[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2895 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 2895

To amend the Immigration and Nationality Act to provide for a temporary 
          agricultural worker program, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2011

  Mr. Daniel E. Lungren of California introduced the following bill; 
 which was referred to the Committee on the Judiciary, and in addition 
to the Committees on Education and the Workforce, Energy and Commerce, 
and Foreign Affairs, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
To amend the Immigration and Nationality Act to provide for a temporary 
          agricultural worker program, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Legal Agricultural Workforce Act''.

SEC. 2. NONIMMIGRANT AGRICULTURAL PROGRAM.

    (a) New ``W'' Nonimmigrant Classification for Nonimmigrant 
Agricultural Workers.--Section 101(a)(15) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)) is amended--
            (1) by striking ``or'' at the end of the subparagraph (U);
            (2) by striking the period at the end of subparagraph (V) 
        and inserting ``; or''; and
            (3) by adding at the end the following:
                    ``(W) an alien having a residence in a foreign 
                country which the alien has no intention of abandoning 
                who is coming to the United States for a temporary 
                period (as defined in section 220(o)) to perform 
                services or labor in agricultural employment, as 
                defined in section 3 of the Migrant and Seasonal 
                Agricultural Worker Protection Act (29 U.S.C. 1802), 
                who meets the requirements specified in section 220, 
                and with respect to whom the Secretary of Agriculture 
                has notified the Secretary of Homeland Security and the 
                Secretary of State that the intending employer has 
                accepted the terms and conditions of such employment 
                through successful enrollment in the nonimmigrant 
                agricultural worker program pursuant to section 
                220(c).''.
    (b) Establishment of Nonimmigrant Agricultural Worker Program.--
            (1) In general.--Chapter 2 of title II of such Act is 
        amended by adding at the end the following:

``SEC. 220. NONIMMIGRANT AGRICULTURAL WORKER PROGRAM.

    ``(a) Establishment of Program.--
            ``(1) In general.--The Secretary of Agriculture, in 
        consultation with the Secretary of Homeland Security, shall 
        establish a nonimmigrant agricultural worker program (in this 
        section referred to as the `program') for the admission into 
        the United States of nonimmigrants described in section 
        101(a)(15)(W) (in this section referred to as a `nonimmigrant 
        agricultural workers') and issue all relevant regulations 
        implementing the program.
            ``(2) Components of program.--The program shall include the 
        following components:
                    ``(A) A process developed by the Secretary of 
                Agriculture for the submission of data and information 
                by agricultural employers that will allow such 
                Secretary to determine the number of nonimmigrant 
                agricultural workers required by month and annually for 
                a 10-month period.
                    ``(B) A process developed by the Secretary of 
                Agriculture for the enrollment of qualified 
                agricultural employers in the program that requires 
                enrolled employers to abide by the obligations 
                described in subsection (f).
                    ``(C) A process developed by the Department of 
                Homeland Security, based upon the determination made 
                under subsection (d) by the Secretary of Agriculture, 
                on the need for nonimmigrant agricultural workers, for 
                imposition of monthly and annual numerical limitations, 
                established under such subsection, on the issuance of 
                nonimmigrant visas for nonimmigrant agricultural 
                employment. These visas shall be made available subject 
                to such limitations on such workers in accordance with 
                the preference system established under subsection (g).
                    ``(D) A process developed by the Secretary of 
                Homeland Security, in consultation with the Secretary 
                of Agriculture, by which such Secretaries can determine 
                that persons employing nonimmigrant agricultural 
                workers are enrolled in the program and that the 
                nonimmigrant agricultural workers so employed possess a 
                valid visa pursuant to section 101(a)(15)(W).
                    ``(E) A nonimmigrant visa issued pursuant to 
                subsection (g) shall not limit the geographical area 
                within which an alien may be employed or limit the type 
                of agricultural employment the alien may perform, 
                except that the employment shall only be with a 
                qualified agricultural employer enrolled in the 
                program.
