H.R. 1603 — what changed
Farm Workforce Modernization Act of 2021
From Introduced in House to Engrossed in House. 4 sections amended between Introduced in House and Engrossed in House.
Sec. 111 Optional adjustment of status for long-term agricultural workers
Requirements for adjustment of status—
Principal aliens— The Secretary may adjust the status of an alien from that of a certified agricultural worker to that of a lawful permanent resident if the alien submits a completed application, including the required processing and penalty fees, and the Secretary determines that—
except as provided in section 126(c), the alien performed agricultural labor or services for not less than 575 hours (or 100 work days) each year—
for at least 10 years prior to the date of the enactment of this Act and for at least 4 years in certified agricultural worker status; or
for fewer than 10 years prior to the date of the enactment of this Act and for at least 8 years in certified agricultural worker status; and
the alien has not become ineligible for certified agricultural worker status under section 101(b).
Dependent aliens—
In general— The spouse and each child of an alien described in paragraph (1) whose status has been adjusted to that of a lawful permanent resident may be granted lawful permanent residence under this subtitle if—
the qualifying relationship to the principal alien existed on the date on which such alien was granted adjustment of status under this subtitle; and
the spouse or child is not ineligible for certified agricultural worker dependent status under section 101(b).
Protections for spouses and children— The Secretary of Homeland Security shall establish procedures to allow the spouse or child of a certified agricultural worker to self-petition for lawful permanent residence under this subtitle in cases involving—
the death of the certified agricultural worker, so long as the spouse or child submits a petition not later than 2 years after the date of the worker’s death; or
the spouse or a child being battered or subjected to extreme cruelty by the certified agricultural worker.
Documentation of work history— An applicant for adjustment of status under this section shall not be required to resubmit evidence of work history that has been previously submitted to the Secretary in connection with an approved extension of certified agricultural worker status.
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Penalty fee— In addition to any processing fee that the Secretary may assess in accordance with section 122(b), a principal alien seeking adjustment of status under this subtitle shall pay a $1,000 penalty fee, which shall be deposited into the Immigration Examinations Fee Account pursuant to section 286(m) of the Immigration and Nationality Act (8 U.S.C.1356(m)).U.S.C. 1356(m)).
Effect of pending application— During the period beginning on the date on which an alien applies for adjustment of status under this subtitle, and ending on the date on which the Secretary makes a final administrative decision regarding such application, the alien and any dependents included on the application—
may apply for advance parole, which shall be granted upon demonstrating a legitimate need to travel outside the United States for a temporary purpose;
may not be detained by the Secretary or removed from the United States unless the Secretary makes a prima facie determination that such alien is, or has become, ineligible for adjustment of status under subsection (a);
may not be considered unlawfully present under section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
Evidence of application filing— As soon as practicable after receiving an application for adjustment of status under this subtitle, the Secretary shall provide the applicant with a document acknowledging the receipt of such application. Such document shall serve as interim proof of the alien’s authorization to accept employment in the United States and shall be accepted by an employer as evidence of employment authorization under section 274A(b)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)(C)), pending a final administrative decision on the application.
Withdrawal of application— The Secretary shall, upon receipt of a request to withdraw an application for adjustment of status under this subtitle, cease processing of the application, and close the case. Withdrawal of the application shall not prejudice any future application filed by the applicant for any immigration benefit under this Act or under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
Sec. 126 Documentation of agricultural work history
Burden of proof— An alien applying for certified agricultural worker status under subtitle A or adjustment of status under subtitle B has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours or days required under section 101, 103, or 111, as applicable. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.
Evidence— An alien may meet the burden of proof under subsection (a) by producing sufficient evidence to show the extent of such employment as a matter of just and reasonable inference. Such evidence may include—
an annual record of certified agricultural worker employment as described in section 105(a), or other employment records from employers;
employment records maintained by collective bargaining associations;
tax records or other government records;
sworn affidavits from individuals who have direct knowledge of the alien’s work history; or
any other documentation designated by the Secretary for such purpose.
Exceptions for extraordinary circumstances—
Impact of COVID–19—
In general— The Secretary may grant certified agricultural worker status to an alien who is otherwise eligible for such status if such alien is able to only partially satisfy the requirement under section 101(a)(1)(A) as a result of reduced hours of employment or other restrictions associated with the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247d) with respect to COVID–19.
