The Secretary of Labor may not issue a certification under subsection (a) with respect to an employer if the conditions described in that subsection are not met or if any of the following conditions are met:
The following rules shall apply in the case of the filing and consideration of an application for a labor certification under this section:
The Secretary of Labor may not require that the application be filed more than 45 days before the first date the employer requires the labor or services of the H-2A worker.
In considering the question of whether a specific qualification is appropriate in a job offer, the Secretary shall apply the normal and accepted qualifications required by non-H-2A-employers in the same or comparable occupations and crops.
Employers shall furnish housing in accordance with regulations. The employer shall be permitted at the employer's option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accommodations or other substantially similar class of habitation: Provided, That in the absence of applicable local standards, State standards for rental and/or public accommodations or other substantially similar class of habitation shall be met: Provided further, That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply: Provided further, That the Secretary of Labor shall issue regulations which address the specific requirements of housing for employees principally engaged in the range production of livestock: Provided further, That when it is the prevailing practice in the area and occupation of intended employment to provide family housing, family housing shall be provided to workers with families who request it: And provided further, That nothing in this paragraph shall require an employer to provide or secure housing for workers who are not entitled to it under the temporary labor certification regulations in effect on June 1, 1986. The determination as to whether the housing furnished by an employer for an H-2A worker meets the requirements imposed by this paragraph must be made prior to the date specified in paragraph (3)(A) by which the Secretary of Labor is required to make a certification described in subsection (a)(1) with respect to a petition for the importation of such worker.
A petition to import an alien as a temporary agricultural worker, and an application for a labor certification with respect to such a worker, may be filed by an association of agricultural producers which use agricultural services.
If an association is a joint or sole employer of temporary agricultural workers, the certifications granted under this section to the association may be used for the certified job opportunities of any of its producer members and such workers may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the certifications were granted.
If an individual producer member of a joint employer association is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the member, the denial shall apply only to that member of the association unless the Secretary determines that the association or other member participated in, had knowledge of, or reason to know of, the violation.
An alien may not be admitted to the United States as a temporary agricultural worker if the alien was admitted to the United States as such a worker within the previous five-year period and the alien during that period violated a term or condition of such previous admission.
For purposes of this section:
8 U.S.C. § 1188
EDITORIAL NOTES
REFERENCES IN TEXTSection 403(a)(4)(D) of the Immigration Reform and Control Act of 1986, referred to in subsec. (c)(3)(B)(iii), is section 403(a)(4)(D) of Pub. L. 99-603 which is set out in a note under this section.
CODIFICATIONSection was classified to section 1186 of this title prior to its renumbering by Pub. L. 100-525.
AMENDMENTS2000-Subsec. (c)(4). Pub. L. 106-554 inserted at end "The determination as to whether the housing furnished by an employer for an H-2A worker meets the requirements imposed by this paragraph must be made prior to the date specified in paragraph (3)(A) by which the Secretary of Labor is required to make a certification described in subsection (a)(1) with respect to a petition for the importation of such worker." 1999-Subsec. (c)(1). Pub. L. 106-78, §748(1), substituted "45 days" for "60 days".Subsec. (c)(3)(A). Pub. L. 106-78, §748(2), substituted "30 days" for "20 days" in introductory provisions.1994-Subsec. (i)(1). Pub. L. 103-416 made technical correction to directory language of Pub. L. 102-232, §309(b)(8). See 1991 Amendment note below.1991-Subsec. (g)(3). Pub. L. 102-232, §307(l)(4), substituted "section 1182(a)(5)(A)(i)" for "section 1182(a)(14)".Subsec. (i)(1). Pub. L. 102-232, §309(b)(8), as amended by Pub. L. 103-416 substituted "1324a(h)(3)" for "1324a(h)".1988- Pub. L. 100-525, §2(l)(2)(A), made technical amendment to directory language of Pub. L. 99-603, §301(c), which enacted this section.Subsec. (c)(4). Pub. L. 100-525, §2(l)(3), substituted "accommodations" for "accomodations" wherever appearing.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103-416, title II, §219(z), Oct. 25, 1994, 108 Stat. 4318, provided that the amendment made by subsec. (z)(8) of that section is effective as if included in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232.
