II 

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. 

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 the ‘‘Helping Agriculture 

5 Receive Verifiable Employees Securely and Temporarily 

6 Act of 2011’’ or the ‘‘HARVEST Act of 2011’’. 

7 SEC. 2. SENSE OF THE SENATE. 

8 It is the sense of the Senate that— 


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1 (1) farmers and ranchers in the United States 

2 produce the highest quality food and fiber in the 

3 world; 

4 (2) abundant harvests in the United States 

allow this Nation to provide over 1 5 ⁄2 of the world’s 

6 food aid donations to help our international neigh7 bors in need; 

8 (3) it is in the best interest of the American 

9 people for their agricultural goods to be produced in 

10 the United States; 

11 (4) the United States is the world’s largest ag12 ricultural exporter and is one of the few sectors of 

13 the United States economy that produces a trade 

14 surplus; 

15 (5) the Secretary of Agriculture announced that 

16 the United States exported $108,700,000,000 worth 

17 of agricultural exports during fiscal year 2010; 

18 (6) Americans enjoy the highest quality food at 

19 the lowest cost compared to any industrialized na20 tion in the world, spending less than 10 percent of 

21 our household income on food; 

22 (7) the continued safety of the agricultural 

23 goods produced in the United States is an issue of 

24 national security; 


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1 (8) the agricultural labor force of the United 

2 States is overwhelmingly composed of foreign labor; 

3 (9) due to the importance of food safety, it is 

4 critical to know who is handling our Nation’s food 

5 supply and who is working on our Nation’s farms 

6 and ranches; 

7 (10) there could be detrimental effects on the 

8 United States economy for farms to downsize or 

9 close operations due to labor shortages; 

10 (11) decreased agricultural production could 

11 have ramifications throughout the farm support in12 dustries, such as food processing, fertilizers, and 

13 equipment manufacturers; 

14 (12) a shortage of agriculture labor could lead 

15 to decreased supply and increased prices for food 

16 and fiber; and 

17 (13) this Nation needs both secure borders and 

18 an immigration system that allows those who seek 

19 legal immigrant status through the proper channels 

20 to work in the diverse sectors of the agriculture in21 dustry. 

22 SEC. 3. ADMISSION OF TEMPORARY AGRICULTURAL WORK23 ERS. 

24 (a) DEFINITION.—Section 101(a)(15)(H)(ii)(a) of 

25 the Immigration and Nationality Act (8 U.S.C. 


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1 1101(a)(15)(H)(ii)(a)) is amended by striking ‘‘, of a tem2 porary or seasonal nature’’. 

3 (b) PROCEDURE FOR ADMISSION.— 

4 (1) IN GENERAL.—Section 218 of the Immigra5 tion and Nationality Act (8 U.S.C. 1188) is amend6 ed to read as follows: 

7 ‘‘SEC. 218. ADMISSION OF TEMPORARY H–2A WORKERS. 

8 ‘‘(a) DEFINITIONS.—In this section and in section 

9 218A: 

10 ‘‘(1) ADVERSE EFFECT WAGE RATE.—The term 

11 ‘adverse effect wage rate’ means 115 percent of the 

12 greater of— 

13 ‘‘(A) the State minimum wage; or 

14 ‘‘(B) the hourly wage prescribed under sec15 tion 6(a)(1) of the Fair Labor Standards Act of 

16 1938 (29 U.S.C. 206(a)(1)). 

17 ‘‘(2) AREA OF EMPLOYMENT.—The term ‘area 

18 of employment’ means the area within normal com19 muting distance of the work site or physical location 

20 at which the work of the H–2A worker is or will be 

21 performed. If such work site or location is within a 

22 Metropolitan Statistical Area, any place within such 

23 area shall be considered to be within the area of em24 ployment. 


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1 ‘‘(3) DISPLACE.—In the case of an application 

2 with respect to an H–2A worker filed by an em3 ployer, an employer ‘displaces’ a United States 

4 worker from a job if the employer lays off the work5 er from a job that is essentially equivalent to the job 

6 for which the H–2A worker is sought. A job shall be 

7 considered essentially equivalent to another job if 

8 the job— 

9 ‘‘(A) involves essentially the same respon10 sibilities as the other job; 

11 ‘‘(B) was held by a United States worker 

12 with substantially equivalent qualifications and 

13 experience; and 

14 ‘‘(C) is located in the same area of employ15 ment as the other job. 

16 ‘‘(4) ELIGIBLE INDIVIDUAL.—The term ‘eligible 

17 individual’ means an alien who is not ineligible for 

18 an H–2A visa pursuant to subsection (l). 

19 ‘‘(5) EMPLOYER.—The term ‘employer’ means 

20 an employer who hires workers to perform— 

21 ‘‘(A) animal agriculture or agricultural 

22 processing; 

23 ‘‘(B) agricultural work included within the 

24 provisions of section 3(f) of the Fair Labor 

25 Standards Act of 1938 (29 U.S.C. 203(f)) or 


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1 section 3121(g) of the Internal Revenue Code 

2 of 1986; 

3 ‘‘(C) drying, packing, packaging, proc4 essing, freezing, or grading prior to delivery for 

5 storage of any agricultural or horticultural com6 modity in its unmanufactured state; or 

7 ‘‘(D) dairy or feedyard work. 

8 ‘‘(6) H–2A WORKER.—The term ‘H–2A worker’ 

9 means a nonimmigrant who— 

10 ‘‘(A) continuously maintains a residence 

11 and place of abode outside of the United States 

12 which the alien has no intention of abandoning; 

13 and 

14 ‘‘(B)(i) is seeking to work for an employer 

15 performing agricultural labor in the United 

16 States for not more than 10 months during 

17 each calendar year in a job for which United 

18 States workers are not available and willing to 

19 perform such service or labor; or 

20 ‘‘(ii)(I) is seeking to work for an employer 

21 performing agricultural labor in the United 

22 States in a job for which United States workers 

23 are not available and willing to perform such 

24 service or labor; 


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1 ‘‘(II) commutes each business day across 

2 the United States international border to work 

3 for a qualified United States employer; and 

4 ‘‘(III) returns across the United States 

5 international border to his or her foreign resi6 dence and place of abode at the end of each 

7 business day. 

8 ‘‘(7) LAY OFF.— 

9 ‘‘(A) IN GENERAL.—The term ‘lay off’— 

10 ‘‘(i) means to cause a worker’s loss of 

11 employment, other than through a dis12 charge for inadequate performance, viola13 tion of workplace rules, cause, voluntary 

14 departure, voluntary retirement, or the ex15 piration of a grant or contract (other than 

16 a temporary employment contract entered 

17 into in order to evade a condition described 

18 in paragraph (3) or (7) of subsection (b)); 

19 and 

20 ‘‘(ii) does not include any situation in 

21 which the worker is offered, as an alter22 native to such loss of employment, a simi23 lar employment opportunity with the same 

24 employer (or, in the case of a placement of 

25 a worker with another employer under subVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 section (h), with either employer described 

2 in such subsection) at equivalent or higher 

3 compensation and benefits than the posi4 tion from which the employee was dis5 charged, regardless of whether or not the 

6 employee accepts the offer. 

