Page:United States Statutes at Large Volume 100 Part 4.djvu/1067

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PUBLIC LAW 99-000—MMMM. DD, 1986

PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3413

"(i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and "(ii) the employer does not actually have, or has not been provided with referrals of, qualified eligible individuals who " ? have indicated their availability to perform such labor or lo * services on the terms and conditions of a job offer which meets the requirements of the Secretary. ^ In considering the question of whether a specific qualification is "' appropriate in a job offer, the Secretary shall apply the normal and accepted qualifications required by non-H-2A-employers in the same or comparable occupations and crops. "(B)(i) For a period of 3 years subsequent to the effective date ? of this section, labor certifications shall remain effective only if, from the time the foreign worker departs for the employer's place of employment, the employer will provide employment to

  • any qualified United States worker who applies to the employer

until 50 percent of the period of the work contract, under which "i the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide benefits, wages and working conditions required pursuant to this section and regulations, "(ii) The requirement of clause (i) shall not apply to any ' employer who— "(I) did not, during any calendar quarter during the ^ preceding calendar year, use more than 500 man-days of agricultural labor, as defined in section 3(u) of the Fair & Labor Standards Act of 1938 (29 U.S.C. 203(u)), "(II) is not a member of an association which has petitioned for certification under this section for its members, and

"(III) has not otherwise associated with other employers who are petitioning for temporary foreign workers under this section. i "(iii) Six months before the end of the 3-year period described in clause (i), the Secretary of Labor shall consider the findings of the report mandated by section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986 as well as other relevant materials, including evidence of benefits to United States workers and costs to employers, addressing the advisability of continuing a policy which requires an employer, as a condition ' for certification under this section, to continue to accept qualified, eligible United States workers for employment after the date the H-2A workers depart for work with the employer. The Secretary's review of such findings and materials shall lead to the issuance of findings in furtherance of the Congressional policy that aliens not be admitted under this section unless there are not sufficient workers in the United States who are • able, willing, and qualified to perform the labor or service needed and that the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. In the i absence of the enactment of Federal legislation prior to three months before the end of the 3-year peri(xl described in clause (i) which addresses the subject matter of this subparagraph, the Secretary shall immediately publish the findings required by this clause, and shall promulgate, on an interim or final basis.