H.R. 3605 (ih) To establish the San Rafael Western Legacy District in the State of Utah, and for other purposes. [Introduced in House] ...

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108th CONGRESS
  1st Session
                                H. R. 3604

  To simplify the process for admitting temporary alien agricultural 
   workers under section 101(a)(15)(H)(ii)(a) of the Immigration and 
  Nationality Act, to increase access to such workers, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 21, 2003

 Mr. Goodlatte (for himself, Mr. Stenholm, Mr. Lucas of Oklahoma, Mr. 
    Gutknecht, Mr. Blunt, Mr. Gallegly, Mr. Osborne, Mr. Burns, Mr. 
   Chocola, Mr. Nethercutt, Mr. Smith of Michigan, Mr. Kingston, Mr. 
Bartlett of Maryland, Mr. Brown of South Carolina, Mr. Upton, Mr. Camp, 
   Mr. Young of Alaska, Mr. Collins, Mr. Baker, Mrs. Jo Ann Davis of 
   Virginia, Mr. Duncan, Mr. Forbes, Mr. Garrett of New Jersey, Mr. 
  Herger, Mr. Hoekstra, Mr. Janklow, Mr. Jones of North Carolina, Mr. 
Keller, Mrs. Miller of Michigan, Mr. Oxley, Mr. Souder, Mr. Tiberi, and 
 Mr. Wicker) introduced the following bill; which was referred to the 
    Committee on the Judiciary, and in addition to the Committee on 
Agriculture, for a period to be subsequently determined by the Speaker, 
 in each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To simplify the process for admitting temporary alien agricultural 
   workers under section 101(a)(15)(H)(ii)(a) of the Immigration and 
  Nationality Act, to increase access to such workers, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Temporary Agricultural Labor Reform 
Act of 2003''.

SEC. 2. ADMISSION OF TEMPORARY H-2A WORKERS.

    (a) In General.--Section 218 of the Immigration and Nationality Act 
(8 U.S.C. 1188) is amended to read as follows:

