[Congressional Record Volume 156, Number 132 (Tuesday, September 28, 2010)]
[Senate]
[Pages S7633-S7634]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mrs. Gillibrand, and Mr. Schumer):
  S. 3858. A bill to improve the H-2A agricultural worker program for 
use by dairy workers, sheepherders, and goat herders, and for other 
purposes; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, in these challenging economic times, dairy 
farmers in Vermont, New York, and across America are experiencing 
particularly difficult conditions. They face both rock-bottom milk 
prices, and a severe labor shortage. There is an immediate solution for 
one of these issues. Labor shortages could be met with foreign 
agricultural workers under a special visa program, called H-2A, which 
allows farmers who are unable to fill labor needs with domestic workers 
to hire temporary or seasonal foreign workers. I have long sought to 
include dairy farmers in the H-2A program, but the Department of Labor 
has consistently refused to interpret the law to allow dairy farmers 
access to seasonal foreign workers.
  Last fall, the Department of Labor initiated a rulemaking process to 
reconsider various aspects of the H-2A program. I repeatedly urged the 
Department to exercise its authority to give dairy farmers access to H-
2A workers, both through comments I submitted in the formal rulemaking 
and by supporting the comments of the National Milk Producers 
Federation.
  Nonetheless, on February 11, 2010, the Department released a final 
rule that continues to exclude the dairy industry from this valuable 
program. Inexplicably, while refusing to include the dairy industry 
because of its year-round needs, the Department of Labor extends new 
access to the H-2A program to the logging industry, and continues to 
offer access to these purportedly seasonal worker visas to the year-
round sheepherding industry.
  Today, I introduce the H-2A Improvement Act with Senators Gillibrand 
and Schumer. This bill will finally end the inequity under current law. 
The H-2A Improvement Act will make explicit in law that dairy farms can 
use the H-2A program, ensuring that dairy farmers in Vermont, New York, 
and throughout the Nation can find the labor they need to stay in 
business, meeting the needs of their communities and American families. 
This legislation, which also gives statutory access to the H-2A program 
to sheep herders and goat herders, contains provisions to ensure that 
the benefit that these workers provide to farmers is maximized. The 
legislation authorizes this unique class of workers to remain in the 
United States for an initial period of 3 years, and gives U.S. 
Citizenship and Immigration Services the authority to approve a worker 
for an additional 3-year period as needed. After the initial 3-year 
period, the worker may petition to become a lawful permanent resident.
  The failure to allow the dairy industry to participate in the H-2A 
program puts many dairy farmers in the situation of having to choose 
between their livelihoods and following the law. Late last year, the 
Department of Homeland Security audited at least four dairy farms in 
Vermont. Although I strongly believe that the vast majority of dairy 
farmers want to hire a lawful workforce, there is a critical shortage 
of domestic workers available to work on dairy farms. Dairy farmers are 
often ill-equipped to verify the authenticity of documents that job 
applicants present. As a result, some of the workers the farmers hire 
may not be lawfully authorized to work. With all the challenges facing 
dairy farmers today, we should help dairy farmers hire lawful workers, 
not leave them with the precarious choice of hiring workers who may be 
unauthorized, or hiring no workers at all.
  Expanding the H-2A program to include dairy workers would protect 
both American and foreign workers. It would protect American workers 
from having to compete with an unlawful work force, in which 
unscrupulous employers pay lower wages in often unsafe conditions. At 
the same time, it would protect foreign dairy workers, by requiring 
that employers comply with existing H-2A regulations and wage and hour 
and occupational safety laws. This legislation, if enacted, would give 
foreign workers who seek employment in the dairy industry the dignity 
and certainty of lawful status and the opportunity to be productive 
members of the communities in which they work.
  In 2006 and 2007, I worked to include nearly identical provisions in 
the Senate's comprehensive immigration bills. This legislation reflects 
those provisions. The measure I introduce today is a simple, targeted 
fix to our immigration laws that will enable dairy farmers to gain the 
benefits of this important program. While I recognize that many 
agricultural employers are frustrated by the current regulatory 
process, it is a critical first step, and a matter of basic fairness 
that dairy farmers are afforded the same opportunities to obtain labor 
as all other agricultural sectors.
  Although this legislation is necessary to meet the immediate needs of 
dairy farmers, I also want to make absolutely clear that I remain in 
complete support of the more comprehensive AgJOBS legislation, which I 
joined Senator Feinstein in introducing last year, and on which Senator 
Feinstein and others have worked tirelessly. I will continue to 
strongly support that legislation, and Senator Feinstein in her efforts 
to see it enacted. AgJOBS is broader than the H-2A Improvement Act. It 
reforms the broader H-2A program to cover agricultural workers that are 
currently assisting American farmers, but who are not lawfully 
authorized to work. It also makes important, negotiated changes to 
streamline the H-2A regulatory process for employers and workers. I 
recognize that farmers across the country need a comprehensive 
solution--from Vermont's small dairy farms to the vast fields of 
California. The solution that the AgJOBS legislation proposes will 
benefit agriculture across the Nation and is a solution I remain 
committed to making a reality.
  I will also continue to work with Senate leadership and Senators from 
both sides of the aisle to accomplish our shared goals for broader 
reform of our Nation's immigration system. In the meantime, America's 
dairy farmers must at least be placed on the same footing as other 
agricultural interests with respect to our current H-2A laws.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3858