EFFECTIVE DATE OF 1991 AMENDMENT Pub. L. 102-232, title III, §307(l), Dec. 12, 1991, 105 Stat. 1756, provided that the amendment made by section 307(l) is effective as if included in section 603(a) of the Immigration Act of 1990, Pub. L. 101-649.
EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99-603, see section 2(s) of Pub. L. 100-525 set out as a note under section 1101 of this title.
EFFECTIVE DATE; REGULATIONS Pub. L. 99-603, title III, §301(d), (e), Nov. 6, 1986, 100 Stat. 3416, as amended by Pub. L. 100-525, §2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided that:"(d) EFFECTIVE DATE.-The amendments made by this section [enacting this section and amending sections 1101 and 1184] apply to petitions and applications filed under sections 214(c) and 218 of the Immigration and Nationality Act [ 8 U.S.C. 1184(c), 1188 ] on or after the first day of the seventh month beginning after the date of the enactment of this Act [Nov. 6, 1986] (hereinafter in this section referred to as the 'effective date')."(e) REGULATIONS.-The Attorney General, in consultation with the Secretary of Labor and the Secretary of Agriculture, shall approve all regulations to be issued implementing sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act [ 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188 ]. Notwithstanding any other provision of law, final regulations to implement such sections shall first be issued, on an interim or other basis, not later than the effective date."
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONSFor abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
SENSE OF CONGRESS RESPECTING CONSULTATION WITH MEXICOPub. L. 99-603, title III, §301(f), Nov. 6, 1986, 100 Stat. 3416, as amended by Pub. L. 100-525, §2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided that: "It is the sense of Congress that the President should establish an advisory commission which shall consult with the Governments of Mexico and of other appropriate countries and advise the Attorney General regarding the operation of the alien temporary worker program established under section 218 of the Immigration and Nationality Act [ 8 U.S.C. 1188 ]."
REPORTS ON H-2A PROGRAMPub. L. 99-603, title IV, §403, Nov. 6, 1986, 100 Stat. 3441, provided that: "(a) PRESIDENTIAL REPORTS.-The President shall transmit to the Committees on the Judiciary of the Senate and of the House of Representatives reports on the implementation of the temporary agricultural worker (H-2A) program, which shall include-"(1) the number of foreign workers permitted to be employed under the program in each year; "(2) the compliance of employers and foreign workers with the terms and conditions of the program;"(3) the impact of the program on the labor needs of the United States agricultural employers and on the wages and working conditions of United States agricultural workers; and "(4) recommendations for modifications of the program, including-"(A) improving the timeliness of decisions regarding admission of temporary foreign workers under the program, "(B) removing any economic disincentives to hiring United States citizens or permanent resident aliens for jobs for which temporary foreign workers have been requested,"(C) improving cooperation among government agencies, employers, employer associations, workers, unions, and other worker associations to end the dependence of any industry on a constant supply of temporary foreign workers, and"(D) the relative benefits to domestic workers and burdens upon employers of a policy which requires employers, as a condition for certification under the program, to continue to accept qualified United States workers for employment after the date the H-2A workers depart for work with the employer.The recommendations under subparagraph (D) shall be made in furtherance of the Congressional policy that aliens not be admitted under the H-2A program unless there are not sufficient workers in the United States who are able, willing, and qualified to perform the labor or services needed and that the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed."(b) DEADLINES.-A report on the H-2A temporary worker program under subsection (a) shall be submitted not later than two years after the date of the enactment of this Act [Nov. 6, 1986], and every two years thereafter."[Functions of President under section 403 of Pub. L. 99-603 delegated to Secretary of Labor by section 2(b) of Ex. Ord. No. 12789, Feb. 10, 1992, 57 F.R. 5225, set out as a note under section 1364 of this title.]
- Attorney General
- The term "Attorney General" means the Attorney General of the United States.
- Service
- The term "Service" means the Immigration and Naturalization Service of the Department of Justice.
- State
- The term "State" includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
- alien
- The term "alien" means any person not a citizen or national of the United States.
- naturalization
- The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
- permanent
- The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.
- person
- The term "person" means an individual or an organization.
- admitted
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
- admission
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.