US Laws, Codes, Statutes & Cases

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 8USC1188]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
Part II--Admission Qualifications for Aliens; Travel Control of Citizens 
                               and Aliens
 
Sec. 1188. Admission of temporary H-2A workers


(a) Conditions for approval of H-2A petitions

    (1) A petition to import an alien as an H-2A worker (as defined in 
subsection (i)(2) of this section) may not be approved by the Attorney 
General unless the petitioner has applied to the Secretary of Labor for 
a certification that--
        (A) there are not sufficient workers who are able, willing, and 
    qualified, and who will be available at the time and place needed, 
    to perform the labor or services involved in the petition, and
        (B) the employment of the alien in such labor or services will 
    not adversely affect the wages and working conditions of workers in 
    the United States similarly employed.

    (2) The Secretary of Labor may require by regulation, as a condition 
of issuing the certification, the payment of a fee to recover the 
reasonable costs of processing applications for certification.

(b) Conditions for denial of labor certification

    The Secretary of Labor may not issue a certification under 
subsection (a) of this section with respect to an employer if the 
conditions described in that subsection are not met or if any of the 
following conditions are met:
        (1) There is a strike or lockout in the course of a labor 
    dispute which, under the regulations, precludes such certification.
        (2)(A) The employer during the previous two-year period employed 
    H-2A workers and the Secretary of Labor has determined, after notice 
    and opportunity for a hearing, that the employer at any time during 
    that period substantially violated a material term or condition of 
    the labor certification with respect to the employment of domestic 
    or nonimmigrant workers.
        (B) No employer may be denied certification under subparagraph 
    (A) for more than three years for any violation described in such 
    subparagraph.
        (3) The employer has not provided the Secretary with 
    satisfactory assurances that if the employment for which the 
    certification is sought is not covered by 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 workers' compensation 
    law for comparable employment.
        (4) The Secretary determines that the employer has not made 
    positive recruitment efforts within a multi-state region of 
    traditional or expected labor supply where the Secretary finds that 
    there are a significant number of qualified United States workers 
    who, if recruited, would be willing to make themselves available for 
    work at the time and place needed. Positive recruitment under this 
    paragraph is in addition to, and shall be conducted within the same 
    time period as, the circulation through the interstate employment 
    service system of the employer's job offer. The obligation to engage 
    in positive recruitment under this paragraph shall terminate on the 
    date the H-2A workers depart for the employer's place of employment.

(c) Special rules for consideration of applications

    The following rules shall apply in the case of the filing and 
consideration of an application for a labor certification under this 
section:

                (1) Deadline for filing applications

        The Secretary of Labor may not require that the application be 
    filed more than 45 days before the first date the employer requires 
    the labor or services of the H-2A worker.

            (2) Notice within seven days of deficiencies

        (A) The employer shall be notified in writing within seven days 
    of the date of filing if the application does not meet the standards 
    (other than that described in subsection (a)(1)(A) of this section) 
    for approval.
        (B) If the application does not meet such standards, the notice 
    shall include the reasons therefor and the Secretary shall provide 
    an opportunity for the prompt resubmission of a modified 
    application.

                    (3) Issuance of certification

        (A) The Secretary of Labor shall make, not later than 30 days 
    before the date such labor or services are first required to be 
    performed, the certification described in subsection (a)(1) of this 
    section if--
            (i) the employer has complied with the criteria for 
        certification (including criteria for the recruitment of 
        eligible individuals as prescribed by the Secretary), and
            (ii) the employer does not actually have, or has not been 
        provided with referrals of, qualified eligible individuals who 
        have indicated their availability to perform such labor or 
        services on the terms and conditions of a job offer which meets 
        the requirements of the Secretary.

    In considering the question of whether a specific qualification is 
    appropriate in a job offer, the Secretary shall apply the normal and 
    accepted qualifications required by non-H-2A-employers in the same 
    or comparable occupations and crops.
        (B)(i) For a period of 3 years subsequent to the effective date 
    of this section, labor certifications shall remain effective only 
    if, from the time the foreign worker departs for the employer's 
    place of employment, the employer will provide employment to any 
    qualified United States worker who applies to the employer until 50 
    percent of the period of the work contract, under which the foreign 
    worker who is in the job was hired, has elapsed. In addition, the 
    employer will offer to provide benefits, wages and working 
    conditions required pursuant to this section and regulations.
        (ii) The requirement of clause (i) shall not apply to any 
    employer who--
            (I) did not, during any calendar quarter during the 
        preceding calendar year, use more than 500 man-days of 
        agricultural labor, as defined in section 203(u) of title 29,
            (II) is not a member of an association which has petitioned 
        for certification under this section for its members, and
            (III) has not otherwise associated with other employers who 
        are petitioning for temporary foreign workers under this 
        section.

