SEQ CHAPTER

S 1645

VERSION: INTRODUCED IN SENATE

Sept. 23, 2003

108TH CONGRESS 1ST SESSION

S. 1645

To provide for the adjustment of status of certain foreign agricultural workers, to amend the Immigration

and Nationality Act to reform the H-2A worker program under that Act, to provide a stable,

legal agricultural workforce, to extend basic legal protections and better working conditions

to more workers, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 23, 2003

Mr. CRAIG (for himself, Mr. KENNEDY, Mr. SMITH, Mr. GRAHAM of Florida, Mr. COCHRAN,

Mr. SCHUMER, Mr. GREGG, Mr. LIEBERMAN, Mr. MCCAIN, Mr. KERRY, Mr. HAGEL,

Ms. CANTWELL, Mr. VOINOVICH, Mr. WYDEN, Mr. COLEMAN, Mrs. CLINTON,

Mr. DEWINE, Mrs. BOXER, and Mrs. MURRAY) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

_____________________________

A BILL

To provide for the adjustment of status of certain foreign agricultural workers, to amend the

Immigration and Nationality Act to reform the H-2A worker program under that Act,

to provide a stable, legal agricultural workforce, to extend basic legal protections and

better working conditions to more 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; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the “Agricultural Job Opportunity,

Benefits, and Security Act of 2003”.

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

TITLE I—ADJUSTMENT TO LAWFUL STATUS

Sec. 101. Agricultural workers.

Sec. 102. Correction of Social Security records.

TITLE II—REFORM OF H-2A WORKER PROGRAM

Sec. 201. Amendment to the Immigration and Nationality Act.

TITLE III—MISCELLANEOUS PROVISIONS

Sec. 301. Determination and use of user fees.

Sec. 302. Regulations.

Sec. 303. Effective date.

SEC. 2. DEFINITIONS.

In this Act:

(1) AGRICULTURAL EMPLOYMENT.—The term “agricultural employment” means any service

or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f))

or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)).

For purposes of this paragraph, agricultural employment includes employment under

section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

(2) EMPLOYER.—The term “employer” means any person or entity, including any farm labor contractor

and any agricultural association, that employs workers in agricultural employment.

(3) JOB OPPORTUNITY.—The term “job opportunity” means a job opening for temporary full-time employment

at a place in the United States to which United States workers can be referred.

(4) SECRETARY.—The term “Secretary” means the Secretary of Homeland Security.

(5) TEMPORARY.—A worker is employed on a “temporary” basis where the employment

is intended not to exceed 10 months.

(6) UNITED STATES WORKER.—The term “United States worker” means any worker,

whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien,

who is authorized to work in the job opportunity within the United States, except an alien admitted

or otherwise provided status under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act

(8 U.S.C. 1101(a)(15)(H)(ii)(a)).

(7) WORK DAY.—The term “work day” means any day in which the individual

is employed 1 or more hours in agriculture.

TITLE I—ADJUSTMENT TO LAWFUL STATUS

SEC. 101. AGRICULTURAL WORKERS.

(a) TEMPORARY RESIDENT STATUS.—

(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary shall confer

upon an alien who qualifies under this subsection the status of an alien lawfully admitted for temporary residence

if the Secretary determines that the following requirements are satisfied with respect to the alien:

(A) PERFORMANCE OF AGRICULTURAL EMPLOYMENT IN THE UNITED STATES.—

The alien must establish that the alien has performed agricultural employment in the United States

for at least 575 hours or 100 work days, whichever is less, during any 12 consecutive months during

the 18-month period ending on August 31, 2003.

(B) APPLICATION PERIOD.—The alien must apply for such status during

the 18-month application period beginning on the 1st day of the 7th month that begins after

the date of enactment of this Act.

to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182),

except as otherwise provided under subsection (e)(2).

(2) AUTHORIZED TRAVEL.—During the period an alien is in lawful temporary resident status

granted under this subsection, the alien has the right to travel abroad (including commutation from a residence abroad)

in the same manner as an alien lawfully admitted for permanent residence.

(3) AUTHORIZED EMPLOYMENT.—During the period an alien is in lawful temporary resident status

granted under this subsection, the alien shall be provided an “employment authorized” endorsement or

other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.

(4) TERMINATION OF TEMPORARY RESIDENT STATUS.—During the period of temporary resident status

granted an alien under this subsection, the Secretary may terminate such status only upon

a determination under this Act that the alien is deportable.

(5) RECORD OF EMPLOYMENT.—

(A) IN GENERAL.—Each employer of a worker granted status under this subsection shall annually—

(i) provide a written record of employment to the alien; and

(ii) provide a copy of such record to the Secretary.

(B) SUNSET.—The obligation under subparagraph (A) terminates on August 31, 2009.

