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S. 2186 (is) To provide access to health care insurance coverage for children. [Introduced in Senate] ...
108th CONGRESS 2d Session S. 2185 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 SENATE OF THE UNITED STATES March 9, 2004 Mr. Chambliss introduced the following bill; which was read twice and referred to the Committee on the Judiciary _______________________________________________________________________ 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 Work Reform Act of 2004''. 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 (u)(4)) unless the employer has filed with the Secretary of Labor an application stating the following: ``(1) Temporary or seasonal work or services.-- ``(A) In general.--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. ``(B) Seasonal work.--For purposes of subparagraph (A), the term `seasonal' means an annually recurring time period in which a particular crop is planted, cultivated, or harvested, along with the ancillary activities that are required to support such planting, cultivation, or harvest. For purposes of an employer's eligibility to hire H-2A workers, an application filed under this subsection shall be classified as a `seasonal job opportunity' if the crop activity is traditionally performed in that geographical area during the time specified on the application. There shall be no limit to the number of applications that can be filed by an agricultural employer during any 12- month period as long as each application has a clearly specified season for that particular crop activity. ``(2) Benefits, wage, and working conditions.--The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (m) to all workers employed in the jobs for which the H-2A worker or workers is or are sought and to all other temporary workers in the same occupation at the place of employment. ``(3) Nondisplacement of united states workers.--The employer did not displace and will not displace a United States worker employed by the employer during the period of employment 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) Recruitment.--Using the State workforce agency, the employer has attempted to recruit domestic workers within the State or region of traditional or expected labor supply. The obligation to engage in 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 h-2a employers.--A nonimmigrant who is admitted into the United States as an H-2A worker may be transferred to another employer that has certified to the Secretary of Homeland Security that it has filed an application under this subsection and is in compliance with this section. The Secretary of Homeland Security shall establish a process for the approval and reissuance of visas for such transferred H-2A workers as necessary. ``(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 2-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) Publication.--The employer shall make available for public examination, within 1 working day after the date on which an application under this section 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). ``(c) List.--The Secretary of Labor 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 of Labor shall make such list available for public examination in Washington, DC. ``(d) 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 of Labor finds that the application is incomplete or obviously inaccurate, the Secretary of Labor shall provide the certification described in section 101(a)(15)(H)(ii)(a) within 15 days of the date of the filing of the application. ``(e) 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) Statement of liability.--The application form shall include a clear statement explaining the liability under this section of an employer who places an H-2A worker with another H-2A employer if the other employer displaces a United States worker in violation of the condition described in subsection (a)(8). ``(4) 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 of Labor determines that the association or other member participated in, had knowledge of, or had reason to know of, the violation. ``(B) Association's violation does not necessarily disqualify members.-- ``(i) Joint employer.--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 of Labor determines that the member participated in, had knowledge of, or had reason to know of, the violation. ``(ii) Sole employer.--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. ``(f) 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. ``(g) 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.-- ``(A) In general.--The Secretary of Labor may require, as a condition of approving the application, the payment of a fee in accordance with subparagraph (B) to recover the reasonable costs of processing applications. ``(B) Amounts.-- ``(i) Employer.--The fee for each employer that receives a temporary alien agricultural labor certification shall be equal to $100 plus $10 for each job opportunity for H-2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall not exceed $1,000. ``(ii) Joint employer association.--In the case of a joint employer association that receives a temporary alien agricultural labor certification, each employer-member receiving such certification shall pay a fee equal to $100 plus $10 for each job opportunity for H-2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall not exceed $1,000. The joint employer association shall not be charged a separate fee. ``(C) Payments.--The fees collected under this paragraph shall be paid by check or money order made payable to the `Department of Labor'. In the case of employers of H-2A workers that are members of a joint employer association applying on their behalf, the aggregate fees for all employers of H-2A workers under the application may be paid by one check or money order. ``(D) Inflation adjustment.--In the case of any calendar year beginning after 2005, each dollar amount in subparagraph (B) may be increased by an amount equal to-- ``(i) such dollar amount; multiplied by ``(ii) the percentage (if any) by which the average of the Consumer Price Index for all urban consumers (United States city average) for the 12-month period ending with August of the preceding calendar year exceeds such average for the 12-month period ending with August 2004. ``(h) Failure 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 Homeland Security 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 of Homeland Security may disqualify the employer from the employment of H-2A workers for a period of 1 year. ``(i) Willful Failures and Willful Misrepresentations.--If the Secretary of Labor finds, after notice and opportunity for a 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 (g)(1)-- ``(1) the Secretary of Labor shall notify the Secretary of Homeland Security 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;
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