Limitation— The exception described in subparagraph (A) shall apply only to agricultural labor or services required to be performed during the period that—
begins on the first day of the public health emergency described in subparagraph (A); and
ends 90 days after the date on which such public health emergency terminates.
Extraordinary circumstances— In determining whether an alien has met the requirement under section 103(a)(1)(A) or 111(a)(1)(A), the Secretary may credit the alien with not more than 575 hours (or 100 work days) of agricultural labor or services in the United States if the alien was unable to perform the required agricultural labor or services due to—
pregnancy, parental leave, illness, disease, disabling injury, or physical limitation of the alien;
injury, illness, disease, or other special needs of the alien’s child or spouse;
severe weather conditions that prevented the alien from engaging in agricultural labor or services;
reduced hours of employment or other restrictions associated with the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247d) with respect to COVID–19; or
termination from agricultural employment, if the Secretary determines that—
the termination was without just cause; and
the alien was unable to find alternative agricultural employment after a reasonable job search.
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Effect of determination— A determination under paragraph (1)(D) (1)(E) shall not be conclusive, binding, or admissible in a separate or subsequent judicial or administrative action or proceeding between the alien and a current or prior employer of the alien or any other party.
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Hardship waiver—
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In general— As part of the rulemaking described in section 122(a), the Secretary shall establish procedures allowing for a partial waiver of the requirement under section 111(a)(1)(A) for a certified agricultural worker if such worker—
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has continuously maintained certified agricultural worker status since the date such status was initially granted;
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has partially completed the requirement under section 111(a)(1)(A); and
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is no longer able to engage in agricultural labor or services safely and effectively because of—
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a permanent disability suffered while engaging in agricultural labor or services; or
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deteriorating health or physical ability combined with advanced age.
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Disability— In establishing the procedures described in subparagraph (A), the Secretary shall consult with the Secretary of Health and Human Services and the Commissioner of Social Security to define “permanent disability” for purposes of a waiver under subparagraph (A)(iii)(I).
Sec. 204 Worker protection and compliance
Equality of treatment— H–2A workers shall not be denied any right or remedy under any Federal, State, or local labor or employment law applicable to United States workers engaged in agricultural employment.
Applicability of other laws—
Migrant and seasonal agricultural worker protection act— H–2A workers shall be considered migrant agricultural workers for purposes of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).
Waiver of rights prohibited— Agreements by H–2A workers to waive or modify any rights or protections under this Act or section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) shall be considered void or contrary to public policy except as provided in a collective bargaining agreement with a bona fide labor organization.
Mediation—
Free mediation services— The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under this section between H–2A workers and agricultural employers without charge to the parties.
Complaint— If an H–2A worker files a civil lawsuit alleging one or more violations of section 218 of the Immigration and Nationality Act (8 U.S.C. 1188), the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), or the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.), not later than 60 days after the filing of proof of service of the complaint, a party to the lawsuit may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute.
Notice— Upon filing a request under subparagraph (B) and giving of notice to the parties, the parties shall attempt mediation within the period specified in subparagraph (D), except that nothing in this paragraph shall limit the ability of a court to order preliminary injunctive relief to protect health and safety or to otherwise prevent irreparable harm.
90-day limit— The Federal Mediation and Conciliation Service may conduct mediation or other nonbinding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives a request for assistance under subparagraph (B) unless the parties agree to an extension of such period.
Authorization of appropriations—
In general— Subject to clause (ii), there is authorized to be appropriated to the Federal Mediation and Conciliation Service, such sums as may be necessary for each fiscal year to carry out this subparagraph.
Mediation— Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized—
to conduct the mediation or other dispute resolution activities from any other account containing amounts available to the Director; and
to reimburse such account with amounts appropriated pursuant to clause (i).
Private mediation— If all parties agree, a private mediator may be employed as an alternative to the Federal Mediation and Conciliation Service.
Farm labor contractor requirements—
Surety bonds—
Requirement— Section 101 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1811), is amended by adding at the end the following:
“(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.”
Registration determinations— Section 103(a) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1813(a)), is amended—
in paragraph (4), by striking “or” at the end;
in paragraph (5)(B), by striking “or” at the end;
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in paragraph (6), by striking the period at the end and inserting “;” ; “;”; and
by adding at the end the following:
“(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.”
