H.R. 5038 — what changed

“(D) who is granted certified agricultural worker status, certified agricultural dependent status, or lawful permanent resident status under title I of the Farm Work Modernization Act of 2019,”

added “(iv) The Commissioner of Social Security shall, to the extent practicable, coordinate with the Secretary of the Department of Homeland Security to implement an automated system for the Commissioner to assign social security account numbers to aliens granted certified agricultural worker status or certified agricultural dependent status under title I of the Farm Work Modernization Act of 2019. An alien who is granted such status, and who was not previously assigned a social security account number, shall request assignment of a social security account number and a social security card from the Commissioner through such system. The Secretary shall collect and provide to the Commissioner such information as the Commissioner deems necessary for the Commissioner to assign a social security account number, which information may be used by the Commissioner for any purpose for which the Commissioner is otherwise authorized under Federal law. The Commissioner may maintain, use, and disclose such information only as permitted by the Privacy Act and other Federal law.”

Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is amended to read as follows:

“218. Admission of temporary H–2A workers

“(a) Labor certification conditions—The Secretary of Homeland Security may not approve a petition to admit an H–2A worker unless the Secretary of Labor has certified that—

“(1) there are not sufficient United States workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services described in the petition; and

“(2) the employment of the H–2A worker in such labor or services will not adversely affect the wages and working conditions of workers in the United States who are similarly employed.

changed “(b) H–2a H–2A petition requirements—An employer filing a petition for an H–2A worker to perform agricultural labor or services shall attest to and demonstrate compliance, as and when appropriate, with all applicable requirements under this section, including the following:

“(1) Need for labor or services—The employer has described the need for agricultural labor or services in a job order that includes a description of the nature and location of the work to be performed, the anticipated period or periods (expected start and end dates) for which the workers will be needed, and the number of job opportunities in which the employer seeks to employ the workers.

“(2) Nondisplacement of United States workers—The employer has not and will not displace United States workers employed by the employer during the period of employment of the H–2A worker and during the 60-day period immediately preceding such period of employment in the job for which the employer seeks approval to employ the H–2A worker.

“(3) Strike or lockout—Each place of employment described in the petition is not, at the time of filing the petition and until the petition is approved, subject to a strike or lockout in the course of a labor dispute.

“(4) Recruitment of United States workers—The employer shall engage in the recruitment of United States workers as described in subsection (c) and shall hire such workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services described in the petition. The employer may reject a United States worker only for lawful, job-related reasons.

changed “(5) Wages, benefits, and working conditions—The employer shall offer and provide, at a minimum, the wages, benefits, and working conditions required by this section to the H–2A worker and all United States workers who are similarly employed. The employer—

changed “(A) shall offer such United States similarly employed workers not less than the same benefits, wages, and working conditions that the employer is offering or will provide to the H–2A worker; and

changed “(B) may not impose on such United States similarly employed workers any restrictions or obligations that will not be imposed on the H–2A worker.

“(6) Workers’ compensation—If the job opportunity is not covered by or is exempt from the State workers’ compensation law, the employer shall 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.

“(7) Compliance with labor and employment laws—The employer shall comply with all applicable Federal, State and local employment-related laws and regulations.

added “(8) Compliance with foreign labor recruitment laws—The employer shall comply with subtitle C of title II of the Farm Workforce Modernization Act of 2019.

“(c) Recruiting requirements

“(1) In general—The employer may satisfy the recruitment requirement described in subsection (b)(4) by satisfying all of the following:

“(A) Job order—As provided in subsection (h)(1), the employer shall complete a job order for posting on the electronic job registry maintained by the Secretary of Labor and for distribution by the appropriate State workforce agency. Such posting shall remain on the job registry as an active job order through the period described in paragraph (2)(B).

“(B) Former workers—At least 45 days before each start date identified in the petition, the employer shall—

“(i) make reasonable efforts to contact any United States worker the employer employed in the previous year in the same occupation and area of intended employment for which an H–2A worker is sought (excluding workers who were terminated for cause or abandoned the worksite); and

“(ii) post such job opportunity in a conspicuous location or locations at the place of employment.

“(C) Positive recruitment—During the period of recruitment, the employer shall complete any other positive recruitment steps within a multi-State region of traditional or expected labor supply where the Secretary of Labor 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.

“(2) Period of recruitment

added “(A) In general—For purposes of this subsection, the period of recruitment begins on the date on which the job order is posted on the online job registry and ends on the date that H–2A workers depart for the employer’s place of employment. For a petition involving more than one start date under subsection (h)(1)(C), the end of the period of recruitment shall be determined by the date of departure of the H–2A workers for the final start date identified in the petition.

removed “(A) In general—For purposes of this subsection, the period of recruitment begins on the date on which the job order is posted on the online job registry and ends on the date that H–2A workers depart for the employer’s place of employment. For a petition involving more than 1 start date under subsection (h)(1)(C), the end of the period of recruitment shall be determined by the date of departure of the H–2A workers for the final start date identified in the petition.

“(B) Requirement to hire us workers

“(i) In general—Notwithstanding the limitations of subparagraph (A), the employer will provide employment to any qualified United States worker who applies to the employer for any job opportunity included in the petition until the later of—

“(I) the date that is 30 days after the date on which work begins; or

“(II) the date on which—

“(aa) 33 percent of the work contract for the job opportunity has elapsed; or

“(bb) if the employer is a labor contractor, 50 percent of the work contract for the job opportunity has elapsed.

removed “(ii) Staggered entry—For a petition involving more than 1 start date under subsection (h)(1)(C), each start date designated in the petition shall establish a separate job opportunity. An employer may not reject a United States worker because the worker is unable or unwilling to fill more than 1 job opportunity included in the petition.

changed “(iii) Exception—Notwithstanding clause (i), “(ii) Staggered entry—For a petition involving more than one start date under subsection (h)(1)(C), each start date designated in the petition shall establish a separate job opportunity. An employer may offer not reject a job opportunity to an H-2A worker instead of an alien granted certified agricultural United States worker status under title I of the Farm Workforce Modernization Act of 2019 if because the H-2A worker was employed by the employer is unable or unwilling to fill more than one job opportunity included in each of 3 years during the most recent 4-year period.petition.

added “(iii) Exception—Notwithstanding clause (i), the employer may offer a job opportunity to an H–2A worker instead of an alien granted certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019 if the H–2A worker was employed by the employer in each of 3 years during the most recent 4-year period.

“(3) Recruitment report

“(A) In general—The employer shall maintain a recruitment report through the applicable period described in paragraph (2)(B) and submit regular updates through the electronic platform on the results of recruitment. The employer shall retain the recruitment report, and all associated recruitment documentation, for a period of 3 years from the date of certification.

“(B) Burden of proof—If the employer asserts that any eligible individual who has applied or been referred is not able, willing or qualified, the employer bears the burden of proof to establish that the individual is not able, willing or qualified because of a lawful, employment-related reason.

“(d) Wage requirements

“(1) In general—Each employer under this section will offer the worker, during the period of authorized employment, wages that are at least the greatest of—

“(A) the agreed-upon collective bargaining wage;

“(B) the adverse effect wage rate (or any successor wage established under paragraph (7));

“(C) the prevailing wage (hourly wage or piece rate); or

“(D) the Federal or State minimum wage.

“(2) Adverse effect wage rate determinations

“(A) In general—Except as provided under subparagraph (B), the applicable adverse effect wage rate for each State and occupational classification for a calendar year shall be as follows:

“(i) The annual average hourly wage for the occupational classification in the State or region as reported by the Secretary of Agriculture based on a wage survey conducted by such Secretary.

“(ii) If a wage described in clause (i) is not reported, the national annual average hourly wage for the occupational classification as reported by the Secretary of Agriculture based on a wage survey conducted by such Secretary.

“(iii) If a wage described in clause (i) or (ii) is not reported, the Statewide annual average hourly wage for the standard occupational classification as reported by the Secretary of Labor based on a wage survey conducted by such Secretary.

“(iv) If a wage described in clause (i), (ii), or (iii) is not reported, the national average hourly wage for the occupational classification as reported by the Secretary of Labor based on a wage survey conducted by such Secretary.

“(B) Limitations on wage fluctuations

“(i) Wage freeze for calendar year 2020—For calendar year 2020, the adverse effect wage rate for each State and occupational classification under this subsection shall be the adverse effect wage rate that was in effect for H–2A workers in the applicable State in calendar year 2019.

“(ii) Calendar years 2021 through 2029—For each of calendar years 2021 through 2029, the adverse effect wage rate for each State and occupational classification under this subsection shall be the wage calculated under subparagraph (A), except that such wage may not—

“(I) be more than 1.5 percent lower than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year;

“(II) except as provided in clause (III), be more than 3.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year; and

“(III) if the application of clause (II) results in a wage that is lower than 110 percent of the applicable Federal or State minimum wage, be more than 4.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year.

“(iii) Calendar years after 2029—For any calendar year after 2029, the applicable wage rate described in paragraph (1)(B) shall be the wage rate established pursuant to paragraph (7)(D). Until such wage rate is effective, the adverse effect wage rate for each State and occupational classification under this subsection shall be the wage calculated under subparagraph (A), except that such wage may not be more than 1.5 percent lower or 3.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year.