                 ``admission of temporary h-2a workers

    ``Sec. 218. (a) Application.--No alien may be admitted as an H-2A 
worker (as defined in subsection (x)(2)) unless the employer has filed 
with the Secretary of Labor an application stating the following:
            ``(1) Temporary or seasonal labor or services.--The 
        agricultural employment for which the H-2A worker or workers is 
        or are sought is temporary or seasonal, the number of workers 
        sought, and the wage rate and conditions under which they will 
        be employed.
            ``(2) Benefits, wage, and working conditions.--The employer 
        will provide, at a minimum, the benefits, wages, and working 
        conditions required by subsection (n) to all workers employed 
        in the jobs for which the H-2A worker or workers is or are 
        sought and to all other workers in the same occupation at the 
        place of employment.
            ``(3) Nondisplacement of united states workers.--The 
        employer did not displace and will not displace a United States 
        worker employed by the employer during the period of employment 
        and during a period of 30 days preceding the period of 
        employment in the occupation at the place of employment for 
        which the employer seeks approval to employ H-2A workers.
            ``(4) Positive recruitment.--The employer has made positive 
        recruitment efforts within a multi-state region of traditional 
        or expected labor supply. The obligation to engage in positive 
        recruitment under this paragraph shall terminate on the date 
        the H-2A workers depart for the employer's place of employment.
            ``(5) Offers to united states workers.--The employer has 
        offered or will offer the job for which the nonimmigrant is, or 
        the nonimmigrants are, sought to any eligible United States 
        worker who applies and is equally or better qualified for the 
        job and who will be available at the time and place of need.
            ``(6) 50 percent rule.--The employer will provide 
        employment to any qualified United States worker who applies to 
        the employer until 50 percent of the period of the work 
        contract under which the H-2A worker who is in the job was 
        hired has elapsed.
            ``(7) Provision of insurance.--If the job for which the 
        nonimmigrant is, or the nonimmigrants are, sought is not 
        covered by State workers' compensation law, the employer will 
        provide, at no cost to the worker, insurance covering injury 
        and disease arising out of, and in the course of, the worker's 
        employment which will provide benefits at least equal to those 
        provided under the State workers' compensation law for 
        comparable employment.
            ``(8) Requirements for placement of h-2a workers with other 
        employers.--The employer will not place the nonimmigrant with 
        another employer unless--
                    ``(A) the nonimmigrant performs duties in whole or 
                in part at 1 or more work sites owned, operated, or 
                controlled by such other employer;
                    ``(B) there are indicia of an employment 
                relationship between the nonimmigrant and such other 
                employer; and
                    ``(C) the employer has inquired of the other 
                employer as to whether, and has no actual knowledge or 
                notice that, during the period of employment and for a 
                period of 30 days preceding the period of employment, 
                the other employer has displaced or intends to displace 
                a United States worker employed by the other employer 
in the occupation at the place of employment for which the employer 
seeks approval to employ H-2A workers.
            ``(9) Strike or lockout.--There is not a strike or lockout 
        in the course of a labor dispute which, under regulations 
        promulgated by the Secretary of Labor, precludes the provision 
        of the certification described in section 101(a)(15)(H)(ii)(a).
            ``(10) Previous violations.--The employer has not, during 
        the previous two-year period, employed H-2A workers and 
        substantially violated a material term or condition of approval 
        with respect to the employment of domestic or nonimmigrant 
        workers, as determined by the Secretary of Labor after notice 
        and opportunity for a hearing.
    ``(b) Statement of Liability.--The application form shall include a 
clear statement explaining the liability under this section of a 
employer who places an H-2A worker with another employer if the other 
employer displaces a United States worker in violation of the condition 
described in subsection (a)(8).
    ``(c) Publication.--The employer shall make available for public 
examination, within one working day after the date on which an 
application under this paragraph is filed, at the employer's principal 
place of business or worksite, a copy of each such application (and 
such accompanying documents as are necessary).
    ``(d) List.--The Secretary shall compile, on a current basis, a 
list (by employer) of the applications filed under subsection (a). Such 
list shall include the wage rate, number of aliens sought, period of 
intended employment, and date of need. The Secretary shall make such 
list available for public examination in Washington, DC.
    ``(e) Special Rules for Consideration of Applications.--The 
following rules shall apply in the case of the filing and consideration 
of an application under subsection (a):
            ``(1) Deadline for filing applications.--The Secretary of 
        Labor may not require that the application be filed more than 
        45 days before the first date the employer requires the labor 
        or services of the H-2A worker or workers.
            ``(2) Review.--The Secretary of Labor shall review such an 
        application only for completeness and obvious inaccuracies.
            ``(3) Issuance of approval.--Unless the Secretary finds 
        that the application is incomplete or obviously inaccurate, the 
        Secretary shall provide the certification described in section 
        101(a)(15)(H)(ii)(a) within 7 days of the date of the filing of 
        the application.
    ``(f) Roles of Agricultural Associations.--
            ``(1) Permitting filing by agricultural associations.--An 
        application to import an alien as a temporary agricultural 
        worker may be filed by an association of agricultural producers 
        which use agricultural services.
            ``(2) Treatment of associations acting as employers.--If an 
        association is a joint or sole employer of temporary 
        agricultural workers, such workers may be transferred among its 
        producer members to perform agricultural services of a 
        temporary or seasonal nature for which the application was 
        approved.
            ``(3) Treatment of violations.--
                    ``(A) Member's violation does not necessarily 
                disqualify association or other members.--If an 
                individual producer member of a joint employer 
