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Thursday, June 28, 2007

Immigration Bill: H2C Indentured Servants

This is the indentured servant provision of the immigration bill, aka the H2C visas in Section 218 of Senate bill 1348. It's noxious. It provides that corporations can bring in just about anyone they want. The person brought in can bring spouse and/or children. The initial authorization runs for 3 years, and then can be renewed once. Then the Secretary can reauthorize for another term without the alien having to leave the country. Corporations already recruit illegal immigrants overseas; with this bill, they can no longer get fined for it.

If the person brought in is unemployed for 60 days, the person gets chucked out. Put yourself in the position of one of these people. You will be working for extremely low wages all during the time you are in the country. You can never become naturalized, or a resident. You can't strike. You are employed essentially at will, and you depend upon the company to get you reauthorized. If you have a child born here, that child is a citizen, so you'll stay and work so that child can get educated and have a better life. If you agitate about working conditions, or unionize, guess what? You'll be on the boat back before you know it. True, you can apply at another company and work for that company, but the market is not exactly going to be competitive, is it? The market for labor will always be restricted to whatever an alien is willing to accept to have a child born in this country.

All the provisions at the end that talk about the "prevailing wage" mean absolutely nothing, because the provisions of this bill can and will be used to drive down prevailing wages. The protections for US workers mean absolutely nothing, because there are a million ways to bypass them, and no provision set up to enforce them, and no funds provided. Also, all the Department of Labor has to do is determine that there is a shortage of workers, and those protections get thrown out. There will be amazing shortages of workers very shortly.

If you are in union currently, just imagine what will happen if you ever strike again. Instant scab-o-rama, baby. These workers can be engineers, doctors, nurses, scientists, or those oh-so-loveable maids and nannies that make the lives of elitist yuppies so liveable - and best of all, they can't talk back!!

Try to find this information in a regular newspaper. Let me know if you succeed. The immigration bill should have been called the "attack on American workers and current immigrants bill of 2007". Short title: U R SCREWED, SUCKAH. Don't stop contacting Congress. Let them know that a political tarring and feathering will be forthcoming if they support this bill, or anything like it. As the Chief commented, anyone at least half humane and sane could do better than this.

`(a) Authorization- The Secretary of State may grant a temporary visa to an H-2C nonimmigrant who demonstrates an intent to perform labor or services in the United States (other than the labor or services described in clause (i)(b) or (ii)(a) of section 101(a)(15)(H) or subparagraph (L), (O), (P), or (R)) of section 101(a)(15).

`(b) Requirements for Admission- An alien shall be eligible for H-2C nonimmigrant status if the alien meets the following requirements:

`(1) ELIGIBILITY TO WORK- The alien shall establish that the alien is capable of performing the labor or services required for an occupation under section 101(a)(15)(H)(ii)(c).

`(2) EVIDENCE OF EMPLOYMENT- The alien shall establish that the alien has received a job offer from an employer who has complied with the requirements of 218B.

`(3) FEE- The alien shall pay a $500 visa issuance fee in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.

`(4) MEDICAL EXAMINATION- The alien shall undergo a medical examination (including a determination of immunization status), at the alien's expense, that conforms to generally accepted standards of medical practice.


`(A) APPLICATION FORM- The alien shall submit to the Secretary a completed application, on a form designed by the Secretary of Homeland Security, including proof of evidence of the requirements under paragraphs (1) and (2).

`(B) CONTENT- In addition to any other information that the Secretary requires to determine an alien's eligibility for H-2C nonimmigrant status, the Secretary shall require an alien to provide information concerning the alien's--

`(i) physical and mental health;

`(ii) criminal history and gang membership;

`(iii) immigration history; and

`(iv) involvement with groups or individuals that have engaged in terrorism, genocide, persecution, or who seek the overthrow of the United States Government.

`(C) KNOWLEDGE- The alien shall include with the application submitted under this paragraph a signed certification in which the alien certifies that--

`(i) the alien has read and understands all of the questions and statements on the application form;

`(ii) the alien certifies under penalty of perjury under the laws of the United States that the application, and any evidence submitted with it, are all true and correct; and

`(iii) the applicant authorizes the release of any information contained in the application and any attached evidence for law enforcement purposes.