“(3) Multiple occupations—If the primary job duties for the job opportunity described in the petition do not fall within a single occupational classification, the applicable wage rates under subparagraphs (B) and (C) of paragraph (1) for the job opportunity shall be based on the highest such wage rates for all applicable occupational classifications.

“(4) Publication; wages in effect

“(A) Publication—Prior to the start of each calendar year, the Secretary of Labor shall publish the applicable adverse effect wage rate (or successor wage rate, if any), and prevailing wage if available, for each State and occupational classification through notice in the Federal Register.

“(B) Job orders in effect—Except as provided in subparagraph (C), publication by the Secretary of Labor of an updated adverse effect wage rate or prevailing wage for a State and occupational classification shall not affect the wage rate guaranteed in any approved job order for which recruitment efforts have commenced at the time of publication.

“(C) Exception for year-round jobs—If the Secretary of Labor publishes an updated adverse effect wage rate or prevailing wage for a State and occupational classification concerning a petition described in subsection (i), and the updated wage is higher than the wage rate guaranteed in the work contract, the employer shall pay the updated wage not later than 14 days after publication of the updated wage in the Federal Register.

added “(5) Workers paid on a piece rate or other incentive basis—If an employer pays by the piece rate or other incentive method and requires one or more minimum productivity standards as a condition of job retention, such standards shall be specified in the job order and shall be no more than those normally required (at the time of the first petition for H–2A workers) by other employers for the activity in the area of intended employment, unless the Secretary of Labor approves a higher minimum standard resulting from material changes in production methods.

removed “(5) Workers paid on a piece rate or other incentive basis—If an employer pays by the piece rate or other incentive method and requires 1 or more minimum productivity standards as a condition of job retention, such standards shall be specified in the job order and shall be no more than those normally required (at the time of the first petition for H–2A workers) by other employers for the activity in the area of intended employment, unless the Secretary of Labor approves a higher minimum standard resulting from material changes in production methods.

“(6) Guarantee of employment

“(A) Offer to worker—The employer shall guarantee 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 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 worker less employment than that required under this paragraph, the employer shall pay the 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.

“(C) Abandonment of employment; termination for cause—If the worker voluntarily abandons employment without good cause before the end of the contract period, or is terminated for cause, the worker is not entitled to the guarantee of employment described in subparagraph (A).

added “(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 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. The employer shall make efforts to transfer a worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in subsection (f)(2).

removed “(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 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. The employer shall make efforts to transfer a United States worker to other comparable employment acceptable to the worker. If such transfer is not affected, the employer shall provide the return transportation required in subsection (f)(2).

“(7) Wage standards after 2029

“(A) Study of adverse effect wage rate—Beginning in fiscal year 2026, the Secretary of Agriculture and Secretary of Labor shall jointly conduct a study that addresses—

“(i) whether the employment of H–2A workers has depressed the wages of United States farm workers;

“(ii) whether an adverse effect wage rate is necessary to protect the wages of United States farm workers in occupations in which H–2A workers are employed;

“(iii) whether alternative wage standards 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.

“(B) Final report—Not later than October 1, 2027, the Secretary of Agriculture and Secretary of Labor shall jointly prepare and submit a report to the Congress setting forth the findings of the study conducted under subparagraph (A) and recommendations for future wage protections under this section.

“(C) Consultation—In conducting the study under subparagraph (A) and preparing the report under subparagraph (B), the Secretary of Agriculture and Secretary of Labor shall consult with representatives of agricultural employers and an equal number of representatives of agricultural workers, at the national, State and local level.

added “(D) Wage determination after 2029—Upon publication of the report described in subparagraph (B), the Secretary of Labor, in consultation with and the approval of the Secretary of Agriculture, shall make a rule to establish a process for annually determining the wage rate for purposes of paragraph (1)(B) for fiscal years after 2029. Such process shall be designed to ensure that the employment of H–2A workers does not undermine the wages and working conditions of similarly employed United States workers.

removed “(D) Wage determination after 2029—Upon publication of the report described in subparagraph (B), the Secretary of Labor, in consultation with and the approval of the Secretary of Agriculture, shall make a rule to establish a process for annually determining the wage rate for purposes of paragraph (1)(B) for fiscal years after 2029. Such process shall be designed to ensure that the employment of H-2A workers does not undermine the wages and working conditions of similarly employed United States workers.

“(e) Housing requirements—Employers shall furnish housing in accordance with regulations established by the Secretary of Labor. Such regulations shall be consistent with the following:

“(1) In general—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.

“(2) Family housing—Except as otherwise provided in subsection (i)(5), the employer shall provide family housing to workers with families who request it when it is the prevailing practice in the area and occupation of intended employment to provide family housing.

“(3) United States workers—Notwithstanding paragraphs (1) and (2), an employer is not required to provide housing to United States workers who are reasonably able to return to their residence within the same day.

“(4) Timing of inspection

“(A) In general—The Secretary of Labor or designee shall make a determination as to whether the housing furnished by an employer for a worker meets the requirements imposed by this subsection prior to the date on which the Secretary of Labor is required to make a certification with respect to a petition for the admission of such worker.

“(B) Timely inspection—The Secretary of Labor shall provide a process for—

“(i) an employer to request inspection of housing up to 60 days before the date on which the employer will file a petition under this section; and

“(ii) annual inspection of housing for workers who are engaged in agricultural employment that is not of a seasonal or temporary nature.

“(f) Transportation requirements

“(1) Travel to place of employment—A worker who completes 50 percent of the period of employment specified in the job order 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.

“(2) Travel from place of employment—For a worker who completes the period of employment specified in the job order or who is terminated without cause, the employer shall provide or pay for 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.

“(3) Limitation

“(A) Amount of reimbursement—Except as provided in subparagraph (B), the amount of reimbursement provided under paragraph (1) or (2) to a worker need not exceed the lesser of—

“(i) the actual cost to the worker of the transportation and subsistence involved; or

“(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

“(B) Distance traveled—For travel to or from the worker’s home country, if the travel distance between the worker’s home and the relevant consulate is 50 miles or less, reimbursement for transportation and subsistence may be based on transportation to or from the consulate.

removed “(g) Heat illness prevention plan—The employer shall maintain a reasonable plan that describes the employer’s procedures for the prevention of heat illness, including appropriate training, access to water and shade, the provision of breaks, and the protocols for emergency response. Such plan shall—

changed “(1) be in writing in English and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English; and“(g) Heat illness prevention plan

changed “(2) be posted at “(1) In general—The employer shall maintain a conspicuous location at reasonable plan that describes the worksite and provided to employees prior employer’s procedures for the prevention of heat illness, including appropriate training, access to water and shade, the commencement provision of labor or services.breaks, and the protocols for emergency response. Such plan shall—

changed “(h) H–2a petition procedures“(A) be in writing in English and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English; and

added “(B) be posted at a conspicuous location at the worksite and provided to employees prior to the commencement of labor or services.

added “(2) Clarification—Nothing in this subsection is intended to limit any other Federal or State authority to promulgate, enforce, or maintain health and safety standards related to heat-related illness.

added “(h) H–2A petition procedures

“(1) Submission of petition and job order

“(A) In general—The employer shall submit information required for the adjudication of the H–2A petition, including a job order, through the electronic platform no more than 75 calendar days and no fewer than 60 calendar days before the employer’s first date of need specified in the petition.

“(B) Filing by agricultural associations—An association of agricultural producers that use agricultural services may file an H–2A petition under subparagraph (A). If an association is a joint or sole employer of workers who perform agricultural labor or services, H–2A workers may be used for the approved job opportunities of any of the association’s producer members and such workers may be transferred among its producer members to perform the agricultural labor or services for which the petition was approved.

“(C) Petitions involving staggered entry

“(i) In general—Except as provided in clause (ii), an employer may file a petition involving employment in the same occupational classification and same area of intended employment with multiple start dates if—

“(I) the petition involves temporary or seasonal employment and no more than 10 start dates;

added “(II) the multiple start dates share a common end date;

removed “(II) the multiple start dates share a common end date that is no longer than 1 year after the first start date;

“(III) no more than 120 days separate the first start date and the final start date listed in the petition; and

“(IV) the need for multiple start dates arises from variations in labor needs associated with the job opportunity identified in the petition.

“(ii) Labor contractors—A labor contractor may not file a petition described in clause (i) unless the labor contractor—

“(I) is filing as a joint employer with its contractees, or is operating in a State in which joint employment and liability between the labor contractor and its contractees is otherwise established; or

“(II) has posted and is maintaining a premium surety bond as described in subsection (l)(1).

“(2) Labor certification

“(A) Review of job order

“(i) In general—The Secretary of Labor, in consultation with the relevant State workforce agency, shall review the job order for compliance with this section and notify the employer through the electronic platform of any deficiencies not later than 7 business days from the date the employer submits the necessary information required under paragraph (1)(A). The employer shall be provided 5 business days to respond to any such notice of deficiency.

