection (and by redesignating the
subsequent subsections accordingly):
“(b) (1)
There shall be a rebuttable presumption that an applicant for issuance
or renewal of a certificate is not the real party in interest in the
application if the applicant—
“(A)
is the immediate family member of any person who has been refused
issuance or renewal of a certificate, or has had a certificate suspended
or revoked; and
“(B)
identifies a vehicle, facility, or real property under paragraph (2) or
(3) of section 102 that has been previously listed by a person who has
been refused issuance or renewal of a certificate, or has had a
certificate suspended or revoked.
“(2)
An applicant described in paragraph (1) bears the burden of
demonstrating to the Secretary’s satisfaction that the applicant is the
real party in interest in the application.”.
(a)
Not later than 3 years after the date of the enactment of this Act, and
every 3 years thereafter, the Secretary of Labor and Secretary of
Agriculture shall prepare and transmit to the Committees on the
Judiciary of the House of Representatives and Senate, a report that
addresses—
(1)
whether, and the manner in which, the employment of H–2A workers in the
United States has impacted the wages, working conditions, or job
opportunities of United States farm workers;
(2)
whether, and the manner in which, the adverse effect wage rate
increases or decreases wages on United States farms, broken down by
geographic region and farm size;
(3)
whether any potential impact of the adverse effect wage rate varies
based on the percentage of workers in a geographic region that are H–2A
workers;
(4)
the degree to which the adverse effect wage rate is affected by the
inclusion in wage surveys of piece rate compensation, bonus payments,
and other pay incentives, and whether such forms of incentive
compensation should be surveyed and reported separately from hourly base
rates;
(5)
whether, and the manner in which, other factors may artificially affect
the adverse effect wage rate, including factors that may be specific to
a region, State, or region within a State;
(6)
whether, and the manner in which, the H–2A program affects the ability
of United States farms to compete with agricultural commodities imported
from outside the United States;
(7) the number and percentage of farmworkers in the United States whose incomes are below the poverty line;
(8)
whether alternative wage standards would be sufficient to prevent wages
in occupations in which H–2A workers are employed from falling below
the wage level that would have prevailed in the absence of the H–2A
program;
(9)
whether any changes are warranted in the current methodologies for
calculating the adverse effect wage rate and the prevailing wage; and
(10) recommendations for future wage protection under this section.
(b)
In preparing the report described in subsection (a), the Secretary of
Labor and Secretary of Agriculture shall engage with equal numbers of
representatives of agricultural employers and agricultural workers, both
locally and nationally.
(1) IN
GENERAL.—Not later than 18 months after the date of the enactment of
this Act, the Secretary of Homeland Security, in consultation with the
Secretary of Labor and Secretary of Agriculture, shall establish through
regulation a 6-year pilot program to facilitate the free movement and
employment of temporary or seasonal H–2A workers to perform agricultural
labor or services for agricultural employers registered with the
Secretary of Agriculture. Notwithstanding the requirements of section
218 of the Immigration and Nationality Act, such regulation shall
establish the requirements for the pilot program, consistent with
subsection (b). For purposes of this section, such a worker shall be
referred to as a portable H–2A worker, and status as such a worker shall
be referred to as portable H–2A status.
(2) ONLINE
PLATFORM.—The Secretary of Homeland Security, in consultation with the
Secretary of Labor and the Secretary of Agriculture, shall maintain an
online electronic platform to connect portable H–2A workers with
registered agricultural employers seeking workers to perform temporary
or seasonal agricultural labor or services. Employers shall post on the
platform available job opportunities, including a description of the
nature and location of the work to be performed, the anticipated period
or periods of need, and the terms and conditions of employment. Such
platform shall allow portable H–2A workers to search for available job
opportunities using relevant criteria, including the types of jobs
needed to be filled and the dates and locations of need.
(3) LIMITATION.—Notwithstanding
the issuance of the regulation described in paragraph (1), the
Secretary of State may not issue a portable H–2A visa and the Secretary
of Homeland Security may not confer portable H–2A status on any alien
until the Secretary of Homeland Security, in consultation with the
Secretary of Labor and Secretary of Agriculture, has determined that a
sufficient number of employers have been designated as registered
agricultural employers under subsection (b)(1) and that such employers
have sufficient job opportunities to employ a reasonable number of
portable H–2A workers to initiate the pilot program.
(b) Pilot program elements.—The pilot program in subsection (a) shall contain the following elements:
(A) DESIGNATION.—Agricultural
employers shall be provided the ability to seek designation as
registered agricultural employers. Reasonable fees may be assessed
commensurate with the cost of processing applications for designation. A
designation shall be valid for a period of up to 3 years unless revoked
for failure to comply with program requirements. Registered employers
that comply with program requirements may apply to renew such
designation for additional periods of up to 3 years for the duration of
the pilot program.
(B) LIMITATIONS.—Registered
agricultural employers may employ aliens with portable H–2A status
without filing a petition. Such employers shall pay such aliens at least
the wage required under section 218(d) of the Immigration and
Nationality Act (8 U.S.C. 1188(d)).
(C) WORKERS’
COMPENSATION.—If a job opportunity is not covered by or is exempt from
the State workers’ compensation law, a registered agricultural employer
shall provide, at no cost to the worker, insurance covering injury and
disease arising out of, and in the course of, the worker’s employment,
which will provide benefits at least equal to those provided under the
State workers’ compensation law.
(A) IN
GENERAL.—Individuals who have been previously admitted to the United
States in H–2A status, and maintained such status during the period of
admission, shall be provided the opportunity to apply for portable H–2A
status. Portable H–2A workers shall be subject to the provisions on visa
validity and periods of authorized stay and admission for H–2A workers
described in paragraphs (2) and (3) of section 218(j) of the Immigration
and Nationality Act (8 U.S.C. 1188(j)(2) and (3)).
(i) INITIAL
OFFER OF EMPLOYMENT REQUIRED.—No alien may be granted portable H–2A
status without an initial valid offer of employment to perform temporary
or agricultural labor or services from a registered agricultural
employer.
(ii) NUMERICAL
LIMITATIONS.—The total number of aliens who may hold valid portable
H–2A status at any one time may not exceed 10,000. Notwithstanding such
limitation, the Secretary of Homeland Security may further limit the
number of aliens with valid portable H–2A status if the Secretary
determines that there are an insufficient number of registered
agricultural employers or job opportunities to support the employment of
all such portable H–2A workers.
(C) SCOPE
OF EMPLOYMENT.—During the period of admission, a portable H–2A worker
may perform temporary or seasonal agricultural labor or services for any
employer in the United States that is designated as a registered
agricultural employer pursuant to paragraph (1). An employment
arrangement under this section may be terminated by either the portable
H–2A worker or the registered agricultural employer at any time.
(D) TRANSFER
TO NEW EMPLOYMENT.—At the cessation of employment with a registered
agricultural employer, a portable H–2A worker shall have 60 days to
secure new employment with a registered agricultural employer.
(E) MAINTENANCE
OF STATUS.—A portable H–2A worker who does not secure new employment
with a registered agricultural employer within 60 days shall be
considered to have failed to maintain such status and shall depart the
United States or be subject to removal under section 237(a)(1)(C)(i) of
the Immigration and Nationality Act (8 U.S.C. 1188(a)(1)(C)(i)).
(3) ENFORCEMENT.—The
Secretary of Labor shall be responsible for conducting investigations
and random audits of employers to ensure compliance with the
employment-related requirements of this section, consistent with section
218(m) of the Immigration and Nationality Act (8 U.S.C. 1188(m)).
The Secretary of Labor shall have the authority to collect reasonable
civil penalties for violations, which shall be utilized by the Secretary
for the administration and enforcement of the provisions of this
section.
(4) ELIGIBILITY
FOR SERVICES.—Section 305 of Public Law 99–603 (100 Stat. 3434) is
amended by striking “other employment rights as provided in the worker’s
specific contract under which the nonimmigrant was admitted” and
inserting “employment-related rights”.
(c) Report.—Not
later than 6 months before the end of the third fiscal year of the
pilot program, the Secretary of Homeland Security, in consultation with
the Secretary of Labor and the Secretary of Agriculture, shall prepare
and submit to the Committees on the Judiciary of the House of
Representatives and the Senate, a report that provides—
(1)
the number of employers designated as registered agricultural
employers, broken down by geographic region, farm size, and the number
of job opportunities offered by such employers;
(2) the number of employers whose designation as a registered agricultural employer was revoked;
(3)
the number of individuals granted portable H–2A status in each fiscal
year, along with the number of such individuals who maintained portable
H–2A status during all or a portion of the 3-year period of the pilot
program;
(4) an assessment of the impact of the pilot program on the wages and working conditions of United States farm workers;
(5)
the results of a survey of individuals granted portable H–2A status,
detailing their experiences with and feedback on the pilot program;
(6)
the results of a survey of registered agricultural employers, detailing
their experiences with and feedback on the pilot program;
(7) an assessment as to whether the program should be continued and if so, any recommendations for improving the program; and
(8)
findings and recommendations regarding effective recruitment
mechanisms, including use of new technology to match workers with
employers and ensure compliance with applicable labor and employment
laws and regulations.
(a) Worldwide level.—Section 201(d)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1151(d)(1)(A)) is amended by striking “140,000” and inserting “180,000”.
(b) Visas for farmworkers.—Section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) is amended—
(1) in paragraph (1) by striking “28.6 percent of such worldwide level” and inserting “40,040”;
(2) in paragraph (2)(A) by striking “28.6 percent of such worldwide level” and inserting “40,040”;
(i) in the matter before clause (i), by striking “28.6 percent of such worldwide level” and inserting “80,040”; and
(ii) by amending clause (iii) to read as follows:
“(iii) OTHER WORKERS.—Other qualified immigrants who, at the time of petitioning for classification under this paragraph—
“(I)
are capable of performing unskilled labor, not of a temporary or
seasonal nature, for which qualified workers are not available in the
United States; or
“(II)
can demonstrate employment in the United States as an H–2A nonimmigrant
worker for at least 100 days in each of at least 10 years.”;
(B) by amending subparagraph (B) to read as follows:
“(i) IN
GENERAL.—Except as provided in clauses (ii) and (iii), 50,000 of the
visas made available under this paragraph shall be reserved for
qualified immigrants described in subparagraph (A)(iii).
“(ii) PREFERENCE
FOR AGRICULTURAL WORKERS.—Subject to clause (iii), not less than
four-fifths of the visas described in clause (i) shall be reserved for—
“(I)
qualified immigrants described in subparagraph (A)(iii)(I) who will be
performing agricultural labor or services in the United States; and
“(II) qualified immigrants described in subparagraph (A)(iii)(II).
“(iii) EXCEPTION.—If
because of the application of clause (ii), the total number of visas
available under this paragraph for a calendar quarter exceeds the number
of qualified immigrants who otherwise may be issued such a visa, clause
(ii) shall not apply to visas under this paragraph during the remainder
of such calendar quarter.
