```

[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.
                                 <all>
```