[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1384 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 1384
To amend the Immigration and Nationality Act to provide for the
temporary employment of foreign agricultural workers, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 19, 2011
Mr. Chambliss introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to provide for the
temporary employment of foreign 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 the ``Helping Agriculture Receive
Verifiable Employees Securely and Temporarily Act of 2011'' or the
``HARVEST Act of 2011''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that--
(1) farmers and ranchers in the United States produce the
highest quality food and fiber in the world;
(2) abundant harvests in the United States allow this
Nation to provide over \1/2\ of the world's food aid donations
to help our international neighbors in need;
(3) it is in the best interest of the American people for
their agricultural goods to be produced in the United States;
(4) the United States is the world's largest agricultural
exporter and is one of the few sectors of the United States
economy that produces a trade surplus;
(5) the Secretary of Agriculture announced that the United
States exported $108,700,000,000 worth of agricultural exports
during fiscal year 2010;
(6) Americans enjoy the highest quality food at the lowest
cost compared to any industrialized nation in the world,
spending less than 10 percent of our household income on food;
(7) the continued safety of the agricultural goods produced
in the United States is an issue of national security;
(8) the agricultural labor force of the United States is
overwhelmingly composed of foreign labor;
(9) due to the importance of food safety, it is critical to
know who is handling our Nation's food supply and who is
working on our Nation's farms and ranches;
(10) there could be detrimental effects on the United
States economy for farms to downsize or close operations due to
labor shortages;
(11) decreased agricultural production could have
ramifications throughout the farm support industries, such as
food processing, fertilizers, and equipment manufacturers;
(12) a shortage of agriculture labor could lead to
decreased supply and increased prices for food and fiber; and
(13) this Nation needs both secure borders and an
immigration system that allows those who seek legal immigrant
status through the proper channels to work in the diverse
sectors of the agriculture industry.
SEC. 3. ADMISSION OF TEMPORARY AGRICULTURAL WORKERS.
(a) Definition.--Section 101(a)(15)(H)(ii)(a) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended by
striking ``, of a temporary or seasonal nature''.
(b) Procedure for Admission.--
(1) In general.--Section 218 of the Immigration and
Nationality Act (8 U.S.C. 1188) is amended to read as follows:
``SEC. 218. ADMISSION OF TEMPORARY H-2A WORKERS.
``(a) Definitions.--In this section and in section 218A:
``(1) Adverse effect wage rate.--The term `adverse effect
wage rate' means 115 percent of the greater of--
``(A) the State minimum wage; or
``(B) the hourly wage prescribed under section
6(a)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(a)(1)).
``(2) Area of employment.--The term `area of employment'
means the area within normal commuting distance of the work
site or physical location at which the work of the H-2A worker
is or will be performed. If such work site or location is
within a Metropolitan Statistical Area, any place within such
area shall be considered to be within the area of employment.
``(3) Displace.--In the case of an application with respect
to an H-2A worker filed by an employer, an employer `displaces'
a United States worker from a job if the employer lays off the
worker from a job that is essentially equivalent to the job for
which the H-2A worker is sought. A job shall be considered
essentially equivalent to another job if the job--
``(A) involves essentially the same
responsibilities as the other job;
``(B) was held by a United States worker with
substantially equivalent qualifications and experience;
and
``(C) is located in the same area of employment as
the other job.
``(4) Eligible individual.--The term `eligible individual'
means an alien who is not ineligible for an H-2A visa pursuant
to subsection (l).
``(5) Employer.--The term `employer' means an employer who
hires workers to perform--
``(A) animal agriculture or agricultural
processing;
``(B) agricultural work included within the
provisions of section 3(f) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(f)) or section 3121(g) of
the Internal Revenue Code of 1986;
``(C) drying, packing, packaging, processing,
freezing, or grading prior to delivery for storage of
any agricultural or horticultural commodity in its
unmanufactured state; or
``(D) dairy or feedyard work.
``(6) H-2A worker.--The term `H-2A worker' means a
nonimmigrant who--
``(A) continuously maintains a residence and place
of abode outside of the United States which the alien
has no intention of abandoning; and
``(B)(i) is seeking to work for an employer
performing agricultural labor in the United States for
not more than 10 months during each calendar year in a
job for which United States workers are not available
and willing to perform such service or labor; or
``(ii)(I) is seeking to work for an employer
performing agricultural labor in the United States in a
job for which United States workers are not available
and willing to perform such service or labor;
``(II) commutes each business day across the United
States international border to work for a qualified
United States employer; and
``(III) returns across the United States
international border to his or her foreign residence
and place of abode at the end of each business day.