       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 ``H-2A Improvement Act''.

     SEC. 2. NONIMMIGRANT STATUS FOR DAIRY WORKERS, SHEEPHERDERS, 
                   AND GOAT HERDERS.

       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 inserting ``who is coming temporarily to the United States 
     to perform agricultural labor or services as a dairy worker, 
     sheepherder, or goat herder, or'' after ``abandoning''.

[[Page S7634]]

     SEC. 3. SPECIAL RULES FOR ALIENS EMPLOYED AS DAIRY WORKERS, 
                   SHEEPHERDERS, OR GOAT HERDERS.

       Section 218 of the Immigration and Nationality Act (8 
     U.S.C. 1188) is amended--
       (1) by redesignating subsections (h) and (i) as subsections 
     (i) and (j), respectively;
       (2) by inserting after subsection (g) the following:
       ``(h) Special Rules for Aliens Employed as Dairy Workers, 
     Sheepherders, or Goat Herders.--
       ``(1) In general.--Notwithstanding any other provision of 
     this Act, an alien admitted as a nonimmigrant under section 
     101(a)(15)(H)(ii)(a) for employment as a dairy worker, 
     sheepherder, or goat herder--
       ``(A) may be admitted for an initial period of 3 years; and
       ``(B) subject to paragraph (3)(E), may have such initial 
     period of admission extended for an additional period of up 
     to 3 years.
       ``(2) Exemption from temporary or seasonal requirement.--
     Not withstanding section 101(a)(15)(H)(ii)(a), an employer 
     filing a petition to employ H-2A workers in positions as 
     dairy workers, sheepherders, or goat herders shall not be 
     required to show that such positions are of a seasonal or 
     temporary nature.
       ``(3) Adjustment to lawful permanent resident status.--
       ``(A) Eligible alien.--In this paragraph, the term 
     `eligible alien' means an alien who--
       ``(i) has H-2A worker status based on employment as a dairy 
     worker, sheepherder, or goat herder;
       ``(ii) has maintained such status in the United States for 
     a not fewer than 33 of the preceding 36 months; and
       ``(iii) is seeking to receive an immigrant visa under 
     section 203(b)(3)(A)(iii).
       ``(B) Classification petition.--A petition under section 
     204 for classification of an eligible alien under section 
     203(b)(3)(A)(iii) may be filed by--
       ``(i) the alien's employer on behalf of the eligible alien; 
     or
       ``(ii) the eligible alien.
       ``(C) No labor certification required.--Notwithstanding 
     section 203(b)(3)(C), no determination under section 
     212(a)(5)(A) is required with respect to an immigrant visa 
     under section 203(b)(3)(A)(iii) for an eligible alien.
       ``(D) Effect of petition.--The filing of a petition 
     described in subparagraph (B) or an application for 
     adjustment of status based on a petition described in 
     subparagraph (B) shall not be a basis fo denying--
       ``(i) another petition to employ H-2A workers;
       ``(ii) an extension of nonimmigrant status for a H-2A 
     worker;
       ``(iii) admission of an alien as an H-2A worker;
       ``(iv) a request for a visa for an H-2A worker;
       ``(v) a request from an alien to modify the alien's 
     immigration status to or from status as an H-2A worker; or
       ``(vi) a request made for an H-2A worker to extend such 
     worker's stay in the United Stats.
       ``(E) Extension of stay.--The Secretary of Homeland 
     Security shall extend the stay of an eligible alien having a 
     pending or approved petition described in subparagraph (B) in 
     1-year increments until a final determination is made on the 
     alien's eligibility for adjustment of status to that of an 
     alien lawfully admitted for permanent residence.
       ``(F) Construction.--Nothing in this paragraph may be 
     construed to prevent an eligible alien from seeking 
     adjustment of status in accordance with any other provision 
     of law.''; and
       (3) in subsection (j)(1), as redesignated by paragraph (1), 
     by striking ``The term'' and inserting ``Except as provided 
     under subsection (h)(2)(A), the term''.
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