7 ‘‘(B) CONSTRUCTION.—Nothing in this 

8 paragraph may be construed to limit an em9 ployee’s rights under a collective bargaining 

10 agreement or other employment contract. 

11 ‘‘(8) UNITED STATES WORKER.—The term 

12 ‘United States worker’ means any worker who is a 

13 national of the United States, an alien lawfully ad14 mitted for permanent residence, or an alien author15 ized to work in the relevant job opportunity within 

16 the United States, except an alien admitted or other17 wise provided status under section 

18 101(a)(15)(H)(ii)(a). 

19 ‘‘(b) LABOR ATTESTATION PROCESS.—The Secretary 

20 of Agriculture shall utilize the labor attestation process 

21 described in this subsection until the Secretary of Labor 

22 certifies that, based on State workforce agency data, there 

23 is an adequate domestic workforce in the United States 

24 to fill agricultural jobs in the State in which the agricul25 tural employer is seeking H–2A workers. Once the SecVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 retary of Labor certifies that there are adequate author2 ized workers in a State to fill agricultural jobs (excluding 

3 H–2A workers), the Secretary of Agriculture, after con4 sultation with the Secretary of Labor, shall issue regula5 tions describing a labor certification process for agricul6 tural employers seeking H–2A workers. An alien may not 

7 be admitted as an H–2A worker unless the employer has 

8 filed an application with the Secretary of Agriculture in 

9 which the employer attests to the following: 

10 ‘‘(1) TEMPORARY WORK OR SERVICES.— 

11 ‘‘(A) IN GENERAL.—The employer is seek12 ing to employ a specific number of agricultural 

13 workers on a temporary basis and will provide 

14 compensation to such workers at a specified 

15 wage rate and under specified conditions. 

16 ‘‘(B) SKILLED WORKERS.—If the worker is 

17 a Level 2 H–2A worker, the employer will re18 cruit the worker separately and the application 

19 will delineate separate wage rate and conditions 

20 of employment for such worker. 

21 ‘‘(C) DEFINED TERM.—In this paragraph 

22 and in subsection (h)(6)(B), a worker is consid23 ered to be ‘employed on a temporary basis’ if 

24 the employer employs the worker for not longer 

25 than 10 months in a calendar year. 


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1 ‘‘(2) BENEFITS, WAGES, AND WORKING CONDI2 TIONS.—The employer will provide, at a minimum, 

3 the benefits, wages, and working conditions required 

4 under subsection (k) to— 

5 ‘‘(A) all workers employed in the jobs for 

6 which the H–2A worker is sought; and 

7 ‘‘(B) all other temporary workers in the 

8 same occupation at the same place of employ9 ment. 

10 ‘‘(3) NONDISPLACEMENT OF UNITED STATES

11 WORKERS.—The employer did not and will not dis12 place a United States worker employed by the em13 ployer during the period of employment of the H– 

14 2A worker and during the 30-day period imme15 diately preceding such period of employment in the 

16 occupation at the place of employment for which the 

17 employer seeks approval to employ H–2A workers. 

18 ‘‘(4) RECRUITMENT.— 

19 ‘‘(A) IN GENERAL.—The employer will— 

20 ‘‘(i) describe previous recruitment ef21 forts made before the filing of the applica22 tion; and 

23 ‘‘(ii) complete adequate recruitment 

24 requirements before H–2A workers are 

25 issued a visa at an American consulate. 


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1 ‘‘(B) ADEQUATE RECRUITMENT.—The 

2 adequate recruitment requirements under sub3 paragraph (A)(ii) are satisfied if the em4 ployer— 

5 ‘‘(i) submits a copy of the job offer to 

6 the local office of the State workforce 

7 agency serving the area of intended em8 ployment and authorizes the posting of the 

9 job opportunity on the Department of La10 bor’s electronic registry of job applications 

11 for all other occupations in the same man12 ner as other United States employers, ex13 cept that nothing in this clause shall re14 quire the employer to file an interstate job 

15 order under section 653 of title 20, Code 

16 of Federal Regulations; 

17 ‘‘(ii) advertises the availability of the 

18 job opportunities for which the employer is 

19 seeking workers in a publication in the 

20 local market that is likely to be patronized 

21 by potential farm workers; and 

22 ‘‘(iii) mails a letter through the 

23 United States Postal Service or otherwise 

24 contacts any United States worker the em25 ployer employed within the past year in the 


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1 occupation at the place of intended employ2 ment for which the employer is seeking H– 

3 2A workers that describes available job op4 portunities, unless the worker was termi5 nated from employment by the employer 

6 for a lawful job-related reason or aban7 doned the job before the worker completed 

8 the period of employment of the job oppor9 tunity for which the worker was hired. 

10 ‘‘(C) ADVERTISEMENT REQUIREMENT.— 

11 The advertisement requirement under subpara12 graph (B)(ii) is satisfied if the employer runs 

13 an advertisement for 2 consecutive days that— 

14 ‘‘(i) names the employer; 

15 ‘‘(ii) describes the job or jobs; 

16 ‘‘(iii) provides instructions on how to 

17 contact the employer to apply for the job; 

18 ‘‘(iv) states the duration of employ19 ment; 

20 ‘‘(v) describes the geographic area 

21 with enough specificity to apprise appli22 cants of any travel requirements and where 

23 applicants will likely have to reside to per24 form the job; 

25 ‘‘(vi) states the rate of pay; and 


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1 ‘‘(vii) describes working conditions 

2 and the availability of housing or the 

3 amount of housing allowances. 

4 ‘‘(D) END OF RECRUITMENT REQUIRE5 MENT.—The requirement to recruit and hire 

6 United States workers for the contract period 

7 for which H–2A workers have been hired shall 

8 terminate on the first day of such contract pe9 riod. 

10 ‘‘(5) OFFERS TO UNITED STATES WORKERS.— 

11 The employer has offered or will offer the job for 

12 which the nonimmigrant is sought to any eligible 

13 United States worker who— 

14 ‘‘(A) applies; 

15 ‘‘(B) will be available at the time and place 

16 of need; and 

17 ‘‘(C) is able and willing to complete the pe18 riod of employment. 

19 ‘‘(6) PROVISION OF INSURANCE.—If the job for 

20 which the H–2A worker is sought is not covered by 

21 State workers’ compensation law, the employer will 

22 provide, at no cost to the worker, insurance covering 

23 injury and disease arising out of, and in the course 

24 of, the worker’s employment, which will provide ben25 efits at least equal to those provided under the State 


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1 workers’ compensation law for comparable employ2 ment. No employer shall be liable for the provision 

3 of health insurance for any H–2A worker. 

4 ‘‘(7) STRIKE OR LOCKOUT.—There is not a 

5 strike or lockout in the course of a labor dispute 

6 that precludes the hiring of H–2A workers. 

7 ‘‘(8) PREVIOUS VIOLATIONS.—The employer 

8 has not, during the previous 5-year period, employed 

9 H–2A workers and knowingly violated a material 

10 term or condition of approval with respect to the 

11 employment of domestic or nonimmigrant workers, 

12 as determined by the Secretary of Agriculture after 

13 notice and opportunity for a hearing. 