``(7) Lay off.--
``(A) In general.--The term `lay off'--
``(i) means to cause a worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in paragraph (3) or (7) of
subsection (b)); and
``(ii) does not include any situation in
which the worker is offered, as an alternative
to such loss of employment, a similar
employment opportunity with the same employer
(or, in the case of a placement of a worker
with another employer under subsection (h),
with either employer described in such
subsection) at equivalent or higher
compensation and benefits than the position
from which the employee was discharged,
regardless of whether or not the employee
accepts the offer.
``(B) Construction.--Nothing in this paragraph may
be construed to limit an employee's rights under a
collective bargaining agreement or other employment
contract.
``(8) United states worker.--The term `United States
worker' means any worker who is a national of the United
States, an alien lawfully admitted for permanent residence, or
an alien authorized to work in the relevant job opportunity
within the United States, except an alien admitted or otherwise
provided status under section 101(a)(15)(H)(ii)(a).
``(b) Labor Attestation Process.--The Secretary of Agriculture
shall utilize the labor attestation process described in this
subsection until the Secretary of Labor certifies that, based on State
workforce agency data, there is an adequate domestic workforce in the
United States to fill agricultural jobs in the State in which the
agricultural employer is seeking H-2A workers. Once the Secretary of
Labor certifies that there are adequate authorized workers in a State
to fill agricultural jobs (excluding H-2A workers), the Secretary of
Agriculture, after consultation with the Secretary of Labor, shall
issue regulations describing a labor certification process for
agricultural employers seeking H-2A workers. An alien may not be
admitted as an H-2A worker unless the employer has filed an application
with the Secretary of Agriculture in which the employer attests to the
following:
``(1) Temporary work or services.--
``(A) In general.--The employer is seeking to
employ a specific number of agricultural workers on a
temporary basis and will provide compensation to such
workers at a specified wage rate and under specified
conditions.
``(B) Skilled workers.--If the worker is a Level 2
H-2A worker, the employer will recruit the worker
separately and the application will delineate separate
wage rate and conditions of employment for such worker.
``(C) Defined term.--In this paragraph and in
subsection (h)(6)(B), a worker is considered to be
`employed on a temporary basis' if the employer employs
the worker for not longer than 10 months in a calendar
year.
``(2) Benefits, wages, and working conditions.--The
employer will provide, at a minimum, the benefits, wages, and
working conditions required under subsection (k) to--
``(A) all workers employed in the jobs for which
the H-2A worker is sought; and
``(B) all other temporary workers in the same
occupation at the same place of employment.
``(3) Nondisplacement of united states workers.--The
employer did not and will not displace a United States worker
employed by the employer during the period of employment of the
H-2A worker and during the 30-day period immediately preceding
such period of employment in the occupation at the place of
employment for which the employer seeks approval to employ H-2A
workers.
``(4) Recruitment.--
``(A) In general.--The employer will--
``(i) describe previous recruitment efforts
made before the filing of the application; and
``(ii) complete adequate recruitment
requirements before H-2A workers are issued a
visa at an American consulate.
``(B) Adequate recruitment.--The adequate
recruitment requirements under subparagraph (A)(ii) are
satisfied if the employer--
``(i) submits a copy of the job offer to
the local office of the State workforce agency
serving the area of intended employment and
authorizes the posting of the job opportunity
on the Department of Labor's electronic
registry of job applications for all other
occupations in the same manner as other United
States employers, except that nothing in this
clause shall require the employer to file an
interstate job order under section 653 of title
20, Code of Federal Regulations;
``(ii) advertises the availability of the
job opportunities for which the employer is
seeking workers in a publication in the local
market that is likely to be patronized by
potential farm workers; and
``(iii) mails a letter through the United
States Postal Service or otherwise contacts any
United States worker the employer employed
within the past year in the occupation at the
place of intended employment for which the
employer is seeking H-2A workers that describes
available job opportunities, unless the worker
was terminated from employment by the employer
for a lawful job-related reason or abandoned
the job before the worker completed the period
of employment of the job opportunity for which
the worker was hired.
``(C) Advertisement requirement.--The advertisement
requirement under subparagraph (B)(ii) is satisfied if
the employer runs an advertisement for 2 consecutive
days that--
``(i) names the employer;
``(ii) describes the job or jobs;
``(iii) provides instructions on how to
contact the employer to apply for the job;
``(iv) states the duration of employment;
``(v) describes the geographic area with
enough specificity to apprise applicants of any
travel requirements and where applicants will
likely have to reside to perform the job;
``(vi) states the rate of pay; and
``(vii) describes working conditions and
the availability of housing or the amount of
housing allowances.
``(D) End of recruitment requirement.--The
requirement to recruit and hire United States workers
for the contract period for which H-2A workers have
been hired shall terminate on the first day of such
contract period.