“(iv) NO
PER COUNTRY LIMITS.—Visas described under clause (ii) shall be issued
without regard to the numerical limitation under section 202(a)(2).”;
and
(C)
by amending subparagraph (C) by striking “An immigrant visa” and
inserting “Except for qualified immigrants petitioning for
classification under subparagraph (A)(iii)(II), an immigrant visa”;
(4) in paragraph (4), by striking “7.1 percent of such worldwide level” and inserting “9,940”; and
(5)
in paragraph (5)(A), in the matter before clause (i), by striking “7.1
percent of such worldwide level” and inserting “9,940”.
(c) Petitioning procedure.—Section 204(a)(1)(E) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(E)) is amended by inserting “or 203(b)(3)(A)(iii)(II)” after “203(b)(1)(A)”.
(d) Dual intent.—Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b))
is amended by striking “section 101(a)(15)(H)(i) except subclause (b1)
of such section” and inserting “clause (i), except subclause (b1), or
(ii)(a) of section 101(a)(15)(H)”.
This subtitle may be cited as the “Strategy and Investment in Rural Housing Preservation Act of 2019”.
Title V of the Housing Act of 1949 (42 U.S.C. 1471 et seq.) is amended by adding at the end the following new section:
“(a) Establishment.—The
Secretary shall carry out a program under this section for the
preservation and revitalization of multifamily rental housing projects
financed under section 515 or both sections 514 and 516.
“(1) TO
OWNERS.—On an annual basis, the Secretary shall provide written notice
to each owner of a property financed under section 515 or both sections
514 and 516 that will mature within the 4-year period beginning upon the
provision of such notice, setting forth the options and financial
incentives that are available to facilitate the extension of the loan
term or the option to decouple a rental assistance contract pursuant to
subsection (f).
“(A) IN
GENERAL.—For each property financed under section 515 or both sections
514 and 516, not later than the date that is 2 years before the date
that such loan will mature, the Secretary shall provide written notice
to each household residing in such property that informs them of the
date of the loan maturity, the possible actions that may happen with
respect to the property upon such maturity, and how to protect their
right to reside in Federally assisted housing after such maturity.
“(B) LANGUAGE.—Notice
under this paragraph shall be provided in plain English and shall be
translated to other languages in the case of any property located in an
area in which a significant number of residents speak such other
languages.
“(c) Loan restructuring.—Under
the program under this section, the Secretary may restructure such
existing housing loans, as the Secretary considers appropriate, for the
purpose of ensuring that such projects have sufficient resources to
preserve the projects to provide safe and affordable housing for
low-income residents and farm laborers, by—
“(1) reducing or eliminating interest;
“(2) deferring loan payments;
“(3) subordinating, reducing, or reamortizing loan debt; and
“(4)
providing other financial assistance, including advances, payments, and
incentives (including the ability of owners to obtain reasonable
returns on investment) required by the Secretary.
“(d) Renewal of rental assistance.—When
the Secretary offers to restructure a loan pursuant to subsection (c),
the Secretary shall offer to renew the rental assistance contract under
section 521(a)(2) for a 20-year term that is subject to annual
appropriations, provided that the owner agrees to bring the property up
to such standards that will ensure its maintenance as decent, safe, and
sanitary housing for the full term of the rental assistance contract.
“(1) REQUIREMENT.—As
part of the preservation and revitalization agreement for a project,
the Secretary shall obtain a restrictive use agreement that obligates
the owner to operate the project in accordance with this title.
“(A) NO
EXTENSION OF RENTAL ASSISTANCE CONTRACT.—Except when the Secretary
enters into a 20-year extension of the rental assistance contract for
the project, the term of the restrictive use agreement for the project
shall be consistent with the term of the restructured loan for the
project.
“(B) EXTENSION
OF RENTAL ASSISTANCE CONTRACT.—If the Secretary enters into a 20-year
extension of the rental assistance contract for a project, the term of
the restrictive use agreement for the project shall be for 20 years.
“(C) TERMINATION.—The
Secretary may terminate the 20-year use restrictive use agreement for a
project prior to the end of its term if the 20-year rental assistance
contract for the project with the owner is terminated at any time for
reasons outside the owner’s control.
“(1) RENEWAL
OF RENTAL ASSISTANCE CONTRACT.—If the Secretary determines that a
maturing loan for a project cannot reasonably be restructured in
accordance with subsection (c) and the project was operating with rental
assistance under section 521, the Secretary may renew the rental
assistance contract, notwithstanding any provision of section 521, for a
term, subject to annual appropriations, of at least 10 years but not
more than 20 years.
“(2) RENTS.—Any
agreement to extend the term of the rental assistance contract under
section 521 for a project shall obligate the owner to continue to
maintain the project as decent, safe and sanitary housing and to operate
the development in accordance with this title, except that rents shall
be based on the lesser of—
“(A) the budget-based needs of the project; or
“(B)
the operating cost adjustment factor as a payment standard as provided
under section 524 of the Multifamily Assisted Housing Reform and
Affordability Act of 1997 (42 U.S.C. 1437 note).
“(g) Multifamily housing transfer technical assistance.—Under
the program under this section, the Secretary may provide grants to
qualified non-profit organizations and public housing agencies to
provide technical assistance, including financial and legal services, to
borrowers under loans under this title for multifamily housing to
facilitate the acquisition of such multifamily housing properties in
areas where the Secretary determines there is a risk of loss of
affordable housing.
“(h) Transfer of rental assistance.—After
the loan or loans for a rental project originally financed under
section 515 or both sections 514 and 516 have matured or have been
prepaid and the owner has chosen not to restructure the loan pursuant to
subsection (c), a tenant residing in such project shall have 18 months
prior to loan maturation or prepayment to transfer the rental assistance
assigned to the tenant’s unit to another rental project originally
financed under section 515 or both sections 514 and 516, and the owner
of the initial project may rent the tenant’s previous unit to a new
tenant without income restrictions.
“(i) Administrative expenses.—Of
any amounts made available for the program under this section for any
fiscal year, the Secretary may use not more than $1,000,000 for
administrative expenses for carrying out such program.
“(j) Authorization of appropriations.—There
is authorized to be appropriated for the program under this section
$200,000,000 for each of fiscal years 2020 through 2024.”.
Section 542 of the Housing Act of 1949 (42 U.S.C. 1490r) is amended by adding at the end the following new subsection:
“(c) Eligibility of households in sections 514, 515, and 516 projects.—The
Secretary may provide rural housing vouchers under this section for any
low-income household (including those not receiving rental assistance)
residing, for a term longer than the remaining term of their lease in
effect just prior to prepayment, in a property financed with a loan made
or insured under section 514 or 515 (42 U.S.C. 1484, 1485) which has been prepaid without restrictions imposed by the Secretary pursuant to section 502(c)(5)(G)(ii)(I) (42 U.S.C. 1472(c)(5)(G)(ii)(I)),
has been foreclosed, or has matured after September 30, 2005, or
residing in a property assisted under section 514 or 516 that is owned
by a nonprofit organization or public agency.”.
Notwithstanding any other provision of
law, in the case of any rural housing voucher provided pursuant to
section 542 of the Housing Act of 1949 (42 U.S.C. 1490r),
the amount of the monthly assistance payment for the household on whose
behalf such assistance is provided shall be determined as provided in
subsection (a) of such section 542.
Subsection (d) of section 521 of the Housing Act of 1949 (42 U.S.C. 1490a(d)) is amended—
(1)
in paragraph (1), by inserting after subparagraph (A) the following new
subparagraph (and by redesignating the subsequent subparagraphs
accordingly):
“(B)
upon request of an owner of a project financed under section 514 or
515, the Secretary is authorized to enter into renewal of such
agreements for a period of 20 years or the term of the loan, whichever
is shorter, subject to amounts made available in appropriations Acts;”;
and
“(3)
In the case of any rental assistance contract authority that becomes
available because of the termination of assistance on behalf of an
assisted family—
“(A)
at the option of the owner of the rental project, the Secretary shall
provide the owner a period of 6 months before such assistance is made
available pursuant to subparagraph (B) during which the owner may use
such assistance authority to provide assistance of behalf of an eligible
unassisted family that—
“(i) is residing in the same rental project that the assisted family resided in prior to such termination; or
“(ii) newly occupies a dwelling unit in such rental project during such period; and
“(B)
except for assistance used as provided in subparagraph (A), the
Secretary shall use such remaining authority to provide such assistance
on behalf of eligible families residing in other rental projects
originally financed under section 515 or both sections 514 and 516 of
this Act.”.
There is authorized to be appropriated
to the Secretary of Agriculture $50,000,000 for fiscal year 2020 for
improving the technology of the Department of Agriculture used to
process loans for multifamily housing and otherwise managing such
housing. Such improvements shall be made within the 5-year period
beginning upon the appropriation of such amounts and such amount shall
remain available until the expiration of such 5-year period.
(a) Plan.—The
Secretary of Agriculture (in this section referred to as the
“Secretary”) shall submit a written plan to the Congress, not later than
the expiration of the 6-month period beginning on the date of the
enactment of this Act, for preserving the affordability for low-income
families of rental projects for which loans were made under section 515
or made to nonprofit or public agencies under section 514 and avoiding
the displacement of tenant households, which shall—
(1) set forth specific performance goals and measures;
(2) set forth the specific actions and mechanisms by which such goals will be achieved;
(3) set forth specific measurements by which progress towards achievement of each goal can be measured;
(4) provide for detailed reporting on outcomes; and
(5) include any legislative recommendations to assist in achievement of the goals under the plan.
(1) ESTABLISHMENT;
PURPOSE.—The Secretary shall establish an advisory committee whose
purpose shall be to assist the Secretary in preserving section 515
properties and section 514 properties owned by nonprofit or public
agencies through the multifamily housing preservation and revitalization
program under section 545 and in implementing the plan required under
subsection (a).
(2) MEMBER.—The advisory committee shall consist of 16 members, appointed by the Secretary, as follows:
(A) A State Director of Rural Development for the Department of Agriculture.
(B) The Administrator for Rural Housing Service of the Department of Agriculture.
(C) Two representatives of for-profit developers or owners of multifamily rural rental housing.
(D) Two representatives of non-profit developers or owners of multifamily rural rental housing.
(E) Two representatives of State housing finance agencies.
(F) Two representatives of tenants of multifamily rural rental housing.
(G)
One representative of a community development financial institution
that is involved in preserving the affordability of housing assisted
under sections 514, 515, and 516 of the Housing Act of 1949.
(H)
One representative of a nonprofit organization that operates nationally
and has actively participated in the preservation of housing assisted
by the Rural Housing Service by conducting research regarding, and
providing financing and technical assistance for, preserving the
affordability of such housing.
(I) One representative of low-income housing tax credit investors.
(J)
One representative of regulated financial institutions that finance
affordable multifamily rural rental housing developments.
(K)
Two representatives from non-profit organizations representing
farmworkers, including one organization representing farmworker women.
(3) MEETINGS.—The advisory committee shall meet not less often than once each calendar quarter.
