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TITLE
I--ADJUSTMENT TO LAWFUL STATUS
| Sec.
101. AGRICULTURAL WORKERS. |
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(a) |
TEMPORARY
RESIDENT STATUS- |
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(b) |
RIGHTS
OF ALIENS GRANTED TEMPORARY RESIDENT STATUS- |
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(c)
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ADJUSTMENT
TO PERMANENT RESIDENCE- |
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(d) |
APPLICATIONS |
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(e) |
WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS
FOR INADMISSIBILITY- |
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(f)
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TEMPORARY
STAY OF REMOVAL AND WORK AUTHORIZATION FOR CERTAIN
APPLICANTS- |
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(g) |
ADMINISTRATIVE
AND JUDICIAL REVIEW- |
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(h) |
DISSEMINATION
OF INFORMATION ON ADJUSTMENT PROGRAM |
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(i)
|
REGULATIONS |
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(j) |
EFFECTIVE
DATE |
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(k) |
FUNDING |
| |
|
|
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.
(C) ADMISSIBLE AS IMMIGRANT- The alien must establish
that the alien is otherwise admissible 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.
(c) ADJUSTMENT TO PERMANENT RESIDENCE-
(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
(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.
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