``(5) Offers to united states workers.--The employer has
offered or will offer the job for which the nonimmigrant is
sought to any eligible United States worker who--
``(A) applies;
``(B) will be available at the time and place of
need; and
``(C) is able and willing to complete the period of
employment.
``(6) Provision of insurance.--If the job for which the H-
2A worker is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker, 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 workers' compensation law for comparable employment. No
employer shall be liable for the provision of health insurance
for any H-2A worker.
``(7) Strike or lockout.--There is not a strike or lockout
in the course of a labor dispute that precludes the hiring of
H-2A workers.
``(8) Previous violations.--The employer has not, during
the previous 5-year period, employed H-2A workers and knowingly
violated a material term or condition of approval with respect
to the employment of domestic or nonimmigrant workers, as
determined by the Secretary of Agriculture after notice and
opportunity for a hearing.
``(c) Public Examination.--Not later than 1 working day after the
date on which an application is filed under this section, the employer
shall make a copy of each such application (and any necessary
accompanying documents) available for public examination, at the
employer's work site or principal place of business.
``(d) List.--
``(1) In general.--The Secretary of Agriculture shall
maintain a list of the applications filed under subsection (b),
sorted by employer, which shall include--
``(A) the number of H-2A workers sought;
``(B) the wage rate;
``(C) the date work is scheduled to begin; and
``(D) the period of intended employment.
``(2) Availability.--The Secretary of Agriculture shall
make the list described in paragraph (1) available for public
examination.
``(e) Applying for Admission.--
``(1) In general.--An employer, or an association acting as
an agent or joint employer for its members, that seeks the
admission into the United States of an H-2A worker shall file
an application that includes the attestations described in
subsection (b) with the Secretary of Agriculture.
``(2) Consideration of applications.--For each application
filed under this subsection--
``(A) the Secretary of Agriculture may not require
such application to be filed more than 60 days before
the first date on which the employer requires the labor
or services of the H-2A worker; and
``(B) unless the Secretary of Agriculture
determines that the application is incomplete or
obviously inaccurate, or the Secretary has probable
cause to suspect the application was fraudulently made,
the Secretary shall either approve or deny the
application not later than 15 days after the date on
which such application was filed.
``(3) Application agreements.--By filing an H-2A
application, an applicant and each employer consents to allow
the Department of Agriculture access to the site where labor is
being performed for the purpose of determining compliance with
H-2A requirements.
``(4) Multistate employers.--Employers with multiple
operations may use H-2A workers in the occupations for which
they are sought in all places in which the employer has
operations if the employer--
``(A) designates on the application each location
at which such workers will be used; and
``(B) performs adequate recruitment efforts in each
State in which such workers will be used.
``(f) Roles of Agricultural Associations.--
``(1) Permitting filing by agricultural associations.--An
application to hire an H-2A worker may be filed by an
association of agricultural employers which use agricultural
labor.
``(2) Treatment of associations acting as employers.--If an
association is a joint or sole employer of H-2A workers, such
H-2A workers may be transferred among its members to perform
agricultural labor of the same nature for which the application
was approved.
``(3) Treatment of violations.--
``(A) Individual member.--If an individual member
of a joint employer association violates any condition
for approval with respect to the member's application,
the Secretary of Agriculture shall deny such
application only with respect to that member of the
association unless the Secretary determines that the
association or other member participated in, had
knowledge of, or had reason to know of the violation.
``(B) Association of agricultural employers.--
``(i) Joint employer.--If an association
representing agricultural employers as a joint
employer violates any condition for approval
with respect to the association's application,
the Secretary of Agriculture shall deny such
application only with respect to the
association and may not apply the denial to any
individual member of the association, unless
the Secretary determines that the member
participated in, had knowledge of, or had
reason to know of the violation.
``(ii) Sole employer.--If an association of
agricultural employers approved as a sole
employer violates any condition for approval
with respect to the association's application,
no individual member of the association may be
the beneficiary of the services of H-2A workers
admitted under this section in the occupation
in which such H-2A workers were employed by the
association which was denied approval during
the period such denial is in force.
``(g) Expedited Administrative Appeals.--The Secretary of
Agriculture, in conjunction with the Secretary of State and the
Secretary of Homeland Security, shall issue regulations to provide for
an expedited procedure--
``(1) for the review of a denial of an application under
this section by any of the Secretaries; or
``(2) at the applicant's request, for a de novo
administrative hearing of the denial.
``(h) Miscellaneous Provisions.--
``(1) Requirements for placement of h-2a workers with other
employers.--An H-2A worker may be transferred to another
employer that has had an application approved under this
section. The Secretary of Homeland Security and the Secretary
of State shall issue regulations to establish a process for the
approval and reissuance of visas for transferred H-2A workers.