“(ii) Standard—The job order must include all material terms and conditions of employment, including the requirements of this section, and must be otherwise consistent with the minimum standards provided under Federal, State or local law. In considering the question of whether a specific qualification is appropriate in a job order, the Secretary of Labor shall apply the normal and accepted qualification required by non-H–2A employers in the same or comparable occupations and crops.

“(iii) Emergency procedures—The Secretary of Labor shall establish emergency procedures for the curing of deficiencies that cannot be resolved during the period described in clause (i).

“(B) Approval of job order

“(i) In general—Upon approval of the job order, the Secretary of Labor shall immediately place for public examination a copy of the job order on the online job registry, and the State workforce agency serving the area of intended employment shall commence the recruitment of United States workers.

“(ii) Referral of United States workers—The Secretary of Labor and State workforce agency shall keep the job order active until the end of the period described in subsection (c)(2) and shall refer to the employer each United States worker who applies for the job opportunity.

“(C) Review of information for deficiencies—Within 7 business days of the approval of the job order, the Secretary of Labor shall review the information necessary to make a labor certification and notify the employer through the electronic platform if such information does not meet the standards for approval. Such notification shall include a description of any deficiency, and the employer shall be provided 5 business days to cure such deficiency.

added “(D) Certification and authorization of workers—Not later than 30 days before the date that labor or services are first required to be performed, the Secretary of Labor shall issue the requested labor certification if the Secretary determines that the requirements set forth in this section have been met.

removed “(D) Certification and authorization of workers—Not later than 30 days before the date that labor or services are first required to be performed, the Secretary of Labor shall issue the requested labor certification if the Secretary determines that the requirements for certification set forth in this section have been met.

“(E) Expedited administrative appeals of certain determinations—The Secretary of Labor shall by regulation establish a procedure for an employer to request the expedited review of a denial of a labor certification under this section, or the revocation of such a certification. Such procedure shall require the Secretary to expeditiously, but no later than 72 hours after expedited review is requested, issue a de novo determination on a labor certification that was denied in whole or in part because of the availability of able, willing and qualified workers if the employer demonstrates, consistent with subsection (c)(3)(B), that such workers are not actually available at the time or place such labor or services are required.

“(3) Petition decision

“(A) In general—Not later than 7 business days after the Secretary of Labor issues the certification, the Secretary of Homeland Security shall issue a decision on the petition and shall transmit a notice of action to the petitioner via the electronic platform.

“(B) Approval—Upon approval of a petition under this section, the Secretary of Homeland Security shall ensure that such approval is noted in the electronic platform and is available to the Secretary of State and U.S. Customs and Border Protection, as necessary, to facilitate visa issuance and admission.

“(C) Partial approval—A petition for multiple named beneficiaries may be partially approved with respect to eligible beneficiaries notwithstanding the ineligibility, or potential ineligibility, of one or more other beneficiaries.

“(D) Post-certification amendments—The Secretary of Labor shall provide a process for amending a request for labor certification in conjunction with an H–2A petition, subsequent to certification by the Secretary of Labor, in cases in which the requested amendment does not materially change the petition (including the job order).

“(4) Roles of agricultural associations

“(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 results in the denial of a petition with respect to the member, the denial shall apply only to that member of the association unless the Secretary of Labor 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 results in the denial of a petition 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 of Labor 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 results in the denial of a petition with respect to the association, no individual producer member of such association may be the beneficiary of the services of H–2A workers in the commodity and occupation in which such aliens were employed by the association which was denied 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.

“(5) Special procedures—The Secretary of Labor, in consultation with the Secretary of Agriculture and Secretary of Homeland Security, may by regulation establish alternate procedures that reasonably modify program requirements under this section, when the Secretary determines that such modifications are required due to the unique nature of the work involved.

“(6) Construction occupations—An employer may not file a petition under this section on behalf of a worker if the majority of the worker’s duties will fall within a construction or extraction occupational classification.

added “(i) Non-Temporary or -Seasonal needs

removed “(i) Non-temporary or -seasonal needs

“(1) In general—Notwithstanding the requirement in section 101(a)(15)(H)(ii)(a) that the agricultural labor or services performed by an H–2A worker be of a temporary or seasonal nature, the Secretary of Homeland Security may, consistent with the provisions of this subsection, approve a petition for an H–2A worker to perform agricultural services or labor that is not of a temporary or seasonal nature.

“(2) Numerical limitations

“(A) First 3 fiscal years—The total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph (1) for the first fiscal year during which the first visa is issued under such paragraph and for each of the following two fiscal years may not exceed 20,000.

“(B) Fiscal years 4 through 10

added “(i) In general—The total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph (1) for the first fiscal year following the fiscal years referred to in subparagraph (A) and for each of the following 6 fiscal years may not exceed a numerical limitation jointly imposed by the Secretary of Agriculture and Secretary of Labor in accordance with clause (ii).

removed “(i) In general—The total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph (1) for the first fiscal year following the fiscal years referred to in subparagraph (A) and for each of the following six fiscal years may not exceed a numerical limitation jointly imposed by the Secretary of Agriculture and Secretary of Labor in accordance with clause (ii).

“(ii) Annual adjustments—For each fiscal year referred to in clause (i), the Secretary of Agriculture and Secretary of Labor, in consultation with the Secretary of Homeland Security, shall establish a numerical limitation for purposes of clause (i). Such numerical limitation may not be lower 20,000 and may not vary by more than 12.5 percent compared to the numerical limitation applicable to the immediately preceding fiscal year. In establishing such numerical limitation, the Secretaries shall consider appropriate factors, including—

“(I) a demonstrated shortage of agricultural workers;

“(II) the level of unemployment and underemployment of agricultural workers during the preceding fiscal year;

“(III) the number of H–2A workers sought by employers during the preceding fiscal year to engage in agricultural labor or services not of a temporary or seasonal nature;

“(IV) the number of such H–2A workers issued a visa in the most recent fiscal year who remain in the United States in compliance with the terms of such visa;

“(V) the estimated number of United States workers, including workers who obtained certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019, who worked during the preceding fiscal year in agricultural labor or services not of a temporary or seasonal nature;

“(VI) the number of such United States workers who accepted jobs offered by employers using the online job registry during the preceding fiscal year;

“(VII) any growth or contraction of the United States agricultural industry that has increased or decreased the demand for agricultural workers; and

“(VIII) any changes in the real wages paid to agricultural workers in the United States as an indication of a shortage or surplus of agricultural labor.

“(C) Subsequent fiscal years—For each fiscal year following the fiscal years referred to in subparagraph (B), the Secretary of Agriculture and Secretary of Labor shall jointly determine, in consultation with the Secretary of Homeland Security, and after considering appropriate factors, including those factors listed in subclauses (I) through (VIII) of subparagraph (B)(ii), whether to establish a numerical limitation for that fiscal year. If a numerical limitation is so established—

“(i) such numerical limitation may not be lower than highest number of aliens admitted under this subsection in any of the three fiscal years immediately preceding the fiscal year for which the numerical limitation is to be established; and

“(ii) the total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph (1) for that fiscal year may not exceed such numerical limitation.

“(D) Emergency procedures—The Secretary of Agriculture and Secretary of Labor, in consultation with the Secretary of Homeland Security, shall jointly establish by regulation procedures for immediately adjusting a numerical limitation imposed under subparagraph (B) or (C) to account for significant labor shortages.

“(3) Allocation of visas

“(A) Bi-annual allocation—The annual allocation of visas described in paragraph (2) shall be evenly allocated between two halves of the fiscal year unless the Secretary of Homeland Security, in consultation with the Secretary of Agriculture and Secretary of Labor, determines that an alternative allocation would better accommodate demand for visas. Any unused visas in the first half of the fiscal year shall be added to the allocation for the subsequent half of the same fiscal year.

“(B) Reserve for dairy labor or services

“(i) In general—Of the visa numbers made available in each half of the fiscal year pursuant to subparagraph (A), 50 percent of such visas shall be reserved for employers filing petitions seeking H–2A workers to engage in agricultural labor or services in the dairy industry.

added “(ii) Exception—If, after 4 months have elapsed in one half of the fiscal year, the Secretary of Homeland Security determines that application of clause (i) will result in visas going unused during that half of the fiscal year, clause (i) shall not apply to visas under this paragraph during the remainder of such calendar half.

added “(C) Limited allocation for certain special procedures industries

added “(i) In general—Notwithstanding the numerical limitations under paragraph (2), up to 500 aliens may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph (1) in a fiscal year for range sheep or goat herding.

added “(ii) Limitation—The total number of aliens in the United States in valid H–2A status under clause (i) at any one time may not exceed 500.

added “(iii) Clarification—Any visas issued under this subparagraph may not be considered for purposes of the annual adjustments under subparagraphs (B) and (C) of paragraph (2).

removed “(ii) Exception—If, after four months have elapsed in one half of the fiscal year, the Secretary of Homeland Security determines that application of clause (i) will result in visas going unused during that half of the fiscal year, clause (i) shall not apply to visas under this paragraph during the remainder of such calendar half.