14 ‘‘(c) PUBLIC EXAMINATION.—Not later than 1 work15 ing day after the date on which an application is filed 

16 under this section, the employer shall make a copy of each 

17 such application (and any necessary accompanying docu18 ments) available for public examination, at the employer’s 

19 work site or principal place of business. 

20 ‘‘(d) LIST.— 

21 ‘‘(1) IN GENERAL.—The Secretary of Agri22 culture shall maintain a list of the applications filed 

23 under subsection (b), sorted by employer, which 

24 shall include— 

25 ‘‘(A) the number of H–2A workers sought; 


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1 ‘‘(B) the wage rate; 

2 ‘‘(C) the date work is scheduled to begin; 

3 and 

4 ‘‘(D) the period of intended employment. 

5 ‘‘(2) AVAILABILITY.—The Secretary of Agri6 culture shall make the list described in paragraph 

7 (1) available for public examination. 

8 ‘‘(e) APPLYING FOR ADMISSION.— 

9 ‘‘(1) IN GENERAL.—An employer, or an asso10 ciation acting as an agent or joint employer for its 

11 members, that seeks the admission into the United 

12 States of an H–2A worker shall file an application 

13 that includes the attestations described in subsection 

14 (b) with the Secretary of Agriculture. 

15 ‘‘(2) CONSIDERATION OF APPLICATIONS.—For 

16 each application filed under this subsection— 

17 ‘‘(A) the Secretary of Agriculture may not 

18 require such application to be filed more than 

19 60 days before the first date on which the em20 ployer requires the labor or services of the H– 

21 2A worker; and 

22 ‘‘(B) unless the Secretary of Agriculture 

23 determines that the application is incomplete or 

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1 ulently made, the Secretary shall either approve 

2 or deny the application not later than 15 days 

3 after the date on which such application was 

4 filed. 

5 ‘‘(3) APPLICATION AGREEMENTS.—By filing an 

6 H–2A application, an applicant and each employer 

7 consents to allow the Department of Agriculture ac8 cess to the site where labor is being performed for 

9 the purpose of determining compliance with H–2A 

10 requirements. 

11 ‘‘(4) MULTISTATE EMPLOYERS.—Employers 

12 with multiple operations may use H–2A workers in 

13 the occupations for which they are sought in all 

14 places in which the employer has operations if the 

15 employer— 

16 ‘‘(A) designates on the application each lo17 cation at which such workers will be used; and 

18 ‘‘(B) performs adequate recruitment ef19 forts in each State in which such workers will 

20 be used. 

21 ‘‘(f) ROLES OF AGRICULTURAL ASSOCIATIONS.— 

22 ‘‘(1) PERMITTING FILING BY AGRICULTURAL

23 ASSOCIATIONS.—An application to hire an H–2A 

24 worker may be filed by an association of agricultural 

25 employers which use agricultural labor. 


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1 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

2 EMPLOYERS.—If an association is a joint or sole em3 ployer of H–2A workers, such H–2A workers may be 

4 transferred among its members to perform agricul5 tural labor of the same nature for which the applica6 tion was approved. 

7 ‘‘(3) TREATMENT OF VIOLATIONS.— 

8 ‘‘(A) INDIVIDUAL MEMBER.—If an indi9 vidual member of a joint employer association 

10 violates any condition for approval with respect 

11 to the member’s application, the Secretary of 

12 Agriculture shall deny such application only 

13 with respect to that member of the association 

14 unless the Secretary determines that the asso15 ciation or other member participated in, had 

16 knowledge of, or had reason to know of the vio17 lation. 

18 ‘‘(B) ASSOCIATION OF AGRICULTURAL EM19 PLOYERS.— 

20 ‘‘(i) JOINT EMPLOYER.—If an associa21 tion representing agricultural employers as 

22 a joint employer violates any condition for 

23 approval with respect to the association’s 

24 application, the Secretary of Agriculture 

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1 spect to the association and may not apply 

2 the denial to any individual member of the 

3 association, unless the Secretary deter4 mines that the member participated in, 

5 had knowledge of, or had reason to know 

6 of the violation. 

7 ‘‘(ii) SOLE EMPLOYER.—If an associa8 tion of agricultural employers approved as 

9 a sole employer violates any condition for 

10 approval with respect to the association’s 

11 application, no individual member of the 

12 association may be the beneficiary of the 

13 services of H–2A workers admitted under 

14 this section in the occupation in which 

15 such H–2A workers were employed by the 

16 association which was denied approval dur17 ing the period such denial is in force. 

18 ‘‘(g) EXPEDITED ADMINISTRATIVE APPEALS.—The 

19 Secretary of Agriculture, in conjunction with the Secretary 

20 of State and the Secretary of Homeland Security, shall 

21 issue regulations to provide for an expedited procedure— 

22 ‘‘(1) for the review of a denial of an application 

23 under this section by any of the Secretaries; or 

24 ‘‘(2) at the applicant’s request, for a de novo 

25 administrative hearing of the denial. 


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1 ‘‘(h) MISCELLANEOUS PROVISIONS.— 

2 ‘‘(1) REQUIREMENTS FOR PLACEMENT OF H–2A

3 WORKERS WITH OTHER EMPLOYERS.—An H–2A 

4 worker may be transferred to another employer that 

5 has had an application approved under this section. 

6 The Secretary of Homeland Security and the Sec7 retary of State shall issue regulations to establish a 

8 process for the approval and reissuance of visas for 

9 transferred H–2A workers. 

10 ‘‘(2) ENDORSEMENT OF DOCUMENTS.—The 

11 Secretary of Homeland Security shall provide for the 

12 endorsement of entry and exit documents of H–2A 

13 workers to carry out this section and to provide no14 tice under section 274A. 

15 ‘‘(3) PREEMPTION OF STATE LAWS.—This sec16 tion and subsections (a) and (c) of section 214 pre17 empt any State or local law regulating admissibility 

18 of nonimmigrant workers. 

19 ‘‘(4) FEES.—The Secretary of Agriculture may 

20 charge a reasonable fee to recover the costs of proc21 essing applications under this section. In deter22 mining the amount of the fee to be charged under 

23 this paragraph, the Secretary shall consider whether 

24 the employer is a single employer or an association 


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1 and the number of H–2A workers intended to be 

2 employed. 

3 ‘‘(5) E-VERIFY PARTICIPATION BY EMPLOY4 ERS.—The Secretary of Agriculture shall require 

5 employers participating in the H–2A program to 

6 register with and participate in E–Verify, as estab7 lished under title IV of the Illegal Immigration Re8 form and Immigrant Responsibility Act of 1996 (di9 vision C of Public Law 104–208). 

10 ‘‘(i) FAILURE TO MEET CONDITIONS.— 

11 ‘‘(1) IN GENERAL.—The Secretary of Agri12 culture shall conduct investigations and random au13 dits of employer work sites to ensure employer com14 pliance with the requirements under this section. All 

15 monetary fines assessed under this section shall be 

16 paid by the violating employer to the Department of 

17 Agriculture and used by the Secretary to conduct 

18 audits and investigations. 