(4) FUNCTIONS.—In
providing assistance to the Secretary to carry out its purpose, the
advisory committee shall carry out the following functions:
(A)
Assisting the Rural Housing Service of the Department of Agriculture to
improve estimates of the size, scope, and condition of rental housing
portfolio of the Service, including the time frames for maturity of
mortgages and costs for preserving the portfolio as affordable housing.
(B)
Reviewing current policies and procedures of the Rural Housing Service
regarding preservation of affordable rental housing financed under
sections 514, 515, 516, and 538 of the Housing Act of 1949, the
Multifamily Preservation and Revitalization Demonstration program (MPR),
and the rental assistance program and making recommendations regarding
improvements and modifications to such policies and procedures.
(C) Providing ongoing review of Rural Housing Service program results.
(D) Providing reports to the Congress and the public on meetings, recommendations, and other findings of the advisory committee.
(5) TRAVEL
COSTS.—Any amounts made available for administrative costs of the
Department of Agriculture may be used for costs of travel by members of
the advisory committee to meetings of the committee.
Paragraph (3) of section 41411(a) of the Violence Against Women Act of 1994 (34 U.S.C. 12491(a)(3)) is amended—
(1) in subparagraph (I), by striking “and” at the end;
(2) by redesignating subparagraph (J) as subparagraph (K); and
(3) by inserting after subparagraph (I) the following new subparagraph:
“(J)
rural development housing voucher assistance provided by the Secretary
of Agriculture pursuant to section 542 of the Housing Act of 1949 (42 U.S.C. 1490r), without regard to subsection (b) of such section, and applicable appropriation Acts; and”.
Section 513 of the Housing Act of 1949 (42 U.S.C. 1483) is amended by adding at the end the following new subsection:
“(A) INSURANCE
AUTHORITY.—The Secretary of Agriculture may, to the extent approved in
appropriation Acts, insure loans under section 514 (42 U.S.C. 1484) during each of fiscal years 2020 through 2029 in an aggregate amount not to exceed $200,000,000.
“(B) AUTHORIZATION
OF APPROPRIATIONS FOR COSTS.—There is authorized to be appropriated
$75,000,000 for each of fiscal years 2020 through 2029 for costs (as
such term is defined in section 502 of the Congressional Budget Act of
1974 (2 U.S.C. 661a)) of loans insured pursuant the authority under subparagraph (A).
“(2) SECTION
516 GRANTS FOR FARMWORKER HOUSING.—There is authorized to be
appropriated $30,000,000 for each of fiscal years 2020 through 2029 for
financial assistance under section 516 (42 U.S.C. 1486).
“(3) SECTION
521 HOUSING ASSISTANCE.—There is authorized to be appropriated
$2,700,000,000 for each of fiscal years 2020 through 2029 for rental
assistance agreements entered into or renewed pursuant to section
521(a)(2) (42 U.S.C. 1490a(a)(2))
or agreements entered into in lieu of debt forgiveness or payments for
eligible households as authorized by section 502(c)(5)(D).”.
Section 514 of the Housing Act of 1949 (42 U.S.C. 1484) is amended by adding at the end the following:
“(j) Per project limitations on assistance.—If the Secretary, in making available assistance in any area under this section or section 516 (42 U.S.C. 1486),
establishes a limitation on the amount of assistance available per
project, the limitation on a grant or loan award per project shall not
be less than $5 million.”.
Subsection (a)(5) of section 521 of the Housing Act of 1949 (42 U.S.C. 1490a(a)(5)) is amended—
(1)
in subparagraph (A) by inserting “or domestic farm labor legally
admitted to the United States and authorized to work in agriculture”
after “migrant farmworkers”;
“(i) HOUSING FOR MIGRANT FARMWORKERS.—In any fiscal year”;
(B) by inserting “providing housing for migrant farmworkers” after “any project”; and
(C) by inserting at the end the following:
“(ii) HOUSING
FOR OTHER FARM LABOR.—In any fiscal year, the assistance provided under
this paragraph for any project providing housing for domestic farm
labor legally admitted to the United States and authorized to work in
agriculture shall not exceed an amount equal to 50 percent of the
operating costs for the project for the year, as determined by the
Secretary. The owner of such project shall not qualify for operating
assistance unless the Secretary certifies that the project was
unoccupied or underutilized before making units available to such farm
labor, and that a grant under this section will not displace any farm
worker who is a United States worker.”; and
(3) in subparagraph (D), by adding at the end the following:
“(iii) The term ‘domestic farm labor’ has the same meaning given such term in section 514(f)(3) (42 U.S.C. 1484(f)(3)), except that subparagraph (A) of such section shall not apply for purposes this section.”.
Subsection (a) of section 214 of the Housing and Community Development Act of 1980 (42 U.S.C. 1436a) is amended—
(1) in paragraph (6), by striking “or” at the end;
(2) by redesignating paragraph (7) as paragraph (8); and
“(7)
an alien granted certified agricultural worker or certified
agricultural dependent status under title I of the Farm Workforce
Modernization Act of 2019, but solely for financial assistance made
available pursuant to section 521 or 542 of the Housing Act of 1949 (42 U.S.C. 1490a, 1490r); or”.
(a) In general.—Not
later than 1 year after the date of the enactment of this Act, the
Secretary of Labor, in consultation with the Secretary of State and the
Secretary of Homeland Security, shall establish procedures for the
electronic registration of foreign labor recruiters engaged in the
recruitment of nonimmigrant workers described in section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) to perform agricultural labor or services in the United States.
(A) stating the applicant’s permanent place of residence or principal place of business, as applicable;
(B) describing the foreign labor recruiting activities in which the applicant is engaged; and
(C) including such other relevant information as the Secretary of Labor and the Secretary of State may require;
(2) include an expeditious means to update and renew registrations;
(3)
include a process, which shall include the placement of personnel at
each United States diplomatic mission in accordance with subsection
(g)(2), to receive information from the public regarding foreign labor
recruiters who have allegedly engaged in a foreign labor recruiting
activity that is prohibited under this subtitle;
(4)
include procedures for the receipt and processing of complaints against
foreign labor recruiters and for remedies, including the revocation of a
registration or the assessment of fines upon a determination by the
Secretary of Labor that the foreign labor recruiter has violated the
requirements of this subtitle;
(5)
require the applicant to post a bond in an amount sufficient to ensure
the ability of the applicant to discharge its responsibilities and
ensure protection of workers, including payment of wages; and
(6)
allow the Secretary of Labor and the Secretary of State to consult with
other appropriate Federal agencies to determine whether any reason
exists to deny registration to a foreign labor recruiter or revoke such
registration.
(c) Attestations.—Foreign labor recruiters registering under this subtitle shall attest and agree to abide by the following requirements:
(1) PROHIBITED
FEES.—The foreign labor recruiter, including any agent or employee of
such foreign labor recruiter, shall not assess any recruitment fees on a
worker for any foreign labor recruiting activity.
(2) PROHIBITION
ON FALSE AND MISLEADING INFORMATION.—The foreign labor recruiter shall
not knowingly provide materially false or misleading information to any
worker concerning any matter required to be disclosed under this
subtitle.
(3) REQUIRED
DISCLOSURES.—The foreign labor recruiter shall ascertain and disclose
to the worker in writing in English and in the primary language of the
worker at the time of the worker’s recruitment, the following
information:
(A)
The identity and address of the employer and the identity and address
of the person conducting the recruiting on behalf of the employer,
including each subcontractor or agent involved in such recruiting.
(B)
A copy of the approved job order or work contract under section 218 of
the Immigration and Nationality Act, including all assurances and terms
and conditions of employment.
(i) describing the general terms and conditions associated with obtaining an H–2A visa and maintaining H–2A status;
(ii)
affirming the prohibition on the assessment of fees described in
paragraph (1), and explaining that such fees, if paid by the employer,
may not be passed on to the worker;
(iii)
describing the protections afforded the worker under this subtitle,
including procedures for reporting violations to the Secretary of State,
filing a complaint with the Secretary of Labor, or filing a civil
action; and
(iv)
describing the protections afforded the worker by section 202 of the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (8 U.S.C. 1375b), including the telephone number for the national human trafficking resource center hotline number.
(4) BOND.—The
foreign labor recruiter shall agree to maintain a bond sufficient to
ensure the ability of the foreign labor recruiter to discharge its
responsibilities and ensure protection of workers, and to forfeit such
bond in an amount determined by the Secretary under subsections
(b)(1)(C)(ii) or (c)(2)(C) of section 252 for failure to comply with the
provisions of this subtitle.
(5) COOPERATION
IN INVESTIGATION.—The foreign labor recruiter shall agree to cooperate
in any investigation under section 252 of this subtitle by the Secretary
or other appropriate authorities.
(6) NO
RETALIATION.—The foreign labor recruiter shall agree to refrain from
intimidating, threatening, restraining, coercing, discharging,
blacklisting or in any other manner discriminating or retaliating
against any worker or their family members (including a former worker or
an applicant for employment) because such worker disclosed information
to any person based on a reason to believe that the foreign labor
recruiter, or any agent or subcontractee of such foreign labor
recruiter, is engaging or has engaged in a foreign labor recruiting
activity that does not comply with this subtitle.
(7) EMPLOYEES,
AGENTS, AND SUBCONTRACTEES.—The foreign labor recruiter shall consent
to be liable for the conduct of any agents or subcontractees of any
level in relation to the foreign labor recruiting activity of the agent
or subcontractee to the same extent as if the foreign labor recruiter
had engaged in such conduct.
(8) ENFORCEMENT.—If
the foreign labor recruiter is conducting foreign labor recruiting
activity wholly outside the United States, such foreign labor recruiter
shall establish a registered agent in the United States who is
authorized to accept service of process on behalf of the foreign labor
recruiter for the purpose of any administrative proceeding under this
title or any Federal court civil action, if such service is made in
accordance with the appropriate Federal rules for service of process.
(d) Term of registration.—Unless suspended or revoked, a registration under this section shall be valid for 2 years.
(e) Application fee.—The
Secretary shall require a foreign labor recruiter that submits an
application for registration under this section to pay a reasonable fee,
sufficient to cover the full costs of carrying out the registration
activities under this subtitle.
(A) IN
GENERAL.—Not less frequently than once every year, an employer of H–2A
workers shall provide the Secretary with the names and addresses of all
foreign labor recruiters engaged to perform foreign labor recruiting
activity on behalf of the employer, whether the foreign labor recruiter
is to receive any economic compensation for such services, and, if so,
the identity of the person or entity who is paying for the services.
(B) AGREEMENT TO COOPERATE.—In addition to the requirements of subparagraph (A), the employer shall—
(i)
provide to the Secretary the identity of any foreign labor recruiter
whom the employer has reason to believe is engaging in foreign labor
recruiting activities that do not comply with this subtitle; and
(ii)
promptly respond to any request by the Secretary for information
regarding the identity of a foreign labor recruiter with whom the
employer has a contract or other agreement.