“(4) Annual round trip home

“(A) In general—In addition to the other requirements of this section, an employer shall provide H–2A workers employed under this subsection, at no cost to such workers, with annual round trip travel, including transportation and subsistence during travel, to their homes in their communities of origin. The employer must provide such travel within 14 months of the initiation of the worker’s employment, and no more than 14 months can elapse between each required period of travel.

“(B) Limitation—The cost of travel under subparagraph (A) need not exceed the lesser of—

“(i) the actual cost to the worker of the transportation and subsistence involved; or

“(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

“(5) Family housing—An employer seeking to employ an H–2A worker pursuant to this subsection shall offer family housing to workers with families if such workers are engaged in agricultural employment that is not of a seasonal or temporary nature. The worker may reject such an offer. The employer may not charge the worker for the worker’s housing, except that if the worker accepts family housing, a prorated rent based on the fair market value for such housing may be charged for the worker’s family members.

“(6) Workplace safety plan for dairy employees

“(A) In general—If an employer is seeking to employ a worker in agricultural labor or services in the dairy industry pursuant to this subsection, the employer must report incidents consistent with the requirements under section 1904.39 of title 29, Code of Federal Regulations, and maintain an effective worksite safety and compliance plan to prevent workplace accidents and otherwise ensure safety. Such plan shall—

“(i) be in writing in English and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English; and

“(ii) be posted at a conspicuous location at the worksite and provided to employees prior to the commencement of labor or services.

“(B) Contents of plan—The Secretary of Labor, in consultation with the Secretary of Agriculture, shall establish by regulation the minimum requirements for the plan described in subparagraph (A). Such plan shall include measures to—

“(i) require workers (other than the employer’s family members) whose positions require contact with animals to complete animal care training, including animal handling and job-specific animal care;

“(ii) protect against sexual harassment and violence, resolve complaints involving harassment or violence, and protect against retaliation against workers reporting harassment or violence; and

“(iii) contain other provisions necessary for ensuring workplace safety, as determined by the Secretary of Labor, in consultation with the Secretary of Agriculture.

added “(C) Clarification—Nothing in this paragraph is intended to apply to persons or entities that are not seeking to employ workers under this section. Nothing in this paragraph is intended to limit any other Federal or State authority to promulgate, enforce, or maintain health and safety standards related to the dairy industry.

added “(j) Eligibility for H–2A status and admission to the United States

removed “(j) Eligibility for h-2a status and admission to the United States

“(1) Disqualification—An alien shall be ineligible for admission to the United States as an H–2A worker pursuant to a petition filed under this section if the alien was admitted to the United States as an H–2A worker within the past 5 years of the date the petition was filed and—

“(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 has expired, unless the alien has good cause for such failure to depart; or

“(B) otherwise violated a term or condition of admission into the United States as an H–2A worker.

added “(2) Visa validity—A visa issued to an H–2A worker shall be valid for 3 years and shall allow for multiple entries during the approved period of admission.

removed “(2) Visa validity—A visa issued to an H–2A worker shall be valid for three years and shall allow for multiple entries during the approved period of admission.

“(3) Period of authorized stay; admission

“(A) In general—An alien admissible as an H–2A worker shall be authorized to stay in the United States for the period of employment specified in the petition approved by the Secretary of Homeland Security under this section. The maximum continuous period of authorized stay for an H–2A worker is 36 months.

“(B) Requirement to remain outside the United States—In the case of an H–2A worker whose maximum continuous period of authorized stay (including any extensions) has expired, the alien may not again be eligible for such stay until the alien remains outside the United States for a cumulative period of at least 45 days.

“(C) Exceptions—The Secretary of Homeland Security shall deduct absences from the United States that take place during an H–2A worker’s period of authorized stay from the period that the alien is required to remain outside the United States under subparagraph (B), if the alien or the alien’s employer requests such a deduction, and provides clear and convincing proof that the alien qualifies for such a deduction. Such proof shall consist of evidence including, but not limited to, arrival and departure records, copies of tax returns, and records of employment abroad.

“(D) Admission—In addition to the maximum continuous period of authorized stay, an H–2A worker’s authorized period of admission shall include an additional period of 10 days prior to the beginning of the period of employment for the purpose of traveling to the place of employment and 45 days at the end of the period of employment for the purpose of traveling home or seeking an extension of status based on a subsequent offer of employment if the worker has not reached the maximum continuous period of authorized stay under subparagraph (A) (subject to the exceptions in subparagraph (C)).

added “(4) Continuing H–2A workers

removed “(4) Continuing h-2a workers

“(A) Successive employment—An H–2A worker is authorized to start new or concurrent employment upon the filing of a nonfrivolous H–2A petition, or as of the requested start date, whichever is later if—

“(i) the petition to start new or concurrent employment was filed prior to the expiration of the H–2A worker’s period of admission as defined in paragraph (3)(D); and

“(ii) the H–2A worker has not been employed without authorization in the United States from the time of last admission to the United States in H–2A status through the filing of the petition for new employment.

“(B) Protection due to immigrant visa backlogs—Notwithstanding the limitations on the period of authorized stay described in paragraph (3), any H–2A worker who—

“(i) is the beneficiary of an approved petition, filed under section 204(a)(1)(E) or (F) for preference status under section 203(b)(3)(A)(iii); and

“(ii) is eligible to be granted such status but for the annual limitations on visas under section 203(b)(3)(A),

“(5) Abandonment of employment

“(A) In general—Except as provided in subparagraph (B), an H–2A worker who abandons the employment which was the basis for the worker’s authorized stay, without good cause, shall be considered to have failed to maintain H–2A status and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).

“(B) Grace period to secure new employment—An H–2A worker shall not be considered to have failed to maintain H–2A status solely on the basis of a cessation of the employment on which the alien’s classification was based for a period of 45 consecutive days, or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period.

“(k) Required disclosures

“(1) Disclosure of work contract—Not later than the time the H–2A worker applies for a visa, the employer shall provide the worker with a copy of the work contract that includes the disclosures and rights under this section (or in the absence of such a contract, a copy of the job order and proof of the certification described in subparagraphs (B) and (D) of subsection (h)(2)). An H–2A worker moving from one H–2A employer to a subsequent H–2A employer shall be provided with a copy of the new employment contract no later than the time an offer of employment is made by the subsequent employer.

added “(2) Hours and earnings statements—The employer shall furnish to H–2A workers, on or before each payday, in one or more written statements—

removed “(2) Hours and earnings statements—The employer shall furnish to H–2A workers, on or before each payday, in 1 or more written statements—

“(A) the worker’s total earnings for the pay period;

“(B) the worker’s hourly rate of pay, piece rate of pay, or both;

“(C) the hours of employment offered to the worker and the hours of employment actually worked;

“(D) if piece rates of pay are used, the units produced daily;

“(E) an itemization of the deductions made from the worker’s wages; and

“(F) any other information required by Federal, State or local law.

“(3) Notice of worker rights—The employer must post and maintain in a conspicuous location at the place of employment, a poster provided by the Secretary of Labor in English, and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English, which sets out the rights and protections for workers employed pursuant to this section.

“(l) Labor contractors; foreign labor recruiters; prohibition on fees

“(1) labor contractors

added “(A) Surety bond—An employer that is a labor contractor who seeks to employ H–2A workers shall maintain a surety bond in an amount required under subparagraph (B). Such bond shall be payable to the Secretary of Labor or pursuant to the resolution of a civil or criminal proceeding, for the payment of wages and benefits, including any assessment of interest, owed to an H–2A worker or a similarly employed United States worker, or a United States worker who has been rejected or displaced in violation of this section.

removed “(A) Surety bond—An employer that is a labor contractor who seeks to employ H–2A workers shall maintain a surety bond in an amount required under subparagraph (B). Such bond shall be payable to the Secretary of Labor or pursuant to the resolution of a civil or criminal proceeding, for the payment of wages and benefits, including any assessment of interest, owed to an H-2A worker or a similarly employed United States worker, or a United States worker who has been rejected or displaced in violation of this section.

“(B) Amount of bond—The Secretary of Labor shall annually publish in the Federal Register a schedule of required bond amounts that are determined by such Secretary to be sufficient for labor contractors to discharge financial obligations under this section based on the number of workers the labor contractor seeks to employ and the wages such workers are required to be paid.

added “(C) Premium bond—A labor contractor seeking to file a petition involving more than one start date under subsection (h)(1)(C) shall maintain a surety bond that is at least 15 percent higher than the applicable bond amount determined by the Secretary under subparagraph (B).

removed “(C) Premium bond—A labor contractor seeking to file a petition involving more than 1 start date under subsection (h)(1)(C) shall maintain a surety bond that is at least 15 percent higher than the applicable bond amount determined by the Secretary under subparagraph (B).