19 ‘‘(2) PENALTIES FOR FAILURE TO MEET CONDI20 TIONS.—If the Secretary of Agriculture finds, after 

21 notice and opportunity for a hearing, a failure to 

22 meet a material condition under subsection (b), or a 

23 material misrepresentation of fact in an application 

24 filed under subsection (b), the Secretary— 


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1 ‘‘(A) shall notify the Secretary of Home2 land Security of such finding; and 

3 ‘‘(B) may impose such other administrative 

4 remedies, including civil money penalties in an 

5 amount not to exceed $1,000 per violation, as 

6 the Secretary of Agriculture determines to be 

7 appropriate. 

8 ‘‘(3) PENALTIES FOR WILLFUL FAILURE.—If 

9 the Secretary of Agriculture finds, after notice and 

10 opportunity for a hearing, a willful failure to meet 

11 a material condition under subsection (b) or a willful 

12 misrepresentation of a material fact in an applica13 tion filed under subsection (b), the Secretary— 

14 ‘‘(A) shall notify the Secretary of Home15 land Security of such finding; 

16 ‘‘(B) may impose such other administrative 

17 remedies, including civil money penalties in an 

18 amount not to exceed $5,000 per violation, as 

19 the Secretary of Agriculture determines to be 

20 appropriate; 

21 ‘‘(C) may disqualify the employer from the 

22 employment of H–2A workers for a period of 2 

23 years; 


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1 ‘‘(D) for a second violation, may disqualify 

2 the employer from the employment of H–2A 

3 workers for a period of 5 years; and 

4 ‘‘(E) for a third violation, may perma5 nently disqualify the employer from the employ6 ment of H–2A workers. 

7 ‘‘(4) PENALTIES FOR DISPLACEMENT OF

8 UNITED STATES WORKERS.—If the Secretary of Ag9 riculture finds, after notice and opportunity for a 

10 hearing, a willful failure to meet a material condition 

11 of subsection (b) or a willful misrepresentation of a 

12 material fact in an application filed under subsection 

13 (b), and the employer displaced a United States 

14 worker employed by the employer during the period 

15 of employment on the employer’s application, or dur16 ing the 30-day period preceding such period of em17 ployment, the Secretary— 

18 ‘‘(A) shall notify the Secretary of Home19 land Security of such finding; 

20 ‘‘(B) may impose such other administrative 

21 remedies, including civil money penalties in an 

22 amount not to exceed $15,000 per violation, as 

23 the Secretary of Agriculture determines to be 

24 appropriate; 


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1 ‘‘(C) may disqualify the employer from the 

2 employment of H–2A workers for a period of 5 

3 years; and 

4 ‘‘(D) for a second violation, may perma5 nently disqualify the employer from the employ6 ment of H–2A workers. 

7 ‘‘(5) LIMITATIONS ON CIVIL MONEY PEN8 ALTIES.—The Secretary of Agriculture may not im9 pose total civil money penalties with respect to an 

10 application filed under subsection (b) in excess of 

11 $100,000. 

12 ‘‘(j) FAILURE TO PAY WAGES OR REQUIRED BENE13 FITS.— 

14 ‘‘(1) IN GENERAL.—The Secretary of Agri15 culture shall conduct investigations and random au16 dits of employer work sites to ensure employer com17 pliance with the requirements under this section. 

18 ‘‘(2) ASSESSMENT.—If the Secretary of Agri19 culture finds, after notice and opportunity for a 

20 hearing, that the employer has failed to pay the 

21 wages or provide the housing allowance, transpor22 tation, subsistence requirement, or guarantee of em23 ployment attested in the application filed by the em24 ployer under subsection (b)(2), the Secretary shall 

25 assess payment of back wages, or other required 


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1 benefits, due any United States worker or H–2A 

2 worker employed by the employer in the specific em3 ployment in question. 

4 ‘‘(3) AMOUNT.—The back wages or other re5 quired benefits described in paragraph (2)— 

6 ‘‘(A) shall be equal to the difference be7 tween the amount that should have been paid 

8 and the amount that was paid to such worker; 

9 and 

10 ‘‘(B) shall be distributed to the worker to 

11 whom such wages are due. 

12 ‘‘(k) MINIMUM WAGES, BENEFITS, AND WORKING

13 CONDITIONS.— 

14 ‘‘(1) PREFERENTIAL TREATMENT OF ALIENS

15 PROHIBITED.— 

16 ‘‘(A) IN GENERAL.—Each employer seek17 ing to hire United States workers shall offer 

18 such workers not less than the same benefits, 

19 wages, and working conditions that the em20 ployer is offering, intends to offer, or will pro21 vide to H–2A workers in the same occupation. 

22 No job offer may impose any restriction or obli23 gation on United States workers which will not 

24 be imposed on the employer’s H–2A workers. 

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1 tions of employment described in this sub2 section shall be provided in connection with em3 ployment under this section. 

4 ‘‘(B) INTERPRETATION.—Every interpreta5 tion and determination made under this section 

6 or under any other law, regulation, or interpre7 tative provision regarding the nature, scope, 

8 and timing of the provision of these and any 

9 other benefits, wages, and other terms and con10 ditions of employment shall be made so that— 

11 ‘‘(i) the services of workers to their 

12 employers and the employment opportuni13 ties afforded to workers by the employers, 

14 including those employment opportunities 

15 that require United States workers or H– 

16 2A workers to travel or relocated in order 

17 to accept or perform employment— 

18 ‘‘(I) mutually benefit such work19 ers, as well as their families, and em20 ployers; 

21 ‘‘(II) principally benefit neither 

22 employer nor employee; and 

23 ‘‘(III) employment opportunities 

24 within the United States benefit the 

25 United States economy. 


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1 ‘‘(2) REQUIRED WAGES.— 

2 ‘‘(A) IN GENERAL.—Each employer apply3 ing for workers under subsection (b) shall pay 

4 not less (and is not required to pay more) than 

5 the greater of— 

6 ‘‘(i) the hourly wage prescribed under 

7 section 6(a)(1) of the Fair Labor Stand8 ards Act of 1938 (29 U.S.C. 206(a)(1)) or 

9 the applicable State minimum wage; 

10 ‘‘(ii) the adverse effect wage rate. 

11 ‘‘(B) WAGES FOR LEVEL 2 H–2A WORK12 ERS.— 

13 ‘‘(i) IN GENERAL.—Each employer 

14 applying for Level 2 H–2A workers under 

15 subsection (b) shall pay such workers not 

16 less than 140 percent of the adverse effect 

17 wage rate for H–2A workers, excluding 

18 piece-rate wages. 

19 ‘‘(ii) WAGE RATE DATA.—The Sec20 retary of Agriculture shall expand and 

21 disaggregate the source of wage rate data 

22 used in the survey conducted by the Na23 tional Agricultural Statistics Service to in24 clude— 


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•S 1384 IS

1 ‘‘(I) first line farming super2 visors/managers; 

3 ‘‘(II) graders and sorters of agri4 cultural products; 

5 ‘‘(III) agricultural equipment op6 erators; 

7 ‘‘(IV) crop and nursery farm8 workers and laborers; 

9 ‘‘(V) ranch and farm animal 

10 farmworkers; and 

11 ‘‘(VI) all other agricultural work12 ers. 

