I 

112TH CONGRESS 

1ST SESSION H. R. 3443 

To reform the H–2A program for nonimmigrant agricultural workers, and 

for other purposes. 

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 

A BILL 

To reform the H–2A program for nonimmigrant agricultural 

workers, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as— 

5 (1) the ‘‘Better Agriculture Resources Now 

6 Act’’; or 

7 (2) the ‘‘BARN Act’’. 


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1 SEC. 2. H–2A PROGRAM REFORMS. 

2 (a) DEFINITION OF AGRICULTURAL LABOR OR SERV3 ICES.—Section 101(a)(15)(H)(ii)(a) of such Act (8 U.S.C. 

4 1101(a)(15)(H)(ii)(a)) is amended— 

5 (1) by striking ‘‘and the pressing’’ and insert6 ing ‘‘the pressing’’; and 

7 (2) by striking ‘‘of a temporary’’ and all that 

8 follows through the end and inserting ‘‘, and the 

9 handling, planting, drying, packing, packaging, proc10 essing, freezing, grading, storing, or delivering to 

11 storage or to market or to a carrier for transpor12 tation to market, in its unmanufactured state, any 

13 agricultural or horticultural commodity, or’’. 

14 (b) DEEMED APPROVAL.—Section 218(c)(3)(A) of 

15 such Act (8 U.S.C. 1188(c)(3)(A)) is amended by insert16 ing before ‘‘In considering’’ the following: ‘‘The Secretary 

17 of Labor shall review such application and shall provide 

18 a determination on the application within 30 days of the 

19 date of the filing of the application. If the Secretary does 

20 not comply with the deadline in the preceding sentence, 

21 the application shall be deemed approved.’’. 

22 (c) EXPERIENCE REQUIREMENT.—Section 

23 218(c)(3)(A) of such Act (8 U.S.C. 1188(c)(3)(A)), as 

24 amended by subsection (b), is further amended by adding 

25 at the end the following: ‘‘A job offer may contain an expeVerDate Mar 15 2010 00:08 Nov 18, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3443.IH H3443

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1 rience requirement as long as work performed in an illegal 

2 status may not be counted towards such requirement.’’. 

3 (d) ELIMINATION OF 50 PERCENT RULE.—Section 

4 218(c)(3) of such Act (8 U.S.C. 1188(c)(3)) is amended— 

5 (1) by striking ‘‘(A)’’; and 

6 (2) by striking subparagraph (B). 

7 (e) WAGE RATE.—Section 218(a)(1)(B) of such Act 

8 (8 U.S.C. 1188(a)(1)(B)) is amended by striking the pe9 riod at the end and inserting ‘‘, except that no employer 

10 shall be required to pay a wage rate greater than 115 per11 cent of the greatest of the Federal, State, and local min12 imum wage rates.’’. 

13 (f) DEADLINE FOR FILING APPLICATIONS.—Section 

14 218(c)(1) of such Act (8 U.S.C. 1188(c)(1)) is amended 

15 by striking ‘‘45’’ and inserting ‘‘30’’. 

16 (g) PERIOD OF AUTHORIZED NONIMMIGRANT STA17 TUS.—Section 218(h) of such Act (8 U.S.C. 1188(h)) is 

18 amended by adding at the end the following: 

19 ‘‘(3) The initial period of authorized status as a non20 immigrant described in section 101(a)(15)(H)(ii)(a) shall 

21 not exceed 1 year. Such period may be extended once by 

22 the Secretary of Homeland Security for a period of up 

23 to 1 year, except that such extension may be granted only 

24 if the Secretary of Labor determines that the employer 

25 has engaged in the positive recruitment efforts described 


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1 in subsection (b)(4) (including the obligation to circulate 

2 the employer’s job offer through the interstate employ3 ment service system). In the case of a nonimmigrant who 

4 has remained in the United States for the full 2-year pe5 riod, the nonimmigrant shall be obliged to depart the 

6 United States and shall not be eligible to re-apply for a 

7 visa to re-enter the United States as such a nonimmigrant 

8 for a period of 2 months. If at any time during a period 

9 of authorized admission the alien has a work lapse period 

10 of 60 days or more, the visa of the alien shall be deemed 

11 revoked and the alien shall be required to depart from the 

12 United States, except that if an employer has applied for 

13 a certification under subsection (a)(1) with respect to an 

14 alien who has a work lapse of 60 days or less, such period 

15 shall not begin until after the Secretary has made a deter16 mination on the application consistent with subsection 

17 (c).’’. 