(b) RIGHTS OF ALIENS GRANTED TEMPORARY RESIDENT STATUS.—

(1) IN GENERAL.—Except as otherwise provided in this subsection, an alien who acquires

the status of an alien lawfully admitted for temporary residence under subsection (a),

such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence

for purposes of any law other than any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(2) TERMS OF EMPLOYMENT RESPECTING ALIENS ADMITTED UNDER THIS SECTION.—

(A) PROHIBITION.—No alien granted status under subsection (a) may be terminated from employment

by any employer during the period of temporary resident status except for just cause.

(B) TREATMENT OF COMPLAINTS.—

(i) ESTABLISHMENT OF PROCESS.—The Secretary shall establish a process for the receipt,

initial review, and disposition in accordance with this subparagraph of complaints by aliens granted

temporary resident status under subsection (a) who allege that they have been terminated without just cause.

No proceeding shall be conducted under this subparagraph with respect to a termination unless the Secretary

determines that the complaint was filed not later than 6 months after the date of the termination.

(ii) INITIATION OF ARBITRATION.—If the Secretary finds that a complaint has been filed

in accordance with clause (i) and there is reasonable cause to believe that the complainant was terminated without just cause,

the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and

Conciliation Service to appoint a mutually agreeable arbitrator from the roster of arbitrators maintained by such Service

for the geographical area in which the employer is located. The procedures and rules of such Service

shall be applicable to the selection of such arbitrator and to such arbitration proceedings.

The Secretary shall pay the fee and expenses of the arbitrator.

(iii) ARBITRATION PROCEEDINGS.—The arbitrator shall conduct the proceeding in accordance

with the policies and procedures promulgated by the American Arbitration Association applicable

to private arbitration of employment disputes. The arbitrator shall make findings respecting whether

the termination was for just cause. The arbitrator may not find that the termination was for just cause

unless the employer so demonstrates by a preponderance of the evidence. If the arbitrator finds that

the termination was not for just cause, the arbitrator shall make a specific finding of the number

of days or hours of work lost by the employee as a result of the termination. The arbitrator shall have no authority

to order any other remedy, including, but not limited to, reinstatement, back pay, or front pay to the affected employee.

Within 30 days from the conclusion of the arbitration proceeding, the arbitrator shall transmit the findings

in the form of a written opinion to the parties to the arbitration and the Secretary. Such findings shall be final and conclusive,

and no official or court of the United States shall have the power or jurisdiction to review any such findings.

(iv) EFFECT OF ARBITRATION FINDINGS.—If the Secretary receives a finding of an arbitrator

that an employer has terminated an alien granted temporary resident status under subsection (a) without just cause,

the Secretary shall credit the alien for the number of days or hours of work lost for purposes of the requirement of subsection (c)(1).

(v) TREATMENT OF ATTORNEY’S FEES.—The parties shall bear the cost of their own attorney’s fees

involved in the litigation of the complaint.

(vi) NONEXCLUSIVE REMEDY.—The complaint process provided for in this subparagraph

is in addition to any other rights an employee may have in accordance with applicable law.

(vii) EFFECT ON OTHER ACTIONS OR PROCEEDINGS.—Any finding of fact or law,

judgment, conclusion, or final order made by an arbitrator in the proceeding before the Secretary shall not be conclusive

or binding in any separate or subsequent action or proceeding between the employee and the employee’s current

or prior employer brought before an arbitrator, administrative agency, court, or judge of any State or the United States,

regardless of whether the prior action was between the same or related parties or involved the same facts,

except that the arbitrator’s specific finding of the number of days or hours of work lost by the employee

as a result of the employment termination may be referred to the Secretary pursuant to clause (iv).

(i) IN GENERAL.—If the Secretary finds, after notice and opportunity for a hearing,

that an employer of an alien granted temporary resident status under subsection (a) has failed to provide the record

of employment required under subsection (a)(5) or has provided a false statement of material fact in such a record,

the employer shall be subject to a civil money penalty in an amount not to exceed $1,000 per violation.

(ii) LIMITATION.—The penalty applicable under clause (i) for failure to provide records

shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.

(1) AGRICULTURAL WORKERS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), the Secretary shall adjust the status

of an alien granted lawful temporary resident status under subsection (a) to that of an alien lawfully admitted

for permanent residence if the Secretary determines that the following requirements are satisfied:

(i) QUALIFYING EMPLOYMENT.—The alien has performed at least 2,060 hours

or 360 work days, whichever is less, of agricultural employment in the United States, during the period beginning

on September 1, 2003, and ending on August 31, 2009.