    ``(b) Pre-Enrollment Requirements.--
            ``(1) Recruitment of united states workers.--Not later than 
        30 days before filing a request to enroll in the nonimmigrant 
        agricultural worker program pursuant to subsection (c), each 
        person filing such a request shall list with the Department of 
        Labor's Employment and Training Administration's Electronic Job 
        Registry a description of the anticipated period for which 
        workers will be needed expected beginning and ending dates), as 
        well as a description of the wages and other terms and 
        conditions of agricultural employment that satisfy the 
        disclosure requirements of sections 201 and 301 of the Migrant 
        and Seasonal Agricultural Worker Protection Act (29 U.S.C. 
        1821; 1831), except that nothing in this paragraph shall cause 
        such listing to be treated as an interstate job order under 
        section 653 of title 20, Code of Federal Regulations.
            ``(2) Record of united states workers.--A person or entity 
        shall keep a record of all eligible able, willing, and 
        qualified United States workers applying for employment with 
        the person in response to its filing on the Electronic Job 
        Registry and provide such record in its request to enroll filed 
        under subsection (c).
    ``(c) Enrollment in the Nonimmigrant Agricultural Worker Program.--
            ``(1) In general.--A person who employs individuals to 
        perform agricultural employment (including an association of 
        such persons and a person who contracts for the performance of 
        agricultural employment) with respect to agricultural 
        commodities may submit to the Secretary of Agriculture, at such 
        time and in such manner as the Secretary specifies, a request 
        for enrollment in the nonimmigrant agricultural worker program.
            ``(2) Information required.--The request must specify for 
        each month concerned--
                    ``(A) the total number and qualifications of 
                nonimmigrant agricultural workers required in 
                agricultural employment in each month;
                    ``(B) the type of agricultural work required to be 
                performed by these workers;
                    ``(C) the anticipated period (expected beginning 
                and ending dates) for which workers will be needed;
                    ``(D) a copy of the information submitted to the 
                Electronic Job Registry pursuant to subsection (b)(1); 
                and
                    ``(E) the record of United States workers described 
                in subsection (b)(2) at the time of the request.
            ``(3) Optional information on aliens preferred.--The person 
        may also include a statement indicating a preference as to 
        country of nationality of aliens (or names of particular 
        aliens) desired to perform agricultural services in any such 
        month.
    ``(d) Determination of Numerical Limitations on Nonimmigrant 
Agricultural Visas by Month and Annually.--Based upon requests for 
enrollment described in subsection (c), and taking into consideration 
the historical employment needs of agricultural employers and the 
reports of United States workers applying for agricultural employment 
listed on requests for enrollment, the Secretary of Agriculture shall 
advise the Secretary of Homeland Security of a numerical limitation on 
the issuance of nonimmigrant visas to nonimmigrant agricultural workers 
sufficient to meet the labor needs of agricultural employers by month 
and annually.
    ``(e) Standards for Approval of Requests for Enrollment.--
            ``(1) In general.--The Secretary of Agriculture shall 
        approve a request for enrollment submitted under subsection 
        (c)(1) if--
                    ``(A) the person is an agricultural employer and 
                the worker is to be employed in agricultural work;
                    ``(B) the request complies with the provisions of 
                subsection (c) and the request sets forth the need for 
                such workers;
                    ``(C) the person has not employed or petitioned for 
                a nonimmigrant described in section 
                101(a)(15)(H)(ii)(a) at the time when a request on 
                behalf of the person is pending or granted under this 
                subsection, or during any previous period during which 
                the employer had a request granted under this section; 
                and
                    ``(D) the person is not disqualified under 
                subsection (f)(6).
            ``(2) Review of certain denials.--Except as provided under 
        subsection (f), a person who is determined not to be eligible 
        under paragraph (1) (other than because of subparagraph (D) 
        thereof) is entitled to an expedited review of the 
        determination by the Secretary of Agriculture.