(2) FOREIGN
LABOR RECRUITER NOTIFICATION.—A registered foreign labor recruiter
shall notify the Secretary, not less frequently than once every year, of
the identity of any subcontractee, agent, or foreign labor recruiter
employee involved in any foreign labor recruiting activity for, or on
behalf of, the foreign labor recruiter.
(1) LISTS.—The
Secretary of State, in consultation with the Secretary of Labor shall
maintain and make publicly available in written form and on the websites
of United States embassies in the official language of that country,
and on websites maintained by the Secretary of Labor, regularly updated
lists—
(i) the name and address of the foreign labor recruiter;
(ii) the countries in which such recruiters conduct recruitment;
(iii) the employers for whom recruiting is conducted;
(iv) the occupations that are the subject of recruitment;
(v) the States where recruited workers are employed; and
(vi)
the name and address of the registered agent in the United States who
is authorized to accept service of process on behalf of the foreign
labor recruiter; and
(B) of foreign labor recruiters whose registration the Secretary has revoked.
(2) PERSONNEL.—The
Secretary of State shall ensure that each United States diplomatic
mission is staffed with a person who shall be responsible for receiving
information from members of the public regarding potential violations of
the requirements applicable to registered foreign labor recruiters and
ensuring that such information is conveyed to the Secretary of Labor for
evaluation and initiation of an enforcement action, if appropriate.
(3) VISA
APPLICATION PROCEDURES.—The Secretary shall ensure that consular
officers issuing visas to nonimmigrants under section
101(a)(1)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 11001(a)(1)(H)(ii)(a))—
(A)
provide to and review with the applicant, in the applicant’s language
(or a language the applicant understands), a copy of the information and
resources pamphlet required by section 202 of the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1375b);
(B) ensure that the applicant has a copy of the approved job offer or work contract;
(C) note in the visa application file whether the foreign labor recruiter has a valid registration under this section; and
(D)
if the foreign labor recruiter holds a valid registration, review and
include in the visa application file, the foreign labor recruiter’s
disclosures required by subsection (c)(3).
(4) DATA.—The
Secretary of State shall make publicly available online, on an annual
basis, data disclosing the gender, country of origin (and State, county,
or province, if available), age, wage, level of training, and
occupational classification, disaggregated by State, of nonimmigrant
workers described in section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act.
(1) GROUNDS
FOR DENIAL OR REVOCATION.—The Secretary shall deny an application for
registration, or revoke a registration, if the Secretary determines that
the foreign labor recruiter, or any agent or subcontractee of such
foreign labor recruiter—
(A) knowingly made a material misrepresentation in the registration application;
(B) materially failed to comply with one or more of the attestations provided under section 251(c); or
(C) is not the real party in interest.
(2) NOTICE.—Prior
to denying an application for registration or revoking a registration
under this subsection, the Secretary shall provide written notice of the
intent to deny or revoke the registration to the foreign labor
recruiter. Such notice shall—
(A) articulate with specificity all grounds for denial or revocation; and
(B) provide the foreign labor recruiter with not less than 60 days to respond.
(3) RE-REGISTRATION.—A
foreign labor recruiter whose registration was revoked under subsection
(a) may re-register if the foreign labor recruiter demonstrates to the
Secretary’s satisfaction that the foreign labor recruiter has not
violated this subtitle in the 5 years preceding the date an application
for registration is filed and has taken sufficient steps to prevent
future violations of this subtitle.
(A) FILING.—A
complaint may be filed with the Secretary of Labor, in accordance with
the procedures established under section 251(b)(4) not later than 2
years after the earlier of—
(i) the date of the last action which constituted the conduct that is the subject of the complaint took place; or
(ii) the date on which the aggrieved party had actual knowledge of such conduct.
(B) DECISION
AND PENALTIES.—If the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a foreign labor recruiter failed to
comply with any of the requirements of this subtitle, the Secretary of
Labor may—
(I) $10,000 per violation; and
(II) $25,000 per violation, upon the third violation;
(ii)
order the forfeiture (or partial forfeiture) of the bond and release of
as much of the bond as the Secretary determines is necessary for the
worker to recover prohibited recruitment fees;
(iii) refuse to issue or renew a registration, or revoke a registration; or
(iv)
disqualify the foreign labor recruiter from registration for a period
of up to 5 years, or in the case of a subsequent finding involving
willful or multiple material violations, permanently disqualify the
foreign labor recruiter from registration.
(2) AUTHORITY
TO ENSURE COMPLIANCE.—The Secretary of Labor is authorized to take
other such actions, including issuing subpoenas and seeking appropriate
injunctive relief, as may be necessary to assure compliance with the
terms and conditions of this subtitle.
(3) STATUTORY
CONSTRUCTION.—Nothing in this subsection may be construed as limiting
the authority of the Secretary of Labor to conduct an investigation—
(A) under any other law, including any law affecting migrant and seasonal agricultural workers; or
(B) in the absence of a complaint.
(1) IN
GENERAL.—The Secretary of Labor or any person aggrieved by a violation
of this subtitle may bring a civil action against any foreign labor
recruiter, or any employer that does not meet the requirements under
subsection (d)(1), in any court of competent jurisdiction—
(A) to seek remedial action, including injunctive relief; and
(B) for damages in accordance with the provisions of this subsection.
(A) IN
GENERAL.—If the court finds in a civil action filed by an individual
under this section that the defendant has violated any provision of this
subtitle, the court may award—
(i)
damages, up to and including an amount equal to the amount of actual
damages, and statutory damages of up to $1,000 per plaintiff per
violation, or other equitable relief, except that with respect to
statutory damages—
(I)
multiple infractions of a single provision of this subtitle (or of a
regulation under this subtitle) shall constitute only one violation for
purposes of this subsection to determine the amount of statutory damages
due a plaintiff; and
(aa) damages up to an amount equal to the amount of actual damages; and
(bb)
statutory damages of not more than the lesser of up to $1,000 per class
member per violation, or up to $500,000; and other equitable relief;
(ii) reasonable attorneys’ fees and costs; and
(iii) such other and further relief as necessary to effectuate the purposes of this subtitle.
(B) CRITERIA.—In
determining the amount of statutory damages to be awarded under
subparagraph (A), the court is authorized to consider whether an attempt
was made to resolve the issues in dispute before the resort to
litigation.
(C) BOND.—To
satisfy the damages, fees, and costs found owing under this paragraph,
the Secretary shall release as much of the bond held pursuant to section
251(c)(4) as necessary.
(A) ESTABLISHMENT
OF ACCOUNT.—There is established in the general fund of the Treasury a
separate account, which shall be known as the “H–2A Foreign Labor
Recruiter Compensation Account”. Notwithstanding any other provisions of
law, there shall be deposited as offsetting receipts into the account,
all sums recovered in an action by the Secretary of Labor under this
subsection.
(B) USE
OF FUNDS.—Amounts deposited into the H–2A Foreign Labor Recruiter
Compensation Account and shall be paid directly to each worker affected.
Any such sums not paid to a worker because of inability to do so within
a period of 5 years following the date such funds are deposited into
the account shall remain available to the Secretary until expended. The
Secretary may transfer all or a portion of such remaining sums to
appropriate agencies to support the enforcement of the laws prohibiting
the trafficking and exploitation of persons or programs that aid
trafficking victims.
(1) IN
GENERAL.—An employer that hires workers referred by a foreign labor
recruiter with a valid registration at the time of hiring shall not be
held jointly liable for a violation committed solely by a foreign labor
recruiter under this subtitle—
(A) in any administrative action initiated by the Secretary concerning such violation; or
(B)
in any Federal or State civil court action filed against the foreign
labor recruiter by or on behalf of such workers or other aggrieved party
under this subtitle.
(2) CLARIFICATION.—Nothing
in this subtitle shall be construed to prohibit an aggrieved party or
parties from bringing a civil action for violations of this subtitle or
any other Federal or State law against any employer who hired workers
referred by a foreign labor recruiter—
(A) without a valid registration at the time of hire; or
(B)
with a valid registration if the employer knew or learned of the
violation and failed to report such violation to the Secretary.
(e) Parole To pursue relief.—If
other immigration relief is not available, the Secretary of Homeland
Security may grant parole to permit an individual to remain legally in
the United States for time sufficient to fully and effectively
participate in all legal proceedings related to any action taken
pursuant to subsection (b) or (c).
(f) Waiver of rights.—Agreements
by employees purporting to waive or to modify their rights under this
subtitle shall be void as contrary to public policy.
(g) Liability for agents.—Foreign
labor recruiters shall be subject to the provisions of this section for
violations committed by the foreign labor recruiter’s agents or
subcontractees of any level in relation to their foreign labor
recruiting activity to the same extent as if the foreign labor recruiter
had committed the violation.
There is authorized to be appropriated
such sums as may be necessary for the Secretary of Labor and Secretary
of State to carry out the provisions of this subtitle.
For purposes of this subtitle:
(1) FOREIGN
LABOR RECRUITER.—The term “foreign labor recruiter” means any person
who performs foreign labor recruiting activity in exchange for money or
other valuable consideration paid or promised to be paid, to recruit
individuals to work as nonimmigrant workers described in section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
including any person who performs foreign labor recruiting activity
wholly outside of the United States. Such term does not include any
entity of the United States Government or an employer, or employee of an
employer, who engages in foreign labor recruiting activity solely to
find employees for that employer’s own use, and without the
participation of any other foreign labor recruiter.
(2) FOREIGN
LABOR RECRUITING ACTIVITY.—The term “foreign labor recruiting activity”
means recruiting, soliciting, or related activities with respect to an
individual who resides outside of the United States in furtherance of
employment in the United States, including when such activity occurs
wholly outside of the United States.
(3) RECRUITMENT
FEES.—The term “recruitment fees” has the meaning given to such term
under section 22.1702 of title 22 of the Code of Federal Regulations, as
in effect on the date of enactment of this Act.
(4) PERSON.—The
term “person” means any natural person or any corporation, company,
firm, partnership, joint stock company or association or other
organization or entity (whether organized under law or not), including
municipal corporations.
(a) In general.—Chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) is amended by inserting after section 274D the following:
“(1) IN
GENERAL.—The Secretary of Homeland Security (referred to in this
section as the ‘Secretary’) shall establish and administer an electronic
verification system (referred to in this section as the ‘System’),
patterned on the E–Verify Program described in section 403(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note) (as in effect on the day before the effective date described in
section 303(a)(4) of the Farm Workforce Modernization Act of 2019), and
using the employment eligibility confirmation system established under
section 404 of such Act (8 U.S.C. 1324a note) (as so in effect) as a foundation, through which the Secretary shall—
“(A)
respond to inquiries made by persons or entities seeking to verify the
identity and employment authorization of individuals that such persons
or entities seek to hire, or to recruit or refer for a fee, for
employment in the United States; and
“(B)
maintain records of the inquiries that were made, and of verifications
provided (or not provided) to such persons or entities as evidence of
compliance with the requirements of this section.
“(2) INITIAL
RESPONSE DEADLINE.—The System shall provide confirmation or a tentative
nonconfirmation of an individual’s identity and employment
authorization as soon as practicable, but not later than 3 calendar days
after the initial inquiry.