(ii) QUALIFYING YEARS.—The alien has performed at least 430 hours or 75 work days,

whichever is less, of agricultural employment in the United States in at least 3 nonoverlapping periods of

12 consecutive months during the period beginning on September 1, 2003, and ending on August 31, 2009.

Qualifying periods under this clause may include nonconsecutive 12-month periods.

(iii) QUALIFYING WORK IN FIRST 3 YEARS.—The alien has performed at least 1,380 hours

or 240 work days, whichever is less, of agricultural employment during the period beginning on September 1, 2003,

and ending on August 31, 2006.

(iv) APPLICATION PERIOD.—The alien applies for adjustment of status not later than August 31, 2010.

(v) PROOF.—In meeting the requirements of clauses (i), (ii), and (iii), an alien may submit the record

of employment described in subsection (a)(5) or such documentation as may be submitted under subsection (d)(3).

(vi) DISABILITY.—In determining whether an alien has met the requirements

of clauses (i), (ii), and (iii), the Secretary shall credit the alien with any work days lost because the alien

was unable to work in agricultural employment due to injury or disease arising out of and in the course

of the alien’s agricultural employment, if the alien can establish such disabling injury or disease through medical records.

(B) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS.—The Secretary may deny

an alien adjustment to permanent resident status, and provide for termination of the temporary resident status

granted such alien under subsection (a), if—

(i) the Secretary finds by a preponderance of the evidence that the adjustment to temporary resident status

was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i)

of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or

(ii) the alien—

(I) commits an act that makes the alien inadmissible to the United States under

section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as provided under subsection (e)(2); or

(II) is convicted of a felony or 3 or more misdemeanors committed in the United States.

who does not apply for adjustment of status under this subsection before the expiration of the application period

described in subparagraph (A)(iv), or who fails to meet the other requirements of subparagraph (A) by the end

of the applicable period, is deportable and may be removed under section 240 of the Immigration and Nationality Act

(8 U.S.C. 1229a). The Secretary shall issue regulations establishing grounds to waive subparagraph (A)(iii)

with respect to an alien who has completed at least 200 days of the work requirement specified in such subparagraph

in the event of a natural disaster which substantially limits the availability of agricultural employment or a personal emergency

that prevents compliance with such subparagraph.

(2) SPOUSES AND MINOR CHILDREN.—

(A) IN GENERAL.—Notwithstanding any other provision of law, the Secretary shall confer the status

of lawful permanent resident on the spouse and minor child of an alien granted status under paragraph (1),

including any individual who was a minor child on the date such alien was granted temporary resident status,

if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child

in an application for adjustment of status to that of a lawful permanent resident.

(B) TREATMENT OF SPOUSES AND MINOR CHILDREN PRIOR TO ADJUSTMENT OF STATUS.—

A spouse and minor child of an alien granted temporary resident status under subsection (a) may not be—

(i) removed while such alien maintains such status; and

(ii) granted authorization to engage in employment in the United States or be provided

an “employment authorized” endorsement or other work permit, unless such employment authorization is granted

under another provision of law.

(d) APPLICATIONS.—

(1) TO WHOM MAY BE MADE.—

(A) WITHIN THE UNITED STATES.—The Secretary shall provide that—

(i) applications for temporary resident status under subsection (a) may be filed—

(I) with the Secretary, but only if the applicant is represented by an attorney; or

(II) with a qualified designated entity (designated under paragraph (2)), but only if the applicant

consents to the forwarding of the application to the Secretary; and

(ii) applications for adjustment of status under subsection (c) shall be filed directly with the Secretary.

(B) OUTSIDE THE UNITED STATES.—The Secretary, in cooperation with the Secretary of State,

shall establish a procedure whereby an alien may apply for temporary resident status under subsection (a)

at an appropriate consular office outside the United States.

(i) IN GENERAL.—During the application period described in subsection (a)(1)(B),

the Secretary may grant admission to the United States as a temporary resident and provide

an “employment authorized” endorsement or other appropriate work permit to any alien who presents

a preliminary application for such status under subsection (a) at a designated port of entry

on the southern land border of the United States. An alien who does not enter through a port of entry

is subject to deportation and removal as otherwise provided in this Act.

(ii) DEFINITION.—For purposes of clause (i), the term “preliminary application” means

a fully completed and signed application which contains specific information concerning the performance

of qualifying employment in the United States, together with the payment of the appropriate fee and the submission

of photographs and the documentary evidence which the applicant intends to submit as proof of such employment.

(iii) ELIGIBILITY.—An applicant under clause (i) must be otherwise admissible

to the United States under subsection (e)(2) and must establish to the satisfaction of the examining officer

during an interview that the applicant’s claim to eligibility for temporary resident status is credible.

(D) TRAVEL DOCUMENTATION.—The Secretary shall provide each alien granted status

under this section with a counterfeit-resistant document of authorization to enter or reenter the United States

that meets the requirements established by the Secretary.

