8 U.S.C. § 1188 — Admission of temporary H–2A workers

Page 270 TITLE 8—ALIENS AND NATIONALITY § 1187a 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. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. DATE OF SUBMISSION OF FIRST REPORT Pub. L. 114–113, div. O, title II, § 205(b), Dec. 18, 2015, 129 Stat. 2993, provided that: ‘‘The Secretary of Home- land Security shall submit the first report described in subclause (V) of section 217(c)(5)(A)(i) of the Immigra- tion and Nationality Act (8 U.S.C. (c)(5)(A)(i)), as added by subsection (a), not later than 90 days after the date of the enactment of this Act [Dec. 18, 2015].’’ MODERNIZING AND STRENGTHENING OF SECURITY OF VISA WAIVER PROGRAM Pub. L. 110–53, title VII, § 711(b), Aug. 3, 2007, 121 Stat. 338, provided that: ‘‘It is the sense of Congress that— ‘‘(1) the United States should modernize and strengthen the security of the visa waiver program under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) by simultaneously— ‘‘(A) enhancing program security requirements; and ‘‘(B) extending visa-free travel privileges to na- tionals of foreign countries that are partners in the war on terrorism— ‘‘(i) that are actively cooperating with the United States to prevent terrorist travel, includ- ing sharing counterterrorism and law enforce- ment information; and ‘‘(ii) whose nationals have demonstrated their compliance with the provisions of the Immigra- tion and Nationality Act [8 U.S.C. 1101 et seq.] re- garding the purpose and duration of their admis- sion to the United States; and ‘‘(2) the modernization described in paragraph (1) will— ‘‘(A) enhance bilateral cooperation on critical counterterrorism and information sharing initia- tives; ‘‘(B) support and expand tourism and business op- portunities to enhance long-term economic com- petitiveness; and ‘‘(C) strengthen bilateral relationships.’’ MACHINE READABLE PASSPORTS Pub. L. 107–56, title IV, § 417(a), (b), Oct. 26, 2001, 115 Stat. 355, required the Secretary of State to perform annual audits and submit reports relating to machine readable, counterfeit, and tamper-resistant passports until Sept. 30, 2007. REPORT REQUIRED Pub. L. 106–396, title IV, § 403(e), Oct. 30, 2000, 114 Stat. 1649, provided that: ‘‘Not later than two years after the date of the enactment of this Act [Oct. 30, 2000], the At- torney General shall submit a report to the Commit- tees on the Judiciary of the House of Representatives and the Senate assessing the effectiveness of the pro- gram implemented under the amendments made by this section [amending this section] for simplifying the ad- mission of business travelers from visa waiver program countries and compliance with the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] by such travelers under that program.’’ TRANSITION PROVISIONS Pub. L. 104–208, div. C, title VI, § 635(c)(2), Sept. 30, 1996, 110 Stat. 3009–703, provided that: ‘‘A country des- ignated as a pilot program country with probationary status under section 217(g) of the Immigration and Na- tionality Act [8 U.S.C. 1187(g)] (as in effect on the day before the date of the enactment of this Act [Sept. 30, 1996]) shall be considered to be designated as a pilot program country on and after such date, subject to placement in probationary status or termination of such designation under such section (as amended by paragraph (1)).’’ OPERATION OF AUTOMATED DATA ARRIVAL AND DEPARTURE CONTROL SYSTEM; REPORT TO CONGRESS Pub. L. 101–649, title II, § 201(c), Nov. 29, 1990, 104 Stat. 5014, provided that: ‘‘By not later than January 1, 1992, the Attorney General, in consultation with the Sec- retary of State, shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report on the operation of the automated data arrival and departure control system for foreign visi- tors and on admission refusals and overstays for such visitors who have entered under the visa waiver pro- gram.’’ REPORT ON VISA WAIVER PILOT PROGRAM Pub. L. 99–603, title IV, § 405, Nov. 6, 1986, 100 Stat. 3442, provided that the Attorney General and the Sec- retary of State would jointly monitor the pilot pro- gram established under this section and report to the Congress not later than two years after the beginning of the program. § 1187a. Provision of assistance to non-program countries The Secretary of Homeland Security, in con- sultation with the Secretary of State, shall pro- vide assistance in a risk-based manner to coun- tries that do not participate in the visa waiver program under section 1187 of this title to assist those countries in— (1) submitting to Interpol information about the theft or loss of passports of citizens or na- tionals of such a country; and (2) issuing, and validating at the ports of entry of such a country, electronic passports that are fraud-resistant, contain relevant bio- graphic and biometric information (as deter- mined by the Secretary of Homeland Secu- rity), and otherwise satisfy internationally ac- cepted standards for electronic passports. (Pub. L. 114–113, div. O, title II, § 208, Dec. 18, 2015, 129 Stat. 2995.) Editorial Notes CODIFICATION Section was enacted as part of the Visa Waiver Pro- gram Improvement and Terrorist Travel Prevention Act of 2015, and also as part of the Consolidated Appro- priations Act, 2016, and not as part of the Immigration and Nationality Act which comprises this chapter. § 1188. Admission of temporary H–2A workers (a) Conditions for approval of H–2A petitions (1) A petition to import an alien as an H–2A worker (as defined in subsection (i)(2)) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that— (A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to per- form the labor or services involved in the peti- tion, and Page 271 TITLE 8—ALIENS AND NATIONALITY § 1188 (B) 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. (2) The Secretary of Labor may require by reg- ulation, as a condition of issuing the certifi- cation, the payment of a fee to recover the rea- sonable costs of processing applications for cer- tification. (b) Conditions for denial of labor certification The Secretary of Labor may not issue a cer- tification 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: (1) There is a strike or lockout in the course of a labor dispute which, under the regula- tions, precludes such certification. (2)(A) The employer during the previous two- year period employed H–2A workers and the Secretary of Labor has determined, after no- tice and opportunity for a hearing, that the employer at any time during that period sub- stantially violated a material term or condi- tion of the labor certification with respect to the employment of domestic or nonimmigrant workers. (B) No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such sub- paragraph. (3) The employer has not provided the Sec- retary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers’ com- pensation law, the employer will provide, at no cost to the worker, insurance covering in- jury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those pro- vided under the State workers’ compensation law for comparable employment. (4) The Secretary determines that the em- ployer has not made positive recruitment ef- forts within a multi-state region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if re- cruited, would be willing to make themselves available for work at the time and place need- ed. Positive recruitment under this paragraph is in addition to, and shall be conducted with- in the same time period as, the circulation through the interstate employment service system of the employer’s job offer. The obliga- tion to engage in positive recruitment under this paragraph shall terminate on the date the H–2A workers depart for the employer’s place of employment. (c) Special rules for consideration of applications The following rules shall apply in the case of the filing and consideration of an application for a labor certification under this section: (1) Deadline for filing applications The Secretary of Labor may not require that the application be filed more than 45 days be- fore the first date the employer requires the labor or services of the H–2A worker. (2) Notice within seven days of deficiencies (A) The employer shall be notified in writing within seven days of the date of filing if the application does not meet the standards (other than that described in subsection (a)(1)(A)) for approval. (B) If the application does not meet such standards, the notice shall include the reasons therefor and the Secretary shall provide an op- portunity for the prompt resubmission of a modified application. (3) Issuance of certification (A) The Secretary of Labor shall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) if— (i) the employer has complied with the cri- teria 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 indi- cated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary. In considering the question of whether a spe- cific qualification is appropriate in a job offer, the Secretary shall apply the normal and ac- cepted qualifications required by non-H–2A- employers in the same or comparable occupa- tions and crops. (B)(i) For a period of 3 years subsequent to the effective date of this section, labor certifi- cations shall remain effective only if, from the time the foreign worker departs for the em- ployer’s place of employment, the employer will provide employment to any qualified United States worker who applies to the em- ployer until 50 percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In ad- dition, the employer will offer to provide bene- fits, 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 203(u) of title 29, (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 sec- tion. (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 Immi- gration Reform and Control Act of 1986 as well as other relevant materials, including evi- dence of benefits to United States workers and costs to employers, addressing the advisability of continuing a policy which requires an em- Page 272 TITLE 8—ALIENS AND NATIONALITY § 1188 ployer, as a condition for certification under this section, to continue to accept qualified, eligible United States workers for employ- ment 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 em- ployment of the aliens in such labor or serv- ices will not adversely affect the wages and working conditions of workers in the United States similarly employed. In the absence of the enactment of Federal legislation prior to three months before the end of the 3-year pe- riod described in clause (i) which addresses the subject matter of this subparagraph, the Sec- retary shall immediately publish the findings required by this clause, and shall promulgate, on an interim or final basis, regulations based on his findings which shall be effective no later than three years from the effective date of this section. (iv) In complying