“(D) Use of funds—Any sums paid to the Secretary under subparagraph (A) that are not paid to a worker because of the inability to do so within a period of 5 years following the date of a violation giving rise to the obligation to pay shall remain available to the Secretary without further appropriation until expended to support the enforcement of this section.

added “(2) Prohibition against employees paying fees—Neither the employer nor its agents shall seek or receive payment of any kind from any worker for any activity related to the H–2A process, including payment of the employer’s attorneys’ fees, application fees, or recruitment costs. An employer and its agents may receive reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.

added “(3) Third party contracts—The contract between an employer and any labor contractor or any foreign labor recruiter (or any agent of such labor contractor or foreign labor recruiter) whom the employer engages shall include a term providing for the termination of such contract for cause if the contractor or recruiter, either directly or indirectly, in the placement or recruitment of H–2A workers seeks or receives payments or other compensation from prospective employees. Upon learning that a labor contractor or foreign labor recruiter has sought or collected such payments, the employer shall so terminate any contracts with such contractor or recruiter.

removed “(2) Foreign labor recruiting—If the employer has retained the services of a foreign labor recruiter, the employer shall use a foreign labor recruiter registered under section 251 of the Farm Workforce Modernization Act of 2019.

removed “(3) Prohibition against employees paying fees—Neither the employer nor its agents shall seek or receive payment of any kind from any worker for any activity related to the H–2A process, including payment of the employer’s attorneys’ fees, application fees, or recruitment costs. An employer and its agents may receive reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.

removed “(4) Third party contracts—The contract between an employer and any labor contractor or any foreign labor recruiter (or any agent of such labor contractor or foreign labor recruiter) whom the employer engages shall include a term providing for the termination of such contract for cause if the contractor or recruiter, either directly or indirectly, in the placement or recruitment of H–2A workers seeks or receives payments or other compensation from prospective employees. Upon learning that a labor contractor or foreign labor recruiter has sought or collected such payments, the employer shall so terminate any contracts with such contractor or recruiter.

“(m) Enforcement authority

“(1) In general—The Secretary of Labor is authorized to take such actions against employers, including imposing appropriate penalties and seeking monetary and injunctive relief and specific performance of contractual obligations, as may be necessary to ensure compliance with the requirements of this section and with the applicable terms and conditions of employment.

“(2) Complaint process

“(A) Process—The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints alleging failure of an employer to comply with the requirements under this section and with the applicable terms and conditions of employment.

“(B) Filing—A complaint referred to in subparagraph (A) may be filed not later than 2 years after the date of the conduct that is the subject of the complaint.

“(C) Complaint not exclusive—A complaint filed under this paragraph is not an exclusive remedy and the filing of such a complaint does not waive any rights or remedies of the aggrieved party under this law or other laws.

“(D) Decision and remedies—If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer failed to comply with the requirements of this section or the terms and conditions of employment, the Secretary of Labor may require payment of unpaid wages, unpaid benefits, fees assessed in violation of this section, damages, and civil money penalties. The Secretary is also authorized to impose other administrative remedies, including disqualification of the employer from utilizing the H–2A program for a period of up to 5 years in the event of willful or multiple material violations. The Secretary is authorized to permanently disqualify an employer from utilizing the H–2A program upon a subsequent finding involving willful or multiple material violations.

“(E) Disposition of penalties—Civil penalties collected under this paragraph shall be deposited into the H–2A Labor Certification Fee Account established under section 203 of the Farm Workforce Modernization Act of 2019.

“(3) Statutory construction—Nothing in this subsection may be construed as limiting the authority of the Secretary of Labor to conduct an investigation—

“(A) under any other law, including any law affecting migrant and seasonal agricultural workers; or

“(B) in the absence of a complaint.

added “(4) Retaliation prohibited—It is a violation of this subsection for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against, or to cause any person to intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, an employee, including a former employee or an applicant for employment, because the employee—

removed “(4) Retaliation prohibited—It is a violation of this subsection for any person who has filed a petition under this section to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against, or to cause any person to intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, an employee, including a former employee or an applicant for employment, because the employee—

“(A) has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation under this section, or any rule or regulation relating to this section;

“(B) has filed a complaint concerning the employer’s compliance with the requirements under this section or any rule or regulation pertaining to this section;

“(C) cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements under this section or any rule or regulation pertaining to this section; or

“(D) has taken steps to exercise or assert any right or protection under the provisions of this section, or any rule or regulation pertaining to this section, or any other relevant Federal, State, or local law.

“(5) Interagency communication—The Secretary of Labor, in consultation with the Secretary of Homeland Security, Secretary of State and the Equal Employment Opportunity Commission, shall establish mechanisms by which the agencies and their components share information, including by public electronic means, regarding complaints, studies, investigations, findings and remedies regarding compliance by employers with the requirements of the H–2A program and other employment-related laws and regulations.

“(n) Definitions—In this section:

“(1) Displace—The term displace means to lay off a similarly employed United States worker, other than for lawful job-related reasons, in the occupation and area of intended employment for the job for which H–2A workers are sought.

added “(2) H–2A worker—The term H–2A worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).

removed “(2) H–2a worker—The term H–2A worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).

“(3) Job order—The term job order means the document containing the material terms and conditions of employment, including obligations and assurances required under this section or any other law.

“(4) Online job registry—The term online job registry means the online job registry of the Secretary of Labor required under section 201(b) of the Farm Workforce Modernization Act of 2019 (or similar successor registry).

“(5) Similarly employed—The term similarly employed, in the case of a worker, means a worker in the same occupational classification as the classification or classifications for which the H–2A worker is sought.

“(6) United States worker—The term United States worker means any worker who is—

“(A) a citizen or national of the United States;

“(B) an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized to be employed in the United States;

“(C) an alien granted certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019; or

“(D) an individual who is not an unauthorized alien (as defined in section 274A(h)(3)) with respect to the employment in which the worker is engaging.

“(o) Fees; authorization of appropriations

“(1) Fees

“(A) In general—The Secretary of Homeland Security shall impose a fee to process petitions under this section. Such fee shall be set at a level that is sufficient to recover the reasonable costs of processing the petition, including the reasonable costs of providing labor certification by the Secretary of Labor.

“(B) Distribution—Fees collected under subparagraph (A) shall be deposited as offsetting receipts into the immigration examinations fee account in section 286(m), except that the portion of fees assessed for the Secretary of Labor shall be deposited into the H–2A Labor Certification Fee Account established pursuant to section 203(c) of the Farm Workforce Modernization Act of 2019 .

“(2) Appropriations—There are authorized to be appropriated for each fiscal year such sums as necessary for the purposes of—

“(A) recruiting United States workers for labor or services which might otherwise be performed by H–2A workers, including by ensuring that State workforce agencies are sufficiently funded to fulfill their functions under this section;

“(B) enabling the Secretary of Labor to make determinations and certifications under this section and under section 212(a)(5)(A)(i);

“(C) monitoring the terms and conditions under which H–2A workers (and United States workers employed by the same employers) are employed in the United States; and

“(D) enabling the Secretary of Agriculture to carry out the Secretary of Agriculture’s duties and responsibilities under this section.”

“(e) A farm labor contractor shall maintain a surety bond in an amount determined by the Secretary to be sufficient for ensuring the ability of the farm labor contractor to discharge its financial obligations, including payment of wages and benefits to employees. Such a bond shall be available to satisfy any amounts ordered to be paid by the Secretary or by court order for failure to comply with the obligations of this Act. The Secretary of Labor shall annually publish in the Federal Register a schedule of required bond amounts that are determined by such Secretary to be sufficient for farm labor contractors to discharge financial obligations based on the number of workers to be covered.”

“(7) has failed to maintain a surety bond in compliance with section 101(e); or

“(8) has been disqualified by the Secretary of Labor from importing nonimmigrants described in section 101(a)(15)(H)(ii) of the Immigration and Nationality Act.”

“(6) a declaration, subscribed and sworn to by the applicant, stating whether the applicant has a familial, contractual, or employment relationship with, or shares vehicles, facilities, property, or employees with, a person who has been refused issuance or renewal of a certificate, or has had a certificate suspended or revoked, pursuant to section 103.”

“(b)

“(1) There shall be a rebuttable presumption that an applicant for issuance or renewal of a certificate is not the real party in interest in the application if the applicant—

“(A) is the immediate family member of any person who has been refused issuance or renewal of a certificate, or has had a certificate suspended or revoked; and

“(B) identifies a vehicle, facility, or real property under paragraph (2) or (3) of section 102 that has been previously listed by a person who has been refused issuance or renewal of a certificate, or has had a certificate suspended or revoked.

“(2) An applicant described in paragraph (1) bears the burden of demonstrating to the Secretary’s satisfaction that the applicant is the real party in interest in the application.”

“274E. Requirements for the electronic verification of employment eligibility

“(a) Employment eligibility verification system

“(1) In general—The Secretary of Homeland Security (referred to in this section as the “Secretary”) shall establish and administer an electronic verification system (referred to in this section as the “System”), patterned on the E–Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) (as in effect on the day before the effective date described in section 303(a)(4) of the Farm Workforce Modernization Act of 2019), and using the employment eligibility confirmation system established under section 404 of such Act (8 U.S.C. 1324a note) (as so in effect) as a foundation, through which the Secretary shall—

“(A) respond to inquiries made by persons or entities seeking to verify the identity and employment authorization of individuals that such persons or entities seek to hire, or to recruit or refer for a fee, for employment in the United States; and

“(B) maintain records of the inquiries that were made, and of verifications provided (or not provided) to such persons or entities as evidence of compliance with the requirements of this section.