        (iii) Six months before the end of the 3-year period described 
    in clause (i), the Secretary of Labor shall consider the findings of 
    the report mandated by section 403(a)(4)(D) of the Immigration 
    Reform and Control Act of 1986 as well as other relevant materials, 
    including evidence of benefits to United States workers and costs to 
    employers, addressing the advisability of continuing a policy which 
    requires an employer, as a condition for certification under this 
    section, to continue to accept qualified, eligible United States 
    workers for employment after the date the H-2A workers depart for 
    work with the employer. The Secretary's review of such findings and 
    materials shall lead to the issuance of findings in furtherance of 
    the Congressional policy that aliens not be admitted under this 
    section unless there are not sufficient workers in the United States 
    who are able, willing, and qualified to perform the labor or service 
    needed and that the employment of the aliens in such labor or 
    services will not adversely affect the wages and working conditions 
    of workers in the United States similarly employed. In the absence 
    of the enactment of Federal legislation prior to three months before 
    the end of the 3-year period described in clause (i) which addresses 
    the subject matter of this subparagraph, the Secretary shall 
    immediately publish the findings required by this clause, and shall 
    promulgate, on an interim or final basis, regulations based on his 
    findings which shall be effective no later than three years from the 
    effective date of this section.
        (iv) In complying with clause (i) of this subparagraph, an 
    association shall be allowed to refer or transfer workers among its 
    members: Provided, That for purposes of this section an association 
    acting as an agent for its members shall not be considered a joint 
    employer merely because of such referral or transfer.
        (v) United States workers referred or transferred pursuant to 
    clause (iv) of this subparagraph shall not be treated disparately.
        (vi) An employer shall not be liable for payments under section 
    655.202(b)(6) of title 20, Code of Federal Regulations (or any 
    successor regulation) with respect to an H-2A worker who is 
    displaced due to compliance with the requirement of this 
    subparagraph, if the Secretary of Labor certifies that the H-2A 
    worker was displaced because of the employer's compliance with 
    clause (i) of this subparagraph.
        (vii)(I) No person or entity shall willfully and knowingly 
    withhold domestic workers prior to the arrival of H-2A workers in 
    order to force the hiring of domestic workers under clause (i).
        (II) Upon the receipt of a complaint by an employer that a 
    violation of subclause (I) has occurred the Secretary shall 
    immediately investigate. He shall within 36 hours of the receipt of 
    the complaint issue findings concerning the alleged violation. Where 
    the Secretary finds that a violation has occurred, he shall 
    immediately suspend the application of clause (i) of this 
    subparagraph with respect to that certification for that date of 
    need.

                             (4) Housing

        Employers shall furnish housing in accordance with regulations. 
    The employer shall be permitted at the employer's option to provide 
    housing meeting applicable Federal standards for temporary labor 
    camps or to secure housing which meets the local standards for 
    rental and/or public accommodations or other substantially similar 
    class of habitation: Provided, That in the absence of applicable 
    local standards, State standards for rental and/or public 
    accommodations or other substantially similar class of habitation 
    shall be met: Provided further, That in the absence of applicable 
    local or State standards, Federal temporary labor camp standards 
    shall apply: Provided further, That the Secretary of Labor shall 
    issue regulations which address the specific requirements of housing 
    for employees principally engaged in the range production of 
    livestock: Provided further, That when it is the prevailing practice 
    in the area and occupation of intended employment to provide family 
    housing, family housing shall be provided to workers with families 
    who request it: And provided further, That nothing in this paragraph 
    shall require an employer to provide or secure housing for workers 
    who are not entitled to it under the temporary labor certification 
    regulations in effect on June 1, 1986. The determination as to 
    whether the housing furnished by an employer for an H-2A worker 
    meets the requirements imposed by this paragraph must be made prior 
    to the date specified in paragraph (3)(A) by which the Secretary of 
    Labor is required to make a certification described in subsection 
    (a)(1) of this section with respect to a petition for the 
    importation of such worker.