``(2) Endorsement of documents.--The Secretary of Homeland
Security shall provide for the endorsement of entry and exit
documents of H-2A workers to carry out this section and to
provide notice under section 274A.
``(3) Preemption of state laws.--This section and
subsections (a) and (c) of section 214 preempt any State or
local law regulating admissibility of nonimmigrant workers.
``(4) Fees.--The Secretary of Agriculture may charge a
reasonable fee to recover the costs of processing applications
under this section. In determining the amount of the fee to be
charged under this paragraph, the Secretary shall consider
whether the employer is a single employer or an association and
the number of H-2A workers intended to be employed.
``(5) E-Verify participation by employers.--The Secretary
of Agriculture shall require employers participating in the H-
2A program to register with and participate in E-Verify, as
established under title IV of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (division C of Public
Law 104-208).
``(i) Failure To Meet Conditions.--
``(1) In general.--The Secretary of Agriculture shall
conduct investigations and random audits of employer work sites
to ensure employer compliance with the requirements under this
section. All monetary fines assessed under this section shall
be paid by the violating employer to the Department of
Agriculture and used by the Secretary to conduct audits and
investigations.
``(2) Penalties for failure to meet conditions.--If the
Secretary of Agriculture finds, after notice and opportunity
for a hearing, a failure to meet a material condition under
subsection (b), or a material misrepresentation of fact in an
application filed under subsection (b), the Secretary--
``(A) shall notify the Secretary of Homeland
Security of such finding; and
``(B) may impose such other administrative
remedies, including civil money penalties in an amount
not to exceed $1,000 per violation, as the Secretary of
Agriculture determines to be appropriate.
``(3) Penalties for willful failure.--If the Secretary of
Agriculture finds, after notice and opportunity for a hearing,
a willful failure to meet a material condition under subsection
(b) or a willful misrepresentation of a material fact in an
application filed under subsection (b), the Secretary--
``(A) shall notify the Secretary of Homeland
Security of such finding;
``(B) may impose such other administrative
remedies, including civil money penalties in an amount
not to exceed $5,000 per violation, as the Secretary of
Agriculture determines to be appropriate;
``(C) may disqualify the employer from the
employment of H-2A workers for a period of 2 years;
``(D) for a second violation, may disqualify the
employer from the employment of H-2A workers for a
period of 5 years; and
``(E) for a third violation, may permanently
disqualify the employer from the employment of H-2A
workers.
``(4) Penalties for displacement of united states
workers.--If the Secretary of Agriculture finds, after notice
and opportunity for a hearing, a willful failure to meet a
material condition of subsection (b) or a willful
misrepresentation of a material fact in an application filed
under subsection (b), and the employer displaced a United
States worker employed by the employer during the period of
employment on the employer's application, or during the 30-day
period preceding such period of employment, the Secretary--
``(A) shall notify the Secretary of Homeland
Security of such finding;
``(B) may impose such other administrative
remedies, including civil money penalties in an amount
not to exceed $15,000 per violation, as the Secretary
of Agriculture determines to be appropriate;
``(C) may disqualify the employer from the
employment of H-2A workers for a period of 5 years; and
``(D) for a second violation, may permanently
disqualify the employer from the employment of H-2A
workers.
``(5) Limitations on civil money penalties.--The Secretary
of Agriculture may not impose total civil money penalties with
respect to an application filed under subsection (b) in excess
of $100,000.
``(j) Failure To Pay Wages or Required Benefits.--
``(1) In general.--The Secretary of Agriculture shall
conduct investigations and random audits of employer work sites
to ensure employer compliance with the requirements under this
section.
``(2) Assessment.--If the Secretary of Agriculture finds,
after notice and opportunity for a hearing, that the employer
has failed to pay the wages or provide the housing allowance,
transportation, subsistence requirement, or guarantee of
employment attested in the application filed by the employer
under subsection (b)(2), the Secretary shall assess payment of
back wages, or other required benefits, due any United States
worker or H-2A worker employed by the employer in the specific
employment in question.
``(3) Amount.--The back wages or other required benefits
described in paragraph (2)--
``(A) shall be equal to the difference between the
amount that should have been paid and the amount that
was paid to such worker; and
``(B) shall be distributed to the worker to whom
such wages are due.
``(k) Minimum Wages, Benefits, and Working Conditions.--
``(1) Preferential treatment of aliens prohibited.--
``(A) In general.--Each employer seeking to hire
United States workers shall offer such workers not less
than the same benefits, wages, and working conditions
that the employer is offering, intends to offer, or
will provide to H-2A workers in the same occupation. No
job offer may impose any restriction or obligation on
United States workers which will not be imposed on the
employer's H-2A workers. The benefits, wages, and other
terms and conditions of employment described in this
subsection shall be provided in connection with
employment under this section.