“(2) Initial response deadline—The System shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment authorization as soon as practicable, but not later than 3 calendar days after the initial inquiry.

“(3) General design and operation of system—The Secretary shall design and operate the System—

“(A) using responsive web design and other technologies to maximize its ease of use and accessibility for users on a variety of electronic devices and screen sizes, and in remote locations;

“(B) to maximize the accuracy of responses to inquiries submitted by persons or entities;

“(C) to maximize the reliability of the System and to register each instance when the System is unable to receive inquiries;

“(D) to protect the privacy and security of the personally identifiable information maintained by or submitted to the System;

changed “(E) to provide direct notification of an inquiry to an individual with respect to whom the inquiry is made, including the results of such inquiry, and information related to the process for challenging the results; results, in cases in which the individual has established a user account as described in paragraph (4)(B) or an electronic mail address for the individual is submitted by the person or entity at the time the inquiry is made; and

“(F) to maintain appropriate administrative, technical, and physical safeguards to prevent misuse of the System and unfair immigration-related employment practices.

“(4) Measures to prevent identity theft and other forms of fraud—To prevent identity theft and other forms of fraud, the Secretary shall design and operate the System with the following attributes:

“(A) Photo matching tool—The System shall display the digital photograph of the individual, if any, that corresponds to the document presented by an individual to establish identity and employment authorization so that the person or entity that makes an inquiry can compare the photograph displayed by the System to the photograph on the document presented by the individual.

“(B) Individual monitoring and suspension of identifying information—The System shall enable individuals to establish user accounts, after authentication of an individual’s identity, that would allow an individual to—

“(i) confirm the individual’s own employment authorization;

“(ii) receive electronic notification when the individual’s social security account number or other personally identifying information has been submitted to the System;

“(iii) monitor the use history of the individual’s personally identifying information in the System, including the identities of all persons or entities that have submitted such identifying information to the System, the date of each query run, and the System response for each query run;

“(iv) suspend or limit the use of the individual’s social security account number or other personally identifying information for purposes of the System; and

“(v) provide notice to the Department of Homeland Security of any suspected identity fraud or other improper use of personally identifying information.

“(C) Blocking misused social security account numbers

“(i) In general—The Secretary, in consultation with the Commissioner of Social Security (referred to in this section as the “Commissioner”), shall develop, after publication in the Federal Register and an opportunity for public comment, a process in which social security account numbers that have been identified to be subject to unusual multiple use in the System or that are otherwise suspected or determined to have been compromised by identity fraud or other misuse, shall be blocked from use in the System unless the individual using such number is able to establish, through secure and fair procedures, that the individual is the legitimate holder of the number.

“(ii) Notice—If the Secretary blocks or suspends a social security account number under this subparagraph, the Secretary shall provide notice to the persons or entities that have made inquiries to the System using such account number that the identity and employment authorization of the individual who provided such account number must be re-verified.

“(D) Additional identity authentication tool—The Secretary shall develop, after publication in the Federal Register and an opportunity for public comment, additional security measures to adequately verify the identity of an individual whose identity may not be verified using the photo tool described in subparagraph (A). Such additional security measures—

“(i) shall be kept up-to-date with technological advances; and

“(ii) shall be designed to provide a high level of certainty with respect to identity authentication.

“(E) Child-lock pilot program—The Secretary, in consultation with the Commissioner, shall establish a reliable, secure program through which parents or legal guardians may suspend or limit the use of the social security account number or other personally identifying information of a minor under their care for purposes of the System. The Secretary may implement the program on a limited pilot basis before making it fully available to all individuals.

changed “(5) Responsibilities of the Commissioner of Social Security—The Commissioner, in consultation with the Secretary, shall establish a reliable, secure method, which, within the time periods specified in paragraph (2) and subsection (b)(4)(D)(i)(II), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate) the information provided by the person or entity with respect to an individual whose identity and employment authorization the person or entity seeks to confirm, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation) under the System except as provided under this section or section 205(c)(2)(I) of the Social Security Act (42 U.S.C. 405).section.

“(6) Responsibilities of the Secretary of Homeland Security

“(A) In general—The Secretary of Homeland Security shall establish a reliable, secure method, which, within the time periods specified in paragraph (2) and subsection (b)(4)(D)(i)(II), compares the name and identification or other authorization number (or any other information determined relevant by the Secretary) which are provided in an inquiry against such information maintained or accessed by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, and whether the individual is authorized to be employed in the United States.

“(B) Training—The Secretary shall provide and regularly update training materials on the use of the System for persons and entities making inquiries.

“(C) Audit—The Secretary shall provide for periodic auditing of the System to detect and prevent misuse, discrimination, fraud, and identity theft, to protect privacy and assess System accuracy, and to preserve the integrity and security of the information in the System.

“(D) Notice of System changes—The Secretary shall provide appropriate notification to persons and entities registered in the System of any change made by the Secretary or the Commissioner related to permitted and prohibited documents, and use of the System.

“(7) Responsibilities of the Secretary of State—As part of the System, the Secretary of State shall provide to the Secretary of Homeland Security access to passport and visa information as needed to confirm that a passport or passport card presented under subsection (b)(3)(A)(i) confirms the employment authorization and identity of the individual presenting such document, and that a passport, passport card, or visa photograph matches the Secretary of State’s records, and shall provide such assistance as the Secretary of Homeland Security may request in order to resolve tentative nonconfirmations or final nonconfirmations relating to such information.

changed “(8) Updating information—The Commissioner, the Secretary of Homeland Security, and the Secretary of State shall update records in their custody in a manner that promotes maximum accuracy of the System and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention through the secondary verification tentative nonconfirmation review process under subsection (b)(4)(D).

“(9) Mandatory and voluntary System uses

“(A) Mandatory users—Except as otherwise provided under Federal or State law, such as sections 302 and 303 of the Farm Workforce Modernization Act of 2019, nothing in this section shall be construed as requiring the use of the System by any person or entity hiring, recruiting, or referring for a fee, an individual for employment in the United States.

“(B) Voluntary users—Beginning after the date that is 30 days after the date on which final rules are published under section 309(a) of the Farm Workforce Modernization Act of 2019, a person or entity may use the System on a voluntary basis to seek verification of the identity and employment authorization of individuals the person or entity is hiring, recruiting, or referring for a fee for employment in the United States

“(C) Process for non-users—The employment verification process for any person or entity hiring, recruiting, or referring for a fee, an individual for employment in the United States shall be governed by section 274A(b) unless the person or entity—

“(i) is required by Federal or State law to use the System; or

“(ii) has opted to use the System voluntarily in accordance with subparagraph (B).

“(10) No fee for use—The Secretary may not charge a fee to an individual, person, or entity related to the use of the System.

“(b) New hires, recruitment, and referral—Notwithstanding section 274A(b), the requirements referred to in paragraphs (1)(B) and (3) of section 274A(a) are, in the case of a person or entity that uses the System for the hiring, recruiting, or referring for a fee, an individual for employment in the United States, the following:

“(1) Individual attestation of employment authorization—During the period beginning on the date on which an offer of employment is accepted and ending on the date of hire, the individual shall attest, under penalty of perjury on a form designated by the Secretary, that the individual is authorized to be employed in the United States by providing on such form—

“(A) the individual’s name and date of birth;

“(B) the individual’s social security account number (unless the individual has applied for and not yet been issued such a number);

“(C) whether the individual is—

“(i) a citizen or national of the United States;

“(ii) an alien lawfully admitted for permanent residence; or

“(iii) an alien who is otherwise authorized by the Secretary to be hired, recruited, or referred for employment in the United States; and

“(D) if the individual does not attest to United States citizenship or nationality, such identification or other authorization number established by the Department of Homeland Security for the alien as the Secretary may specify.

“(2) Employer attestation after examination of documents—Not later than 3 business days after the date of hire, the person or entity shall attest, under penalty of perjury on the form designated by the Secretary for purposes of paragraph (1), that it has verified that the individual is not an unauthorized alien by—

“(A) obtaining from the individual the information described in paragraph (1) and recording such information on the form;

“(B) examining—

“(i) a document described in paragraph (3)(A); or

“(ii) a document described in paragraph (3)(B) and a document described in paragraph (3)(C); and

“(C) attesting that the information recorded on the form is consistent with the documents examined.