13 ‘‘(iii) STUDY AND REPORT.— 

14 ‘‘(I) STUDY.—After the Sec15 retary of Agriculture collects wage 

16 rate data for 2 years using the meth17 od described in clause (ii), the Sec18 retary of Agriculture, in conjunction 

19 with the Secretary of Labor, shall 

20 conduct a study to determine if— 

21 ‘‘(aa) the wages accurately 

22 reflect prevailing wages for simi23 lar occupations in the area of em24 ployment; and 


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•S 1384 IS

1 ‘‘(bb) it is necessary to es2 tablish a new wage methodology 

3 to prevent the depression of 

4 United States farmworker wages. 

5 ‘‘(II) REPORT.—Not later than 3 

6 years after the date of the enactment 

7 of the HARVEST Act of 2011, the 

8 Secretary of Agriculture shall submit 

9 a final report reflecting the findings 

10 of the study conducted under sub11 clause (I) to— 

12 ‘‘(aa) the Committee on Ag13 riculture, Nutrition, and Forestry 

14 of the Senate; 

15 ‘‘(bb) the Committee on the 

16 Judiciary of the Senate; 

17 ‘‘(cc) the Committee on Ag18 riculture of the House of Rep19 resentatives; and 

20 ‘‘(dd) the Committee on the 

21 Judiciary of the House of Rep22 resentatives. 

23 ‘‘(3) HOUSING REQUIREMENT.— 

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

25 under subparagraph (F), each employer applyVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 ing for workers under subsection (b) shall offer 

2 to provide housing at no cost to— 

3 ‘‘(i) all workers in job opportunities 

4 for which the employer has applied under 

5 subsection (b); and 

6 ‘‘(ii) all other workers in the same oc7 cupation at the same place of employment 

8 whose place of residence is beyond normal 

9 commuting distance. 

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

11 the requirement under subparagraph (A) if the 

12 employer— 

13 ‘‘(i) provides the workers with housing 

14 that meets applicable Federal standards 

15 for temporary labor camps; or 

16 ‘‘(ii) secures housing for the workers 

17 that— 

18 ‘‘(I) meets applicable local stand19 ards for rental or public accommoda20 tion housing, or other substantially 

21 similar class of habitation; or 

22 ‘‘(II) in the absence of applicable 

23 local standards, meets State stand24 ards for rental or public accommodaVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 tion housing or other substantially 

2 similar class of habitation. 

3 ‘‘(C) INSPECTION.— 

4 ‘‘(i) REQUEST.—At the time an em5 ployer that plans to provide housing de6 scribed in subparagraph (B) to H–2A 

7 workers files an application for H–2A 

8 workers with the Secretary of Agriculture, 

9 the employer shall request a certificate of 

10 inspection by an approved Federal or State 

11 agency. 

12 ‘‘(ii) INSPECTION; FOLLOW UP.—Not 

13 later than 28 days after the receipt of a re14 quest under clause (i), the Secretary of Ag15 riculture shall ensure that— 

16 ‘‘(I) such an inspection has been 

17 conducted; and 

18 ‘‘(II) any necessary follow up has 

19 been scheduled to ensure compliance 

20 with the requirements under this 

21 paragraph. 

22 ‘‘(iii) DELAY PROHIBITED.—The Sec23 retary of Agriculture may not delay the ap24 proval of an application for failing to comVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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•S 1384 IS

1 ply with the deadlines set forth in clause 

2 (iii). 

3 ‘‘(D) RULEMAKING.—The Secretary of Ag4 riculture shall issue regulations that address 

5 the specific requirements for the provision of 

6 housing to workers engaged in the range pro7 duction of livestock. 

8 ‘‘(E) HOUSING ALLOWANCE.— 

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

10 a State certifies to the Secretary of Agri11 culture that there is adequate housing 

12 available in the area of intended employ13 ment for migrant farm workers and H–2A 

14 workers who are seeking temporary hous15 ing while employed in agricultural work, an 

16 employer in such State may provide a rea17 sonable housing allowance instead of offer18 ing housing pursuant to subparagraph (A). 

19 An employer who provides a housing allow20 ance to a worker shall not be required to 

21 reserve housing accommodations for the 

22 worker. 

23 ‘‘(ii) ASSISTANCE IN LOCATING HOUS24 ING.—Upon the request of a worker seek25 ing assistance in locating housing, an emVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 ployer providing a housing allowance under 

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

3 assist the worker in identifying and locat4 ing housing in the area of intended em5 ployment. 

6 ‘‘(iii) LIMITATION.—A housing allow7 ance may not be used for housing that is 

8 owned or controlled by the employer. An 

9 employer who offers a housing allowance to 

10 a worker, or assists a worker in locating 

11 housing which the worker occupies under 

12 this subparagraph shall not be deemed a 

13 housing provider under section 203 of the 

14 Migrant and Seasonal Agricultural Worker 

15 Protect Act (29 U.S.C. 1823) solely by vir16 tue of providing such housing allowance. 

17 ‘‘(iv) OTHER REQUIREMENTS.— 

18 ‘‘(I) NONMETROPOLITAN COUN19 TY.—If the place of employment of 

20 the workers provided an allowance 

21 under this subparagraph is a non22 metropolitan county, the amount of 

23 the housing allowance under this sub24 paragraph shall be equal to the state25 wide average fair market rental for 


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•S 1384 IS

1 existing housing for nonmetropolitan 

2 counties for the State, as established 

3 by the Secretary of Housing and 

4 Urban Development pursuant to sec5 tion 8(c) of the United States Hous6 ing Act of 1937 (42 U.S.C. 1437f(c)), 

7 based on a 2-bedroom dwelling unit 

8 and an assumption of 2 persons per 

9 bedroom. 

10 ‘‘(II) METROPOLITAN COUNTY.— 

11 If the place of employment of the 

12 workers provided an allowance under 

13 this subparagraph is in a metropolitan 

14 county, the amount of the housing al15 lowance under this subparagraph shall 

16 be equal to the statewide average fair 

17 market rental for existing housing for 

18 metropolitan counties for the State, as 

19 established by the Secretary of Hous20 ing and Urban Development pursuant 

21 to section 8(c) of the United States 

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

23 1437f(c)), based on a 2-bedroom 

24 dwelling unit and an assumption of 2 

25 persons per bedroom. 


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1 ‘‘(v) INFORMATION.—If the employer 

2 provides a housing allowance to H–2A em3 ployees, the employer shall provide a list of 

4 the names and local addresses of such 

5 workers to the Secretary of Agriculture 

6 and the Secretary of Homeland Security 

7 once per contract period. 

8 ‘‘(4) REIMBURSEMENT OF TRANSPORTATION

9 COSTS.— 

10 ‘‘(A) REQUIREMENT FOR REIMBURSE11 MENT.—A worker who completes 50 percent of 

12 the period of employment of the job for which 

13 the worker was hired shall be reimbursed by the 

14 employer, beginning on the first day of such 

15 employment, for the cost of the worker’s trans16 portation and subsistence from— 

17 ‘‘(i) the place from which the worker 

18 was approved to enter the United States to 

19 the location at which the work for the em20 ployer is performed; or 

21 ‘‘(ii) if the worker traveled from a 

22 place in the United States at which the 

23 worker was last employed, from such place 

24 of last employment to the location at which 


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•S 1384 IS

1 the work for the employer is being per2 formed. 

