Agricultural Job Opportunity, Benefits, and Security Act of 2003 "AgJOBS" |
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Title 1: Adjustment to lawful status
Title 2: Reform of H-2A Worker ProgramTitle 3: Miscellaneous Provisions
Update for current Sponsors in the Senate
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S.1645Agricultural Job Opportunity, Benefits, and Security Act of 2003 (Introduced in Senate)
H.R.3142Agricultural Job Opportunity, Benefits, and Security Act of 2003 (Introduced in House)
Agricultural Job Opportunity, Benefits, and Security Act of 2003SECTION 1. SHORT TITLE; TABLE OF CONTENTS. TITLE I--ADJUSTMENT TO LAWFUL STATUSTITLE II--REFORM OF H-2A WORKER PROGRAMPROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT TITLE III--MISCELLANEOUS PROVISIONS SEC. 301. DETERMINATION AND USE OF USER FEES. S 1645 IS 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, 2003Mr. 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.
(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.
(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.
(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) 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.).
(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.
(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.
(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.
(c) ADJUSTMENT TO PERMANENT RESIDENCE-
(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.
(C) GROUNDS FOR REMOVAL- Any alien granted temporary resident status under subsection (a) 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-
(A) WITHIN THE UNITED STATES- The Secretary shall provide that--
(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.
(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.
(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).
(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.
(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.
(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.
(C) DISPOSITION OF FEES-
(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).
(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).
(C) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not 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.
(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
`(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:
`(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.
`(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.
`(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.
`(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.
`(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.
`(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.
`(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.
`(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.
`(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).
`(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:
`(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.
`(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.
`(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.
`(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.
`(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 place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.
`(I) the actual cost to the worker or alien of the transportation and subsistence involved; or
`(II) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
`(D) EARLY TERMINATION- If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (4)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A).
`(E) TRANSPORTATION BETWEEN LIVING QUARTERS AND WORK SITE- The employer shall provide transportation between the worker's living quarters (i.e., housing provided by the employer pursuant to paragraph (1), including housing provided through a housing allowance) and the employer's work site without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.
`(A) IN GENERAL- An employer applying for workers under section 218(a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State minimum wage.
`(B) LIMITATION- Effective on the date of enactment of the Agricultural Job Opportunity, Benefits, and Security Act of 2003 and continuing for 3 years thereafter, no adverse effect wage rate for a State may be more than the adverse effect wage rate for that State in effect on January 1, 2003, as established by section 655.107 of title 20, Code of Federal Regulations.
`(i) FIRST ADJUSTMENT- Unless Congress acts to set a new wage standard applicable to this section, effective on December 1, 2006, the adverse effect wage rate then in effect shall be adjusted by the 12 month percentage change in the Consumer Price Index for All Urban Consumers between December of the preceding year and December of the second preceding year, except that such adjustment shall not exceed 4 percent.
`(D) DEDUCTIONS- The employer shall make only those deductions from the worker's wages that are authorized by law or are reasonable and customary in the occupation and area of employment. The job offer shall specify all deductions not required by law which the employer will make from the worker's wages.
`(i) The worker's total earnings for the pay period.
`(ii) The worker's hourly rate of pay, piece rate of pay, or both.
`(iii) The hours of employment which have been offered to the worker (broken out by hours offered in accordance with and over and above the three-quarters guarantee described in paragraph (4)).
`(iv) The hours actually worked by the worker.
`(v) An itemization of the deductions made from the worker's wages.
`(vi) If piece rates of pay are used, the units produced daily.
`(G) REPORT ON WAGE PROTECTIONS- Not later than June 1, 2007, the Resources, Community and Economic Development Division, and the Health, Education and Human Services Division, of the General Accounting Office shall jointly prepare and transmit to the Secretary of Labor and to the Committees on the Judiciary of the House of Representatives and the Senate a report which shall address--
`(i) whether the employment of H-2A or unauthorized aliens in the United States agricultural work force has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
`(ii) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
`(iii) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
`(iv) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; and
`(v) recommendations for future wage protection under this section.