(2) DESIGNATION OF ENTITIES TO RECEIVE APPLICATIONS.—

(A) IN GENERAL.—For purposes of receiving applications under subsection (a), the Secretary—

(i) shall designate qualified farm labor organizations and associations of employers; and

(ii) may designate such other persons as the Secretary determines are qualified and have

substantial experience, demonstrate competence, and have traditional long-term involvement

in the preparation and submittal of applications for adjustment of status under section 209, 210, or 245

of the Immigration and Nationality Act, Public Law 89-732, Public Law 95-145, or the Immigration Reform

and Control Act of 1986.

(B) REFERENCES.—Organizations, associations, and persons designated under subparagraph (A)

are referred to in this Act as “qualified designated entities”.

(3) PROOF OF ELIGIBILITY.—

(A) IN GENERAL.—An alien may establish that the alien meets the requirement of subsection

(a)(1)(A) or subsection (c)(1)(A) through government employment records or records supplied by

employers or collective bargaining organizations, and other reliable documentation as the alien may provide.

The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed

under an assumed name.

(B) DOCUMENTATION OF WORK HISTORY.—(i) An alien applying for status under

subsection (a)(1) or subsection (c)(1) has the burden of proving by a preponderance of the evidence that

the alien has worked the requisite number of hours or days (as required under subsection (a)(1)(A)

or subsection (c)(1)(A)).

(ii) If an employer or farm labor contractor employing such an alien has kept proper and

adequate records respecting such employment, the alien’s burden of proof under clause (i)

may be met by securing timely production of those records under regulations to be promulgated by the Secretary.

(iii) An alien can meet such burden of proof if the alien establishes that the alien has in fact

performed the work described in subsection (a)(1)(A) or subsection (c)(1)(A) by producing sufficient evidence

to show the extent of that employment as a matter of just and reasonable inference.

(4) TREATMENT OF APPLICATIONS BY QUALIFIED DESIGNATED ENTITIES.—

Each qualified designated entity must agree to forward to the Secretary applications filed with it

in accordance with paragraph (1)(A)(i)(II) but not to forward to the Secretary applications filed with it

unless the applicant has consented to such forwarding. No such entity may make a determination required by

this section to be made by the Secretary. Upon the request of the alien, a qualified designated entity

shall assist the alien in obtaining documentation of the work history of the alien.

(5) LIMITATION ON ACCESS TO INFORMATION.—Files and records prepared for purposes

of this subsection by qualified designated entities operating under this subsection are confidential

and the Secretary shall not have access to such files or records relating to an alien without the consent

of the alien, except as allowed by a court order issued pursuant to paragraph (6).

(6) CONFIDENTIALITY OF INFORMATION.—

(A) IN GENERAL.—Except as otherwise provided in this subsection, neither the Secretary,

nor any other official or employee of the Department of Homeland Security, or bureau or agency thereof, may—

(i) use the information furnished by the applicant pursuant to an application filed under this section,

the information provided to the applicant by a person designated under paragraph (2)(A),

or any information provided by an employer or former employer, for any purpose other than to make

a determination on the application, or for enforcement of paragraph (7);

(ii) make any publication whereby the information furnished by any particular individual can be identified; or

(iii) permit anyone other than the sworn officers and employees of the Department of Homeland Security,

or bureau or agency thereof, or, with respect to applications filed with a qualified designated entity,

that qualified designated entity, to examine individual applications.

(B) CRIME.—Whoever knowingly uses, publishes, or permits information to be examined

in violation of this paragraph shall be fined not more than $10,000.

(7) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.—

(A) CRIMINAL PENALTY.—Whoever—

(i) files an application for status under subsection (a) or (c) and knowingly and willfully 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

(ii) creates or supplies a false writing or document for use in making such an application;

shall be fined in accordance with title 18, United States Code, or imprisoned not more than 5 years, or both.

(B) INADMISSIBILITY.—An alien who is convicted of a crime under subparagraph (A)

shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i)

of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

(8) ELIGIBILITY FOR LEGAL 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 the Legal Services Corporation Act (42 U.S.C. 2996 et seq.)

from providing legal assistance directly related to an application for adjustment of status under this section.

(9) APPLICATION FEES.—

(A) FEE SCHEDULE.—The Secretary shall provide for a schedule of fees that—

(i) shall be charged for the filing of applications for status under subsections (a) and (c); and

(ii) may be charged by qualified designated entities to help defray the costs of services provided

to such applicants.

(B) PROHIBITION ON EXCESS FEES BY QUALIFIED DESIGNATED ENTITIES.

—A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized

under subparagraph (A)(ii) for services provided to applicants.