(d) Roles of agricultural associations

         (1) Permitting filing by agricultural associations

        A petition to import an alien as a temporary agricultural 
    worker, and an application for a labor certification with respect to 
    such a worker, may be filed by an association of agricultural 
    producers which use agricultural services.

          (2) Treatment of associations acting as employers

        If an association is a joint or sole employer of temporary 
    agricultural workers, the certifications granted under this section 
    to the association may be used for the certified job opportunities 
    of any of its producer members and such workers may be transferred 
    among its producer members to perform agricultural services of a 
    temporary or seasonal nature for which the certifications were 
    granted.

                     (3) Treatment of violations

        (A) Member's violation does not necessarily disqualify 
                association or other members

            If an individual producer member of a joint employer 
        association is determined to have committed an act that under 
        subsection (b)(2) of this section results in the denial of 
        certification with respect to the member, the denial shall apply 
        only to that member of the association unless the Secretary 
        determines that the association or other member participated in, 
        had knowledge of, or reason to know of, the violation.

        (B) Association's violation does not necessarily disqualify 
                members

            (i) If an association representing agricultural producers as 
        a joint employer is determined to have committed an act that 
        under subsection (b)(2) of this section results in the denial of 
        certification with respect to the association, the denial shall 
        apply only to the association and does not apply to any 
        individual producer member of the association unless the 
        Secretary determines that the member participated in, had 
        knowledge of, or reason to know of, the violation.
            (ii) If an association of agricultural producers certified 
        as a sole employer is determined to have committed an act that 
        under subsection (b)(2) of this section results in the denial of 
        certification with respect to the association, no individual 
        producer member of such association may be the beneficiary of 
        the services of temporary alien agricultural workers admitted 
        under this section in the commodity and occupation in which such 
        aliens were employed by the association which was denied 
        certification during the period such denial is in force, unless 
        such producer member employs such aliens in the commodity and 
        occupation in question directly or through an association which 
        is a joint employer of such workers with the producer member.

(e) Expedited administrative appeals of certain determinations

    (1) Regulations shall provide for an expedited procedure for the 
review of a denial of certification under subsection (a)(1) of this 
section or a revocation of such a certification or, at the applicant's 
request, for a de novo administrative hearing respecting the denial or 
revocation.
    (2) The Secretary of Labor shall expeditiously, but in no case later 
than 72 hours after the time a new determination is requested, make a 
new determination on the request for certification in the case of an H-
2A worker if able, willing, and qualified eligible individuals are not 
actually available at the time such labor or services are required and a 
certification was denied in whole or in part because of the availability 
of qualified workers. If the employer asserts that any eligible 
individual who has been referred is not able, willing, or qualified, the 
burden of proof is on the employer to establish that the individual 
referred is not able, willing, or qualified because of employment-
related reasons.

(f) Violators disqualified for 5 years

    An alien may not be admitted to the United States as a temporary 
agricultural worker if the alien was admitted to the United States as 
such a worker within the previous five-year period and the alien during 
that period violated a term or condition of such previous admission.

(g) Authorization of appropriations

    (1) There are authorized to be appropriated for each fiscal year, 
beginning with fiscal year 1987, $10,000,000 for the purposes--
        (A) of recruiting domestic workers for temporary labor and 
    services which might otherwise be performed by nonimmigrants 
    described in section 1101(a)(15)(H)(ii)(a) of this title, and
        (B) of monitoring terms and conditions under which such 
    nonimmigrants (and domestic workers employed by the same employers) 
    are employed in the United States.

    (2) The Secretary of Labor is authorized to take such actions, 
including imposing appropriate penalties and seeking appropriate 
injunctive relief and specific performance of contractual obligations, 
as may be necessary to assure employer compliance with terms and 
conditions of employment under this section.
    (3) There are authorized to be appropriated for each fiscal year, 
beginning with fiscal year 1987, such sums as may be necessary for the 
purpose of enabling the Secretary of Labor to make determinations and 
certifications under this section and under section 1182(a)(5)(A)(i) of 
this title.
    (4) There are authorized to be appropriated for each fiscal year, 
beginning with fiscal year 1987, such sums as may be necessary for the 
purposes of enabling the Secretary of Agriculture to carry out the 
Secretary's duties and responsibilities under this section.