“(3) Acceptable documents

“(A) Documents establishing employment authorization and identity—A document described in this subparagraph is an individual’s—

“(i) United States passport or passport card;

“(ii) permanent resident card that contains a photograph;

“(iii) foreign passport containing temporary evidence of lawful permanent residence in the form of an official I–551 (or successor) stamp from the Department of Homeland Security or a printed notation on a machine-readable immigrant visa;

“(iv) unexpired employment authorization card that contains a photograph;

“(v) in the case of a nonimmigrant alien authorized to engage in employment for a specific employer incident to status, a foreign passport with Form I–94, Form I–94A, or other documentation as designated by the Secretary specifying the alien’s nonimmigrant status as long as such status has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified in the documentation;

“(vi) passport from the Federated States of Micronesia or the Republic of the Marshall Islands with Form I–94, Form I–94A, or other documentation as designated by the Secretary, indicating nonimmigrant admission under the Compact of Free Association Between the United States and the Federated States of Micronesia or the Republic of the Marshall Islands; or

“(vii) other document designated by the Secretary, by notice published in the Federal Register, if the document—

“(I) contains a photograph of the individual, biometric identification data, and other personal identifying information relating to the individual;

“(II) is evidence of authorization for employment in the United States; and

“(III) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.

“(B) Documents establishing employment authorization—A document described in this subparagraph is—

“(i) an individual’s social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States); or

“(ii) a document establishing employment authorization that the Secretary determines, by notice published in the Federal Register, to be acceptable for purposes of this subparagraph, provided that such documentation contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.

“(C) Documents establishing identity—A document described in this subparagraph is—

“(i) an individual’s driver’s license or identification card if it was issued by a State or one of the outlying possessions of the United States and contains a photograph and personal identifying information relating to the individual;

“(ii) an individual’s unexpired United States military identification card;

“(iii) an individual’s unexpired Native American tribal identification document issued by a tribal entity recognized by the Bureau of Indian Affairs;

“(iv) in the case of an individual under 18 years of age, a parent or legal guardian’s attestation under penalty of law as to the identity and age of the individual; or

“(v) a document establishing identity that the Secretary determines, by notice published in the Federal Register, to be acceptable for purposes of this subparagraph, if such documentation contains a photograph of the individual, biometric identification data, and other personal identifying information relating to the individual, and security features to make it resistant to tampering, counterfeiting, and fraudulent use.

“(D) Authority to prohibit use of certain documents—If the Secretary finds that any document or class of documents described in subparagraph (A), (B), or (C) does not reliably establish identity or employment authorization or is being used fraudulently to an unacceptable degree, the Secretary may, by notice published in the Federal Register, prohibit or place conditions on the use of such document or class of documents for purposes of this section.

“(4) Use of the System to screen identity and employment authorization

“(A) In general—In the case of a person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States, during the period described in subparagraph (B), the person or entity shall submit an inquiry through the System described in subsection (a) to seek verification of the identity and employment authorization of the individual.

“(B) Verification period

“(i) In general—Except as provided in clause (ii), and subject to subsection (d), the verification period shall begin on the date of hire and end on the date that is 3 business days after the date of hire, or such other reasonable period as the Secretary may prescribe.

“(ii) Special rule—In the case of an alien who is authorized to be employed in the United States and who provides evidence from the Social Security Administration that the alien has applied for a social security account number, the verification period shall end 3 business days after the alien receives the social security account number.

“(C) Confirmation—If a person or entity receives confirmation of an individual’s identity and employment authorization, the person or entity shall record such confirmation on the form designated by the Secretary for purposes of paragraph (1).

“(D) Tentative nonconfirmation

“(i) In general—In cases of tentative nonconfirmation, the Secretary shall provide, in consultation with the Commissioner, a process for—

“(I) an individual to contest the tentative nonconfirmation not later than 10 business days after the date of the receipt of the notice described in clause (ii); and

“(II) the Secretary to issue a confirmation or final nonconfirmation of an individual’s identity and employment authorization not later than 30 calendar days after the Secretary receives notice from the individual contesting a tentative nonconfirmation.

“(ii) Notice—If a person or entity receives a tentative nonconfirmation of an individual’s identity or employment authorization, the person or entity shall, not later than 3 business days after receipt, notify such individual in writing in a language understood by the individual and on a form designated by the Secretary, that shall include a description of the individual’s right to contest the tentative nonconfirmation. The person or entity shall attest, under penalty of perjury, that the person or entity provided (or attempted to provide) such notice to the individual, and the individual shall acknowledge receipt of such notice in a manner specified by the Secretary.

“(iii) No contest

“(I) In general—A tentative nonconfirmation shall become final if, upon receiving the notice described in clause (ii), the individual—

“(aa) refuses to acknowledge receipt of such notice;

“(bb) acknowledges in writing, in a manner specified by the Secretary, that the individual will not contest the tentative nonconfirmation; or

“(cc) fails to contest the tentative nonconfirmation within the 10-business-day period beginning on the date the individual received such notice.

“(II) Record of no contest—The person or entity shall indicate in the System that the individual did not contest the tentative nonconfirmation and shall specify the reason the tentative nonconfirmation became final under subclause (I).

“(III) Effect of failure to contest—An individual’s failure to contest a tentative nonconfirmation shall not be considered an admission of any fact with respect to any violation of this Act or any other provision of law.

“(iv) Contest

changed “(I) In general—An individual may contest a tentative nonconfirmation by using the tentative nonconfirmation review process for secondary verification under clause (i), not later than 10 business days after receiving the notice described in clause (ii). Except as provided in clause (iii), the nonconfirmation shall remain tentative until a confirmation or final nonconfirmation is provided by the System.

“(II) Prohibition on termination—In no case shall a person or entity terminate employment or take any adverse employment action against an individual for failure to obtain confirmation of the individual’s identity and employment authorization until the person or entity receives a notice of final nonconfirmation from the System. Nothing in this subclause shall prohibit an employer from terminating the employment of the individual for any other lawful reason.

“(III) Confirmation or final nonconfirmation—The Secretary, in consultation with the Commissioner, shall issue notice of a confirmation or final nonconfirmation of the individual’s identity and employment authorization not later than 30 calendar days after the date the Secretary receives notice from the individual contesting the tentative nonconfirmation.

“(E) Final nonconfirmation

“(i) Notice—If a person or entity receives a final nonconfirmation of an individual’s identity or employment authorization, the person or entity shall, not later than 3 business days after receipt, notify such individual of the final nonconfirmation in writing, on a form designated by the Secretary, which shall include information regarding the individual’s right to appeal the final nonconfirmation as provided under subparagraph (F). The person or entity shall attest, under penalty of perjury, that the person or entity provided (or attempted to provide) the notice to the individual, and the individual shall acknowledge receipt of such notice in a manner designated by the Secretary.

“(ii) Termination or notification of continued employment—If a person or entity receives a final nonconfirmation regarding an individual, the person or entity may terminate employment of the individual. If the person or entity does not terminate such employment pending appeal of the final nonconfirmation, the person or entity shall notify the Secretary of such fact through the System. Failure to notify the Secretary in accordance with this clause shall be deemed a violation of section 274A(a)(1)(A).

“(iii) Presumption of violation for continued employment—If a person or entity continues to employ an individual after receipt of a final nonconfirmation, there shall be a rebuttable presumption that the person or entity has violated paragraphs (1)(A) and (a)(2) of section 274A(a).

“(F) Appeal of final nonconfirmation

“(i) Administrative appeal—The Secretary, in consultation with the Commissioner, shall develop a process by which an individual may seek administrative review of a final nonconfirmation. Such process shall—

“(I) permit the individual to submit additional evidence establishing identity or employment authorization;

“(II) ensure prompt resolution of an appeal (but in no event shall there be a failure to respond to an appeal within 30 days); and

“(III) permit the Secretary to impose a civil money penalty (not to exceed $500) on an individual upon finding that an appeal was frivolous or filed for purposes of delay.

“(ii) Compensation for lost wages resulting from government error or omission

“(I) In general—If, upon consideration of an appeal of a final nonconfirmation, the Secretary determines that the final nonconfirmation was issued in error, the Secretary shall further determine whether the final nonconfirmation was the result of government error or omission. If the Secretary determines that the final nonconfirmation was solely the result of government error or omission and the individual was terminated from employment, the Secretary shall compensate the individual for lost wages.

“(II) Calculation of lost wages—Lost wages shall be calculated based on the wage rate and work schedule that were in effect prior to the individual’s termination. The individual shall be compensated for lost wages beginning on the first scheduled work day after employment was terminated and ending 90 days after completion of the administrative review process described in this subparagraph or the day the individual is reinstated or obtains other employment, whichever occurs first.

“(III) Limitation on compensation—No compensation for lost wages shall be awarded for any period during which the individual was not authorized for employment in the United States.

“(IV) Source of funds—There is established in the general fund of the Treasury, a separate account which shall be known as the “Electronic Verification Compensation Account”. Fees collected under subsections (f) and (g) shall be deposited in the Electronic Verification Compensation Account and shall remain available for purposes of providing compensation for lost wages under this subclause.

“(iii) Judicial review—Not later than 30 days after the dismissal of an appeal under this subparagraph, an individual may seek judicial review of such dismissal in the United States District Court in the jurisdiction in which the employer resides or conducts business.

“(5) Retention of verification records

“(A) In general—After completing the form designated by the Secretary in accordance with paragraphs (1) and (2), the person or entity shall retain the form in paper, microfiche, microfilm, electronic, or other format deemed acceptable by the Secretary, and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the verification is completed and ending on the later of—

“(i) the date that is 3 years after the date of hire; or

“(ii) the date that is 1 year after the date on which the individual’s employment is terminated.