(i) IN GENERAL.—There is established in the general fund of the Treasury a separate account,

which shall be known as the “Agricultural Worker Immigration Status Adjustment Account”.

Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the

account all fees collected under subparagraph (A)(i).

(ii) USE OF FEES FOR APPLICATION PROCESSING.—Amounts deposited in

the “Agricultural Worker Immigration Status Adjustment Account” shall remain available to the Secretary

until expended for processing applications for status under subsections (a) and (c).

(e) WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR INADMISSIBILITY.—

(1) NUMERICAL LIMITATIONS DO NOT APPLY.—The numerical limitations of sections 201 and 202

of the Immigration and Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the adjustment

of aliens to lawful permanent resident status under this section.

(2) WAIVER OF CERTAIN GROUNDS OF INADMISSIBILITY.—In the determination of an alien’s eligibility

for status under subsection (a)(1)(C) or an alien’s eligibility for adjustment of status under subsection (c)(1)(B)(ii)(I),

the following rules shall apply:

(A) GROUNDS OF EXCLUSION NOT APPLICABLE.—The provisions of paragraphs (5), (6)(A),

(7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply.

(B) WAIVER OF OTHER GROUNDS.—

(i) IN GENERAL.—Except as provided in clause (ii), the Secretary may waive any other provision

of such section 212(a) in the case of individual aliens for humanitarian purposes, to ensure family unity,

or when it is otherwise in the public interest.

(ii) GROUNDS THAT MAY NOT BE WAIVED.—The following provisions of such section 212(a)

may not be waived by the Secretary under clause (i):

(I) Subparagraphs (A) and (B) of paragraph (2) (relating to criminals).

(II) Paragraph (4) (relating to aliens likely to become public charges).

(III) Paragraph (2)(C) (relating to drug offenses).

(IV) Paragraph (3) (relating to security and related grounds).

(iii) CONSTRUCTION.—Nothing in this subparagraph shall be construed as affecting

the authority of the Secretary other than under this subparagraph to waive provisions of such section 212(a).

ineligible for status under this section by reason of a ground of inadmissibility under section 212(a)(4)

of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) if the alien demonstrates a history of employment

in the United States evidencing self-support without reliance on public cash assistance.

(f) TEMPORARY STAY OF REMOVAL AND WORK AUTHORIZATION FOR CERTAIN APPLICANTS.—

(1) BEFORE APPLICATION PERIOD.—Effective on the date of enactment of this Act,

the Secretary shall provide that, in the case of an alien who is apprehended before the beginning

of the application period described in subsection (a)(1)(B) and who can establish a nonfrivolous case of eligibility

for temporary resident status under subsection (a) (but for the fact that the alien may not apply for such status

until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period

to complete the filing of an application for temporary resident status, the alien—

(A) may not be removed; and

(B) shall be granted authorization to engage in employment in the United States and be provided

an “employment authorized” endorsement or other appropriate work permit for such purpose.

(2) DURING APPLICATION PERIOD.—The Secretary shall provide that, in the case of an alien

who presents a nonfrivolous application for temporary resident status under subsection (a)

during the application period described in subsection (a)(1)(B), including an alien who files such an application

within 30 days of the alien’s apprehension, and until a final determination on the application has been made

in accordance with this section, the alien—

(A) may not be removed; and

(B) shall be granted authorization to engage in employment in the United States

and be provided an “employment authorized” endorsement or other appropriate work permit for such purpose.

(g) ADMINISTRATIVE AND JUDICIAL REVIEW.—

(1) IN GENERAL.—There shall be no administrative or judicial review of a determination

respecting an application for status under subsection (a) or (c) except in accordance with this subsection.

(2) ADMINISTRATIVE REVIEW.—

(A) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW.—The Secretary shall establish

an appellate authority to provide for a single level of administrative appellate review of such a determination.

(B) STANDARD FOR REVIEW.—Such administrative appellate review shall be based

solely upon the administrative record established at the time of the determination on the application

and upon such additional or newly discovered evidence as may not have been available at the time of the determination.

(3) JUDICIAL REVIEW.—

(A) LIMITATION TO REVIEW OF REMOVAL.—There shall be judicial review of such a determination

only in the judicial review of an order of removal under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).

(B) STANDARD FOR JUDICIAL REVIEW.—Such judicial review shall be based solely upon

the administrative record established at the time of the review by the appellate authority and the findings of fact

and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion

or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.

(h) DISSEMINATION OF INFORMATION ON ADJUSTMENT PROGRAM.—Beginning not later than

the 1st day of the application period described in subsection (a)(1)(B), the Secretary, in cooperation with

qualified designated entities, shall broadly disseminate information respecting the benefits that aliens may receive

under this section and the requirements to be satisfied to obtain such benefits.

