[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3443 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3443

 To reform the H-2A program for nonimmigrant agricultural workers, and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 16, 2011

    Mr. Kingston (for himself and Mr. Westmoreland) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To reform the H-2A program for nonimmigrant agricultural workers, 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--
            (1) the ``Better Agriculture Resources Now Act''; or
            (2) the ``BARN Act''.

SEC. 2. H-2A PROGRAM REFORMS.

    (a) Definition of Agricultural Labor or Services.--Section 
101(a)(15)(H)(ii)(a) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is 
amended--
            (1) by striking ``and the pressing'' and inserting ``the 
        pressing''; and
            (2) by striking ``of a temporary'' and all that follows 
        through the end and inserting ``, and the handling, planting, 
        drying, packing, packaging, processing, freezing, grading, 
        storing, or delivering to storage or to market or to a carrier 
        for transportation to market, in its unmanufactured state, any 
        agricultural or horticultural commodity, or''.
    (b) Deemed Approval.--Section 218(c)(3)(A) of such Act (8 U.S.C. 
1188(c)(3)(A)) is amended by inserting before ``In considering'' the 
following: ``The Secretary of Labor shall review such application and 
shall provide a determination on the application within 30 days of the 
date of the filing of the application. If the Secretary does not comply 
with the deadline in the preceding sentence, the application shall be 
deemed approved.''.
    (c) Experience Requirement.--Section 218(c)(3)(A) of such Act (8 
U.S.C. 1188(c)(3)(A)), as amended by subsection (b), is further amended 
by adding at the end the following: ``A job offer may contain an 
experience requirement as long as work performed in an illegal status 
may not be counted towards such requirement.''.
    (d) Elimination of 50 Percent Rule.--Section 218(c)(3) of such Act 
(8 U.S.C. 1188(c)(3)) is amended--
            (1) by striking ``(A)''; and
            (2) by striking subparagraph (B).
    (e) Wage Rate.--Section 218(a)(1)(B) of such Act (8 U.S.C. 
1188(a)(1)(B)) is amended by striking the period at the end and 
inserting ``, except that no employer shall be required to pay a wage 
rate greater than 115 percent of the greatest of the Federal, State, 
and local minimum wage rates.''.
    (f) Deadline for Filing Applications.--Section 218(c)(1) of such 
Act (8 U.S.C. 1188(c)(1)) is amended by striking ``45'' and inserting 
``30''.
    (g) Period of Authorized Nonimmigrant Status.--Section 218(h) of 
such Act (8 U.S.C. 1188(h)) is amended by adding at the end the 
following:
    ``(3) The initial period of authorized status as a nonimmigrant 
described in section 101(a)(15)(H)(ii)(a) shall not exceed 1 year. Such 
period may be extended once by the Secretary of Homeland Security for a 
period of up to 1 year, except that such extension may be granted only 
if the Secretary of Labor determines that the employer has engaged in 
the positive recruitment efforts described in subsection (b)(4) 
(including the obligation to circulate the employer's job offer through 
the interstate employment service system). In the case of a 
nonimmigrant who has remained in the United States for the full 2-year 
period, the nonimmigrant shall be obliged to depart the United States 
and shall not be eligible to re-apply for a visa to re-enter the United 
States as such a nonimmigrant for a period of 2 months. If at any time 
during a period of authorized admission the alien has a work lapse 
period of 60 days or more, the visa of the alien shall be deemed 
revoked and the alien shall be required to depart from the United 
States, except that if an employer has applied for a certification 
under subsection (a)(1) with respect to an alien who has a work lapse 
of 60 days or less, such period shall not begin until after the 
Secretary has made a determination on the application consistent with 
subsection (c).''.