    ``(f) Obligations Under Program.--Any person whose request to 
enroll in the nonimmigrant agricultural worker program has been granted 
shall ensure as follows:
            ``(1) No displacement of the united states workers.--The 
        employer did not displace and will not displace a United States 
        worker employed by the employer, other than for good cause, 
        during the period of employment and for a period of 30 days 
        preceding the period of employment in the occupation at the 
        place of employment for which the employer seeks to employ 
        nonimmigrant agricultural workers.
            ``(2) Offers to united states workers.--The employer shall 
        offer the job to any eligible United States worker who applies 
        and is equally or better qualified for the job for which the 
        nonimmigrant is sought, and will be available at the time and 
        place of need. The employer shall post all such job openings on 
        the Electronic Job Registry administered by the Employment and 
        Training Administration of the Department of Labor.
            ``(3) Workers' compensation.--If the job opportunity is not 
        covered by the State workers' compensation law, the employer 
        will provide, at no cost to United States and nonimmigrant 
        agricultural workers, insurance covering injury and disease 
        arising out of, and in the course of, the worker's employment 
        which will provide benefits at least equal to those provided 
        under the State's workers' compensation law for comparable 
        employment.
            ``(4) Labor dispute.--The person shall not employ a 
        nonimmigrant agricultural worker for a specific job opportunity 
        for which the employer is requesting a nonimmigrant 
        agricultural worker because the former occupant of the job is 
        on strike or being locked out in the course of a labor dispute.
            ``(5) Not used for nonagricultural services.--The person 
        shall not employ a nonimmigrant agricultural worker for 
        services other than agricultural services.
            ``(6) Violation of program requirements.--If the Secretary 
        of Agriculture determines, after an opportunity for a hearing, 
        that an enrolled employer has violated this subsection the 
        Secretary may impose penalties, including fines and, in cases 
        of serious violations, the disqualification of the employer 
        from future enrollment in the program for a period of up to 
        three years.
    ``(g) Allocation of Visas.--
            ``(1) Preference system.--Nonimmigrant agricultural workers 
        who are subject to the numerical limitations specified in 
        subsection (d) shall be allotted nonimmigrant visas and work 
        authority as follows:
                    ``(A) Identified workers.--Visas shall first be 
                made available to qualified nonimmigrant agricultural 
                workers specifically identified pursuant to subsection 
                (c)(3).
                    ``(B) Previously employed workers.--Visas shall 
                next be made available to qualified nonimmigrant 
                agricultural workers who have previously been employed 
                in agricultural employment in the United States, 
                providing priority in consideration among such workers 
                in the order of the length of time in which they were 
                employed.
                    ``(C) Order in which applied.--The remaining visas 
                shall be made available to other qualified nonimmigrant 
                agricultural workers strictly in the chronological 
                order in which they apply. Waiting lists of applicants 
                shall be maintained in accordance with regulations 
                prescribed by the Secretary of State.
            ``(2) Treatment of spouses and children.--A spouse or child 
        of such a worker is not entitled to visa or such status by 
        virtue of such relationship, but may be provided the same 
        status as such a worker if the spouse or child also is a 
        qualified nonimmigrant agricultural worker to perform 
        agricultural employment.
            ``(3) Criminal background check.--In the addition to any 
        other examination required under this Act, no visa or other 
        documentation may be issued to an alien under section 
        101(a)(15)(W) until the alien has obtained successful clearance 
        of the security and criminal background checks specified by the 
        Secretary of Homeland Security for purposes of this section.
    ``(h) Application for an Increase Where Extraordinary and Unusual 
Circumstances.--
            ``(1) In general.--If an agricultural employer (or 
        association or representative thereof) establishes that 
        extraordinary and unusual circumstances have resulted in a 
        significant change in the employer's need for nonimmigrant 
        agricultural workers specified in the application, or in the 
        availability of domestic workers who are able, willing, and 
        qualified to perform agricultural employment, the employer may 
        apply to the Secretary of Agriculture (in such form and manner 
        as the Secretary shall provide) for an increase in the 
        numerical limitations otherwise established under subsection 
        (d) to accommodate such emergency need. If approved, the 
        Secretary shall forward the application to the Secretary of 
        Homeland Security with a recommendation on the additional 
        number of nonimmigrant agricultural worker visas found 
        necessary.