“(A)
using responsive web design and other technologies to maximize its ease
of use and accessibility for users on a variety of electronic devices
and screen sizes, and in remote locations;
“(B) to maximize the accuracy of responses to inquiries submitted by persons or entities;
“(C) to maximize the reliability of the System and to register each instance when the System is unable to receive inquiries;
“(D) to protect the privacy and security of the personally identifiable information maintained by or submitted to the System;
“(E)
to provide direct notification of an inquiry to an individual with
respect to whom the inquiry is made, including the results of such
inquiry, and information related to the process for challenging the
results, in cases in which the individual has established a user account
as described in paragraph (4)(B) or an electronic mail address for the
individual is submitted by the person or entity at the time the inquiry
is made; and
“(F)
to maintain appropriate administrative, technical, and physical
safeguards to prevent misuse of the System and unfair
immigration-related employment practices.
“(4) MEASURES
TO PREVENT IDENTITY THEFT AND OTHER FORMS OF FRAUD.—To prevent identity
theft and other forms of fraud, the Secretary shall design and operate
the System with the following attributes:
“(A) PHOTO
MATCHING TOOL.—The System shall display the digital photograph of the
individual, if any, that corresponds to the document presented by an
individual to establish identity and employment authorization so that
the person or entity that makes an inquiry can compare the photograph
displayed by the System to the photograph on the document presented by
the individual.
“(B) INDIVIDUAL
MONITORING AND SUSPENSION OF IDENTIFYING INFORMATION.—The System shall
enable individuals to establish user accounts, after authentication of
an individual’s identity, that would allow an individual to—
“(i) confirm the individual’s own employment authorization;
“(ii)
receive electronic notification when the individual’s social security
account number or other personally identifying information has been
submitted to the System;
“(iii)
monitor the use history of the individual’s personally identifying
information in the System, including the identities of all persons or
entities that have submitted such identifying information to the System,
the date of each query run, and the System response for each query run;
“(iv)
suspend or limit the use of the individual’s social security account
number or other personally identifying information for purposes of the
System; and
“(v)
provide notice to the Department of Homeland Security of any suspected
identity fraud or other improper use of personally identifying
information.
“(i) IN
GENERAL.—The Secretary, in consultation with the Commissioner of Social
Security (referred to in this section as the ‘Commissioner’), shall
develop, after publication in the Federal Register and an opportunity
for public comment, a process in which social security account numbers
that have been identified to be subject to unusual multiple use in the
System or that are otherwise suspected or determined to have been
compromised by identity fraud or other misuse, shall be blocked from use
in the System unless the individual using such number is able to
establish, through secure and fair procedures, that the individual is
the legitimate holder of the number.
“(ii) NOTICE.—If
the Secretary blocks or suspends a social security account number under
this subparagraph, the Secretary shall provide notice to the persons or
entities that have made inquiries to the System using such account
number that the identity and employment authorization of the individual
who provided such account number must be re-verified.
“(D) ADDITIONAL
IDENTITY AUTHENTICATION TOOL.—The Secretary shall develop, after
publication in the Federal Register and an opportunity for public
comment, additional security measures to adequately verify the identity
of an individual whose identity may not be verified using the photo tool
described in subparagraph (A). Such additional security measures—
“(i) shall be kept up-to-date with technological advances; and
“(ii) shall be designed to provide a high level of certainty with respect to identity authentication.
“(E) CHILD-LOCK
PILOT PROGRAM.—The Secretary, in consultation with the Commissioner,
shall establish a reliable, secure program through which parents or
legal guardians may suspend or limit the use of the social security
account number or other personally identifying information of a minor
under their care for purposes of the System. The Secretary may implement
the program on a limited pilot basis before making it fully available
to all individuals.
“(5) RESPONSIBILITIES
OF THE COMMISSIONER OF SOCIAL SECURITY.—The Commissioner, in
consultation with the Secretary, shall establish a reliable, secure
method, which, within the time periods specified in paragraph (2) and
subsection (b)(4)(D)(i)(II), compares the name and social security
account number provided in an inquiry against such information
maintained by the Commissioner in order to validate (or not validate)
the information provided by the person or entity with respect to an
individual whose identity and employment authorization the person or
entity seeks to confirm, the correspondence of the name and number, and
whether the individual has presented a social security account number
that is not valid for employment. The Commissioner shall not disclose or
release social security information (other than such confirmation or
nonconfirmation) under the System except as provided under this section.
“(A) IN
GENERAL.—The Secretary of Homeland Security shall establish a reliable,
secure method, which, within the time periods specified in paragraph
(2) and subsection (b)(4)(D)(i)(II), compares the name and
identification or other authorization number (or any other information
determined relevant by the Secretary) which are provided in an inquiry
against such information maintained or accessed by the Secretary in
order to validate (or not validate) the information provided, the
correspondence of the name and number, and whether the individual is
authorized to be employed in the United States.
“(B) TRAINING.—The
Secretary shall provide and regularly update training materials on the
use of the System for persons and entities making inquiries.
“(C) AUDIT.—The
Secretary shall provide for periodic auditing of the System to detect
and prevent misuse, discrimination, fraud, and identity theft, to
protect privacy and assess System accuracy, and to preserve the
integrity and security of the information in the System.
“(D) NOTICE
OF SYSTEM CHANGES.—The Secretary shall provide appropriate notification
to persons and entities registered in the System of any change made by
the Secretary or the Commissioner related to permitted and prohibited
documents, and use of the System.
“(7) RESPONSIBILITIES
OF THE SECRETARY OF STATE.—As part of the System, the Secretary of
State shall provide to the Secretary of Homeland Security access to
passport and visa information as needed to confirm that a passport or
passport card presented under subsection (b)(3)(A)(i) confirms the
employment authorization and identity of the individual presenting such
document, and that a passport, passport card, or visa photograph matches
the Secretary of State’s records, and shall provide such assistance as
the Secretary of Homeland Security may request in order to resolve
tentative nonconfirmations or final nonconfirmations relating to such
information.
“(8) UPDATING
INFORMATION.—The Commissioner, the Secretary of Homeland Security, and
the Secretary of State shall update records in their custody in a manner
that promotes maximum accuracy of the System and shall provide a
process for the prompt correction of erroneous information, including
instances in which it is brought to their attention through the
tentative nonconfirmation review process under subsection (b)(4)(D).
“(A) MANDATORY
USERS.—Except as otherwise provided under Federal or State law, such as
sections 302 and 303 of the Farm Workforce Modernization Act of 2019,
nothing in this section shall be construed as requiring the use of the
System by any person or entity hiring, recruiting, or referring for a
fee, an individual for employment in the United States.
“(B) VOLUNTARY
USERS.—Beginning after the date that is 30 days after the date on which
final rules are published under section 309(a) of the Farm Workforce
Modernization Act of 2019, a person or entity may use the System on a
voluntary basis to seek verification of the identity and employment
authorization of individuals the person or entity is hiring, recruiting,
or referring for a fee for employment in the United States
“(C) PROCESS
FOR NON-USERS.—The employment verification process for any person or
entity hiring, recruiting, or referring for a fee, an individual for
employment in the United States shall be governed by section 274A(b)
unless the person or entity—
“(i) is required by Federal or State law to use the System; or
“(ii) has opted to use the System voluntarily in accordance with subparagraph (B).
“(10) NO FEE FOR USE.—The Secretary may not charge a fee to an individual, person, or entity related to the use of the System.
“(b) New hires, recruitment, and referral.—Notwithstanding
section 274A(b), the requirements referred to in paragraphs (1)(B) and
(3) of section 274A(a) are, in the case of a person or entity that uses
the System for the hiring, recruiting, or referring for a fee, an
individual for employment in the United States, the following:
“(1) INDIVIDUAL
ATTESTATION OF EMPLOYMENT AUTHORIZATION.—During the period beginning on
the date on which an offer of employment is accepted and ending on the
date of hire, the individual shall attest, under penalty of perjury on a
form designated by the Secretary, that the individual is authorized to
be employed in the United States by providing on such form—
“(A) the individual’s name and date of birth;
“(B)
the individual’s social security account number (unless the individual
has applied for and not yet been issued such a number);
“(ii) an alien lawfully admitted for permanent residence; or
“(iii)
an alien who is otherwise authorized by the Secretary to be hired,
recruited, or referred for employment in the United States; and
“(D)
if the individual does not attest to United States citizenship or
nationality, such identification or other authorization number
established by the Department of Homeland Security for the alien as the
Secretary may specify.
“(2) EMPLOYER
ATTESTATION AFTER EXAMINATION OF DOCUMENTS.—Not later than 3 business
days after the date of hire, the person or entity shall attest, under
penalty of perjury on the form designated by the Secretary for purposes
of paragraph (1), that it has verified that the individual is not an
unauthorized alien by—
“(A) obtaining from the individual the information described in paragraph (1) and recording such information on the form;
“(ii) a document described in paragraph (3)(B) and a document described in paragraph (3)(C); and
“(C) attesting that the information recorded on the form is consistent with the documents examined.
“(A) DOCUMENTS ESTABLISHING EMPLOYMENT AUTHORIZATION AND IDENTITY.—A document described in this subparagraph is an individual’s—
“(i) United States passport or passport card;
“(ii) permanent resident card that contains a photograph;
“(iii)
foreign passport containing temporary evidence of lawful permanent
residence in the form of an official I–551 (or successor) stamp from the
Department of Homeland Security or a printed notation on a
machine-readable immigrant visa;
“(iv) unexpired employment authorization card that contains a photograph;
“(v)
in the case of a nonimmigrant alien authorized to engage in employment
for a specific employer incident to status, a foreign passport with Form
I–94, Form I–94A, or other documentation as designated by the Secretary
specifying the alien’s nonimmigrant status as long as such status has
not yet expired and the proposed employment is not in conflict with any
restrictions or limitations identified in the documentation;
“(vi)
passport from the Federated States of Micronesia or the Republic of the
Marshall Islands with Form I–94, Form I–94A, or other documentation as
designated by the Secretary, indicating nonimmigrant admission under the
Compact of Free Association Between the United States and the Federated
States of Micronesia or the Republic of the Marshall Islands; or
“(vii) other document designated by the Secretary, by notice published in the Federal Register, if the document—
“(I)
contains a photograph of the individual, biometric identification data,
and other personal identifying information relating to the individual;
“(II) is evidence of authorization for employment in the United States; and
“(III) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.
“(i)
an individual’s social security account number card (other than such a
card which specifies on the face that the issuance of the card does not
authorize employment in the United States); or
“(ii)
a document establishing employment authorization that the Secretary
determines, by notice published in the Federal Register, to be
acceptable for purposes of this subparagraph, provided that such
documentation contains security features to make it resistant to
tampering, counterfeiting, and fraudulent use.