``(B) Interpretation.--Every interpretation and
determination made under this section or under any
other law, regulation, or interpretative provision
regarding the nature, scope, and timing of the
provision of these and any other benefits, wages, and
other terms and conditions of employment shall be made
so that--
``(i) the services of workers to their
employers and the employment opportunities
afforded to workers by the employers, including
those employment opportunities that require
United States workers or H-2A workers to travel
or relocated in order to accept or perform
employment--
``(I) mutually benefit such
workers, as well as their families, and
employers;
``(II) principally benefit neither
employer nor employee; and
``(III) employment opportunities
within the United States benefit the
United States economy.
``(2) Required wages.--
``(A) In general.--Each employer applying for
workers under subsection (b) shall pay not less (and is
not required to pay more) than the greater of--
``(i) the hourly wage prescribed under
section 6(a)(1) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(a)(1)) or the applicable
State minimum wage;
``(ii) the adverse effect wage rate.
``(B) Wages for level 2 h-2a workers.--
``(i) In general.--Each employer applying
for Level 2 H-2A workers under subsection (b)
shall pay such workers not less than 140
percent of the adverse effect wage rate for H-
2A workers, excluding piece-rate wages.
``(ii) Wage rate data.--The Secretary of
Agriculture shall expand and disaggregate the
source of wage rate data used in the survey
conducted by the National Agricultural
Statistics Service to include--
``(I) first line farming
supervisors/managers;
``(II) graders and sorters of
agricultural products;
``(III) agricultural equipment
operators;
``(IV) crop and nursery farmworkers
and laborers;
``(V) ranch and farm animal
farmworkers; and
``(VI) all other agricultural
workers.
``(iii) Study and report.--
``(I) Study.--After the Secretary
of Agriculture collects wage rate data
for 2 years using the method described
in clause (ii), the Secretary of
Agriculture, in conjunction with the
Secretary of Labor, shall conduct a
study to determine if--
``(aa) the wages accurately
reflect prevailing wages for
similar occupations in the area
of employment; and
``(bb) it is necessary to
establish a new wage
methodology to prevent the
depression of United States
farmworker wages.
``(II) Report.--Not later than 3
years after the date of the enactment
of the HARVEST Act of 2011, the
Secretary of Agriculture shall submit a
final report reflecting the findings of
the study conducted under subclause (I)
to--
``(aa) the Committee on
Agriculture, Nutrition, and
Forestry of the Senate;
``(bb) the Committee on the
Judiciary of the Senate;
``(cc) the Committee on
Agriculture of the House of
Representatives; and
``(dd) the Committee on the
Judiciary of the House of
Representatives.
``(3) 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 under subsection
(b); 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 Agriculture, 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.
``(4) Reimbursement of transportation costs.--
``(A) Requirement for reimbursement.--A worker who
completes 50 percent of the period of employment of the
job for which the worker was hired shall be reimbursed
by the employer, beginning on the first day of such
employment, for the cost of the worker's transportation
and subsistence from--
``(i) the place from which the worker was
approved to enter the United States to the
location at which the work for the employer is
performed; or
``(ii) if the worker traveled from a place
in the United States at which the worker was
last employed, from such place of last
employment to the location at which the work
for the employer is being performed.
``(B) Timing of reimbursement.--Reimbursement to
the worker of expenses for the cost of the worker's
transportation and subsistence to the place of
employment under subparagraph (A) shall be considered
timely if such reimbursement is made not later than the
worker's first regular payday after a worker completes
50 percent of the period of employment of the job
opportunity as provided under this paragraph.
``(C) Additional reimbursement.--A worker who
completes the period of employment for the job
opportunity involved shall be reimbursed by the
employer for the cost of the worker's transportation
and subsistence from the work site to the place where
the worker was approved to enter the United States to
work for the employer. If the worker has contracted
with a subsequent employer, the previous and subsequent
employer shall share the cost of the worker's
transportation and subsistence from work site to work
site.
``(D) Amount of reimbursement.--The amount of
reimbursement provided to a worker under this paragraph
shall be equal to the lesser of--
``(i) the actual cost to the worker of the
transportation and subsistence involved; or
``(ii) the most economical and reasonable
common carrier transportation and subsistence
costs for the distance involved.
``(E) Reimbursement for laid off workers.--If the
worker is laid off or employment is terminated for
contract impossibility (as described in paragraph
(5)(D)) before the anticipated ending date of
employment, the employer shall provide--
``(i) the transportation and subsistence
required under subparagraph (C); and
``(ii) notwithstanding whether the worker
has completed 50 percent of the period of
employment, the transportation reimbursement
required under subparagraph (A).
