H. R. 3443
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
To reform the H–2A program for nonimmigrant agricultural workers, and for other purposes.
This Act may be cited as—
Better Agriculture Resources Now
H–2A program reforms
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—
and the pressing and inserting
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
of such Act (8 U.S.C. 1188(c)(3)(A)) is amended by inserting before
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
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..
Elimination of 50 percent rule
Section 218(c)(3) of such Act (8 U.S.C. 1188(c)(3)) is amended—
by striking subparagraph (B).
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
, 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..
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
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:
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).
Section 218(c)(4) of such Act (8 U.S.C. 1188(c)(4)) is amended to read as follows:
Except as provided under subparagraph (F), each employer applying for workers under subsection (b) shall offer to provide housing at no cost to—
all workers in job opportunities for which the employer has applied; and
all other workers in the same occupation at the same place of employment whose place of residence is beyond normal commuting distance.
An employer meets the requirement under subparagraph (A) if the employer—
provides the workers with housing that meets applicable Federal standards for temporary labor camps; or
secures housing for the workers that—
meets applicable local standards for rental or public accommodation housing, or other substantially similar class of habitation; or
in the absence of applicable local standards, meets State standards for rental or public accommodation housing or other substantially similar class of habitation.
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.
Inspection; follow up
Not later than 28 days after the receipt of a request under clause (i), the Secretary of Agriculture shall ensure that—
such an inspection has been conducted; and
any necessary follow up has been scheduled to ensure compliance with the requirements under this paragraph.
The Secretary of Agriculture may not delay the approval of an application for failing to comply with the deadlines set forth in clause (iii).
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.
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.
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.
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.
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.
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.
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.
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:
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 is present in the United States at the time the legal assistance is provided; and
the parties to the dispute have attempted, in good faith, mediation or other non-binding dispute resolution of all issues involving all such parties.
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.
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.
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:
Effect of violations
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.
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.
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.
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.