“(i)
an individual’s driver’s license or identification card if it was
issued by a State or one of the outlying possessions of the United
States and contains a photograph and personal identifying information
relating to the individual;
“(ii) an individual’s unexpired United States military identification card;
“(iii)
an individual’s unexpired Native American tribal identification
document issued by a tribal entity recognized by the Bureau of Indian
Affairs;
“(iv)
in the case of an individual under 18 years of age, a parent or legal
guardian’s attestation under penalty of law as to the identity and age
of the individual; or
“(v)
a document establishing identity that the Secretary determines, by
notice published in the Federal Register, to be acceptable for purposes
of this subparagraph, if such documentation contains a photograph of the
individual, biometric identification data, and other personal
identifying information relating to the individual, and security
features to make it resistant to tampering, counterfeiting, and
fraudulent use.
“(D) AUTHORITY
TO PROHIBIT USE OF CERTAIN DOCUMENTS.—If the Secretary finds that any
document or class of documents described in subparagraph (A), (B), or
(C) does not reliably establish identity or employment authorization or
is being used fraudulently to an unacceptable degree, the Secretary may,
by notice published in the Federal Register, prohibit or place
conditions on the use of such document or class of documents for
purposes of this section.
“(A) IN
GENERAL.—In the case of a person or entity that uses the System for the
hiring, recruiting, or referring for a fee an individual for employment
in the United States, during the period described in subparagraph (B),
the person or entity shall submit an inquiry through the System
described in subsection (a) to seek verification of the identity and
employment authorization of the individual.
“(i) IN
GENERAL.—Except as provided in clause (ii), and subject to subsection
(d), the verification period shall begin on the date of hire and end on
the date that is 3 business days after the date of hire, or such other
reasonable period as the Secretary may prescribe.
“(ii) SPECIAL
RULE.—In the case of an alien who is authorized to be employed in the
United States and who provides evidence from the Social Security
Administration that the alien has applied for a social security account
number, the verification period shall end 3 business days after the
alien receives the social security account number.
“(C) CONFIRMATION.—If
a person or entity receives confirmation of an individual’s identity
and employment authorization, the person or entity shall record such
confirmation on the form designated by the Secretary for purposes of
paragraph (1).
“(i) IN
GENERAL.—In cases of tentative nonconfirmation, the Secretary shall
provide, in consultation with the Commissioner, a process for—
“(I)
an individual to contest the tentative nonconfirmation not later than
10 business days after the date of the receipt of the notice described
in clause (ii); and
“(II)
the Secretary to issue a confirmation or final nonconfirmation of an
individual’s identity and employment authorization not later than 30
calendar days after the Secretary receives notice from the individual
contesting a tentative nonconfirmation.
“(ii) NOTICE.—If
a person or entity receives a tentative nonconfirmation of an
individual’s identity or employment authorization, the person or entity
shall, not later than 3 business days after receipt, notify such
individual in writing in a language understood by the individual and on a
form designated by the Secretary, that shall include a description of
the individual’s right to contest the tentative nonconfirmation. The
person or entity shall attest, under penalty of perjury, that the person
or entity provided (or attempted to provide) such notice to the
individual, and the individual shall acknowledge receipt of such notice
in a manner specified by the Secretary.
“(I) IN
GENERAL.—A tentative nonconfirmation shall become final if, upon
receiving the notice described in clause (ii), the individual—
“(aa) refuses to acknowledge receipt of such notice;
“(bb)
acknowledges in writing, in a manner specified by the Secretary, that
the individual will not contest the tentative nonconfirmation; or
“(cc)
fails to contest the tentative nonconfirmation within the
10-business-day period beginning on the date the individual received
such notice.
“(II) RECORD
OF NO CONTEST.—The person or entity shall indicate in the System that
the individual did not contest the tentative nonconfirmation and shall
specify the reason the tentative nonconfirmation became final under
subclause (I).
“(III) EFFECT
OF FAILURE TO CONTEST.—An individual’s failure to contest a tentative
nonconfirmation shall not be considered an admission of any fact with
respect to any violation of this Act or any other provision of law.
“(I) IN
GENERAL.—An individual may contest a tentative nonconfirmation by using
the tentative nonconfirmation review process under clause (i), not
later than 10 business days after receiving the notice described in
clause (ii). Except as provided in clause (iii), the nonconfirmation
shall remain tentative until a confirmation or final nonconfirmation is
provided by the System.
“(II) PROHIBITION
ON TERMINATION.—In no case shall a person or entity terminate
employment or take any adverse employment action against an individual
for failure to obtain confirmation of the individual’s identity and
employment authorization until the person or entity receives a notice of
final nonconfirmation from the System. Nothing in this subclause shall
prohibit an employer from terminating the employment of the individual
for any other lawful reason.
“(III) CONFIRMATION
OR FINAL NONCONFIRMATION.—The Secretary, in consultation with the
Commissioner, shall issue notice of a confirmation or final
nonconfirmation of the individual’s identity and employment
authorization not later than 30 calendar days after the date the
Secretary receives notice from the individual contesting the tentative
nonconfirmation.
“(i) NOTICE.—If
a person or entity receives a final nonconfirmation of an individual’s
identity or employment authorization, the person or entity shall, not
later than 3 business days after receipt, notify such individual of the
final nonconfirmation in writing, on a form designated by the Secretary,
which shall include information regarding the individual’s right to
appeal the final nonconfirmation as provided under subparagraph (F). The
person or entity shall attest, under penalty of perjury, that the
person or entity provided (or attempted to provide) the notice to the
individual, and the individual shall acknowledge receipt of such notice
in a manner designated by the Secretary.
“(ii) TERMINATION
OR NOTIFICATION OF CONTINUED EMPLOYMENT.—If a person or entity receives
a final nonconfirmation regarding an individual, the person or entity
may terminate employment of the individual. If the person or entity does
not terminate such employment pending appeal of the final
nonconfirmation, the person or entity shall notify the Secretary of such
fact through the System. Failure to notify the Secretary in accordance
with this clause shall be deemed a violation of section 274A(a)(1)(A).
“(iii) PRESUMPTION
OF VIOLATION FOR CONTINUED EMPLOYMENT.—If a person or entity continues
to employ an individual after receipt of a final nonconfirmation, there
shall be a rebuttable presumption that the person or entity has violated
paragraphs (1)(A) and (a)(2) of section 274A(a).
“(i) ADMINISTRATIVE
APPEAL.—The Secretary, in consultation with the Commissioner, shall
develop a process by which an individual may seek administrative review
of a final nonconfirmation. Such process shall—
“(I) permit the individual to submit additional evidence establishing identity or employment authorization;
“(II)
ensure prompt resolution of an appeal (but in no event shall there be a
failure to respond to an appeal within 30 days); and
“(III)
permit the Secretary to impose a civil money penalty (not to exceed
$500) on an individual upon finding that an appeal was frivolous or
filed for purposes of delay.
“(I) IN
GENERAL.—If, upon consideration of an appeal of a final
nonconfirmation, the Secretary determines that the final nonconfirmation
was issued in error, the Secretary shall further determine whether the
final nonconfirmation was the result of government error or omission. If
the Secretary determines that the final nonconfirmation was solely the
result of government error or omission and the individual was terminated
from employment, the Secretary shall compensate the individual for lost
wages.
“(II) CALCULATION
OF LOST WAGES.—Lost wages shall be calculated based on the wage rate
and work schedule that were in effect prior to the individual’s
termination. The individual shall be compensated for lost wages
beginning on the first scheduled work day after employment was
terminated and ending 90 days after completion of the administrative
review process described in this subparagraph or the day the individual
is reinstated or obtains other employment, whichever occurs first.
“(III) LIMITATION
ON COMPENSATION.—No compensation for lost wages shall be awarded for
any period during which the individual was not authorized for employment
in the United States.
“(IV) SOURCE
OF FUNDS.—There is established in the general fund of the Treasury, a
separate account which shall be known as the ‘Electronic Verification
Compensation Account’. Fees collected under subsections (f) and (g)
shall be deposited in the Electronic Verification Compensation Account
and shall remain available for purposes of providing compensation for
lost wages under this subclause.
“(iii) JUDICIAL
REVIEW.—Not later than 30 days after the dismissal of an appeal under
this subparagraph, an individual may seek judicial review of such
dismissal in the United States District Court in the jurisdiction in
which the employer resides or conducts business.
“(A) IN
GENERAL.—After completing the form designated by the Secretary in
accordance with paragraphs (1) and (2), the person or entity shall
retain the form in paper, microfiche, microfilm, electronic, or other
format deemed acceptable by the Secretary, and make it available for
inspection by officers of the Department of Homeland Security, the
Department of Justice, or the Department of Labor during the period
beginning on the date the verification is completed and ending on the
later of—
“(i) the date that is 3 years after the date of hire; or
“(ii) the date that is 1 year after the date on which the individual’s employment is terminated.
“(B) COPYING
OF DOCUMENTATION PERMITTED.—Notwithstanding any other provision of law,
a person or entity may copy a document presented by an individual
pursuant to this section and may retain the copy, but only for the
purpose of complying with the requirements of this section.
“(1) MANDATORY
REVERIFICATION.—In the case of a person or entity that uses the System
for the hiring, recruiting, or referring for a fee an individual for
employment in the United States, the person or entity shall submit an
inquiry using the System to verify the identity and employment
authorization of—
“(A)
an individual with a limited period of employment authorization, within
3 business days before the date on which such employment authorization
expires; and
“(B)
an individual, not later than 10 days after receiving a notification
from the Secretary requiring the verification of such individual
pursuant to subsection (a)(4)(C).
“(2) REVERIFICATION
PROCEDURES.—The verification procedures under subsection (b) shall
apply to reverifications under this subsection, except that employers
shall—
“(A) use a form designated by the Secretary for purposes of this paragraph; and
“(B)
retain the form in paper, microfiche, microfilm, electronic, or other
format deemed acceptable by the Secretary, and make it available for
inspection by officers of the Department of Homeland Security, the
Department of Justice, or the Department of Labor during the period
beginning on the date the reverification commences and ending on the
later of—
“(i) the date that is 3 years after the date of reverification; or
“(ii) the date that is 1 year after the date on which the individual’s employment is terminated.
“(3) LIMITATION
ON REVERIFICATION.—Except as provided in paragraph (1), a person or
entity may not otherwise reverify the identity and employment
authorization of a current employee, including an employee continuing in
employment.
“(1) IN
GENERAL.—Except as otherwise provided in this subsection, a person or
entity that uses the System is considered to have complied with the
requirements of this section notwithstanding a technical failure of the
System, or other technical or procedural failure to meet such
requirement if there was a good faith attempt to comply with the
requirement.
“(A) the failure is not de minimis;
“(B)
the Secretary has provided notice to the person or entity of the
failure, including an explanation as to why it is not de minimis;
“(C)
the person or entity has been provided a period of not less than 30
days (beginning after the date of the notice) to correct the failure;
and
“(D) the person or entity has not corrected the failure voluntarily within such period.
“(3) EXCEPTION
FOR PATTERN OR PRACTICE VIOLATORS.—Paragraph (1) shall not apply to a
person or entity that has engaged or is engaging in a pattern or
practice of violations of paragraph (1)(A) or (2) of section 274A(a).
