1.This Act may be cited as—
(1)the
Better Agriculture Resources Now
Act
; or
(2)the
BARN Act
.
2.
(a)Definition of
agricultural labor or servicesSection 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)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)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 ruleSection 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)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 applicationsSection 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 statusSection 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)Section
218(c)(4) of such Act (8 U.S.C. 1188(c)(4)) is amended to read as
follows:
(4)
(A)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)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)
(i)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)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)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)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)
(i)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 housingUpon 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)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)
(I)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)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)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 CorporationSection 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 StatesSection 218(f) of such Act (8
U.S.C. 1188(f)) is amended to read as follows:
(f)
(1)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)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)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)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.
.