(h) Miscellaneous provisions

    (1) The Attorney General shall provide for such endorsement of entry 
and exit documents of nonimmigrants described in section 
1101(a)(15)(H)(ii) of this title as may be necessary to carry out this 
section and to provide notice for purposes of section 1324a of this 
title.
    (2) The provisions of subsections (a) and (c) of section 1184 of 
this title and the provisions of this section preempt any State or local 
law regulating admissibility of nonimmigrant workers.

(i) Definitions

    For purposes of this section:
        (1) The term ``eligible individual'' means, with respect to 
    employment, an individual who is not an unauthorized alien (as 
    defined in section 1324a(h)(3) of this title) with respect to that 
    employment.
        (2) The term ``H-2A worker'' means a nonimmigrant described in 
    section 1101(a)(15)(H)(ii)(a) of this title.

(June 27, 1952, ch. 477, title II, ch. 2, Sec. 218, formerly Sec. 216, 
as added Pub. L. 99-603, title III, Sec. 301(c), Nov. 6, 1986, 100 Stat. 
3411; renumbered Sec. 218 and amended Pub. L. 100-525, Sec. 2(l)(2), 
(3), Oct. 24, 1988, 102 Stat. 2612; Pub. L. 102-232, title III, 
Secs. 307(l)(4), 309(b)(8), Dec. 12, 1991, 105 Stat. 1756, 1759; Pub. L. 
103-416, title II, Sec. 219(z)(8), Oct. 25, 1994, 108 Stat. 4318; Pub. 
L. 106-78, title VII, Sec. 748, Oct. 22, 1999, 113 Stat. 1167; Pub. L. 
106-554, Sec. 1(a)(1) [title I, Sec. 105], Dec. 21, 2000, 114 Stat. 
2763, 2763A-11.)

                       References in Text

    Section 403(a)(4)(D) of the Immigration Reform and Control Act of 
1986, referred to in subsec. (c)(3)(B)(iii), is section 403(a)(4)(D) of 
Pub. L. 99-603, which is set out in a note under this section.

                          Codification

    Section was classified to section 1186 of this title prior to its 
renumbering by Pub. L. 100-525.


                               Amendments

    2000--Subsec. (c)(4). Pub. L. 106-554 inserted at end ``The 
determination as to whether the housing furnished by an employer for an 
H-2A worker meets the requirements imposed by this paragraph must be 
made prior to the date specified in paragraph (3)(A) by which the 
Secretary of Labor is required to make a certification described in 
subsection (a)(1) of this section with respect to a petition for the 
importation of such worker.''
    1999--Subsec. (c)(1). Pub. L. 106-78, Sec. 748(1), substituted ``45 
days'' for ``60 days''.
    Subsec. (c)(3)(A). Pub. L. 106-78, Sec. 748(2), substituted ``30 
days'' for ``20 days'' in introductory provisions.
    1994--Subsec. (i)(1). Pub. L. 103-416 made technical correction to 
directory language of Pub. L. 102-232, Sec. 309(b)(8). See 1991 
Amendment note below.
    1991--Subsec. (g)(3). Pub. L. 102-232, Sec. 307(l)(4), substituted 
``section 1182(a)(5)(A)(i)'' for ``section 1182(a)(14)''.
    Subsec. (i)(1). Pub. L. 102-232, Sec. 309(b)(8), as amended by Pub. 
L. 103-416, substituted ``1324a(h)(3)'' for ``1324a(h)''.
    1988--Pub. L. 100-525, Sec. 2(l)(2)(A), made technical amendment to 
directory language of Pub. L. 99-603, Sec. 301(c), which enacted this 
section.
    Subsec. (c)(4). Pub. L. 100-525, Sec. 2(l)(3), substituted 
``accommodations'' for ``accomodations'' wherever appearing.


                    Effective Date of 1994 Amendment

    Section 219(z) of Pub. L. 103-416 provided that the amendment made 
by subsec. (z)(8) of that section is effective as if included in the 
Miscellaneous and Technical Immigration and Naturalization Amendments of 
1991, Pub. L. 102-232.