(i) REGULATIONS.—The Secretary shall issue regulations to implement this section not later than

the 1st day of the 7th month that begins after the date of enactment of this Act.

(j) EFFECTIVE DATE.—This section shall take effect on the date that regulations are issued implementing

this section on an interim or other basis.

(k) FUNDING.—There are hereby appropriated, out of any money in the Treasury not otherwise appropriated,

$40,000,000 for each of fiscal years 2004 through 2007 to the Secretary to carry out this section.

SEC. 102. CORRECTION OF SOCIAL SECURITY RECORDS.

(a) IN GENERAL.—Section 208(d)(1) of the Social Security Act (42 U.S.C. 408(d)(1)) is amended—

(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 status as a lawful temporary resident under the Agricultural Job Opportunity,

Benefits, and Security Act of 2003,”; and

(4) 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 prior to the date on which the alien was granted lawful temporary resident status.”.

(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on

the 1st day of the 7th month that begins after the date of enactment of this Act.

TITLE II—REFORM OF H-2A WORKER PROGRAM

SEC. 201. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.

(a) IN GENERAL.—The Immigration and Nationality Act is amended by striking section 218 (8 U.S.C. 1188)

and inserting the following:

“H-2A EMPLOYER APPLICATIONS

“SEC. 218. (a) APPLICATIONS TO THE SECRETARY OF LABOR.—

“(1) IN GENERAL.—No alien may be admitted to the United States as an H-2A worker, or otherwise

provided status as an H-2A worker, unless the employer has filed with the Secretary of Labor an application containing—

“(A) the assurances described in subsection (b);

“(B) a description of the nature and location of the work to be performed;

“(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; and

“(D) the number of job opportunities in which the employer seeks to employ the workers.

“(2) ACCOMPANIED BY JOB OFFER.—Each application filed under paragraph (1) shall be accompanied

by a copy of the job offer describing the wages and other terms and conditions of employment and

the bona fide occupational qualifications that must be possessed by a worker to be employed

in the job opportunity in question.

“(b) ASSURANCES FOR INCLUSION IN APPLICATIONS.—The assurances referred to in subsection (a)(1)

are the following:

“(1) JOB OPPORTUNITIES COVERED BY COLLECTIVE BARGAINING AGREEMENTS.

—With respect to a job opportunity that is covered under a collective bargaining agreement:

“(A) UNION CONTRACT DESCRIBED.—The job opportunity is covered by a union contract

which was negotiated at arm’s length between a bona fide union and the employer.

“(B) STRIKE OR LOCKOUT.—The specific job opportunity for which the employer is requesting

an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.

“(C) NOTIFICATION OF BARGAINING REPRESENTATIVES.—The employer, at the time

of filing the application, has provided notice of the filing under this paragraph to the bargaining representative

of the employer’s employees in the occupational classification at the place or places of employment for which aliens are sought.

“(D) TEMPORARY OR SEASONAL JOB OPPORTUNITIES.—The job opportunity is temporary or seasonal.

“(E) OFFERS TO UNITED STATES WORKERS.—The employer has offered or will offer

the job to any eligible United States worker who applies and is equally or better qualified for the job

for which the nonimmigrant is, or the nonimmigrants are, sought and who will be available at the time and place of need.

“(F) PROVISION OF INSURANCE.—If the job opportunity is not covered by

the 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’s workers’ compensation law

for comparable employment.

“(2) JOB OPPORTUNITIES NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS.

—With respect to a job opportunity that is not covered under a collective bargaining agreement:

“(A) STRIKE OR LOCKOUT.—The specific job opportunity for which the employer is requesting

an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.

“(B) TEMPORARY OR SEASONAL JOB OPPORTUNITIES.—The job opportunity is temporary or seasonal.

“(C) BENEFIT, WAGE, AND WORKING CONDITIONS.—The employer will provide,

at a minimum, the benefits, wages, and working conditions required by section 218A to all workers

employed in the job opportunities for which the employer has applied under subsection (a)

and to all other workers in the same occupation at the place of employment.

“(D) 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

for 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.

“(E) REQUIREMENTS FOR PLACEMENT OF NONIMMIGRANT WITH OTHER EMPLOYERS.

—The employer will not place the nonimmigrant with another employer unless—

“(i) the nonimmigrant performs duties in whole or in part at 1 or more work sites owned,

operated, or controlled by such other employer;

“(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer; and

“(iii) 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.

“(F) STATEMENT OF LIABILITY.—The application form shall include a clear statement explaining

the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces

a United States worker as described in such subparagraph.

“(G) PROVISION OF INSURANCE.—If the job opportunity is not covered

by the 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’s workers’ compensation law

for comparable employment.