            ``(2) Timely determination on application.--The Secretary 
        of Agriculture shall make a determination on an application 
        under subparagraph (A) and forward its recommendations to the 
        Secretary of Homeland Security within 72 hours of the date the 
        application is completed.
            ``(3) Increase in limitation.--To the extent the 
        application is approved, the Secretary of Homeland Security 
        shall provide for an appropriate increase in the appropriate 
        numerical limitation within 72 hours.
    ``(i) Entry of Workers.--
            ``(1) In general.--An alien may not be admitted to the 
        United States as a nonimmigrant agricultural worker during the 
        three-year period beginning on the most recent date (if any) on 
        which the alien violated a material term or condition of a 
        previous admission as a nonimmigrant agricultural worker.
            ``(2) Disqualification for commission of crime.--An alien 
        who commits a crime while in the United States as a 
        nonimmigrant agricultural worker shall be ineligible to retain 
        such status and shall be required to depart from the United 
        States.
            ``(3) Continuous employment.--Nonimmigrant agricultural 
        workers admitted under this program shall be continuously 
        employed or actively seeking employment in agricultural 
        employment throughout the term of their admission.
            ``(4) Direction of nonimmigrant agricultural workers to 
        employment opportunities.--The Secretary of State and Secretary 
        of Agriculture, in consultation with the Secretary of Labor, 
        shall establish a system for providing information on available 
        agricultural employment opportunities to individuals whose 
        applications for nonimmigrant agricultural visas have been 
        approved if those individuals are not named by an employer or 
        do not have a letter of employment opportunity provided by a 
        person enrolled in the program.
    ``(j) Applicability of Employment Laws.--All Federal, State, and 
local employment related laws applicable to United States agricultural 
workers shall apply to nonimmigrant agricultural workers admitted 
pursuant to this program.
    ``(k) Biometric Identification Card.--The Secretary of Homeland 
Security shall provide each nonimmigrant agricultural worker with an 
identification card that contains--
            ``(1) an encrypted, machine-readable, electronic 
        identification strip that is unique to the alien to whom the 
        card is issued;
            ``(2) biometric identifiers, including fingerprints and a 
        digital photograph; and
            ``(3) physical security features designed to prevent 
        tampering, counterfeiting, or duplication of the card for 
        fraudulent purposes.
    ``(l) Trust Fund.--
            ``(1) Establishment.--The Secretary of Agriculture shall 
        establish by regulation a trust fund the purpose of which is to 
        provide, without further appropriation, funds for the 
        administration and the enforcement of the program under this 
        section, for the cost of the cards issued under subsection (k), 
        for a monetary incentive for nonimmigrant agricultural workers 
        to return to their country of origin upon expiration of their 
        visas under the program, and for payment with respect to 
        emergency medical services furnished to nonimmigrant 
        agricultural workers. The Secretary of Agriculture in 
        consultation with the Secretary of the Treasury shall 
        promulgate such other regulations as may be necessary to carry 
        out this subsection.
            ``(2) Payment of fica and futa amounts into trust fund.--In 
        the case of employment of a nonimmigrant agricultural worker--
                    ``(A) the employer shall provide for payment into 
                the trust fund established under paragraph (1) of the 
                sum of--
                            ``(i) an amount equivalent to the amount of 
                        excise taxes which the employer would pay under 
                        the chapter 21 of the Internal Revenue Code of 
                        1986 with respect to such employment if it were 
                        considered employment for the purpose of such 
                        Act; and
                            ``(ii) an amount equivalent to (and in lieu 
                        of) the amount of excise taxes which the 
                        employer would otherwise pay under chapter 23 
                        of such Code with respect to such employment; 
                        and
                    ``(B) there shall be deducted from the wages of the 
                worker and paid into such trust fund an amount 
                equivalent to the amount of excise taxes that the 
                employee would pay under such chapter 21 with respect 
                to such employment if it were considered employment for 
                the purposes of such Act.