“(4) DEFENSE.—In
the case of a person or entity that uses the System for the hiring,
recruiting, or referring for a fee an individual for employment in the
United States, the person or entity shall not be liable to a job
applicant, an employee, the Federal Government, or a State or local
government, under Federal, State, or local criminal or civil law, for
any employment-related action taken with respect to an employee in
good-faith reliance on information provided by the System. Such person
or entity shall be deemed to have established compliance with its
obligations under this section, absent a showing by the Secretary, by
clear and convincing evidence, that the employer had knowledge that an
employee is an unauthorized alien.
“(1) NO
NATIONAL IDENTIFICATION CARD.—Nothing in this section shall be
construed to authorize, directly or indirectly, the issuance or use of
national identification cards or the establishment of a national
identification card.
“(2) USE
OF RECORDS.—Notwithstanding any other provision of law, nothing in this
section shall be construed to permit or allow any department, bureau,
or other agency of the United States Government to utilize any
information, database, or other records assembled under this section for
any purpose other than the verification of identity and employment
authorization of an individual or to ensure the secure, appropriate, and
non-discriminatory use of the System.
“(1) IN
GENERAL.—Except as provided in this subsection, the provisions of
subsections (e) through (g) of section 274A shall apply with respect to
compliance with the provisions of this section and penalties for
non-compliance for persons or entitles that use the System.
“(2) CEASE
AND DESIST ORDER WITH CIVIL MONEY PENALTIES FOR HIRING, RECRUITING, AND
REFERRAL VIOLATIONS.—Notwithstanding the civil money penalties set
forth in section 274A(e)(4), with respect to a violation of paragraph
(1)(A) or (2) of section 274A(a) by a person or entity that has hired,
recruited, or referred for a fee, an individual for employment in the
United States, a cease and desist order—
“(A) shall require the person or entity to pay a civil penalty in an amount, subject to subsection (d), of—
“(i)
not less than $2,500 and not more than $5,000 for each unauthorized
alien with respect to whom a violation of either such subsection
occurred;
“(ii)
not less than $5,000 and not more than $10,000 for each such alien in
the case of a person or entity previously subject to one order under
this paragraph; or
“(iii)
not less than $10,000 and not more than $25,000 for each such alien in
the case of a person or entity previously subject to more than one order
under this paragraph; and
“(B) may require the person or entity to take such other remedial action as appropriate.
“(3) ORDER
FOR CIVIL MONEY PENALTY FOR VIOLATIONS.—With respect to a violation of
section 274A(a)(1)(B), the order under this paragraph shall require the
person or entity to pay a civil penalty in an amount, subject to
paragraphs (4), (5), and (6), of not less than $1,000 and not more than
$25,000 for each individual with respect to whom such violation
occurred. Failure by a person or entity to utilize the System as
required by law or providing information to the System that the person
or entity knows or reasonably believes to be false, shall be treated as a
violation of section 274A(a)(1)(A).
“(A) IN
GENERAL.—A person or entity that uses the System is presumed to have
acted with knowledge for purposes of paragraphs (1)(A) and (2) of
section 274A(a) if the person or entity fails to make an inquiry to
verify the identity and employment authorization of the individual
through the System.
“(B) GOOD
FAITH EXEMPTION.—In the case of imposition of a civil penalty under
paragraph (2)(A) with respect to a violation of paragraph (1)(A) or (2)
of section 274A(a) for hiring or continuation of employment or
recruitment or referral by a person or entity, and in the case of
imposition of a civil penalty under paragraph (3) for a violation of
section 274A(a)(1)(B) for hiring or recruitment or referral by a person
or entity, the penalty otherwise imposed may be waived or reduced if the
person or entity establishes that the person or entity acted in good
faith.
“(5) MITIGATION
ELEMENTS.—For purposes of paragraphs (2)(A) and (3), when assessing the
level of civil money penalties, in addition to the good faith of the
person or entity being charged, due consideration shall be given to the
size of the business, the seriousness of the violation, whether or not
the individual was an unauthorized alien, and the history of previous
violations.
“(6) CRIMINAL
PENALTY.—Notwithstanding section 274A(f)(1) and the provisions of any
other Federal law relating to fine levels, any person or entity that is
required to comply with the provisions of this section and that engages
in a pattern or practice of violations of paragraph (1) or (2) of
section 274A(a), shall be fined not more than $5,000 for each
unauthorized alien with respect to whom such a violation occurs,
imprisoned for not more than 18 months, or both.
“(7) ELECTRONIC
VERIFICATION COMPENSATION ACCOUNT.—Civil money penalties collected
under this subsection shall be deposited in the Electronic Verification
Compensation Account for the purpose of compensating individuals for
lost wages as a result of a final nonconfirmation issued by the System
that was based on government error or omission, as set forth in
subsection (b)(4)(F)(ii)(IV).
“(A) IN
GENERAL.—If a person or entity is determined by the Secretary to be a
repeat violator of paragraph (1)(A) or (2) of section 274A(a) or is
convicted of a crime under section 274A, such person or entity may be
considered for debarment from the receipt of Federal contracts, grants,
or cooperative agreements in accordance with the debarment standards and
pursuant to the debarment procedures set forth in the Federal
Acquisition Regulation.
“(B) NO
CONTRACT, GRANT, AGREEMENT.—If the Secretary or the Attorney General
wishes to have a person or entity considered for debarment in accordance
with this paragraph, and such a person or entity does not hold a
Federal contract, grant or cooperative agreement, the Secretary or
Attorney General shall refer the matter to the Administrator of General
Services to determine whether to list the person or entity on the List
of Parties Excluded from Federal Procurement, and if so, for what
duration and under what scope.
“(C) CONTRACT,
GRANT, AGREEMENT.—If the Secretary or the Attorney General wishes to
have a person or entity considered for debarment in accordance with this
paragraph, and such person or entity holds a Federal contract, grant,
or cooperative agreement, the Secretary or Attorney General shall advise
all agencies or departments holding a contract, grant, or cooperative
agreement with the person or entity of the Government’s interest in
having the person or entity considered for debarment, and after
soliciting and considering the views of all such agencies and
departments, the Secretary or Attorney General may refer the matter to
the appropriate lead agency to determine whether to list the person or
entity on the List of Parties Excluded from Federal Procurement, and if
so, for what duration and under what scope.
“(D) REVIEW.—Any
decision to debar a person or entity in accordance with this subsection
shall be reviewable pursuant to part 9.4 of the Federal Acquisition
Regulation.
“(9) PREEMPTION.—The
provisions of this section preempt any State or local law, ordinance,
policy, or rule, including any criminal or civil fine or penalty
structure, relating to the hiring, continued employment, or status
verification for employment eligibility purposes, of unauthorized
aliens, except that a State, locality, municipality, or political
subdivision may exercise its authority over business licensing and
similar laws as a penalty for failure to use the System as required
under this section.
“(1) IN
GENERAL.—In addition to the prohibitions on discrimination set forth in
section 274B, it is an unfair immigration-related employment practice
for a person or entity, in the course of utilizing the System—
“(A) to use the System for screening an applicant prior to the date of hire;
“(B)
to terminate the employment of an individual or take any adverse
employment action with respect to that individual due to a tentative
nonconfirmation issued by the System;
“(C)
to use the System to screen any individual for any purpose other than
confirmation of identity and employment authorization as provided in
this section;
“(D)
to use the System to verify the identity and employment authorization
of a current employee, including an employee continuing in employment,
other than reverification authorized under subsection (c);
“(E) to use the System to discriminate based on national origin or citizenship status;
“(F) to willfully fail to provide an individual with any notice required under this title;
“(G)
to require an individual to make an inquiry under the self-verification
procedures described in subsection (a)(4)(B) or to provide the results
of such an inquiry as a condition of employment, or hiring, recruiting,
or referring; or
“(H)
to terminate the employment of an individual or take any adverse
employment action with respect to that individual based upon the need to
verify the identity and employment authorization of the individual as
required by subsection (b).
“(2) PREEMPLOYMENT
SCREENING AND BACKGROUND CHECK.—Nothing in paragraph (1)(A) shall be
construed to preclude a preemployment screening or background check that
is required or permitted under any other provision of law.
“(3) CIVIL
MONEY PENALTIES FOR DISCRIMINATORY CONDUCT.—Notwithstanding section
274B(g)(2)(B)(iv), the penalties that may be imposed by an
administrative law judge with respect to a finding that a person or
entity has engaged in an unfair immigration-related employment practice
described in paragraph (1) are—
“(A) not less than $1,000 and not more than $4,000 for each individual discriminated against;
“(B)
in the case of a person or entity previously subject to a single order
under this paragraph, not less than $4,000 and not more than $10,000 for
each individual discriminated against; and
“(C)
in the case of a person or entity previously subject to more than one
order under this paragraph, not less than $6,000 and not more than
$20,000 for each individual discriminated against.
“(4) ELECTRONIC
VERIFICATION COMPENSATION ACCOUNT.—Civil money penalties collected
under this subsection shall be deposited in the Electronic Verification
Compensation Account for the purpose of compensating individuals for
lost wages as a result of a final nonconfirmation issued by the System
that was based on government error or omission, as set forth in
subsection (b)(4)(F)(ii)(IV).
“(h) Clarification.—All
rights and remedies provided under any Federal, State, or local law
relating to workplace rights, including but not limited to back pay, are
available to an employee despite—
“(1) the employee’s status as an unauthorized alien during or after the period of employment; or
“(2) the employer’s or employee’s failure to comply with the requirements of this section.
“(i) Definition.—In this section, the term ‘date of hire’ means the date on which employment for pay or other remuneration commences.”.
(b) Conforming amendment.—The
table of contents for the Immigration and Nationality Act is amended by
inserting after the item relating to section 274D the following:
“Sec. 274E. Requirements for the electronic verification of employment eligibility.”.
(a) In general.—The
requirements for the electronic verification of identity and employment
authorization described in section 274E of the Immigration and
Nationality Act, as inserted by section 301 of this Act, shall apply to a
person or entity hiring, recruiting, or referring for a fee an
individual for agricultural employment in the United States in
accordance with the effective dates set forth in subsection (b).
(1) HIRING.—Subsection
(a) shall apply to a person or entity hiring an individual for
agricultural employment in the United States as follows:
(A)
With respect to employers having 500 or more employees in the United
States on the date of the enactment of this Act, on the date that is 6
months after completion of the application period described in section
101(c).
(B)
With respect to employers having 100 or more employees in the United
States (but less than 500 such employees) on the date of the enactment
of this Act, on the date that is 9 months after completion of the
application period described in section 101(c).
(C)
With respect to employers having 20 or more employees in the United
States (but less than 100 such employees) on the date of the enactment
of this Act, on the date that is 12 months after completion of the
application period described in section 101(c).
(D)
With respect to employers having one or more employees in the United
States, (but less than 20 such employees) on the date of the enactment
of this Act, on the date that is 15 months after completion of the
application period described in section 101(c).