3 ‘‘(B) TIMING OF REIMBURSEMENT.—Reim4 bursement to the worker of expenses for the 

5 cost of the worker’s transportation and subsist6 ence to the place of employment under subpara7 graph (A) shall be considered timely if such re8 imbursement is made not later than the work9 er’s first regular payday after a worker com10 pletes 50 percent of the period of employment 

11 of the job opportunity as provided under this 

12 paragraph. 

13 ‘‘(C) ADDITIONAL REIMBURSEMENT.—A 

14 worker who completes the period of employment 

15 for the job opportunity involved shall be reim16 bursed by the employer for the cost of the 

17 worker’s transportation and subsistence from 

18 the work site to the place where the worker was 

19 approved to enter the United States to work for 

20 the employer. If the worker has contracted with 

21 a subsequent employer, the previous and subse22 quent employer shall share the cost of the work23 er’s transportation and subsistence from work 

24 site to work site. 


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•S 1384 IS

1 ‘‘(D) AMOUNT OF REIMBURSEMENT.—The 

2 amount of reimbursement provided to a worker 

3 under this paragraph shall be equal to the less4 er of— 

5 ‘‘(i) the actual cost to the worker of 

6 the transportation and subsistence in7 volved; or 

8 ‘‘(ii) the most economical and reason9 able common carrier transportation and 

10 subsistence costs for the distance involved. 

11 ‘‘(E) REIMBURSEMENT FOR LAID OFF

12 WORKERS.—If the worker is laid off or employ13 ment is terminated for contract impossibility 

14 (as described in paragraph (5)(D)) before the 

15 anticipated ending date of employment, the em16 ployer shall provide— 

17 ‘‘(i) the transportation and subsist18 ence required under subparagraph (C); and 

19 ‘‘(ii) notwithstanding whether the 

20 worker has completed 50 percent of the pe21 riod of employment, the transportation re22 imbursement required under subparagraph 

23 (A). 

24 ‘‘(F) TRANSPORTATION.—The employer 

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•S 1384 IS

1 er’s living quarters and the employer’s work site 

2 without cost to the worker in accordance with 

3 applicable laws and regulations. 

4 ‘‘(G) CONSTRUCTION.—Nothing in this 

5 paragraph may be construed to require an em6 ployer to reimburse visa, passport, consular, or 

7 international border-crossing fees incurred by 

8 the worker or any other fees associated with the 

9 worker’s lawful admission into the United 

10 States to perform employment. 

11 ‘‘(5) EMPLOYMENT GUARANTEE.— 

12 ‘‘(A) IN GENERAL.— 

13 ‘‘(i) REQUIREMENT.—Each employer 

14 applying for workers under subsection (b) 

15 shall guarantee to offer each such worker 

16 employment for the hourly equivalent of 

17 not less than 75 percent of the work hours 

18 during the total anticipated period of em19 ployment beginning with the first work day 

20 after the arrival of the worker at the place 

21 of employment and ending on the expira22 tion date specified in the job offer. 

23 ‘‘(ii) FAILURE TO MEET GUAR24 ANTEE.—If the employer affords the 

25 United States worker or the H–2A workers 


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•S 1384 IS

1 less employment than that required under 

2 this subparagraph, the employer shall pay 

3 such worker the amount which the worker 

4 would have earned if the worker had 

5 worked for the guaranteed number of 

6 hours. 

7 ‘‘(iii) PERIOD OF EMPLOYMENT.—In 

8 this subparagraph, the term ‘period of em9 ployment’ means the total number of an10 ticipated work hours and work days de11 scribed in the job offer and shall exclude 

12 the worker’s Sabbath and Federal holi13 days. 

14 ‘‘(B) CALCULATION OF HOURS.—Any 

15 hours which the worker fails to work, up to a 

16 maximum number of hours specified in the job 

17 offer for a work day, when the worker has been 

18 offered an opportunity to do so, and all hours 

19 of work actually performed (including voluntary 

20 work in excess of the number of hours specified 

21 in the job offer in a work day, on the worker’s 

22 Sabbath, or on Federal holidays) may be count23 ed by the employer in calculating whether the 

24 period of guaranteed employment has been met. 


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•S 1384 IS

1 ‘‘(C) LIMITATION.—If the worker volun2 tarily abandons employment before the end of 

3 the contract period, or is terminated for cause, 

4 the worker is not entitled to the 75 percent 

5 guarantee described in subparagraph (A). 

6 ‘‘(D) TERMINATION OF EMPLOYMENT.— 

7 ‘‘(i) IN GENERAL.—If, before the expi8 ration of the period of employment speci9 fied in the job offer, the services of the 

10 worker are no longer required due to any 

11 form of natural disaster, including flood, 

12 hurricane, freeze, earthquake, fire, 

13 drought, plant or animal disease, pest in14 festation, regulatory action, or any other 

15 reason beyond the control of the employer 

16 before the employment guarantee in sub17 paragraph (A) is fulfilled, the employer 

18 may terminate the worker’s employment. 

19 ‘‘(ii) REQUIREMENTS.—If a worker’s 

20 employment is terminated under clause (i), 

21 the employer shall— 

22 ‘‘(I) fulfill the employment guar23 antee in subparagraph (A) for the 

24 work days that have elapsed during 

25 the period beginning on the first work 


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•S 1384 IS

1 day after the arrival of the worker 

2 and ending on the date on which such 

3 employment is terminated; and 

4 ‘‘(II) make efforts to transfer the 

5 United States worker to other com6 parable employment acceptable to the 

7 worker. 

8 ‘‘(l) DISQUALIFICATION.— 

9 ‘‘(1) GROUNDS OF INELIGIBILITY.— 

10 ‘‘(A) IN GENERAL.—An alien is ineligible 

11 for an H–2A visa if the alien— 

12 ‘‘(i) is inadmissible to the United 

13 States under section 212(a), except as pro14 vided under paragraph (2); 

15 ‘‘(ii) is subject to the execution of an 

16 outstanding administratively final order of 

17 removal, deportation, or exclusion; 

18 ‘‘(iii) is described in, or is subject to, 

19 section 241(a)(5); 

20 ‘‘(iv) has ordered, incited, assisted, or 

21 otherwise participated in the persecution of 

22 any person on account of race, religion, na23 tionality, membership in a particular social 

24 group, or political opinion; or 


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1 ‘‘(v) has a felony or misdemeanor con2 viction, an element of which involves bodily 

3 injury, threat of serious bodily injury, or 

4 harm to property in excess of $500. 

5 ‘‘(B) APPLICABILITY TO GROUNDS OF IN6 ADMISSIBILITY.—Nothing in this subsection 

7 may be construed to limit the applicability of 

8 any ground of inadmissibility under section 

9 212. 