``(F) Transportation.--The employer shall provide
transportation between the worker's living quarters and
the employer's work site without cost to the worker in
accordance with applicable laws and regulations.
``(G) Construction.--Nothing in this paragraph may
be construed to require an employer to reimburse visa,
passport, consular, or international border-crossing
fees incurred by the worker or any other fees
associated with the worker's lawful admission into the
United States to perform employment.
``(5) Employment guarantee.--
``(A) In general.--
``(i) Requirement.--Each employer applying
for workers under subsection (b) shall
guarantee to offer each such worker employment
for the hourly equivalent of not less than 75
percent of the work hours during the total
anticipated period of employment beginning with
the first work day after the arrival of the
worker at the place of employment and ending on
the expiration date specified in the job offer.
``(ii) Failure to meet guarantee.--If the
employer affords the United States worker or
the H-2A workers less employment than that
required under this subparagraph, the employer
shall pay such worker the amount which the
worker would have earned if the worker had
worked for the guaranteed number of hours.
``(iii) Period of employment.--In this
subparagraph, the term `period of employment'
means the total number of anticipated work
hours and work days described in the job offer
and shall exclude the worker's Sabbath and
Federal holidays.
``(B) Calculation of hours.--Any hours which the
worker fails to work, up to a maximum number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Limitation.--If the worker voluntarily
abandons employment before the end of the contract
period, or is terminated for cause, the worker is not
entitled to the 75 percent guarantee described in
subparagraph (A).
``(D) Termination of employment.--
``(i) In general.--If, before the
expiration of the period of employment
specified in the job offer, the services of the
worker are no longer required due to any form
of natural disaster, including flood,
hurricane, freeze, earthquake, fire, drought,
plant or animal disease, pest infestation,
regulatory action, or any other reason beyond
the control of the employer before the
employment guarantee in subparagraph (A) is
fulfilled, the employer may terminate the
worker's employment.
``(ii) Requirements.--If a worker's
employment is terminated under clause (i), the
employer shall--
``(I) fulfill the employment
guarantee in subparagraph (A) for the
work days that have elapsed during the
period beginning on the first work day
after the arrival of the worker and
ending on the date on which such
employment is terminated; and
``(II) make efforts to transfer the
United States worker to other
comparable employment acceptable to the
worker.
``(l) Disqualification.--
``(1) Grounds of ineligibility.--
``(A) In general.--An alien is ineligible for an H-
2A visa if the alien--
``(i) is inadmissible to the United States
under section 212(a), except as provided under
paragraph (2);
``(ii) is subject to the execution of an
outstanding administratively final order of
removal, deportation, or exclusion;
``(iii) is described in, or is subject to,
section 241(a)(5);
``(iv) has ordered, incited, assisted, or
otherwise participated in the persecution of
any person on account of race, religion,
nationality, membership in a particular social
group, or political opinion; or
``(v) has a felony or misdemeanor
conviction, an element of which involves bodily
injury, threat of serious bodily injury, or
harm to property in excess of $500.
``(B) Applicability to grounds of
inadmissibility.--Nothing in this subsection may be
construed to limit the applicability of any ground of
inadmissibility under section 212.
``(2) Grounds of inadmissibility.--
``(A) In general.--In determining an alien's
admissibility--
``(i) paragraphs (5)(A), (6)(A)(i) (with
respect to an alien present in the United
States without being admitted or paroled),
(6)(B), (6)(C), (6)(D), (6)(F), (6)(G), (7),
(9)(B), and (9)(C)(i)(I) of section 212(a)
shall not apply with respect to conduct
occurring or arising before the date of the
alien's application for an H-2A visa if
associated with obtaining employment;
``(ii) the Secretary of Homeland Security
may not waive--
``(I) paragraph (1) or (2) of
sections 212(a) (relating to health and
safety and criminals);
``(II) section 212(a)(3) (relating
to security and related grounds);
``(III) section
212(a)(9)(C)(i)(II); or
``(IV) subparagraph (A), (C), or
(D) of section 212(a)(10) (relating to
polygamists, child abductors, and
unlawful voters).
``(B) Construction.--Nothing in this paragraph may
be construed as affecting the authority of the
Secretary of Homeland Security, other than under this
paragraph, to waive the provisions of section 212(a).
``(3) Bars to extension or admission.--An alien may not be
granted an H-2A visa if--
``(A) the alien has violated any material term or
condition of such status granted previously, unless the
alien has had such violation waived under paragraph
(2)(A);
``(B) the alien is inadmissible as a nonimmigrant,
except for those grounds previously waived under
paragraph (2)(A); or
``(C) the granting of such status would allow the
alien to exceed limitations on stay in the United
States in H-2A status described in subsection (m).