`(c) Grounds of Inadmissibility-

`(1) IN GENERAL- In determining an alien's admissibility as an H-2C nonimmigrant--

`(A) paragraphs (5), (6)(A), (7), (9)(B), and (9)(C) of section 212(a) may be waived for conduct that occurred before the effective date of the Comprehensive Immigration Reform Act of 2007;

`(B) the Secretary of Homeland Security may not waive the application of--

`(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);

`(ii) section 212(a)(3) (relating to security and related grounds); or

`(iii) subparagraph (A), (C) or (D) of section 212(a)(10) (relating to polygamists and child abductors); and

`(C) for conduct that occurred before the date of the enactment of the Comprehensive Immigration Reform Act of 2007, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien--

`(i) for humanitarian purposes;

`(ii) to ensure family unity; or

`(iii) if such a waiver is otherwise in the public interest.

`(2) RENEWAL OF AUTHORIZED ADMISSION AND SUBSEQUENT ADMISSIONS- An alien seeking renewal of authorized admission or subsequent admission as an H-2C nonimmigrant shall establish that the alien is not inadmissible under section 212(a).

`(d) Background Checks- The Secretary of Homeland Security shall not admit, and the Secretary of State shall not issue a visa to, an alien seeking H-2C nonimmigrant status unless all appropriate background checks have been completed.

`(e) Ineligible To Change Nonimmigrant Classification- An H-2C nonimmigrant may not change nonimmigrant classification under section 248.

`(f) Period of Authorized Admission-

`(1) AUTHORIZED PERIOD AND RENEWAL- The initial period of authorized admission as an H-2C nonimmigrant shall be 3 years, and the alien may seek 1 extension for an additional 3-year period.

`(2) INTERNATIONAL COMMUTERS- An alien who resides outside the United States and commutes into the United States to work as an H-2C nonimmigrant, is not subject to the time limitations under paragraph (1).



`(i) PERIOD OF UNEMPLOYMENT- Subject to clause (ii) and subsection (c), the period of authorized admission of an H-2C nonimmigrant shall terminate if the alien is unemployed for 60 or more consecutive days.

`(ii) EXCEPTION- The period of authorized admission of an H-2C nonimmigrant shall not terminate if the alien is unemployed for 60 or more consecutive days if such unemployment is caused by--

`(I) a period of physical or mental disability of the alien or the spouse, son, daughter, or parent (as defined in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611)) of the alien;

`(II) a period of vacation, medical leave, maternity leave, or similar leave from employment authorized by employer policy, State law, or Federal law; or

`(III) any other period of temporary unemployment caused by circumstances beyond the control of the alien.

`(B) RETURN TO FOREIGN RESIDENCE- Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to leave the United States.

`(C) PERIOD OF VISA VALIDITY- Any alien, whose period of authorized admission terminates under subparagraph (A), who leaves the United States under subparagraph (B), may reenter the United States as an H-2C nonimmigrant to work for an employer, if the alien has complied with the requirements of subsection (b). The Secretary may, in the Secretary's sole and unreviewable discretion, reauthorize such alien for admission as an H-2C nonimmigrant without requiring the alien's departure from the United States.


`(A) IN GENERAL- Under regulations established by the Secretary of Homeland Security, an H-2C nonimmigrant--

`(i) may travel outside of the United States; and

`(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.

`(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.

`(5) BARS TO EXTENSION OR ADMISSION- An alien may not be granted H-2C nonimmigrant status, or an extension of such status, if--

`(A) the alien has violated any material term or condition of such status granted previously, including failure to comply with the change of address reporting requirements under section 265;

`(B) the alien is inadmissible as a nonimmigrant; or

`(C) the granting of such status or extension of such status would allow the alien to exceed 6 years as an H-2C nonimmigrant, unless the alien has resided and been physically present outside the United States for at least 1 year after the expiration of such H-2C nonimmigrant status.