18 (h) HOUSING.—Section 218(c)(4) of such Act (8 

19 U.S.C. 1188(c)(4)) is amended to read as follows: 

20 ‘‘(4) HOUSING REQUIREMENT.— 

21 ‘‘(A) IN GENERAL.—Except as provided 

22 under subparagraph (F), each employer apply23 ing for workers under subsection (b) shall offer 

24 to provide housing at no cost to— 


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1 ‘‘(i) all workers in job opportunities 

2 for which the employer has applied; and 

3 ‘‘(ii) all other workers in the same oc4 cupation at the same place of employment 

5 whose place of residence is beyond normal 

6 commuting distance. 

7 ‘‘(B) COMPLIANCE.—An employer meets 

8 the requirement under subparagraph (A) if the 

9 employer— 

10 ‘‘(i) provides the workers with housing 

11 that meets applicable Federal standards 

12 for temporary labor camps; or 

13 ‘‘(ii) secures housing for the workers 

14 that— 

15 ‘‘(I) meets applicable local stand16 ards for rental or public accommoda17 tion housing, or other substantially 

18 similar class of habitation; or 

19 ‘‘(II) in the absence of applicable 

20 local standards, meets State stand21 ards for rental or public accommoda22 tion housing or other substantially 

23 similar class of habitation. 

24 ‘‘(C) INSPECTION.— 


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1 ‘‘(i) REQUEST.—At the time an em2 ployer that plans to provide housing de3 scribed in subparagraph (B) to H–2A 

4 workers files an application for H–2A 

5 workers with the Secretary of Labor, the 

6 employer shall request a certificate of in7 spection by an approved Federal or State 

8 agency. 

9 ‘‘(ii) INSPECTION; FOLLOW UP.—Not 

10 later than 28 days after the receipt of a re11 quest under clause (i), the Secretary of Ag12 riculture shall ensure that— 

13 ‘‘(I) such an inspection has been 

14 conducted; and 

15 ‘‘(II) any necessary follow up has 

16 been scheduled to ensure compliance 

17 with the requirements under this 

18 paragraph. 

19 ‘‘(iii) DELAY PROHIBITED.—The Sec20 retary of Agriculture may not delay the ap21 proval of an application for failing to com22 ply with the deadlines set forth in clause 

23 (iii). 

24 ‘‘(D) RULEMAKING.—The Secretary of Ag25 riculture shall issue regulations that address 


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1 the specific requirements for the provision of 

2 housing to workers engaged in the range pro3 duction of livestock. 

4 ‘‘(E) HOUSING ALLOWANCE.— 

5 ‘‘(i) AUTHORITY.—If the Governor of 

6 a State certifies to the Secretary of Agri7 culture that there is adequate housing 

8 available in the area of intended employ9 ment for migrant farm workers and H–2A 

10 workers who are seeking temporary hous11 ing while employed in agricultural work, an 

12 employer in such State may provide a rea13 sonable housing allowance instead of offer14 ing housing pursuant to subparagraph (A). 

15 An employer who provides a housing allow16 ance to a worker shall not be required to 

17 reserve housing accommodations for the 

18 worker. 

19 ‘‘(ii) ASSISTANCE IN LOCATING HOUS20 ING.—Upon the request of a worker seek21 ing assistance in locating housing, an em22 ployer providing a housing allowance under 

23 clause (i) shall make a good faith effort to 

24 assist the worker in identifying and locatVerDate Mar 15 2010 00:08 Nov 18, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3443.IH H3443

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1 ing housing in the area of intended em2 ployment. 

3 ‘‘(iii) LIMITATION.—A housing allow4 ance may not be used for housing that is 

5 owned or controlled by the employer. An 

6 employer who offers a housing allowance to 

7 a worker, or assists a worker in locating 

8 housing which the worker occupies under 

9 this subparagraph shall not be deemed a 

10 housing provider under section 203 of the 

11 Migrant and Seasonal Agricultural Worker 

12 Protect Act (29 U.S.C. 1823) solely by vir13 tue of providing such housing allowance. 

14 ‘‘(iv) OTHER REQUIREMENTS.— 

15 ‘‘(I) NONMETROPOLITAN COUN16 TY.—If the place of employment of 

17 the workers provided an allowance 

18 under this subparagraph is a non19 metropolitan county, the amount of 

20 the housing allowance under this sub21 paragraph shall be equal to the state22 wide average fair market rental for 

23 existing housing for nonmetropolitan 

24 counties for the State, as established 

25 by the Secretary of Housing and 


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1 Urban Development pursuant to sec2 tion 8(c) of the United States Hous3 ing Act of 1937 (42 U.S.C. 1437f(c)), 

4 based on a 2-bedroom dwelling unit 

5 and an assumption of 2 persons per 

6 bedroom. 

