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Issues: Immigration ReformSection-by-Section Analysis of "Agricultural Jobs Opportunity, Benefits, and Security Act of 2007" (AgJOBS)Courtesy of the Agriculture Coalition for Immigration Reform, below is a section-by-section summary of the AgJOBS 2007 bill, S. 340 and H.R. 371. Section 1. Short Title; Table of Contents Section 2. Definitions Title I – Pilot Program for Earned Status Adjustment of Agricultural Workers This Title establishes a program whereby aliens who can demonstrate a substantial past commitment to agricultural work in the United States are provided an opportunity to adjust their status to that of an alien in “blue card” status and, if they meet the program’s prospective agricultural work requirements and other criteria, adjust their status to that of a lawful permanent resident alien. Section 101. Requirements for Blue Card Status. Prior Agricultural Work Requirements To be eligible to adjust to blue card status, an alien must demonstrate that he or she performed agricultural employment in the United States for at least 863 hours or 150 work days during the 24-month period ending on December 31, 2006. “Work day” is defined as 5.75 or more hours of agricultural employment. Aliens are provided with an 18-month application period beginning on the first day of the seventh month that begins after the date of enactment. To be eligible for blue card status, an alien must be otherwise admissible under the Immigration and Nationality Act (INA) and cannot have been convicted of any felon or a misdemeanor, an element of which involves bodily injury, threat of bodily injury, or harm to property in excess of $500. Authorized Travel and Employment Aliens who adjust to blue card status are granted employment authorization to work for any employer, as long as they satisfy the prospective agricultural work requirements of Section 103. They are permitted to travel abroad and reenter the United States. Termination of Blue Card Status Aliens may be terminated from blue card status if they achieved such status through fraud, committed acts or crimes that make them inadmissible or fail to satisfy the prospective agricultural work requirement. Record of Employment Each employer of a worker in blue card status must provide a written record of employment to the worker and the Secretary of the Department of Homeland Security (Secretary). Required Features of Identity Card Blue card holders and their spouses and children must receive a card with biometric identifiers and with security features designed to prevent counterfeiting. Fine An alien granted blue card status shall pay a $100 fine. Maximum Number of Blue Cards The number of blue cards issued during the 5-year period beginning on the date of enactment shall not exceed 1,500,000. Section 102. Treatment of Aliens Granted Blue Card Status. Delayed Eligibility for Federal Benefits An alien granted blue card status is not eligible by reason of such status for any form of assistance or benefit described in (PRWORA, 8 U.S.C. § 1613(a)) until 5 years after the date on which the alien adjusts to permanent resident status. Termination from Employment Adjusted aliens may not be terminated from employment except for just cause. In the case of complaints of improper termination, an arbitration process is provided. If the alien is found to have been improperly terminated, the alien is credited with the days of work lost. Results of the arbitration determination are final, and may not be used in any other proceeding. A penalty is provided for employers who fail to keep required records of employment of adjusted aliens. Section 103. Adjustment to Permanent Residence.
Qualifying Employment Aliens in blue card status may apply for adjustment to lawful permanent resident status if they can prove that they: (a) performed at least 5 years of agricultural employment for at least 100 work days per year during the 5-year period beginning on the date of enactment; (b) or performed at least 3 years agricultural employment for at least 150 work days per year during the 3-year period beginning on the date of enactment; or (c) during the 4-year period beginning on the date of enactment worked at least 150 work days during 3 years and 100 work days during the remaining year. The period to establish qualifying employment may be extended up to 12 months if the alien can prove through medical and other records that illness, injury, pregnancy, or severe weather conditions prevented him/her from engaging in employment for a significant period of time. Proof of qualifying employment is provided by employer records filed with DHS under Section 101 or other specified records. Application Period The alien must apply for adjustment to permanent resident status not later than 7 years after the date of enactment. Fine The alien must pay a fine of $400 to DHS. Grounds for Denial of Permanent Resident Status Aliens who commit fraud or willful misrepresentation on applications for adjustment, or who have committed an act which makes them inadmissible under the INA, or commit a felony or 3 misdemeanors, or is convicted of an offense which involves bodily injury, a threat of bodily injury or harm to property in excess of $500 are denied adjustment to lawful permanent resident status. Grounds for Removal Aliens in blue card status who do not apply for permanent resident status before the expiration of the application period or who fail to meet the prospective work requirement by the end of the application period are deportable and may be removed. Payment of Taxes An alien must establish no later than the date of adjustment to permanent resident status that he/she does not have any Federal tax liability for any year during the 5-year period beginning on the date of enactment during which the alien is required to satisfy his/her prospective work obligation. Spouses and Minor Children Spouses and minor children residing in the U.S. may receive derivative status from an alien granted blue card status. While in such status they may not be removed from the U.S. unless they are otherwise found inadmissible under the INA or commit disqualifying acts or crimes. They may travel outside the U.S. in the same manner as an alien in permanent resident status. The derivative spouse may work in the U.S. as long as the qualifying alien maintains blue card status. Spouses and minor children of blue card aliens who adjust to permanent resident status may obtain such status upon applying for it or if the principal alien included them within his/her application for such status.