    (h) Housing.--Section 218(c)(4) of such Act (8 U.S.C. 1188(c)(4)) 
is amended to read as follows:
            ``(4) Housing requirement.--
                    ``(A) In general.--Except as provided under 
                subparagraph (F), each employer applying for workers 
                under subsection (b) shall offer to provide housing at 
                no cost to--
                            ``(i) all workers in job opportunities for 
                        which the employer has applied; and
                            ``(ii) all other workers in the same 
                        occupation at the same place of employment 
                        whose place of residence is beyond normal 
                        commuting distance.
                    ``(B) Compliance.--An employer meets the 
                requirement under subparagraph (A) if the employer--
                            ``(i) provides the workers with housing 
                        that meets applicable Federal standards for 
                        temporary labor camps; or
                            ``(ii) secures housing for the workers 
                        that--
                                    ``(I) meets applicable local 
                                standards for rental or public 
                                accommodation housing, or other 
                                substantially similar class of 
                                habitation; or
                                    ``(II) in the absence of applicable 
                                local standards, meets State standards 
                                for rental or public accommodation 
                                housing or other substantially similar 
                                class of habitation.
                    ``(C) Inspection.--
                            ``(i) Request.--At the time an employer 
                        that plans to provide housing described in 
                        subparagraph (B) to H-2A workers files an 
                        application for H-2A workers with the Secretary 
                        of Labor, the employer shall request a 
                        certificate of inspection by an approved 
                        Federal or State agency.
                            ``(ii) Inspection; follow up.--Not later 
                        than 28 days after the receipt of a request 
                        under clause (i), the Secretary of Agriculture 
                        shall ensure that--
                                    ``(I) such an inspection has been 
                                conducted; and
                                    ``(II) any necessary follow up has 
                                been scheduled to ensure compliance 
                                with the requirements under this 
                                paragraph.
                            ``(iii) Delay prohibited.--The Secretary of 
                        Agriculture may not delay the approval of an 
                        application for failing to comply with the 
                        deadlines set forth in clause (iii).
                    ``(D) Rulemaking.--The Secretary of Agriculture 
                shall issue regulations that address the specific 
                requirements for the provision of housing to workers 
                engaged in the range production of livestock.
                    ``(E) Housing allowance.--
                            ``(i) Authority.--If the Governor of a 
                        State certifies to the Secretary of Agriculture 
                        that there is adequate housing available in the 
                        area of intended employment for migrant farm 
                        workers and H-2A workers who are seeking 
                        temporary housing while employed in 
                        agricultural work, an employer in such State 
                        may provide a reasonable housing allowance 
                        instead of offering housing pursuant to 
                        subparagraph (A). An employer who provides a 
                        housing allowance to a worker shall not be 
                        required to reserve housing accommodations for 
                        the worker.
                            ``(ii) Assistance in locating housing.--
                        Upon the request of a worker seeking assistance 
                        in locating housing, an employer providing a 
                        housing allowance under clause (i) shall make a 
                        good faith effort to assist the worker in 
                        identifying and locating housing in the area of 
                        intended employment.
                            ``(iii) Limitation.--A housing allowance 
                        may not be used for housing that is owned or 
                        controlled by the employer. An employer who 
                        offers a housing allowance to a worker, or 
                        assists a worker in locating housing which the 
                        worker occupies under this subparagraph shall 
                        not be deemed a housing provider under section 
                        203 of the Migrant and Seasonal Agricultural 
                        Worker Protect Act (29 U.S.C. 1823) solely by 
                        virtue of providing such housing allowance.
                            ``(iv) Other requirements.--
                                    ``(I) Nonmetropolitan county.--If 
                                the place of employment of the workers 
                                provided an allowance under this 
                                subparagraph is a nonmetropolitan 
                                county, the amount of the housing 
                                allowance under this subparagraph shall 
                                be equal to the statewide average fair 
                                market rental for existing housing for 
                                nonmetropolitan counties for the State, 
                                as established by the Secretary of 
                                Housing and Urban Development pursuant 
                                to section 8(c) of the United States 
                                Housing Act of 1937 (42 U.S.C. 
                                1437f(c)), based on a 2-bedroom 
                                dwelling unit and an assumption of 2 
                                persons per bedroom.