with clause (i) of this sub- paragraph, an association shall be allowed to refer or transfer workers among its members: Provided, That for purposes of this section an association acting as an agent for its members shall not be considered a joint employer mere- ly because of such referral or transfer. (v) United States workers referred or trans- ferred pursuant to clause (iv) of this subpara- graph shall not be treated disparately. (vi) An employer shall not be liable for pay- ments under section 655.202(b)(6) of title 20, Code of Federal Regulations (or any successor regulation) with respect to an H–2A worker who is displaced due to compliance with the requirement of this subparagraph, if the Sec- retary of Labor certifies that the H–2A worker was displaced because of the employer’s com- pliance with clause (i) of this subparagraph. (vii)(I) No person or entity shall willfully and knowingly withhold domestic workers prior to the arrival of H–2A workers in order to force the hiring of domestic workers under clause (i). (II) Upon the receipt of a complaint by an employer that a violation of subclause (I) has occurred the Secretary shall immediately in- vestigate. He shall within 36 hours of the re- ceipt of the complaint issue findings con- cerning the alleged violation. Where the Sec- retary finds that a violation has occurred, he shall immediately suspend the application of clause (i) of this subparagraph with respect to that certification for that date of need. (4) Housing Employers shall furnish housing in accord- ance 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 hous- ing which meets the local standards for rental and/or public accommodations or other sub- stantially similar class of habitation: Pro- vided, 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: Pro- vided further, That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply: Provided fur- ther, That the Secretary of Labor shall issue regulations which address the specific require- ments of housing for employees principally en- gaged in the range production of livestock: Provided further, That when it is the prevailing practice in the area and occupation of in- tended employment to provide family housing, family housing shall be provided to workers with families who request it: And provided fur- ther, That nothing in this paragraph shall re- quire an employer to provide or secure hous- ing for workers who are not entitled to it under the temporary labor certification regu- lations in effect on June 1, 1986. The deter- mination 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 para- graph (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. (d) Roles of agricultural associations (1) Permitting filing by agricultural associa- tions 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 agri- cultural producers which use agricultural services. (2) Treatment of associations acting as employ- ers If an association is a joint or sole employer of temporary agricultural workers, the certifi- cations granted under this section to the asso- ciation may be used for the certified job op- portunities 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. (3) Treatment of violations (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 under sub- section (b)(2) results in the denial of certifi- cation with respect to the member, the de- nial shall apply only to that member of the association unless the Secretary determines that the association or other member par- ticipated in, had knowledge of, or reason to know of, the violation. (B) Association’s violation does not nec- essarily disqualify members (i) If an association representing agricul- tural producers as a joint employer is deter- mined to have committed an act that under subsection (b)(2) results in the denial of cer- tification with respect to the association, Page 273 TITLE 8—ALIENS AND NATIONALITY § 1188 the denial shall apply only to the associa- tion and does not apply to any individual producer member of the association unless the Secretary determines that the member participated in, had knowledge of, or reason to know of, the violation. (ii) If an association of agricultural pro- ducers certified as a sole employer is deter- mined to have committed an act that under subsection (b)(2) results in the denial of cer- tification with respect to the association, no individual producer member of such associa- tion may be the beneficiary of the services of temporary alien agricultural workers ad- mitted under this section in the commodity and occupation in which such aliens were employed by the association which was de- nied certification during the period such de- nial is in force, unless such producer mem- ber employs such aliens in the commodity and occupation in question directly or through an association which is a joint em- ployer of such workers with the producer member. (e) Expedited administrative appeals of certain determinations (1) Regulations shall provide for an expedited procedure for the review of a denial of certifi- cation under subsection (a)(1) or a revocation of such a certification or, at the applicant’s re- quest, for a de novo administrative hearing re- specting the denial or revocation. (2) The Secretary of Labor shall expeditiously, but in no case later than 72 hours after the time a new determination is requested, make a new determination on the request for certification in the case of an H–2A worker if