Section 104. Applications for Adjustment of Status. Submission of Applications Applications for blue card status may be filed directly with the Secretary by the alien through an attorney or qualified organization, or through a “qualified designated entity” (QDE). Applications for adjustment to permanent resident status are filed directly with the Secretary of the Department of Homeland Security (DHS). Proof of Eligibility for Blue Card and Permanent Resident Status Applicants may establish eligibility for blue and permanent resident status through government employment records or records provided by employers, collective bargaining organizations and other reliable documentation provided by the alien. Burden of Proof Applicants have the responsibility of proving by the preponderance of the evidence that they have worked the requisite work days and hours required to meet the criteria for adjustment to blue card and lawful permanent residence. Confidentiality of Information Officials of the government may not use information provided in an application by an applicant or an employer for any purpose other than to make a determination on the application. If, however, a person files an application for blue card or permanent resident status and knowingly and willfully provides false information or provides a false document, the individual is subject to criminal prosecution and, if convicted, is inadmissible under the INA. Legal Services Assistance for the Filing of An Application A recipient of funds from the Legal Services Corporation may provide assistance directly related to filing of an application for blue card or permanent resident status. Application Fees The Secretary of DHS may set a schedule of fees to be charged persons applying for blue card and permanent resident status and such fees may be used by DHS to pay its cost of processing such applications. Section 105. Waiver of Numerical Limitations and Certain Grounds for Inadmissibility. Numerical limitations in the INA on admission of permanent resident aliens do not apply to aliens adjusted under this program. A limited number of grounds for exclusion are also waived. Temporary Stay of Removal and Work Authorization for Certain Applicants Aliens who file a non-frivolous application for blue card status prior to or during the application period may not be removed and may be granted work authorization in the U.S. until a final determination on the application has been made. Section 106. Administrative and Judicial Review. A single level of administrative appellate review is provided for determinations of eligibility for to blue card and permanent resident status. Judicial review is limited to orders of removal.
Section 107. Dissemination of Information on Adjustment Program. Information on the benefits and eligibility requirements of the blue card program shall be broadly disseminated by the Secretary of DHS and QDEs no later than the first day of the application period. Section 108. Regulations, Effective Date and Funding. Regulations for the program must be promulgated not later than 7 months after the date of enactment. This section shall take effect on the date regulations are issued on an interim or other basis. Funding necessary to implement this subtitle is authorized. Section 111. Correction of Social Security Records. Social Security records reflecting employment of aliens prior to their adjustment to blue card status are required to be corrected. Title II – Reform of H-2A Worker Program Section 201. Amendment to the Immigration and Nationality Act. This title reforms the existing H-2A program for the temporary admission of alien agricultural workers by replacing the existing Section 218 of the INA with the following new Sections 218, 218A, 218B, 218C and 218D. Section 218. Applications to the Secretary of Labor This section provides that employers desiring to employ H-2A aliens must first file an application with the Secretary of Labor and a job offer to domestic workers. If the application meets the requirements of the program and there are not obvious deficiencies it must be accepted by the Secretary of Labor. Applications may be filed by individual employers or by associations on behalf of their employer members. If the job opportunities for which the application is filed are covered by a collective bargaining agreement, the applicant must assure that the collective bargaining representative has been notified of the application and that the job opportunities are not vacant because the occupant is on strike or locked out, are temporary or seasonal (maximum duration of 10 months), have been or will be offered to U.S. workers, and are covered by workers’ compensation insurance. If the job opportunities for which the application is filed are not covered by a collective bargaining agreement, the applicant must also assure the minimum wages, benefits and working conditions required in Section 218A, non-displacement of U.S. workers, and recruitment of U.S. workers. Section 218A. H-2A Employment Requirements. This section enumerates the required wages, benefits and terms and conditions of employment for employers of H-2A workers. Preferential treatment of alien workers is prohibited. Housing Workers in H-2A approved occupations from outside normal commuting distance must be provided with housing that meets federal farm labor camp standards or rental or public accommodation housing that meets applicable standards, at no cost to the worker. In lieu of providing housing, the employer may provide a monetary housing allowance comparable to the HUD Section 8 housing allowance, but only if the Governor of the state has certified to the Secretary of Labor that there is sufficient housing in the area of intended employment for seasonal agricultural workers. Transportation Workers in H-2A approved occupations from outside normal commuting distance must be reimbursed reasonable costs for inbound transportation and subsistence if they complete 50-percent of the period of employment, and return transportation and subsistence if they complete the period of employment. Workers required to be provided housing must also be provided transportation from the housing to the work site, if necessary, at no cost to the worker.