“(H) EMPLOYMENT OF UNITED STATES WORKERS.—

“(i) RECRUITMENT.—The employer has taken or will take the following steps to recruit

United States workers for the job opportunities for which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:

“(I) CONTACTING FORMER WORKERS.—The employer shall make reasonable efforts

through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker

the employer employed during the previous season in the occupation at the place of intended employment for which

the employer is applying for workers and has made the availability of the employer’s job opportunities in

the occupation at the place of intended employment known to such previous workers, unless the worker

was terminated from employment by the employer for a lawful job-related reason or abandoned the job

before the worker completed the period of employment of the job opportunity for which the worker was hired.

“(II) FILING A JOB OFFER WITH THE LOCAL OFFICE OF THE STATE

EMPLOYMENT SECURITY AGENCY.—Not later than 28 days prior to the date on which the employer

desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer

shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State employment

security agency which serves the area of intended employment and authorize the posting of the job opportunity on

‘America’s Job Bank’ or other electronic job registry, except that nothing in this subclause shall require

the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.

“(III) ADVERTISING OF JOB OPPORTUNITIES.—Not later than 14 days prior to the date

on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity,

the employer shall advertise the availability of the job opportunities for which the employer is seeking workers

in a publication in the local labor market that is likely to be patronized by potential farm workers.

“(IV) EMERGENCY PROCEDURES.—The Secretary of Labor shall, by regulation,

provide a procedure for acceptance and approval of applications in which the employer has not complied

with the provisions of this subparagraph because the employer’s need for H-2A workers could not

reasonably have been foreseen.

“(ii) JOB OFFERS.—The employer has offered or will offer the job to any eligible United States worker

who applies and is equally or better qualified for the job for which the nonimmigrant is, or nonimmigrants are,

sought and who will be available at the time and place of need.

“(iii) PERIOD OF EMPLOYMENT.—The employer will provide employment to any

qualified United States worker who applies to the employer during the period beginning on the date on which

the foreign worker departs for the employer’s place of employment and ending on the date on which

50 percent of the period of employment for which the foreign worker who is in the job was hired has elapsed,

subject to the following requirements:

“(I) PROHIBITION.—No person or entity shall willfully and knowingly withhold United States workers

prior to the arrival of H-2A workers in order to force the hiring of United States workers under this clause.

“(II) COMPLAINTS.—Upon receipt of a complaint by an employer that a violation of subclause (I)

has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, within 36 hours

of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that

a violation has occurred, the Secretary of Labor shall immediately suspend the application of this clause with respect

to that certification for that date of need.

“(III) PLACEMENT OF UNITED STATES WORKERS.—Prior to referring a United States worker

to an employer during the period described in the matter preceding subclause (I), the Secretary of Labor

shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker,

if there are other job offers pending with the job service that offer similar job opportunities in the area of intended employment.

“(iv) STATUTORY CONSTRUCTION.—Nothing in this subparagraph shall be construed to prohibit

an employer from using such legitimate selection criteria relevant to the type of job that are normal or customary to the type

of job involved so long as such criteria are not applied in a discriminatory manner.

“(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF OF EMPLOYER MEMBERS.—

“(1) IN GENERAL.—An agricultural association may file an application under subsection (a)

on behalf of 1 or more of its employer members that the association certifies in its application has or

have agreed in writing to comply with the requirements of this section and sections 218A through 218C.

“(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS.—If an association filing

an application under paragraph (1) is a joint or sole employer of the temporary or seasonal agricultural workers

requested on the application, the certifications granted under subsection (e)(2)(B) to the association may be used

for the certified job opportunities of any of its producer members named on the application, and such workers

may be transferred among such producer members to perform the agricultural services of a temporary or

seasonal nature for which the certifications were granted.

“(d) WITHDRAWAL OF APPLICATIONS.—

“(1) IN GENERAL.—An employer may withdraw an application filed pursuant to subsection (a),

except that if the employer is an agricultural association, the association may withdraw an application filed

pursuant to subsection (a) with respect to 1 or more of its members. To withdraw an application,

the employer or association shall notify the Secretary of Labor in writing, and the Secretary of Labor

shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws

an application under subsection (a), or on whose behalf an application is withdrawn,

is relieved of the obligations undertaken in the application.

“(2) LIMITATION.—An application may not be withdrawn while any alien provided status

under section 101(a)(15)(H)(ii)(a) pursuant to such application is employed by the employer.

“(3) OBLIGATIONS UNDER OTHER STATUTES.—Any obligation incurred by an employer

under any other law or regulation as a result of the recruitment of United States workers or H-2A workers

under an offer of terms and conditions of employment required as a result of making an application

under subsection (a) is unaffected by withdrawal of such application.