                                    ``(II) Metropolitan county.--If the 
                                place of employment of the workers 
                                provided an allowance under this 
                                subparagraph is in a metropolitan 
                                county, the amount of the housing 
                                allowance under this subparagraph shall 
                                be equal to the statewide average fair 
                                market rental for existing housing for 
                                metropolitan counties for the State, as 
                                established by the Secretary of Housing 
                                and Urban Development pursuant to 
                                section 8(c) of the United States 
                                Housing Act of 1937 (42 U.S.C. 
                                1437f(c)), based on a 2-bedroom 
                                dwelling unit and an assumption of 2 
                                persons per bedroom.
                            ``(v) Information.--If the employer 
                        provides a housing allowance to H-2A employees, 
                        the employer shall provide a list of the names 
                        and local addresses of such workers to the 
                        Secretary of Agriculture and the Secretary of 
                        Homeland Security once per contract period.''.
    (i) Legal Assistance From the Legal Services Corporation.--Section 
218(h) of such Act (8 U.S.C. 1188(h)), as amended by subsection (g), is 
further amended by adding at the end the following:
    ``(4)(A) The Legal Services Corporation may not provide legal 
assistance for, or on behalf of, any alien, and may not provide 
financial assistance to any person or entity that provides legal 
assistance for, or on behalf of, any alien, unless--
            ``(i) the alien is present in the United States at the time 
        the legal assistance is provided; and
            ``(ii) the parties to the dispute have attempted, in good 
        faith, mediation or other non-binding dispute resolution of all 
        issues involving all such parties.
    ``(B) If an employer and a nonimmigrant having status under section 
101(a)(15)(H)(ii)(a) have an arbitration arrangement, the Legal 
Services Corporation shall respect the arbitration process and outcome.
    ``(C) No employer of a nonimmigrant having status under section 
101(a)(15)(H)(ii)(a) shall be required to permit any recipient of a 
grant or contract under section 1007 of the Legal Services Corporation 
Act (42 U.S.C. 2996f), or any employee of such a recipient, to enter 
upon the employer's property, unless such recipient or employee has a 
pre-arranged appointment with a specific nonimmigrant having such 
status.''.
    (j) Effect of Violations While in United States.--Section 218(f) of 
such Act (8 U.S.C. 1188(f)) is amended to read as follows:
    ``(f) Effect of Violations.--
            ``(1) Overstays.--An alien may not be admitted to the 
        United States as a nonimmigrant having status under section 
        101(a)(15)(H)(ii)(a) if the alien was admitted to the United 
        States as such a nonimmigrant within the previous 5-year period 
        and the alien remained after the alien's period of authorized 
        admission expired or otherwise violated a term or condition of 
        such previous admission.
            ``(2) Fraud.--An alien may not be admitted to the United 
        States as a nonimmigrant having status under section 
        101(a)(15)(H)(ii)(a) if the alien was admitted to the United 
        States as such a nonimmigrant on the basis of fraud.
            ``(3) Other crimes.--An alien may not be admitted to the 
        United States as a nonimmigrant having status under section 
        101(a)(15)(H)(ii)(a) if the alien was admitted to the United 
        States as such a nonimmigrant and committed an offense that 
        rendered the alien deportable while in the United States 
        pursuant to such admission.
            ``(4) Employer bar.--The Secretary of Labor may not issue a 
        certification under subsection (a) with respect to an employer 
        if the Secretary finds, after notice and an opportunity for a 
        hearing, that the employer knowingly hired an H-2A worker whose 
        period of authorized admission had expired or that the employer 
        otherwise engaged in fraud or misrepresentation with respect to 
        the program for the admission of such workers into the United 
        States. The Secretary of Homeland Security shall not thereafter 
        approve petitions filed by such employer under section 214(c). 
        An employer that establishes that it has complied in good faith 
        with the requirements of this Act has established an 
        affirmative defense in an action brought under this 
        paragraph.''.
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