``(4) Prompt removal proceedings.--The Secretary of
Homeland Security shall promptly identify, investigate, detain,
and initiate removal proceedings against every alien admitted
into the United States on an H-2A visa who exceeds the alien's
period of authorized admission or otherwise violates any terms
of the alien's nonimmigrant status. In conducting such removal
proceedings, the Secretary shall give priority to aliens who
may pose a threat to the national security, and those convicted
of criminal offenses.
``(5) Numerical limitations on waivers.--The Secretary of
Homeland Security may waive any ground of inadmissibility, as
authorized under this section, only once for each beneficiary
of an application for an H-2A visa filed by an employer after
the date of the enactment of the HARVEST Act of 2011. Such
waiver authority for the Secretary shall expire 24 months after
such date of enactment.
``(6) Fine.--Each alien applying for an H-2A visa under
this section who would be inadmissible under section 212(a)(6),
if such provision had not been made inapplicable under
subsection (l)(2)(A)(i), shall be required to pay a fine in an
amount equal to $500 before being granted such visa.
``(m) Period of Admission.--
``(1) In general.--An H-2A worker approved to enter the
United States may not remain in the United States for more than
10 months during any 12-month period, excluding--
``(A) a period of not more than 7 days before the
beginning of the period of employment for the purpose
of travel to the work site; and
``(B) a period of not more than 14 days after the
period of employment for the purpose of departure to
complete late work caused by weather or other
unforeseen conditions.
``(2) Employment limitation.--An H-2A worker may not be
employed during the 14-day period described in paragraph (1)(B)
except in the employment for which the alien was previously
authorized.
``(3) Construction.--Nothing in this subsection shall limit
the authority of the Secretary of Homeland Security to extend
the stay of an alien under any other provision of this Act.
``(n) Abandonment of Employment.--
``(1) In general.--An alien admitted or provided status
under section 101(a)(15)(H)(ii)(a) who abandons the employment,
which was the basis for such admission or status--
``(A) has failed to maintain nonimmigrant status as
an H-2A worker; and
``(B) shall depart the United States or be subject
to removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--Not later than 36 hours after
the premature abandonment of employment by an H-2A worker, the
employer or association acting as an agent for the employer
shall notify the Secretary of Homeland Security of such
abandonment.
``(3) Removal.--The Secretary of Homeland Security shall
ensure the prompt removal from the United States of any H-2A
worker who violates any term or condition of the worker's
nonimmigrant status.
``(4) Voluntary termination.--Notwithstanding paragraph
(1), an alien may voluntarily terminate the alien's employment
if the alien promptly departs the United States upon
termination of such employment.
``(o) Replacement of Workers.--
``(1) In general.--Upon receiving notification under
subsection (n)(2) or being notified that a United States worker
referred by the Department of Labor or a United States worker
recruited by the employer during the recruitment period has
prematurely abandoned employment or has failed to appear for
employment--
``(A) the Secretary of State shall promptly issue a
visa to an eligible alien designated by the employer to
replace a worker who abandons or prematurely terminates
employment; and
``(B) the Secretary of Homeland Security shall
expeditiously admit such alien into the United States.
``(2) Construction.--Nothing in this subsection may be
construed to limit any preference for which United States
workers are eligible under this Act.
``(p) Identification Document.--
``(1) In general.--The Secretary of Homeland Security shall
provide each alien authorized to be an H-2A worker with a
single machine-readable, tamper-resistant, and counterfeit-
resistant document that--
``(A) authorizes the alien's entry into the United
States;
``(B) serves, for the appropriate period, as an
employment eligibility document; and
``(C) verifies the identity of the alien through
the use of at least 1 biometric identifier.
``(2) Requirements.--The document required for all aliens
authorized to be an H-2A worker--
``(A) shall be capable of reliably determining
whether the individual with the document--
``(i) is eligible for employment as an H-2A
worker;
``(ii) is not claiming the identity of
another person; and
``(iii) is authorized to be admitted into
the United States; and
``(B) shall be compatible with--
``(i) other databases of the Department of
Homeland Security to prevent an alien from
obtaining benefits for which the alien is not
eligible and determining whether the alien is
unlawfully present in the United States; and
``(ii) law enforcement databases to
determine if the alien has been convicted of
criminal offenses.
``SEC. 218A. ADMISSION OF CROSS-BORDER H-2A WORKERS.
``(a) Definition.--In this section, the term `cross-border H-2A
worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a)
who participates in the cross-border worker program established under
this section.