                association is determined to have committed an act that 
                is in violation of the conditions for approval with 
                respect to the member's application, the denial shall 
                apply only to that member of the association unless the 
                Secretary determines that the association or other 
                member participated in, had knowledge of, or reason to 
                know of, the violation.
                    ``(B) Association's violation does not necessarily 
                disqualify members.--
                            ``(i) If an association representing 
                        agricultural producers as a joint employer is 
                        determined to have committed an act that is in 
                        violation of the conditions for approval with 
                        respect to the association's application, the 
                        denial shall apply only to the association and 
                        does not apply to any individual producer 
                        member of the association unless the Secretary 
                        determines that the member participated in, had 
                        knowledge of, or reason to know of, the 
                        violation.
                            ``(ii) If an association of agricultural 
                        producers approved as a sole employer is 
                        determined to have committed an act that is in 
                        violation of the conditions for approval with 
                        respect to the association's application, no 
                        individual producer member of such association 
                        may be the beneficiary of the services of 
                        temporary alien agricultural workers admitted 
                        under this section in the commodity and 
                        occupation in which such aliens were employed 
                        by the association which was denied approval 
                        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.
    ``(g) Expedited Administrative Appeals of Certain Determinations.--
Regulations shall provide for an expedited procedure for the review of 
a denial of approval under this section, or at the applicant's request, 
for a de novo administrative hearing respecting the denial.
    ``(h) Miscellaneous Provisions.--
            ``(1) Withholding of domestic workers.--No person or entity 
        shall willfully and knowingly withhold domestic workers prior 
        to the arrival of H-2A workers in order to force the hiring of 
        domestic workers under subsection (a)(6).
            ``(2) Endorsement of documents.--The Secretary of Homeland 
        Security shall provide for the endorsement of entry and exit 
        documents of nonimmigrants described in section 
        101(a)(15)(H)(ii)(a) as may be necessary to carry out this 
section and to provide notice for purposes of section 274A.
            ``(3) Preemption of state laws.--The provisions of 
        subsections (a) and (c) of section 214 and the provisions of 
        this section preempt any State or local law regulating 
        admissibility of nonimmigrant workers.
            ``(4) Fees.--The Secretary of Labor may require by 
        regulation, as a condition of approving the application, the 
        payment of a fee to recover the reasonable costs of processing 
        applications.
    ``(i) Failures To Meet Conditions.--If the Secretary of Labor 
finds, after notice and opportunity for a hearing, a failure to meet a 
condition of subsection (a), or a material misrepresentation of fact in 
an application under subsection (a)--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil money penalties in an 
        amount not to exceed $1,000 per violation) as the Secretary of 
        Labor determines to be appropriate; and
            ``(2) the Secretary may disqualify the employer from the 
        employment of H-2A workers for a period of 1 year.
    ``(j) Willful Failures and Willful Misrepresentations.--If the 
Secretary of Labor finds, after notice and opportunity for hearing, a 
willful failure to meet a condition of subsection (a), or a willful 
misrepresentation of a material fact in an application under subsection 
(a), or a violation of subsection (h)(1)--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil money penalties in an 
        amount not to exceed $5,000 per violation) as the Secretary of 
        Labor determines to be appropriate;
            ``(2) the Secretary of Labor may seek appropriate legal or 
        equitable relief to effectuate the purposes of subsection 
        (h)(1); and
            ``(3) the Secretary may disqualify the employer from the 
        employment of H-2A workers for a period of 2 years.
    ``(k) Displacement of United States Workers.--If the Secretary of 
Labor finds, after notice and opportunity for hearing, a willful 
failure to meet a condition of subsection (a) or a willful 
misrepresentation of a material fact in an application under subsection 
(a), in the course of which failure or misrepresentation the employer 
displaced a United States worker employed by the employer during the 
period of employment on the employer's application under subsection (a) 
or during the period of 30 days preceding such period of employment--
            ``(1) the Secretary of Labor shall notify the Secretary of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil money penalties in an 
        amount not to exceed $15,000 per violation) as the Secretary of 
        Labor determines to be appropriate; and
            ``(2) the Secretary may disqualify the employer from the 
        employment of H-2A workers for a period of 3 years.
    ``(l) Limitations on Civil Money Penalties.--The Secretary of Labor 
shall not impose total civil money penalties with respect to an 
application under subsection (a) in excess of $90,000.
    ``(m) Failures To Pay Wages or Required Benefits.--If the Secretary 
of Labor finds, after notice and opportunity for a hearing, that the 
employer has failed to pay the wages, or provide the housing allowance, 
transportation, subsistence reimbursement, or guarantee of employment, 
required under subsection (a)(2) the Secretary of Labor shall assess 
payment of back wages, or other required benefits, due any United 
States worker or H-2A worker employed by the employer in the specific 
employment in question. The back wages or other required benefits under 
section subsection (a)(2) shall be equal to the difference between the 
amount that should have been paid and the amount that actually was paid 
to such worker.
    ``(n) Minimum Benefits, Wages, and Working Conditions.--
            ``(1) Preferential treatment of aliens prohibited.--
        Employers seeking to hire United States workers shall offer the 
        United States workers no less than the same benefits, wages, 
        and working conditions that the employer is offering, intends 
        to offer, or will provide to H-2A workers. Conversely, no job 
        offer may impose on United States workers any restrictions or 
        obligations which will not be imposed on the employer's H-2A 

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