Wages Workers in H-2A approved occupations are required to be paid the highest of the federal, state or local statutory minimum wage, the prevailing wage for the occupation in the area of intended employment, or the applicable Adverse Effect Wage Rate (AEWR). The AEWR may not be greater than the applicable AEWR on January 1, 2003. If Congress fails to set a new wage standard applicable to H-2A workers within three years after the date of enactment, thereafter the existing AEWRs will be annually indexed by the percentage change in the Consumer Price Index, with a maximum adjustment of 4 percent annually. During the three years after enactment, the General Accounting Office is mandated to conduct a study of the H-2A wage standard and make a report to Congress. A Congressional commission is also appointed to conduct such a study and make recommendations to Congress. Guarantee of Employment Workers in H-2A approved occupations are guaranteed employment for a minimum of three-quarters of the period of employment for which they were recruited. Motor Vehicle Safety Motor vehicle safety and insurance standards are required for vehicles and drivers used to transport agricultural workers in H-2A occupations similar to those required for domestic farm workers under current law. Compliance with Laws Employers of H-2A workers must assure compliance with all applicable federal, state and local labor laws, except that a violation of this Section shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act. Section 218B. Procedure for Admission and Extension of Stay of H-2A Workers. Petitions to DHS for Admission of Aliens Employers with valid labor certifications from the Secretary of Labor (DOL) may petition the Secretary of DHS for approval for the admission of aliens to perform the work described on the labor certification, or for the extension of stay of H-2A aliens already in the United States who are completing a prior period of authorized H-2A employment. The DHS is required to adjudicate the petition within 7 working days. Admissible Aliens Aliens are eligible for admission as H-2A workers if they are otherwise eligible for admission under the INA and have not violated the terms of the H-2A program in the past 5 years. The debarment provision for unlawful presence in the present INA is waived on a one-time basis for alien seeking admission as an H-2A worker. Extensions of Stay of Aliens H-2A aliens are admitted or extended for the period of employment of an approved labor application, not to exceed 10 months. Employers may petition to extend the stay of H-2A aliens until they have accumulated a maximum of 3 years of continuous stay in the United States as an H-2A alien, after which the alien must depart the United States. An H-2A alien must remain outside the United States for a period equal to at least 1/5th of the alien’s presence in H-2A status before again being admitted as an H-2A alien.
Abandonment of Employment by Aliens Aliens who abandon their employment are required to immediately depart the United States and are subject to removal. Employers must report abandonments and early terminations to the Secretary of the DHS. An employer may replace an alien who abandons employment or is terminated for cause if the required reports have been made. Counterfeit Resistant Identity and Employment Documents H-2A aliens must be provided with a counterfeit resistant identity and employment authorization document. Special Rules for Sheepherders, Goat Herders and Dairy Workers Special rules are provided for aliens employed as sheepherders, goat herders or dairy workers. Such workers may be admitted for an initial period of up to 12 months and they may have the initial period extended for up to 3 years. Upon completion of a cumulative total of 36 months in such work, the alien, or an employer on the alien’s behalf, may apply for adjustment to permanent resident status. The stay of an alien with a pending application for permanent residence may be extended by the Secretary in 1-year increments until a final determination is made.
Section 218C. Worker Protection and Labor Standards Enforcement. Administrative Enforcement of Program Requirements by the Secretary of Labor This section requires the Secretary of Labor to establish a process for the receipt, investigation and disposition of complaints respecting an employer’s failure to meet the conditions of employment specified in Section 218. Complaints may be filed by any aggrieved person or organization not later than 12 months after the alleged failure to comply. If the Secretary of Labor finds that a violation(s) has occurred, the Secretary may require back pay and impose civil money penalties. The Secretary of Labor also notifies the Secretary of the DHS of such violation, and the Secretary of the DHS may debar the employer from the program for a period of 1 year. Additional civil money penalties and debarment for up to 2 years may be imposed on employers who commit willful noncompliance or misrepresentation on an H-2A application. Private Right of Federal Action and Required Mediation H-2A aliens are provided a private right of action to enforce the housing, transportation, wage, employment guarantee, motor vehicle safety provisions and discrimination provisions of Sec. 218, and the written promises contained in the employer’s job offer. Mediation of the complaint is required, if any party requests it, before a lawsuit may proceed. Workers’ compensation benefits are the exclusive remedy for losses covered by workers’ compensation. Discrimination against a worker who files a complaint or cooperates in an investigation or proceeding in connection with a complaint is prohibited. Liability of Associations and Association Members for Program Violations Provisions of current law apply to associations and members of associations employing workers in H-2A certified occupations who commit violations. Section 218D. Definitions.
Title III – Miscellaneous Provisions Section 301. Determination and Use of User Fees. The Secretary is authorized to establish fees applicable to employers applying for certification to employ H-2A aliens to cover the actual direct costs of operating the H-2A program. Section 302. Regulations. Regulations of the Secretary of Labor, the Secretary of the DHS and the Secretary of State shall be issued not later than one year after the date of enactment. Section 303. Reports to Congress. Not later than September 30 of each year, the Secretary shall report to Congress regarding information compiled during the previous year with regard to the usage and operation of the H-2A program, as well as the number of workers who applied and were adjusted to blue card and permanent resident status. Not later than 180 days after the date of enactment of this Act, the Secretary shall report to Congress regarding steps being taken to implement it.
Section 304. Effective Date The effective date of this Act is one year after the date of enactment.
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