                    Effective Date of 1991 Amendment

    Section 307(l) of Pub. L. 102-232 provided that the amendment made 
by that section is effective as if included in section 603(a) of the 
Immigration Act of 1990, Pub. L. 101-649.


                    Effective Date of 1988 Amendment

    Amendment by Pub. L. 100-525 effective as if included in enactment 
of Immigration Reform and Control Act of 1986, Pub. L. 99-603, see 
section 2(s) of Pub. L. 100-525, set out as a note under section 1101 of 
this title.


                       Effective Date; Regulations

    Section 301(d), (e) of Pub. L. 99-603, as amended by Pub. L. 100-
525, Sec. 2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided that:
    ``(d) Effective Date.--The amendments made by this section [enacting 
this section and amending sections 1101 and 1184] apply to petitions and 
applications filed under sections 214(c) and 218 of the Immigration and 
Nationality Act [8 U.S.C. 1184(c), 1188] on or after the first day of 
the seventh month beginning after the date of the enactment of this Act 
[Nov. 6, 1986] (hereinafter in this section referred to as the 
`effective date').
    ``(e) Regulations.--The Attorney General, in consultation with the 
Secretary of Labor and the Secretary of Agriculture, shall approve all 
regulations to be issued implementing sections 101(a)(15)(H)(ii)(a) and 
218 of the Immigration and Nationality Act [8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1188]. Notwithstanding any other provision of 
law, final regulations to implement such sections shall first be issued, 
on an interim or other basis, not later than the effective date.''

  Abolition of Immigration and Naturalization Service and Transfer of 
                                Functions

    For abolition of Immigration and Naturalization Service, transfer of 
functions, and treatment of related references, see note set out under 
section 1551 of this title.


          Sense of Congress Respecting Consultation With Mexico

    Section 301(f) of Pub. L. 99-603, as amended by Pub. L. 100-525, 
Sec. 2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided that: ``It is the 
sense of Congress that the President should establish an advisory 
commission which shall consult with the Governments of Mexico and of 
other appropriate countries and advise the Attorney General regarding 
the operation of the alien temporary worker program established under 
section 218 of the Immigration and Nationality Act [8 U.S.C. 1188].''


                         Reports on H-2A Program

    Section 403 of Pub. L. 99-603 provided that:
    ``(a) Presidential Reports.--The President shall transmit to the 
Committees on the Judiciary of the Senate and of the House of 
Representatives reports on the implementation of the temporary 
agricultural worker (H-2A) program, which shall include--
        ``(1) the number of foreign workers permitted to be employed 
    under the program in each year;
        ``(2) the compliance of employers and foreign workers with the 
    terms and conditions of the program;
        ``(3) the impact of the program on the labor needs of the United 
    States agricultural employers and on the wages and working 
    conditions of United States agricultural workers; and
        ``(4) recommendations for modifications of the program, 
    including--
            ``(A) improving the timeliness of decisions regarding 
        admission of temporary foreign workers under the program,
            ``(B) removing any economic disincentives to hiring United 
        States citizens or permanent resident aliens for jobs for which 
        temporary foreign workers have been requested,
            ``(C) improving cooperation among government agencies, 
        employers, employer associations, workers, unions, and other 
        worker associations to end the dependence of any industry on a 
        constant supply of temporary foreign workers, and
            ``(D) the relative benefits to domestic workers and burdens 
        upon employers of a policy which requires employers, as a 
        condition for certification under the program, to continue to 
        accept qualified United States workers for employment after the 
        date the H-2A workers depart for work with the employer.
The recommendations under subparagraph (D) shall be made in furtherance 
of the Congressional policy that aliens not be admitted under the H-2A 
program unless there are not sufficient workers in the United States who 
are able, willing, and qualified to perform the labor or services needed 
and that the employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.
    ``(b) Deadlines.--A report on the H-2A temporary worker program 
under subsection (a) shall be submitted not later than two years after 
the date of the enactment of this Act [Nov. 6, 1986], and every two 
years thereafter.''
    [Functions of President under section 403 of Pub. L. 99-603 
delegated to Secretary of Labor by section 2(b) of Ex. Ord. No. 12789, 
Feb. 10, 1992, 57 F.R. 5225, set out as a note under section 1364 of 
this title.]

                  Section Referred to in Other Sections

    This section is referred to in section 1184 of this title.