Successors in interest—
Declaration— Section 102 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1812), is amended—
in paragraph (4), by striking “and” at the end;
in paragraph (5), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(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.”
Rebuttable presumption— Section 103 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1813), as amended by this Act, is further amended by inserting after subsection (a) the following new subsection (and by redesignating the subsequent subsections accordingly):
“(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.”
Sec. 302 Mandatory electronic verification for the agricultural industry
In general— The requirements for the electronic verification of identity and employment authorization described in section 274E of the Immigration and Nationality Act, as inserted by section 301 of this Act, shall apply to a person or entity hiring, recruiting, or referring for a fee an individual for agricultural employment in the United States in accordance with the effective dates set forth in subsection (b).
Effective dates—
Hiring— Subsection (a) shall apply to a person or entity hiring an individual for agricultural employment in the United States as follows:
With respect to employers having 500 or more employees in the United States on the date of the enactment of this Act, on the date that is 6 months after completion of the application period described in section 101(c).
With respect to employers having 100 or more employees in the United States (but less than 500 such employees) on the date of the enactment of this Act, on the date that is 9 months after completion of the application period described in section 101(c).
With respect to employers having 20 or more employees in the United States (but less than 100 such employees) on the date of the enactment of this Act, on the date that is 12 months after completion of the application period described in section 101(c).
With respect to employers having one or more employees in the United States, (but less than 20 such employees) on the date of the enactment of this Act, on the date that is 15 months after completion of the application period described in section 101(c).
Recruiting and referring for a fee— Subsection (a) shall apply to a person or entity recruiting or referring for a fee an individual for agricultural employment in the United States on the date that is 12 months after completion of the application period described in section 101(c).
Transition rule— Except as required under subtitle A of title IV 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)), Executive Order No. 13465 (8 U.S.C. 1324a note; relating to Government procurement), or any State law requiring persons or entities to use 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)), sections 274A and 274B of the Immigration and Nationality Act (8 U.S.C. 1324a and 1324b) shall apply to a person or entity hiring, recruiting, or referring an individual for employment in the United States until the applicable effective date under this subsection.
E–Verify voluntary users and others desiring early compliance— Nothing in this subsection shall be construed to prohibit persons or entities, including persons or entities that have voluntarily elected to participate in 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)), from seeking early compliance on a voluntary basis.
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Delayed implementation— The Secretary of Homeland Security, in consultation with the Secretary of Agriculture, may delay the effective dates described in paragraphs (1) and (2) for a period not to exceed 180 days if the Secretary determines, based on the most recent report described in section 133 and other relevant data, that a significant number of applications under section 101 remain pending.
Rural access to assistance for tentative nonconfirmation review process—
In general— The Secretary of Homeland Security shall coordinate with the Secretary of Agriculture, in consultation with the Commissioner of Social Security, to create a process for individuals to seek assistance in contesting a tentative nonconfirmation as described in section 274E(b)(4)(D) of the Immigration and Nationality Act, as inserted by section 301 of this Act, at local offices or service centers of the U.S. Department of Agriculture.
Staffing and resources— The Secretary of Homeland Security and Secretary of Agriculture shall ensure that local offices and service centers of the U.S. Department of Agriculture are staffed appropriately and have the resources necessary to provide information and support to individuals seeking the assistance described in paragraph (1), including by facilitating communication between such individuals and the Department of Homeland Security or the Social Security Administration.
Clarification— Nothing in this subsection shall be construed to delegate authority or transfer responsibility for reviewing and resolving tentative nonconfirmations from the Secretary of Homeland Security and the Commissioner of Social Security to the Secretary of Agriculture.
Document establishing employment authorization and identity— In accordance with section 274E(b)(3)(A)(vii) of the Immigration and Nationality Act, as inserted by section 301 of this Act, and not later than 12 months after the completion of the application period described in section 101(c) of this Act, the Secretary of Homeland Security shall recognize documentary evidence of certified agricultural worker status described in section 102(a)(2) of this Act as valid proof of employment authorization and identity for purposes of section 274E(b)(3)(A) of the Immigration and Nationality Act, as inserted by section 301 of this Act.
Agricultural employment— For purposes of this section, the term agricultural employment means agricultural labor or services, as defined by section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by this Act.