S AMDT 1038

S 1038 IS

To improve agricultural job opportunities, benefits, and security for aliens in the United States, and for other purposes.

May 14, 2009

Mrs. FEINSTEIN (for herself, Mr. LEAHY, Mr. SCHUMER, Mr. KENNEDY, Mr. KOHL, Mrs. BOXER, Mr. DODD, Mr. LIEBERMAN, Mr. BINGAMAN, Mr. FEINGOLD, Mrs. MURRAY, Mr. KERRY, Mr. NELSON of Florida, Mr. KAUFMAN, Mr. CASEY, Ms. CANTWELL, and Mr. LEVIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To improve agricultural job opportunities, benefits, and security for aliens in the United States, 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 Opportunities, Benefits, and Security Act of 2009’ or the ‘AgJOBS Act of 2009’.

(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--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL WORKERS

Subtitle A--Blue Card Status

Sec. 101. Requirements for blue card status.

Sec. 102. Treatment of aliens granted blue card status.

Sec. 103. Adjustment to permanent residence.

Sec. 104. Applications.

Sec. 105. Waiver of numerical limitations and certain grounds for inadmissibility.

Sec. 106. Administrative and judicial review.

Sec. 107. Use of information.

Sec. 108. Regulations, effective date, authorization of appropriations.

Subtitle B--Correction of Social Security Records

Sec. 111. Correction of Social Security records.

TITLE II--REFORM OF H-2A WORKER PROGRAM

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

TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Determination and use of user fees.

Sec. 302. Regulations.

Sec. 303. Reports to Congress.

Sec. 304. 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 or the performance of agricultural labor or services described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

(2) BLUE CARD STATUS- The term ‘blue card status’ means the status of an alien who has been lawfully admitted into the United States for temporary residence under section 101(a).

(3) DEPARTMENT- The term ‘Department’ means the Department of Homeland Security.

(4) EMPLOYER- The term ‘employer’ means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.

(5) SECRETARY- Except as otherwise provided, the term ‘Secretary’ means the Secretary of Homeland Security.

(6) WORK DAY- The term ‘work day’ means any day in which the individual is employed 5.75 or more hours in agricultural employment.

TITLE I--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL WORKERS

Subtitle A--Blue Card Status

SEC. 101. REQUIREMENTS FOR BLUE CARD STATUS.

(a) Requirement To Grant Blue Card Status- Notwithstanding any other provision of law, the Secretary shall, pursuant to the requirements of this section, grant blue card status to an alien who qualifies under this section if the Secretary determines that the alien--

(1) has 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, 2008;

(2) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act;

(3) 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 section 105(b); and

(4) has not been convicted of any felony or a misdemeanor, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.

(b) Authorized Travel- An alien who is granted blue card status is authorized to travel outside the United States (including commuting to the United States from a residence in a foreign country) in the same manner as an alien lawfully admitted for permanent residence.

(c) Authorized Employment- The Secretary shall provide an alien who is granted blue card status an employment authorized endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.

(d) Termination of Blue Card Status-

(1) DEPORTABLE ALIENS- The Secretary shall terminate blue card status granted to an alien if the Secretary determines that the alien is deportable.

(2) OTHER GROUNDS FOR TERMINATION- The Secretary shall terminate blue card status granted to an alien if--

(A) the Secretary finds, by a preponderance of the evidence, that the adjustment to blue card 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

(B) 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 section 105(b);

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

(iii) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; or

(iv) fails to perform the agricultural employment required under paragraph (1)(A) of section 103(a) unless the alien was unable to work in agricultural employment due to the extraordinary circumstances described in paragraph (3) of such section.

(e) Record of Employment-

(1) IN GENERAL- Each employer of an alien granted blue card status shall annually--

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

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

(2) CIVIL PENALTIES-

(A) IN GENERAL- If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted blue card status has failed to provide the record of employment required under paragraph (1) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil penalty in an amount not to exceed $1,000 per violation.

(B) LIMITATION- The penalty applicable under subparagraph (A) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.

(3) SUNSET- The obligation under paragraph (1) shall terminate on the date that is 6 years after the date of the enactment of this Act.

(f) Required Features of Identity Card- The Secretary shall provide each alien granted blue card status, and the spouse and any child of each such alien residing in the United States, with a card that contains--

(1) an encrypted, machine-readable, electronic identification strip that is unique to the alien to whom the card is issued;

(2) biometric identifiers, including fingerprints and a digital photograph; and

(3) physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes.

(g) Fine- An alien granted blue card status shall pay a fine of $100 to the Secretary.

(h) Maximum Number- The Secretary may not issue more than 1,350,000 blue cards during the 5-year period beginning on the date of the enactment of this Act.

SEC. 102. TREATMENT OF ALIENS GRANTED BLUE CARD STATUS.