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S. 2186 (is) To provide access to health care insurance coverage for children. [Introduced in Senate] ...


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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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