`(I) 4 representatives of agricultural employers and 1 representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.
`(II) 4 representatives of agricultural workers and 1 representative of the Department of Labor, each appointed by the Secretary of Labor.
`(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;
`(II) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;
`(III) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;
`(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; and
`(V) recommendations for future wage protection under this section.
`(4) GUARANTEE OF EMPLOYMENT-
`(A) OFFER TO WORKER- The employer shall guarantee to offer the worker employment for the hourly equivalent of at least three-fourths of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker's Sabbath and Federal holidays. If the employer affords the United States or H-2A worker less employment than that required under this paragraph, the employer shall pay such worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours.
`(B) FAILURE TO WORK- Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker's Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.
`(D) CONTRACT IMPOSSIBILITY- If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including but not limited to a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. In such cases, the employer will make efforts to transfer the United States worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in paragraph (2)(D).
`(II) The term `uses or causes to be used' does not apply to--
`(aa) transportation provided, or transportation arrangements made, by an H-2A worker himself or herself, unless the employer specifically requested or arranged such transportation; or
`(bb) carpooling arrangements made by H-2A workers themselves, using one of the workers' own vehicles, unless specifically requested by the employer directly or through a farm labor contractor.
`(III) The mere providing of a job offer by an employer to an H-2A worker that causes the worker to travel to or from the place of employment, or the payment or reimbursement of the transportation costs of an H-2A worker by an H-2A employer, shall not constitute an arrangement of, or participation in, such transportation.
`(iii) AGRICULTURAL MACHINERY AND EQUIPMENT EXCLUDED- This subsection does not apply to the transportation of an H-2A worker on a tractor, combine, harvester, picker, or other similar machinery or equipment while such worker is actually engaged in the planting, cultivating, or harvesting of agricultural commodities or the care of livestock or poultry or engaged in transportation incidental thereto.
`(iv) COMMON CARRIERS EXCLUDED- This subsection does not apply to common carrier motor vehicle transportation in which the provider holds itself out to the general public as engaging in the transportation of passengers for hire and holds a valid certification of authorization for such purposes from an appropriate Federal, State, or local agency.
`(I) ensure that each such vehicle conforms to the standards prescribed by the Secretary of Labor under section 401(b) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1841(b)) and other applicable Federal and State safety standards;
`(II) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; and
`(III) have an insurance policy or a liability bond that is in effect which insures the employer against liability for damage to persons or property arising from the ownership, operation, or causing to be operated, of any vehicle used to transport any H-2A worker.
`(iii) EFFECT OF WORKERS' COMPENSATION COVERAGE- If the employer of any H-2A worker provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by State law, the following adjustments in the requirements of subparagraph (B)(i)(III) relating to having an insurance policy or liability bond apply:
`(I) No insurance policy or liability bond shall be required of the employer, if such workers are transported only under circumstances for which there is coverage under such State law.
`(II) An insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such workers is not provided under such State law.
`(c) COMPLIANCE WITH LABOR LAWS- An employer shall assure that, except as otherwise provided in this section, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer, except that a violation of this assurance shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
`(d) COPY OF JOB OFFER- The employer shall provide to the worker, not later than the day the work commences, a copy of the employer's application and job offer described in section 218(a), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.
`(e) RANGE PRODUCTION OF LIVESTOCK- Nothing in this section or sections 218 or 218B shall preclude the Secretary of Labor and the Secretary from continuing to apply special procedures and requirements to the admission and employment of aliens in occupations involving the range production of livestock.
`PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS
`SEC. 218B. (a) PETITIONING FOR ADMISSION- An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H-2A worker may file a petition with the Secretary. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary of Labor under section 218(e)(2)(B) covering the petitioner.
`(b) EXPEDITED ADJUDICATION BY THE SECRETARY- The Secretary shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.
`(c) CRITERIA FOR ADMISSIBILITY-
`(1) IN GENERAL- An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218, and section 218A, and the alien is not ineligible under paragraph (2).
`(2) DISQUALIFICATION- An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--
`(A) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or
`(B) otherwise violated a term or condition of admission into the |