``(b) Incorporation by Reference.--
``(1) In general.--Except as specifically provided under
paragraph (2), the provisions under section 218 shall apply to
cross-border H-2A workers.
``(2) Exceptions.--Subsections (k)(3), (k)(4), and (m) of
section 218 shall not apply to cross-border H-2A workers.
``(c) Mandatory Entry and Exit.--A cross-border H-2A worker who
complies with the provisions of this section--
``(1) may enter the United States each scheduled work day,
in accordance with regulations promulgated by the Secretary of
Homeland Security; and
``(2) shall exit the United States before the end of each
day of such entrance.
``(d) Recruitment.--Each employer that employs a cross-border H-2A
worker under this section shall conduct a recruitment for each position
occupied by such H-2A worker that complies with the requirements under
section 218(b)(4) at least once every 10 months.''.
(2) Clerical amendment.--The table of contents of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is
amended by striking the item relating to section 218 and
inserting the following:
``Sec. 218. Admission of temporary H-2A workers.
``Sec. 218A. Admission of cross-border H-2A workers.''.
(c) Rulemaking.--
(1) Issuance of visas.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of State shall
promulgate regulations, in accordance with the notice and
comment provisions of section 553 of title 5, United States
Code, to provide for uniform procedures for the issuance of H-
2A visas by United States consulates and consular officials to
nonimmigrants described in section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(2) Border crossings.--The Secretary of State shall
promulgate regulations to establish a process for cross-border
H-2A workers authorized to work in the United States under
section 218A of the Immigration and Nationality Act, as added
by subsection (b), to ensure that such workers expeditiously
enter and exit the United States during each work day.
(d) Effective Date.--The amendments made by this section shall take
effect on the date that is 180 days after the date of the enactment of
this Act.
SEC. 4. LEGAL ASSISTANCE FROM THE LEGAL SERVICES CORPORATION.
Section 504 of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1854) is amended--
(1) by striking subsection (b) and inserting the following:
``(b)(1) Upon application by a complainant and in such
circumstances as the court determines just, the court may appoint an
attorney for such complainant and may authorize the commencement of the
action.
``(2) 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 the alien--
``(A) is described in subsection (a); and
``(B) is present in the United States at the time the legal
assistance is provided.
``(3)(A) No party may bring a civil action for damages or another
complaint on behalf of a nonimmigrant described in section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)) (referred to in this subsection as an `H-2A
worker') unless--
``(i) the party makes a request to the Federal Mediation
and Conciliation Service or an equivalent State program (as
defined by the Secretary of Labor) not later than 90 days
before bringing the action to assist the parties in reaching a
satisfactory resolution of all issues involving parties to the
dispute;
``(ii) the party provides written notification of the
alleged violation to the agricultural employer, agricultural
association, or farm labor contractor; and
``(iii) 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 the mediator finds that an agricultural employer,
agricultural association, or farm labor contractor has corrected a
violation of this Act or a regulation under this Act not later than 14
days after the date on which such agricultural employer, agricultural
association, or farm labor contractor received written notification of
such violation, no action may be brought under this section with
respect to such violation.
``(C) Any settlement reached through the mediation process
described in subparagraph (A) shall preclude any right of action
arising out of the same facts between the parties in any Federal or
State court or administrative proceeding.
``(D) If no settlement is reached through the mediation process
described in subparagraph (A), any offer of settlement or attempts to
remedy alleged grievances shall be admissible as evidence.
``(4) An employer of an H-2A worker shall not be required to waive
any requirements of any food safety programs, such as sign in
requirements, for any recipient of grants or contracts under section
1007 of the Legal Services Corporation Act (42 U.S.C. 1996f), or any
employee of such recipient.
``(5) The employer of an H-2A worker shall post the contact
information of the Legal Services Corporation in the dwelling and at
the work site of each nonimmigrant employee in a language in which all
employees can understand.
``(6) There are authorized to be appropriated to the Federal
Mediation and Conciliation Service for each fiscal year such sums as
may be necessary to carry out the mediation process described in this
subsection.''; and
(2) by adding at the end the following:
``(g)(1) If a defendant prevails in an action under this section in
which the plaintiff is represented by an attorney who is employed by
the Legal Services Corporation or any entity receiving funds from the
Legal Services Corporation, such entity or the Legal Services
Corporation shall award to the prevailing defendant fees and other
expenses incurred by the defendant in connection with the action.
``(2) In this subsection, the term `fees and other expenses' has
the meaning given the term in section 514(b)(1)(A) of title 5, United
States Code.
``(3) The court shall take whatever steps necessary, including the
imposition of sanctions, to ensure compliance with this subsection.''.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Department of
Homeland Security and the Department of State such sums as may be
necessary to adjudicate H-2A applications.
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