10 ‘‘(2) GROUNDS OF INADMISSIBILITY.— 

11 ‘‘(A) IN GENERAL.—In determining an 

12 alien’s admissibility— 

13 ‘‘(i) paragraphs (5)(A), (6)(A)(i) 

14 (with respect to an alien present in the 

15 United States without being admitted or 

16 paroled), (6)(B), (6)(C), (6)(D), (6)(F), 

17 (6)(G), (7), (9)(B), and (9)(C)(i)(I) of sec18 tion 212(a) shall not apply with respect to 

19 conduct occurring or arising before the 

20 date of the alien’s application for an H–2A 

21 visa if associated with obtaining employ22 ment; 

23 ‘‘(ii) the Secretary of Homeland Secu24 rity may not waive— 


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•S 1384 IS

1 ‘‘(I) paragraph (1) or (2) of sec2 tions 212(a) (relating to health and 

3 safety and criminals); 

4 ‘‘(II) section 212(a)(3) (relating 

5 to security and related grounds); 

6 ‘‘(III) section 212(a)(9)(C)(i)(II); 

7 or 

8 ‘‘(IV) subparagraph (A), (C), or 

9 (D) of section 212(a)(10) (relating to 

10 polygamists, child abductors, and un11 lawful voters). 

12 ‘‘(B) CONSTRUCTION.—Nothing in this 

13 paragraph may be construed as affecting the 

14 authority of the Secretary of Homeland Secu15 rity, other than under this paragraph, to waive 

16 the provisions of section 212(a). 

17 ‘‘(3) BARS TO EXTENSION OR ADMISSION.—An 

18 alien may not be granted an H–2A visa if— 

19 ‘‘(A) the alien has violated any material 

20 term or condition of such status granted pre21 viously, unless the alien has had such violation 

22 waived under paragraph (2)(A); 

23 ‘‘(B) the alien is inadmissible as a non24 immigrant, except for those grounds previously 

25 waived under paragraph (2)(A); or 


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1 ‘‘(C) the granting of such status would 

2 allow the alien to exceed limitations on stay in 

3 the United States in H–2A status described in 

4 subsection (m). 

5 ‘‘(4) PROMPT REMOVAL PROCEEDINGS.—The 

6 Secretary of Homeland Security shall promptly iden7 tify, investigate, detain, and initiate removal pro8 ceedings against every alien admitted into the 

9 United States on an H–2A visa who exceeds the 

10 alien’s period of authorized admission or otherwise 

11 violates any terms of the alien’s nonimmigrant sta12 tus. In conducting such removal proceedings, the 

13 Secretary shall give priority to aliens who may pose 

14 a threat to the national security, and those convicted 

15 of criminal offenses. 

16 ‘‘(5) NUMERICAL LIMITATIONS ON WAIVERS.— 

17 The Secretary of Homeland Security may waive any 

18 ground of inadmissibility, as authorized under this 

19 section, only once for each beneficiary of an applica20 tion for an H–2A visa filed by an employer after the 

21 date of the enactment of the HARVEST Act of 

22 2011. Such waiver authority for the Secretary shall 

23 expire 24 months after such date of enactment. 

24 ‘‘(6) FINE.—Each alien applying for an H–2A 

25 visa under this section who would be inadmissible 


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1 under section 212(a)(6), if such provision had not 

2 been made inapplicable under subsection (l)(2)(A)(i), 

3 shall be required to pay a fine in an amount equal 

4 to $500 before being granted such visa. 

5 ‘‘(m) PERIOD OF ADMISSION.— 

6 ‘‘(1) IN GENERAL.—An H–2A worker approved 

7 to enter the United States may not remain in the 

8 United States for more than 10 months during any 

9 12-month period, excluding— 

10 ‘‘(A) a period of not more than 7 days be11 fore the beginning of the period of employment 

12 for the purpose of travel to the work site; and 

13 ‘‘(B) a period of not more than 14 days 

14 after the period of employment for the purpose 

15 of departure to complete late work caused by 

16 weather or other unforeseen conditions. 

17 ‘‘(2) EMPLOYMENT LIMITATION.—An H–2A 

18 worker may not be employed during the 14-day pe19 riod described in paragraph (1)(B) except in the em20 ployment for which the alien was previously author21 ized. 

22 ‘‘(3) CONSTRUCTION.—Nothing in this sub23 section shall limit the authority of the Secretary of 

24 Homeland Security to extend the stay of an alien 

25 under any other provision of this Act. 


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1 ‘‘(n) ABANDONMENT OF EMPLOYMENT.— 

2 ‘‘(1) IN GENERAL.—An alien admitted or pro3 vided status under section 101(a)(15)(H)(ii)(a) who 

4 abandons the employment, which was the basis for 

5 such admission or status— 

6 ‘‘(A) has failed to maintain nonimmigrant 

7 status as an H–2A worker; and 

8 ‘‘(B) shall depart the United States or be 

9 subject to removal under section 

10 237(a)(1)(C)(i). 

11 ‘‘(2) REPORT BY EMPLOYER.—Not later than 

12 36 hours after the premature abandonment of em13 ployment by an H–2A worker, the employer or asso14 ciation acting as an agent for the employer shall no15 tify the Secretary of Homeland Security of such 

16 abandonment. 

17 ‘‘(3) REMOVAL.—The Secretary of Homeland 

18 Security shall ensure the prompt removal from the 

19 United States of any H–2A worker who violates any 

20 term or condition of the worker’s nonimmigrant sta21 tus. 

22 ‘‘(4) VOLUNTARY TERMINATION.—Notwith23 standing paragraph (1), an alien may voluntarily 

24 terminate the alien’s employment if the alien 


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•S 1384 IS

1 promptly departs the United States upon termi2 nation of such employment. 

3 ‘‘(o) REPLACEMENT OF WORKERS.— 

4 ‘‘(1) IN GENERAL.—Upon receiving notification 

5 under subsection (n)(2) or being notified that a 

6 United States worker referred by the Department of 

7 Labor or a United States worker recruited by the 

8 employer during the recruitment period has pre9 maturely abandoned employment or has failed to ap10 pear for employment— 

11 ‘‘(A) the Secretary of State shall promptly 

12 issue a visa to an eligible alien designated by 

13 the employer to replace a worker who abandons 

14 or prematurely terminates employment; and 

15 ‘‘(B) the Secretary of Homeland Security 

16 shall expeditiously admit such alien into the 

17 United States. 

18 ‘‘(2) CONSTRUCTION.—Nothing in this sub19 section may be construed to limit any preference for 

20 which United States workers are eligible under this 

21 Act. 

22 ‘‘(p) IDENTIFICATION DOCUMENT.— 

23 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

24 Security shall provide each alien authorized to be an 

25 H–2A worker with a single machine-readable, tamVerDate Mar 15 2010 01:38 Jul 20, 2011 Jkt 099200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384

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1 per-resistant, and counterfeit-resistant document 

2 that— 

3 ‘‘(A) authorizes the alien’s entry into the 

4 United States; 

5 ‘‘(B) serves, for the appropriate period, as 

6 an employment eligibility document; and 

7 ‘‘(C) verifies the identity of the alien 

8 through the use of at least 1 biometric identi9 fier. 

10 ‘‘(2) REQUIREMENTS.—The document required 

11 for all aliens authorized to be an H–2A worker— 

12 ‘‘(A) shall be capable of reliably deter13 mining whether the individual with the docu14 ment— 

15 ‘‘(i) is eligible for employment as an 

16 H–2A worker; 

17 ‘‘(ii) is not claiming the identity of 

18 another person; and 

19 ‘‘(iii) is authorized to be admitted into 

20 the United States; and 

21 ‘‘(B) shall be compatible with— 

22 ‘‘(i) other databases of the Depart23 ment of Homeland Security to prevent an 

24 alien from obtaining benefits for which the 

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1 er the alien is unlawfully present in the 

2 United States; and 

3 ‘‘(ii) law enforcement databases to de4 termine if the alien has been convicted of 

5 criminal offenses. 