7 ‘‘(II) METROPOLITAN COUNTY.— 

8 If the place of employment of the 

9 workers provided an allowance under 

10 this subparagraph is in a metropolitan 

11 county, the amount of the housing al12 lowance under this subparagraph shall 

13 be equal to the statewide average fair 

14 market rental for existing housing for 

15 metropolitan counties for the State, as 

16 established by the Secretary of Hous17 ing and Urban Development pursuant 

18 to section 8(c) of the United States 

19 Housing Act of 1937 (42 U.S.C. 

20 1437f(c)), based on a 2-bedroom 

21 dwelling unit and an assumption of 2 

22 persons per bedroom. 

23 ‘‘(v) INFORMATION.—If the employer 

24 provides a housing allowance to H–2A em25 ployees, the employer shall provide a list of 


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1 the names and local addresses of such 

2 workers to the Secretary of Agriculture 

3 and the Secretary of Homeland Security 

4 once per contract period.’’. 

5 (i) LEGAL ASSISTANCE FROM THE LEGAL SERVICES

6 CORPORATION.—Section 218(h) of such Act (8 U.S.C. 

7 1188(h)), as amended by subsection (g), is further amend8 ed by adding at the end the following: 

9 ‘‘(4)(A) The Legal Services Corporation may not pro10 vide legal assistance for, or on behalf of, any alien, and 

11 may not provide financial assistance to any person or enti12 ty that provides legal assistance for, or on behalf of, any 

13 alien, unless— 

14 ‘‘(i) the alien is present in the United States at 

15 the time the legal assistance is provided; and 

16 ‘‘(ii) the parties to the dispute have attempted, 

17 in good faith, mediation or other non-binding dis18 pute resolution of all issues involving all such par19 ties. 

20 ‘‘(B) If an employer and a nonimmigrant having sta21 tus under section 101(a)(15)(H)(ii)(a) have an arbitration 

22 arrangement, the Legal Services Corporation shall respect 

23 the arbitration process and outcome. 

24 ‘‘(C) No employer of a nonimmigrant having status 

25 under section 101(a)(15)(H)(ii)(a) shall be required to 


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1 permit any recipient of a grant or contract under section 

2 1007 of the Legal Services Corporation Act (42 U.S.C. 

3 2996f), or any employee of such a recipient, to enter upon 

4 the employer’s property, unless such recipient or employee 

5 has a pre-arranged appointment with a specific non6 immigrant having such status.’’. 

7 (j) EFFECT OF VIOLATIONS WHILE IN UNITED

8 STATES.—Section 218(f) of such Act (8 U.S.C. 1188(f)) 

9 is amended to read as follows: 

10 ‘‘(f) EFFECT OF VIOLATIONS.— 

11 ‘‘(1) OVERSTAYS.—An alien may not be admit12 ted to the United States as a nonimmigrant having 

13 status under section 101(a)(15)(H)(ii)(a) if the alien 

14 was admitted to the United States as such a non15 immigrant within the previous 5-year period and the 

16 alien remained after the alien’s period of authorized 

17 admission expired or otherwise violated a term or 

18 condition of such previous admission. 

19 ‘‘(2) FRAUD.—An alien may not be admitted to 

20 the United States as a nonimmigrant having status 

21 under section 101(a)(15)(H)(ii)(a) if the alien was 

22 admitted to the United States as such a non23 immigrant on the basis of fraud. 

24 ‘‘(3) OTHER CRIMES.—An alien may not be ad25 mitted to the United States as a nonimmigrant havVerDate Mar 15 2010 00:08 Nov 18, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3443.IH H3443

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1 ing status under section 101(a)(15)(H)(ii)(a) if the 

2 alien was admitted to the United States as such a 

3 nonimmigrant and committed an offense that ren4 dered the alien deportable while in the United States 

5 pursuant to such admission. 

6 ‘‘(4) EMPLOYER BAR.—The Secretary of Labor 

7 may not issue a certification under subsection (a) 

8 with respect to an employer if the Secretary finds, 

9 after notice and an opportunity for a hearing, that 

10 the employer knowingly hired an H–2A worker 

11 whose period of authorized admission had expired or 

12 that the employer otherwise engaged in fraud or 

13 misrepresentation with respect to the program for 

14 the admission of such workers into the United 

15 States. The Secretary of Homeland Security shall 

16 not thereafter approve petitions filed by such em17 ployer under section 214(c). An employer that estab18 lishes that it has complied in good faith with the re19 quirements of this Act has established an affirmative 

20 defense in an action brought under this paragraph.’’. 

Æ 


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