able, willing, and qualified eligible individuals are not actually available at the time such labor or services are required and a certification was denied in whole or in part because of the availability of qualified workers. If the employer asserts that any eligi- ble individual who has been referred is not able, willing, or qualified, the burden of proof is on the employer to establish that the individual re- ferred is not able, willing, or qualified because of employment-related reasons. (f) Violators disqualified for 5 years 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. (g) Authorization of appropriations (1) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, $10,000,000 for the purposes— (A) of recruiting domestic workers for tem- porary labor and services which might other- wise be performed by nonimmigrants described in section 1101(a)(15)(H)(ii)(a) of this title, and (B) of monitoring terms and conditions under which such nonimmigrants (and domes- tic workers employed by the same employers) are employed in the United States. (2) The Secretary of Labor is authorized to take such actions, including imposing appro- priate penalties and seeking appropriate injunc- tive relief and specific performance of contrac- tual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section. (3) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purpose of enabling the Secretary of Labor to make de- terminations and certifications under this sec- tion and under section 1182(a)(5)(A)(i) of this title. (4) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purposes of enabling the Secretary of Agriculture to carry out the Secretary’s duties and responsibil- ities under this section. (h) Miscellaneous provisions (1) The Attorney General shall provide for such endorsement of entry and exit documents of nonimmigrants described in section 1101(a)(15)(H)(ii) of this title as may be necessary to carry out this section and to provide notice for purposes of section 1324a of this title. (2) The provisions of subsections (a) and (c) of section 1184 of this title and the provisions of this section preempt any State or local law reg- ulating admissibility of nonimmigrant workers. (i) Definitions For purposes of this section: (1) The term ‘‘eligible individual’’ means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 1324a(h)(3) of this title) with respect to that employment. (2) The term ‘‘H–2A worker’’ means a non- immigrant described in section 1101(a)(15)(H)(ii)(a) of this title. (June 27, 1952, ch. 477, title II, ch. 2, § 218, for- merly § 216, as added Pub. L. 99–603, title III, § 301(c), Nov. 6, 1986, 100 Stat. 3411; renumbered § 218 and amended Pub. L. 100–525, § 2(l)(2), (3), Oct. 24, 1988, 102 Stat. 2612; Pub. L. 102–232, title III, §§ 307(l)(4), 309(b)(8), Dec. 12, 1991, 105 Stat. 1756, 1759; Pub. L. 103–416, title II, § 219(z)(8), Oct. 25, 1994, 108 Stat. 4318; Pub. L. 106–78, title VII, § 748, Oct. 22, 1999, 113 Stat. 1167; Pub. L. 106–554, § 1(a)(1) [title I, § 105], Dec. 21, 2000, 114 Stat. 2763, 2763A–11.) Editorial Notes REFERENCES IN TEXT Section 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. CODIFICATION Section was classified to section 1186 of this title prior to its renumbering by Pub. L. 100–525. AMENDMENTS 2000—Subsec. (c)(4). Pub. L. 106–554 inserted at end ‘‘The determination as to whether the housing fur- nished 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 certifi- cation described in subsection (a)(1) with respect to a petition for the importation of such worker.’’ Page 274 TITLE 8—ALIENS AND NATIONALITY § 1189 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), sub- stituted ‘‘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 ap- pearing. 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 Natu- ralization 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 con- sultation with the Secretary of Labor and the Sec- retary 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 FUNCTIONS For 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 MEXICO Pub. 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 advi- sory commission which shall consult with the Govern- ments 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 PROGRAM Pub. 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 work- ers 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 pro- gram, including— ‘‘(A) improving the timeliness of decisions regard- ing admission of temporary foreign workers under the program, ‘‘(B) removing any economic disincentives to hir- ing 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, work- ers, unions, and other worker associations to end the dependence of any industry on a constant sup- ply of temporary foreign workers, and ‘‘(D) the relative benefits to domestic workers and burdens upon employers of a policy which re- quires 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 em- ployer. 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 af- fect 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 sub- mitted 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.] § 1189. Designation of foreign terrorist organiza- tions (a) Designation (1) In general The Secretary is authorized to designate an organization as a foreign terrorist organiza- tion in accordance with this subsection if the Secretary finds that— (A) the organization is a foreign organiza- tion; (B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capa-