`(g) Evidence of Nonimmigrant Status- Each H-2C nonimmigrant shall be issued documentary evidence of nonimmigrant status, which--

`(1) shall be machine-readable, tamper-resistant, and allow for biometric authentication;

`(2) shall be designed in consultation with the Forensic Document Laboratory of the Bureau of Immigration and Customs Enforcement;

`(3) shall, during the alien's authorized period of admission under subsection (f), serve as a valid entry document for the purpose of applying for admission to the United States--

`(A) instead of a passport and visa if the alien--

`(i) is a national of a foreign territory contiguous to the United States; and

`(ii) is applying for admission at a land border port of entry; and

`(B) in conjunction with a valid passport, if the alien is applying for admission at an air or sea port of entry;

`(4) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); and

`(5) shall be issued to the H-2C nonimmigrant by the Secretary of Homeland Security promptly after the final adjudication of such alien's application for H-2C nonimmigrant status.

`(h) Penalty for Failure To Depart- If an H-2C nonimmigrant fails to depart the United States before the date which is 10 days after the date that the alien's authorized period of admission as an H-2C nonimmigrant terminates, the H-2C nonimmigrant may not apply for or receive any immigration relief or benefit under this Act or any other law, except for relief under sections 208 and 241(b)(3) and relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for an alien who indicates either an intention to apply for asylum under section 208 or a fear of persecution or torture.

`(i) Penalty for Illegal Entry or Overstay- Any alien who enters, attempts to enter, or crosses the border after the date of the enactment of this section, and is physically present in the United States after such date in violation of this Act or of any other Federal law, may not receive, for a period of 10 years--

`(1) any relief under section 240A(a), 240A(b)(1), or 240B; or

`(2) nonimmigrant status under section 101(a)(15) (except subparagraphs (T) and (U)).

`(j) Portability- A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided H-2C nonimmigrant status, may accept a new offer of employment with a subsequent employer, if--

`(1) the employer complies with section 218B; and

`(2) the alien, after lawful admission to the United States, did not work without authorization.

`(k) Change of Address- An H-2C nonimmigrant shall comply with the change of address reporting requirements under section 265 through either electronic or paper notification.

`(l) Collection of Fees- All fees collected under this section shall be deposited in the Treasury in accordance with section 286(c).

`(m) Issuance of H-4 Nonimmigrant Visas for Spouse and Children-

`(1) IN GENERAL- The alien spouse and children of an H-2C nonimmigrant (referred to in this section as `dependent aliens') who are accompanying or following to join the H-2C nonimmigrant may be issued nonimmigrant visas under section 101(a)(15)(H)(iv).

`(2) REQUIREMENTS FOR ADMISSION- A dependent alien is eligible for nonimmigrant status under 101(a)(15)(H)(iv) if the dependent alien meets the following requirements:

`(A) ELIGIBILITY- The dependent alien is admissible as a nonimmigrant and does not fall within a class of aliens ineligible for H-4A nonimmigrant status listed under subsection (c).

`(B) MEDICAL EXAMINATION- Before a nonimmigrant visa is issued to a dependent alien under this subsection, the dependent alien shall submit to a medical examination (including a determination of immunization status) at the alien's expense, that conforms to generally accepted standards of medical practice.

`(C) BACKGROUND CHECKS- Before a nonimmigrant visa is issued to a dependent alien under this section, the consular officer shall conduct such background checks as the Secretary of State, in consultation with the Secretary of Homeland Security, considers appropriate.

`(n) Definitions- In this section and sections 218B, 218C, and 218D:

`(1) AGGRIEVED PERSON- term `aggrieved person' means a person adversely affected by an alleged violation of this section, including--

`(A) a worker whose job, wages, or working conditions are adversely affected by the violation; and

`(B) a representative for workers whose jobs, wages, or working conditions are adversely affected by the violation who brings a complaint on behalf of such worker.

`(2) AREA OF EMPLOYMENT- The terms `area of employment' and `area of intended employment' mean the area within normal commuting distance of the worksite or physical location at which the work of the temporary worker is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.

