[Congressional Record Volume 157, Number 55 (Thursday, April 14, 2011)]
[Senate]
[Pages S2530-S2531]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Enzi, Mr. Sanders, Mr. Kohl, Mr. 
        Schumer, and Mrs. Gillibrand):
  S. 852. 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 the 111th Congress, after hearing the 
concerns of Vermont's dairy farmers, I introduced the H-2A Improvement 
Act in order to give the dairy industry access to legal foreign workers 
under our agricultural visa program. I am proud to introduce this 
legislation once again, and I am especially pleased to have Senator 
Enzi join me as a cosponsor of this bill. I thank the senior Senator 
from Wyoming for his support, and I look forward to working with him to 
advance this legislation. I also thank Senators Sanders, Schumer, Kohl, 
and Gillibrand for their support.
  Our bill adds an explicit provision to the H-2A law to allow dairy 
workers, sheepherders, and goatherders to obtain visas through the H-2A 
visa program to assist American farmers. Under current law, the dairy 
industry is completely excluded from obtaining lawful H-2A workers. 
Under current Department of Labor regulations and guidance, the 
employers of foreign sheepherders and goatherders in the Western States 
can use the H-2A program. The authority for these employers to do so is 
not codified, however, and is therefore subject to the whims of a 
Federal agency. This legislation will provide the express authority and 
certainty for these important agricultural industries to use the visa 
program as Congress intended.
  Although milk prices have improved over the past year, dairy farmers 
still struggle to meet their labor needs. I have heard from Vermont 
farmers, Vermont's Secretary of Agriculture, and the broader dairy 
industry about the challenges the current situation presents. I 
recognize that the H-2A program is imperfect, and I recognize that the 
best solution is the comprehensive approach in the AgJOBS bill. But 
basic access to the H-2A program is a better option than what dairy 
farmers now have, which is no access at all. It is simply illogical to 
subject such an important agricultural sector to unequal treatment. The 
denial of access to lawful, willing agricultural workers places a 
substantial burden on employers.
  The H-2A Improvement Act contains provisions designed to accommodate 
the specific needs of dairy farming, sheepherding, and goatherding. It 
will allow workers in these industries to enter the United States for 
an initial employment period of 3 years. The bill grants U.S. 
Citizenship and Immigration Services the authority to approve a worker 
for an additional 3-year period as needed. After the first 3 year 
period is completed, the worker is eligible to petition for lawful 
permanent residency.
  The provisions contained in this bill are very similar to provisions 
that have been a part of the long pending AgJOBS bill, legislation that 
I continue to strongly support. But the dairy farmers who continue to 
operate under this unfair system need help now. Just as much as any 
other segment of agriculture, they too deserve access to the H-2A 
program to meet their legitimate labor needs.
  For years, I have urged the Department of Labor to use its regulatory 
authority to give dairy farmers access to H-2A workers. I was 
disappointed that, despite those requests and the recommendations of 
the broader dairy community, the final H-2A rule released by the 
Department in February 2010 failed to extend access to the dairy 
industry.
  As a Senator from a State that prides itself on its dairy products 
and a long tradition of family farming, it is unacceptable that dairy 
farmers are put in a position of choosing between their livelihoods and 
taking risks with a potential employee's immigration status. I strongly 
believe that the vast majority of dairy farmers want to hire a lawful 
workforce, and our policy should support these goals.
  By expanding the H-2A program to include dairy workers, sheepherders 
and goatherders, the H-2A Improvement Act would protect both American 
and foreign workers. It would prevent American workers from having to 
compete with an unauthorized work force, which enables unscrupulous 
employers to pay lower wages and make employees work under unsafe labor 
conditions. It would protect foreign workers by requiring that 
employers comply with existing H-2A regulations, wage and hour laws, 
and occupational safety laws. It would grant foreign dairy workers the 
dignity and stability of lawful status, and the opportunity to step out 
of the shadows and be productive members of the communities in which 
they work. Despite the imperfections of the current H-2A system, these 
are the objectives this legislation strives to achieve.
  The H-2A Improvement Act is a straight-forward, targeted fix that 
makes sure all law abiding farmers in America have the same access to 
foreign agricultural labors. I recognize that many agricultural 
employers have legitimate frustrations with the current regulatory 
process. I intend to maintain my strong support of AgJOBS legislation, 
which would provide the most immediate and substantial benefit to our 
Nation's farmers and foreign agricultural workers. But I am unwilling 
to forego an opportunity to enact meaningful, bipartisan legislation to 
promote basic fairness for dairy, goat, and sheep farmers under our 
immigration laws. I hope Senators will support this common sense 
legislation.
  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. 852

       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''.

     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; and
       (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

[[Page S2531]]

       ``(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 States.
       ``(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.''.
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