6 ‘‘SEC. 218A. ADMISSION OF CROSS-BORDER H–2A WORKERS. 

7 ‘‘(a) DEFINITION.—In this section, the term ‘cross8 border H–2A worker’ means a nonimmigrant described in 

9 section 101(a)(15)(H)(ii)(a) who participates in the cross10 border worker program established under this section. 

11 ‘‘(b) INCORPORATION BY REFERENCE.— 

12 ‘‘(1) IN GENERAL.—Except as specifically pro13 vided under paragraph (2), the provisions under sec14 tion 218 shall apply to cross-border H–2A workers. 

15 ‘‘(2) EXCEPTIONS.—Subsections (k)(3), (k)(4), 

16 and (m) of section 218 shall not apply to cross-bor17 der H–2A workers. 

18 ‘‘(c) MANDATORY ENTRY AND EXIT.—A cross-border 

19 H–2A worker who complies with the provisions of this sec20 tion— 

21 ‘‘(1) may enter the United States each sched22 uled work day, in accordance with regulations pro23 mulgated by the Secretary of Homeland Security; 

24 and 


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1 ‘‘(2) shall exit the United States before the end 

2 of each day of such entrance. 

3 ‘‘(d) RECRUITMENT.—Each employer that employs a 

4 cross-border H–2A worker under this section shall conduct 

5 a recruitment for each position occupied by such H–2A 

6 worker that complies with the requirements under section 

7 218(b)(4) at least once every 10 months.’’. 

8 (2) CLERICAL AMENDMENT.—The table of con9 tents of the Immigration and Nationality Act (8 

10 U.S.C. 1101 et seq.) is amended by striking the item 

11 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.’’. 

12 (c) RULEMAKING.— 

13 (1) ISSUANCE OF VISAS.—Not later than 180 

14 days after the date of the enactment of this Act, the 

15 Secretary of State shall promulgate regulations, in 

16 accordance with the notice and comment provisions 

17 of section 553 of title 5, United States Code, to pro18 vide for uniform procedures for the issuance of H– 

19 2A visas by United States consulates and consular 

20 officials to nonimmigrants described in section 

21 101(a)(15)(H)(ii)(a) of the Immigration and Nation22 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)). 

23 (2) BORDER CROSSINGS.—The Secretary of 

24 State shall promulgate regulations to establish a 


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1 process for cross-border H–2A workers authorized to 

2 work in the United States under section 218A of the 

3 Immigration and Nationality Act, as added by sub4 section (b), to ensure that such workers expedi5 tiously enter and exit the United States during each 

6 work day. 

7 (d) EFFECTIVE DATE.—The amendments made by 

8 this section shall take effect on the date that is 180 days 

9 after the date of the enactment of this Act. 

10 SEC. 4. LEGAL ASSISTANCE FROM THE LEGAL SERVICES 

11 CORPORATION. 

12 Section 504 of the Migrant and Seasonal Agricultural 

13 Worker Protection Act (29 U.S.C. 1854) is amended— 

14 (1) by striking subsection (b) and inserting the 

15 following: 

16 ‘‘(b)(1) Upon application by a complainant and in 

17 such circumstances as the court determines just, the court 

18 may appoint an attorney for such complainant and may 

19 authorize the commencement of the action. 

20 ‘‘(2) The Legal Services Corporation may not provide 

21 legal assistance for, or on behalf of, any alien, and may 

22 not provide financial assistance to any person or entity 

23 that provides legal assistance for, or on behalf of, any 

24 alien, unless the alien— 

25 ‘‘(A) is described in subsection (a); and 


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1 ‘‘(B) is present in the United States at the time 

2 the legal assistance is provided. 

3 ‘‘(3)(A) No party may bring a civil action for dam4 ages or another complaint on behalf of a nonimmigrant 

5 described in section 101(a)(15)(H)(ii)(a) of the Immigra6 tion and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) 

7 (referred to in this subsection as an ‘H–2A worker’) un8 less— 

9 ‘‘(i) the party makes a request to the Federal 

10 Mediation and Conciliation Service or an equivalent 

11 State program (as defined by the Secretary of 

12 Labor) not later than 90 days before bringing the 

13 action to assist the parties in reaching a satisfactory 

14 resolution of all issues involving parties to the dis15 pute; 

16 ‘‘(ii) the party provides written notification of 

17 the alleged violation to the agricultural employer, ag18 ricultural association, or farm labor contractor; and 

19 ‘‘(iii) the parties to the dispute have attempted, 

20 in good faith, mediation or other non-binding dis21 pute resolution of all issues involving all such par22 ties. 

23 ‘‘(B) If the mediator finds that an agricultural em24 ployer, agricultural association, or farm labor contractor 

25 has corrected a violation of this Act or a regulation under 


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1 this Act not later than 14 days after the date on which 

2 such agricultural employer, agricultural association, or 

3 farm labor contractor received written notification of such 

4 violation, no action may be brought under this section with 

5 respect to such violation. 

6 ‘‘(C) Any settlement reached through the mediation 

7 process described in subparagraph (A) shall preclude any 

8 right of action arising out of the same facts between the 

9 parties in any Federal or State court or administrative 

10 proceeding. 

11 ‘‘(D) If no settlement is reached through the medi12 ation process described in subparagraph (A), any offer of 

13 settlement or attempts to remedy alleged grievances shall 

14 be admissible as evidence. 

15 ‘‘(4) An employer of an H–2A worker shall not be 

16 required to waive any requirements of any food safety pro17 grams, such as sign in requirements, for any recipient of 

18 grants or contracts under section 1007 of the Legal Serv19 ices Corporation Act (42 U.S.C. 1996f), or any employee 

20 of such recipient. 

21 ‘‘(5) The employer of an H–2A worker shall post the 

22 contact information of the Legal Services Corporation in 

23 the dwelling and at the work site of each nonimmigrant 

24 employee in a language in which all employees can under25 stand. 


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1 ‘‘(6) There are authorized to be appropriated to the 

2 Federal Mediation and Conciliation Service for each fiscal 

3 year such sums as may be necessary to carry out the medi4 ation process described in this subsection.’’; and 

5 (2) by adding at the end the following: 

6 ‘‘(g)(1) If a defendant prevails in an action under this 

7 section in which the plaintiff is represented by an attorney 

8 who is employed by the Legal Services Corporation or any 

9 entity receiving funds from the Legal Services Corpora10 tion, such entity or the Legal Services Corporation shall 

11 award to the prevailing defendant fees and other expenses 

12 incurred by the defendant in connection with the action. 

13 ‘‘(2) In this subsection, the term ‘fees and other ex14 penses’ has the meaning given the term in section 

15 514(b)(1)(A) of title 5, United States Code. 

16 ‘‘(3) The court shall take whatever steps necessary, 

17 including the imposition of sanctions, to ensure compli18 ance with this subsection.’’. 

19 SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 

20 There are authorized to be appropriated to the De21 partment of Homeland Security and the Department of 

22 State such sums as may be necessary to adjudicate H– 

23 2A applications. 

Æ 


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