`(3) ELIGIBLE INDIVIDUAL- The term `eligible individual' means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A) with respect to that employment.

`(4) EMPLOY; EMPLOYEE; EMPLOYER- The terms `employ', `employee', and `employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

`(5) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor' means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.

`(6) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(ii)(c).

`(7) H-2C NONIMMIGRANT- The term `H-2C nonimmigrant' means a nonimmigrant described in section 101(a)(15)(H)(ii)(c).

`(8) SEPARATION FROM EMPLOYMENT- The term `separation from employment' means the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract. The term does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether the employee accepts the offer. Nothing in this paragraph shall limit an employee's rights under a collective bargaining agreement or other employment contract.

`(9) UNITED STATES WORKER- The term `United States worker' means an employee who is--

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

`(B) an alien who is--

`(i) lawfully admitted for permanent residence;

`(ii) admitted as a refugee under section 207;

`(iii) granted asylum under section 208; or

`(iv) otherwise authorized, under this Act or by the Secretary of Homeland Security, to be employed in the United States.'.

(2) CLERICAL AMENDMENT- The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:

`Sec. 218A. Admission of temporary H-2C workers.'.


(a) In General- Title II (8 U.S.C. 1201 et seq.) is amended by inserting after section 218A, as added by section 403, the following:


`(a) General Requirements- Each employer who employs an H-2C nonimmigrant shall--

`(1) file a petition in accordance with subsection (b); and

`(2) pay the appropriate fee, as determined by the Secretary of Labor.

`(b) Required Procedure- Except where the Secretary of Labor has determined that there is a shortage of United States workers in the occupation and area of intended employment to which the H-2C nonimmigrant is sought--

`(1) EFFORTS TO RECRUIT UNITED STATES WORKERS- During the period beginning not later than 90 days prior to the date on which a petition is filed under subsection (a)(1), and ending on the date that is 14 days prior to the date on which the petition is filed, the employer involved shall take the following steps to recruit United States workers for the position for which the H-2C nonimmigrant is sought under the petition:

`(A) Submit a copy of the job opportunity, including a description of the wages and other terms and conditions of employment and the minimum education, training, experience and other requirements of the job, to the State Employment Service Agency that serves the area of employment in the State in which the employer is located.

`(B) Authorize the State Employment Service Agency to post the job opportunity on the Internet through the website for America's Job Bank, with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to the job involved.

`(C) Authorize the State Employment Service Agency to notify labor organizations in the State in which the job is located, and if applicable, the office of the local union which represents the employees in the same or substantially equivalent job classification of the job opportunity.

`(D) Post the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see.

`(2) EFFORTS TO EMPLOY UNITED STATES WORKERS- An employer that seeks to employ an H-2C nonimmigrant shall--

`(A) first offer the job to any eligible United States worker who applies, is qualified for the job and is available at the time of need, notwithstanding any other valid employment criteria.

`(c) Petition- A petition to hire an H-2C nonimmigrant under this section shall include an attestation by the employer of the following:

`(1) PROTECTION OF UNITED STATES WORKERS- The employment of an H-2C nonimmigrant--

`(A) will not adversely affect the wages and working conditions of workers in the United States similarly employed; and

`(B) did not and will not cause the separation from employment of a United States worker employed by the employer within the 180-day period beginning 90 days before the date on which the petition is filed.

`(2) WAGES-

`(A) IN GENERAL- The H-2C nonimmigrant will be paid not less than the greater of--

`(i) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

`(ii) the prevailing wage level for the occupational classification in the area of employment, taking into account experience and skill levels of employees.

`(B) CALCULATION- The wage levels under subparagraph (A) shall be calculated based on the best information available at the time of the filing of the application.

`(C) PREVAILING WAGE LEVEL- For purposes of subparagraph (A)(ii), the prevailing wage level shall be determined in accordance as follows:

`(i) If the job opportunity is covered by a collective bargaining agreement between a union and the employer, the prevailing wage shall be the wage rate set forth in the collective bargaining agreement.

`(ii) If the job opportunity is not covered by such an agreement and it is in an occupation that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (41 U.S.C.

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