            ``(3) Expenditures from trust fund.--
                    ``(A) Use of employer contributions for 
                administration.--Amounts described in paragraph (2)(A) 
                paid into the trust fund shall be used for the purpose 
                of administering and enforcing the program under this 
                section and for the cost of the cards issued under 
                subsection (k).
                    ``(B) Use of employee contributions for repayment 
                of employee contributions upon return to country of 
                origin.--Except as provided in subparagraph (C), 
                amounts described in paragraph (2)(B) paid into the 
                trust fund with respect to a nonimmigrant agricultural 
                worker shall, upon application by the worker at the 
                United States consulate nearest the worker's residence 
                in the country of origin, be paid to the worker if the 
                worker demonstrates the compliance of the worker with 
                the terms and conditions of the program.
                    ``(C) Use of employee contributions attributable to 
                hi taxes for emergency medical services for 
                nonimmigrant agricultural workers.--
                            ``(i) In general.--Amounts described in 
                        paragraph (2)(B) paid into the trust fund which 
                        relate to excise tax in section 3101(b) of the 
                        Internal Revenue Code of 1986 shall be used to 
                        provide payment with respect to emergency 
                        medical services (as defined in clause (iii)) 
                        for nonimmigrant agricultural workers.
                            ``(ii) Administration.--The Secretary of 
                        Agriculture shall establish rules, in 
                        consultation with the Secretary of Health and 
                        Human Services, with respect to the payments 
                        under this subparagraph, including methods for 
                        determining qualifications for payment and the 
                        amount of payment to be made with respect to 
                        emergency medical services.
                            ``(iii) Emergency medical services 
                        defined.--In this subparagraph, the term 
                        `emergency medical services' means those items 
                        and services required to be provided under 
                        section 1867 of the Social Security Act (42 
                        U.S.C. 1395dd) with respect to an individual 
                        who is a nonimmigrant agricultural worker and 
                        does not include items and services for which 
                        coverage under workers' compensation is 
                        required under subsection (f)(3) with respect 
                        to the worker.
    ``(m) Semiannual Reports to Congress.--The Secretary of Agriculture 
shall report to Congress semiannually regarding the program under this 
section. Each such report shall include a statement of the number of 
nonimmigrant visas issued under the program, an evaluation of the 
effectiveness of the program, a description of any problems related to 
the enforcement of the program, and any recommendations for legislation 
relating to the program.
    ``(n) Miscellaneous Provisions.--
            ``(1) Disqualification of nonimmigrant agricultural workers 
        from financial assistance.--An alien admitted as a nonimmigrant 
        agricultural worker is not eligible for any program of 
        financial assistance under Federal law (whether through grant, 
        loan, guarantee, or otherwise) on the basis of financial need, 
        as such programs are identified by the Secretary of Agriculture 
        in consultation with other appropriate heads of the various 
        departments and agencies of Government.
            ``(2) Expansion of consulates.--The Secretary of State is 
        authorized to take such steps as may be necessary in order to 
        expand and establish consulates in foreign countries in which 
        aliens are likely to apply to become nonimmigrant agricultural 
        workers under the program to the extent such expansion is fully 
        covered by the funds obtained in subsection (l)(3)(A).
            ``(3) Preemption.--The provisions of this section preempt 
        any State or local law on the same subject.
    ``(o) Definitions.--For purposes of this section and section 
101(a)(15)(W):
            ``(1) Agricultural employment.--The term `agricultural 
        employment' has the meaning given such term in section 3 of the 
        Migrant and Seasonal Agricultural Worker Protection Act (29 
        U.S.C. 1802), without regard to whether the specific service or 
        activity is temporary or seasonal.
            ``(2) Temporary period.--The term `temporary period' means 
        that period during which a nonimmigrant agricultural worker may 
        remain in the United States to perform agricultural employment, 
        not to exceed 10 months in any 12 month period.''.
            (2) Clerical amendment.--The table of contents of such Act 
        is amended by inserting after the item relation to section 219 
        the following new item:

``Sec. 220. Nonimmigrant agricultural worker program.''.
                                 <all>