(2) RECRUITING
AND REFERRING FOR A FEE.—Subsection (a) shall apply to a person or
entity recruiting or referring for a fee an individual for agricultural
employment in the United States on the date that is 12 months after
completion of the application period described in section 101(c).
(3) TRANSITION
RULE.—Except as required under subtitle A of title IV of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) (as in effect on the day before the effective date described in section 303(a)(4)), Executive Order No. 13465 (8 U.S.C. 1324a
note; relating to Government procurement), or any State law requiring
persons or entities to use the E–Verify Program described in section
403(a) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1324a
note) (as in effect on the day before the effective date described in
section 303(a)(4)), sections 274A and 274B of the Immigration and
Nationality Act (8 U.S.C. 1324a
and 1324b) shall apply to a person or entity hiring, recruiting, or
referring an individual for employment in the United States until the
applicable effective date under this subsection.
(4) E–VERIFY
VOLUNTARY USERS AND OTHERS DESIRING EARLY COMPLIANCE.—Nothing in this
subsection shall be construed to prohibit persons or entities, including
persons or entities that have voluntarily elected to participate in the
E–Verify Program described in section 403(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note) (as in effect on the day before the effective date described in
section 303(a)(4)), from seeking early compliance on a voluntary basis.
(1) IN
GENERAL.—The Secretary of Homeland Security shall coordinate with the
Secretary of Agriculture, in consultation with the Commissioner of
Social Security, to create a process for individuals to seek assistance
in contesting a tentative nonconfirmation as described in section
274E(b)(4)(D) of the Immigration and Nationality Act, as inserted by
section 301 of this Act, at local offices or service centers of the U.S.
Department of Agriculture.
(2) STAFFING
AND RESOURCES.—The Secretary of Homeland Security and Secretary of
Agriculture shall ensure that local offices and service centers of the
U.S. Department of Agriculture are staffed appropriately and have the
resources necessary to provide information and support to individuals
seeking the assistance described in paragraph (1), including by
facilitating communication between such individuals and the Department
of Homeland Security or the Social Security Administration.
(3) CLARIFICATION.—Nothing
in this subsection shall be construed to delegate authority or transfer
responsibility for reviewing and resolving tentative nonconfirmations
from the Secretary of Homeland Security and the Commissioner of Social
Security to the Secretary of Agriculture.
(d) Document establishing employment authorization and identity.—In
accordance with section 274E(b)(3)(A)(vii) of the Immigration and
Nationality Act, as inserted by section 301 of this Act, and not later
than 12 months after the completion of the application period described
in section 101(c) of this Act, the Secretary of Homeland Security shall
recognize documentary evidence of certified agricultural worker status
described in section 102(a)(2) of this Act as valid proof of employment
authorization and identity for purposes of section 274E(b)(3)(A) of the
Immigration and Nationality Act, as inserted by section 301 of this Act.
(e) Agricultural employment.—For
purposes of this section, the term “agricultural employment” means
agricultural labor or services, as defined by section 101(a)(15)(H)(ii)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by this Act.
(1) IN GENERAL.—Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is repealed.
(2) CLERICAL
AMENDMENT.—The table of sections, in section 1(d) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, is amended
by striking the items relating to subtitle A of title IV.
(3) REFERENCES.—Any
reference in any Federal, State, or local law, Executive order, rule,
regulation, or delegation of authority, or any document of, or
pertaining to, the Department of Homeland Security, Department of
Justice, or the Social Security Administration, to the E–Verify Program
described in section 403(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note), or to the employment eligibility confirmation system established
under section 404 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a
note), is deemed to refer to the employment eligibility confirmation
system established under section 274E of the Immigration and Nationality
Act, as inserted by section 301 of this Act.
(4) EFFECTIVE
DATE.—This subsection, and the amendments made by this subsection,
shall take effect on the date that is 30 days after the date on which
final rules are published under section 309(a).
(b) Former E–Verify mandatory users, including Federal contractors.—Beginning
on the effective date in subsection (a)(4), the Secretary of Homeland
Security shall require employers required to participate in the E–Verify
Program described in section 403(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note) by reason of any Federal, State, or local law, Executive order,
rule, regulation, or delegation of authority, including employers
required to participate in such program by reason of Federal acquisition
laws (and regulations promulgated under those laws, including the
Federal Acquisition Regulation), to comply with the requirements of
section 274E of the Immigration and Nationality Act, as inserted by
section 301 of this Act (and any additional requirements of such Federal
acquisition laws and regulation) in lieu of any requirement to
participate in the E–Verify Program.
(c) Former E–Verify voluntary users.—Beginning
on the effective date in subsection (a)(4), the Secretary of Homeland
Security shall provide for the voluntary compliance with the
requirements of section 274E of the Immigration and Nationality Act, as
inserted by section 301 of this Act, by employers voluntarily electing
to participate in the E–Verify Program described in section 403(a) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) before such date.
Section 1546(b) of title 18, United States Code, is amended—
(1)
in paragraph (1), by striking “identification document,” and inserting
“identification document or document meant to establish employment
authorization,”;
(2)
in paragraph (2), by striking “identification document” and inserting
“identification document or document meant to establish employment
authorization,”; and
(3) in the matter following paragraph (3) by inserting “or section 274E(b)” after “section 274A(b)”.
(a) Unlawful employment of aliens.—Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended—
(1) in paragraph (1)(B)(ii) of subsection (a), by striking “subsection (b).” and inserting “section 274B.”; and
(2)
in the matter preceding paragraph (1) of subsection (b), by striking
“The requirements referred” and inserting “Except as provided in section
274E, the requirements referred”.
(b) Unfair immigration-Related employment practices.—Section 274B(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1324b(a)(1))
is amended in the matter preceding subparagraph (A), by inserting
“including misuse of the verification system as described in section
274E(g)” after “referral for a fee,”.
(a) Funding under agreement.—Effective
for fiscal years beginning on or after October 1, 2019, the
Commissioner and the Secretary shall ensure that an agreement is in
place which shall—
(1)
provide funds to the Commissioner for the full costs of the
responsibilities of the Commissioner with respect to employment
eligibility verification, including under this title and the amendments
made by this title, and including—
(A)
acquiring, installing, and maintaining technological equipment and
systems necessary for the fulfillment of such responsibilities, but only
that portion of such costs that are attributable exclusively to such
responsibilities; and
(B)
responding to individuals who contest a tentative nonconfirmation or
administratively appeal a final nonconfirmation provided with respect to
employment eligibility verification;
(2)
provide such funds annually in advance of the applicable quarter based
on an estimating methodology agreed to by the Commissioner and the
Secretary (except in such instances where the delayed enactment of an
annual appropriation may preclude such quarterly payments); and
(3)
require an annual accounting and reconciliation of the actual costs
incurred and the funds provided under the agreement, which shall be
reviewed by the Inspectors General of the Social Security Administration
and the Department of Homeland Security.
(b) Continuation of employment verification in absence of timely agreement.—In
any case in which the agreement required under subsection (a) for any
fiscal year beginning on or after October 1, 2019, has not been reached
as of October 1 of such fiscal year, the latest agreement described in
such subsection 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 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.
Not later than 24 months after the date
on which final rules are published under section 309(a), and annually
thereafter, the Secretary shall submit to Congress a report that
includes the following:
(1)
An assessment of the accuracy rates of the responses of the electronic
employment verification system established under section 274E of the
Immigration and Nationality Act, as inserted by section 301 of this Act
(referred to in this section as the “System”), including tentative and
final nonconfirmation notices issued to employment-authorized
individuals and confirmation notices issued to individuals who are not
employment-authorized.
(2) An assessment of any challenges faced by persons or entities (including small employers) in utilizing the System.
(3)
An assessment of any challenges faced by employment-authorized
individuals who are issued tentative or final nonconfirmation notices.
(4)
An assessment of the incidence of unfair immigration-related employment
practices, as described in section 274E(g) of the Immigration and
Nationality Act, as inserted by section 301 of this Act, related to the
use of the System.
(5)
An assessment of the photo matching and other identity authentication
tools, as described in section 274E(a)(4) of the Immigration and
Nationality Act, as inserted by section 301 of this Act, including—
(A) an assessment of the accuracy rates of such tools;
(B) an assessment of the effectiveness of such tools at preventing identity fraud and other misuse of identifying information;
(C) an assessment of any challenges faced by persons, entities, or individuals utilizing such tools; and
(D) an assessment of operation and maintenance costs associated with such tools.
(6)
A summary of the activities and findings of the U.S. Citizenship and
Immigrations Services E–Verify Monitoring and Compliance Branch, or any
successor office, including—
(A)
the number, types and outcomes of audits, investigations, and other
compliance activities initiated by the Branch in the previous year;
(B)
the capacity of the Branch to detect and prevent violations of section
274E(g) of the Immigration and Nationality Act, as inserted by this Act;
and
(i) use of the System before an individual’s date of hire;
(ii) failure to provide required notifications to individuals;
(iii) use of the System to interfere with or otherwise impede individuals’ assertions of their rights under other laws; and
(iv) use of the System for unauthorized purposes; and
(7)
An assessment of the impact of implementation of the System in the
agricultural industry and the use of the verification system in
agricultural industry hiring and business practices.
Not later than 12 months after the date
of the enactment of this Act, the Secretary, in consultation with the
Commissioner, shall submit to Congress a plan to modernize and
streamline the employment eligibility verification process that shall
include—
(1)
procedures to allow persons and entities to verify the identity and
employment authorization of newly hired individuals where the in-person,
physical examination of identity and employment authorization documents
is not practicable;
(2)
a proposal to create a simplified employment verification process that
allows employers that utilize the employment eligibility verification
system established under section 274E of the Immigration and Nationality
Act, as inserted by section 301 of this Act, to verify the identity and
employment authorization of individuals without also having to complete
and retain Form I–9, Employment Eligibility Verification, or any
subsequent replacement form; and
(3)
any other proposal that the Secretary determines would simplify the
employment eligibility verification process without compromising the
integrity or security of the system.
(a) In general.—Not
later than 180 days prior to the end of the application period defined
in section 101(c) of this Act, the Secretary shall publish in the
Federal Register proposed rules implementing this title and the
amendments made by this title. The Secretary shall finalize such rules
not later than 180 days after the date of publication.
(1) IN GENERAL.—The requirements under chapter 35
of title 44, United States Code, (commonly known as the “Paperwork
Reduction Act”) shall apply to any action to implement this title or the
amendments made by this title.
(2) ELECTRONIC
FORMS.—All forms designated or established by the Secretary that are
necessary to implement this title and the amendments made by this title
shall be made available in paper and electronic formats, and shall be
designed in such a manner to facilitate electronic completion, storage,
and transmittal.
(3) LIMITATION
ON USE OF FORMS.—All forms designated or established by the Secretary
that are necessary to implement this title, and the amendments made by
this title, and any information contained in or appended to such forms,
may not be used for purposes other than for enforcement of this Act and
any other provision of Federal criminal law.
Passed the House of Representatives December 11, 2019.
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