“(B) Copying of documentation permitted—Notwithstanding any other provision of law, a person or entity may copy a document presented by an individual pursuant to this section and may retain the copy, but only for the purpose of complying with the requirements of this section.

“(c) Reverification of previously hired individuals

“(1) Mandatory reverification—In the case of a person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States, the person or entity shall submit an inquiry using the System to verify the identity and employment authorization of—

“(A) an individual with a limited period of employment authorization, within 3 business days before the date on which such employment authorization expires; and

“(B) an individual, not later than 10 days after receiving a notification from the Secretary requiring the verification of such individual pursuant to subsection (a)(4)(C).

“(2) Reverification procedures—The verification procedures under subsection (b) shall apply to reverifications under this subsection, except that employers shall—

“(A) use a form designated by the Secretary for purposes of this paragraph; and

“(B) retain the form in paper, microfiche, microfilm, electronic, or other format deemed acceptable by the Secretary, and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the reverification commences and ending on the later of—

“(i) the date that is 3 years after the date of reverification; or

“(ii) the date that is 1 year after the date on which the individual’s employment is terminated.

“(3) Limitation on reverification—Except as provided in paragraph (1), a person or entity may not otherwise reverify the identity and employment authorization of a current employee, including an employee continuing in employment.

“(d) Good faith compliance

“(1) In general—Except as otherwise provided in this subsection, a person or entity that uses the System is considered to have complied with the requirements of this section notwithstanding a technical failure of the System, or other technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.

“(2) Exception for failure to correct after notice—Paragraph (1) shall not apply if—

“(A) the failure is not de minimis;

“(B) the Secretary has provided notice to the person or entity of the failure, including an explanation as to why it is not de minimis;

“(C) the person or entity has been provided a period of not less than 30 days (beginning after the date of the notice) to correct the failure; and

“(D) the person or entity has not corrected the failure voluntarily within such period.

“(3) Exception for pattern or practice violators—Paragraph (1) shall not apply to a person or entity that has engaged or is engaging in a pattern or practice of violations of paragraph (1)(A) or (2) of section 274A(a).

“(4) Defense—In the case of a person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States, the person or entity shall not be liable to a job applicant, an employee, the Federal Government, or a State or local government, under Federal, State, or local criminal or civil law, for any employment-related action taken with respect to an employee in good-faith reliance on information provided by the System. Such person or entity shall be deemed to have established compliance with its obligations under this section, absent a showing by the Secretary, by clear and convincing evidence, that the employer had knowledge that an employee is an unauthorized alien.

“(e) Limitations

“(1) No national identification card—Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.

“(2) Use of records—Notwithstanding any other provision of law, nothing in this section shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this section for any purpose other than the verification of identity and employment authorization of an individual or to ensure the secure, appropriate, and non-discriminatory use of the System.

“(f) Penalties

“(1) In general—Except as provided in this subsection, the provisions of subsections (e) through (g) of section 274A shall apply with respect to compliance with the provisions of this section and penalties for non-compliance for persons or entitles that use the System.

“(2) Cease and desist order with civil money penalties for hiring, recruiting, and referral violations—Notwithstanding the civil money penalties set forth in section 274A(e)(4), with respect to a violation of paragraph (1)(A) or (2) of section 274A(a) by a person or entity that has hired, recruited, or referred for a fee, an individual for employment in the United States, a cease and desist order—

“(A) shall require the person or entity to pay a civil penalty in an amount, subject to subsection (d), of—

“(i) not less than $2,500 and not more than $5,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred;

“(ii) not less than $5,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph; or

“(iii) not less than $10,000 and not more than $25,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and

“(B) may require the person or entity to take such other remedial action as appropriate.

“(3) Order for civil money penalty for violations—With respect to a violation of section 274A(a)(1)(B), the order under this paragraph shall require the person or entity to pay a civil penalty in an amount, subject to paragraphs (4), (5), and (6), of not less than $1,000 and not more than $25,000 for each individual with respect to whom such violation occurred. Failure by a person or entity to utilize the System as required by law or providing information to the System that the person or entity knows or reasonably believes to be false, shall be treated as a violation of section 274A(a)(1)(A).

“(4) Exemption from penalty for good faith violation

“(A) In general—A person or entity that uses the System is presumed to have acted with knowledge for purposes of paragraphs (1)(A) and (2) of section 274A(a) if the person or entity fails to make an inquiry to verify the identity and employment authorization of the individual through the System.

“(B) Good faith exemption—In the case of imposition of a civil penalty under paragraph (2)(A) with respect to a violation of paragraph (1)(A) or (2) of section 274A(a) for hiring or continuation of employment or recruitment or referral by a person or entity, and in the case of imposition of a civil penalty under paragraph (3) for a violation of section 274A(a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the person or entity establishes that the person or entity acted in good faith.

“(5) Mitigation elements—For purposes of paragraphs (2)(A) and (3), when assessing the level of civil money penalties, in addition to the good faith of the person or entity being charged, due consideration shall be given to the size of the business, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.

“(6) Criminal penalty—Notwithstanding section 274A(f)(1) and the provisions of any other Federal law relating to fine levels, any person or entity that is required to comply with the provisions of this section and that engages in a pattern or practice of violations of paragraph (1) or (2) of section 274A(a), shall be fined not more than $5,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 18 months, or both.

changed “(7) Electronic Verification Compensation Account—Civil money penalties collected under this subsection shall be deposited in the Electronic Verification Compensation Account for the purpose of compensating individuals for lost wages as a result of a final nonconfirmation issued by the System that was based on government or employer error or omission, as set forth in subsection (b)(4)(F)(ii)(IV).

“(8) Debarment

“(A) In general—If a person or entity is determined by the Secretary to be a repeat violator of paragraph (1)(A) or (2) of section 274A(a) or is convicted of a crime under section 274A, such person or entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation.

“(B) No contract, grant, agreement—If the Secretary or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such a person or entity does not hold a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall refer the matter to the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.

“(C) Contract, grant, agreement—If the Secretary or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or entity holds a Federal contract, grant, or cooperative agreement, the Secretary or Attorney General shall advise all agencies or departments holding a contract, grant, or cooperative agreement with the person or entity of the Government’s interest in having the person or entity considered for debarment, and after soliciting and considering the views of all such agencies and departments, the Secretary or Attorney General may refer the matter to the appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.

“(D) Review—Any decision to debar a person or entity in accordance with this subsection shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation.

“(9) Preemption—The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, relating to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens, except that a State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the System as required under this section.

changed “(g) Unfair immigration-related immigration-Related employment practices and the System

“(1) In general—In addition to the prohibitions on discrimination set forth in section 274B, it is an unfair immigration-related employment practice for a person or entity, in the course of utilizing the System—

“(A) to use the System for screening an applicant prior to the date of hire;

“(B) to terminate the employment of an individual or take any adverse employment action with respect to that individual due to a tentative nonconfirmation issued by the System;

“(C) to use the System to screen any individual for any purpose other than confirmation of identity and employment authorization as provided in this section;

“(D) to use the System to verify the identity and employment authorization of a current employee, including an employee continuing in employment, other than reverification authorized under subsection (c);

“(E) to use the System to discriminate based on national origin or citizenship status;

“(F) to willfully fail to provide an individual with any notice required under this title;

“(G) to require an individual to make an inquiry under the self-verification procedures described in subsection (a)(4)(B) or to provide the results of such an inquiry as a condition of employment, or hiring, recruiting, or referring; or

“(H) to terminate the employment of an individual or take any adverse employment action with respect to that individual based upon the need to verify the identity and employment authorization of the individual as required by subsection (b).

“(2) Preemployment screening and background check—Nothing in paragraph (1)(A) shall be construed to preclude a preemployment screening or background check that is required or permitted under any other provision of law.

“(3) Civil money penalties for discriminatory conduct—Notwithstanding section 274B(g)(2)(B)(iv), the penalties that may be imposed by an administrative law judge with respect to a finding that a person or entity has engaged in an unfair immigration-related employment practice described in paragraph (1) are—

“(A) not less than $1,000 and not more than $4,000 for each individual discriminated against;

“(B) in the case of a person or entity previously subject to a single order under this paragraph, not less than $4,000 and not more than $10,000 for each individual discriminated against; and

“(C) in the case of a person or entity previously subject to more than one order under this paragraph, not less than $6,000 and not more than $20,000 for each individual discriminated against.

“(4) Electronic Verification Compensation Account—Civil money penalties collected under this subsection shall be deposited in the Electronic Verification Compensation Account for the purpose of compensating individuals for lost wages as a result of a final nonconfirmation issued by the System that was based on government error or omission, as set forth in subsection (b)(4)(F)(ii)(IV).

“(h) Clarification—All rights and remedies provided under any Federal, State, or local law relating to workplace rights, including but not limited to back pay, are available to an employee despite—

“(1) the employee’s status as an unauthorized alien during or after the period of employment; or

“(2) the employer’s or employee’s failure to comply with the requirements of this section.

“(i) Definition—In this section, the term date of hire means the date on which employment for pay or other remuneration commences.”