“(e) REVIEW AND APPROVAL OF APPLICATIONS.—

“(1) RESPONSIBILITY OF EMPLOYERS.—The employer shall make available for public examination,

within 1 working day after the date on which an application under subsection (a) is filed, at the employer’s principal place

of business or work site, a copy of each such application (and such accompanying documents as are necessary).

“(2) RESPONSIBILITY OF THE SECRETARY OF LABOR.—

“(A) COMPILATION OF LIST.—The Secretary of Labor shall compile, on a current basis,

a list (by employer and by occupational classification) of the applications filed under this subsection.

Such list shall include the wage rate, number of workers sought, period of intended employment, and date of need.

The Secretary of Labor shall make such list available for examination in the District of Columbia.

“(B) REVIEW OF APPLICATIONS.—The Secretary of Labor shall review such an application

only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that the application is incomplete

or obviously inaccurate, the Secretary of Labor shall certify that the intending employer has filed with the Secretary of Labor

an application as described in subsection (a). Such certification shall be provided within 7 days of the filing of the application.

“H-2A EMPLOYMENT REQUIREMENTS

“SEC. 218A. (a) 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 workers.

“(b) MINIMUM BENEFITS, WAGES, AND WORKING CONDITIONS.—Except in cases where higher benefits,

wages, or working conditions are required by the provisions of subsection (a), in order to protect similarly employed

United States workers from adverse effects with respect to benefits, wages, and working conditions,

every job offer which must accompany an application under section 218 shall include each of the following benefit,

wage, and working condition provisions:

“(1) REQUIREMENT TO PROVIDE HOUSING OR A HOUSING ALLOWANCE.—

“(A) IN GENERAL.—An employer applying under section 218(a) for H-2A workers shall offer

to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section

and to all other workers in the same occupation at the place of employment, whose place of residence is

beyond normal commuting distance.

“(B) TYPE OF HOUSING.—In complying with subparagraph (A), an employer may, at the employer’s election,

provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets

applicable local standards for rental or public accommodation housing or other substantially similar class of habitation,

or in the absence of applicable local standards, State standards for rental or public accommodation housing or

other substantially similar class of habitation. In the absence of applicable local or State standards,

Federal temporary labor camp standards shall apply.

“(C) FAMILY HOUSING.—When it is the prevailing practice in the occupation and area of intended employment

to provide family housing, family housing shall be provided to workers with families who request it.

“(D) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK.

—The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing

to workers engaged in the range production of livestock.

“(E) LIMITATION.—Nothing in this paragraph shall be construed to require an employer to provide

or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations

in effect on June 1, 1986.

“(F) CHARGES FOR HOUSING.—

“(i) CHARGES FOR PUBLIC HOUSING.—If public housing provided for migrant agricultural workers

under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally

requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual

or entity affiliated with the housing’s management.

“(ii) DEPOSIT CHARGES.—Charges in the form of deposits for bedding or other similar incidentals

related to housing shall not be levied upon workers by employers who provide housing for their workers.

However, an employer may require a worker found to have been responsible for damage to such housing

which is not the result of normal wear and tear related to habitation to reimburse the employer

for the reasonable cost of repair of such damage.

“(G) HOUSING ALLOWANCE AS ALTERNATIVE.—

“(i) IN GENERAL.—In lieu of offering housing pursuant to subparagraph (A), the employer may provide

a reasonable housing allowance, but only if the requirement of clause (ii) is satisfied. Upon the request of a worker

seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying

and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker,

or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed

a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823)

solely by virtue of providing such housing allowance. However, no housing allowance may be used for housing

which is owned or controlled by the employer.

“(ii) CERTIFICATION.—The requirement of this clause is satisfied if the Governor of the State

certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment

for migrant farm workers, and H-2A workers, who are seeking temporary housing while employed at farm work.

Such certification shall expire after 3 years unless renewed by the Governor of the State.

“(iii) AMOUNT OF ALLOWANCE.—

“(I) NONMETROPOLITAN COUNTIES.—If the place of employment of the workers provided

an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under

this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties

for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c)

of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit

and an assumption of 2 persons per bedroom.

“(II) METROPOLITAN COUNTIES.—If the place of employment of the workers provided

an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph

shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State,

as established by the Secretary of Housing and Urban Development pursuant to section 8(c)

of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit

and an assumption of 2 persons per bedroom.

“(2) REIMBURSEMENT OF TRANSPORTATION.—

“(A) TO PLACE OF EMPLOYMENT.—A worker who completes 50 percent of the period of employment

of the job opportunity for which the worker was hired 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.

“(B) FROM PLACE OF EMPLOYMENT.—A worker who completes the period of employment for the

job opportunity involved shall be reimbursed by the employer for the cost of the worker’s transportation and subsistence

from the pla