I 

112TH CONGRESS 

1ST SESSION H. R. 2895 

To amend the Immigration and Nationality Act to provide for a temporary 

agricultural worker program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 12, 2011 

Mr. DANIEL E. LUNGREN of California introduced the following bill; which 

was referred to the Committee on the Judiciary, and in addition to the 

Committees on Education and the Workforce, Energy and Commerce, 

and Foreign Affairs, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To amend the Immigration and Nationality Act to provide 

for a temporary agricultural worker program, 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 ‘‘Legal Agricultural 

5 Workforce Act’’. 

6 SEC. 2. NONIMMIGRANT AGRICULTURAL PROGRAM. 

7 (a) NEW ‘‘W’’ NONIMMIGRANT CLASSIFICATION FOR

8 NONIMMIGRANT AGRICULTURAL WORKERS.—Section 


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1 101(a)(15) of the Immigration and Nationality Act (8 

2 U.S.C. 1101(a)(15)) is amended— 

3 (1) by striking ‘‘or’’ at the end of the subpara4 graph (U); 

5 (2) by striking the period at the end of sub6 paragraph (V) and inserting ‘‘; or’’; and 

7 (3) by adding at the end the following: 

8 ‘‘(W) an alien having a residence in a for9 eign country which the alien has no intention of 

10 abandoning who is coming to the United States 

11 for a temporary period (as defined in section 

12 220(o)) to perform services or labor in agricul13 tural employment, as defined in section 3 of the 

14 Migrant and Seasonal Agricultural Worker Pro15 tection Act (29 U.S.C. 1802), who meets the 

16 requirements specified in section 220, and with 

17 respect to whom the Secretary of Agriculture 

18 has notified the Secretary of Homeland Secu19 rity and the Secretary of State that the intend20 ing employer has accepted the terms and condi21 tions of such employment through successful 

22 enrollment in the nonimmigrant agricultural 

23 worker program pursuant to section 220(c).’’. 

24 (b) ESTABLISHMENT OF NONIMMIGRANT AGRICUL25 TURAL WORKER PROGRAM.— 


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1 (1) IN GENERAL.—Chapter 2 of title II of such 

2 Act is amended by adding at the end the following: 

3 ‘‘SEC. 220. NONIMMIGRANT AGRICULTURAL WORKER PRO4 GRAM. 

5 ‘‘(a) ESTABLISHMENT OF PROGRAM.— 

6 ‘‘(1) IN GENERAL.—The Secretary of Agri7 culture, in consultation with the Secretary of Home8 land Security, shall establish a nonimmigrant agri9 cultural worker program (in this section referred to 

10 as the ‘program’) for the admission into the United 

11 States of nonimmigrants described in section 

12 101(a)(15)(W) (in this section referred to as a ‘non13 immigrant agricultural workers’) and issue all rel14 evant regulations implementing the program. 

15 ‘‘(2) COMPONENTS OF PROGRAM.—The pro16 gram shall include the following components: 

17 ‘‘(A) A process developed by the Secretary 

18 of Agriculture for the submission of data and 

19 information by agricultural employers that will 

20 allow such Secretary to determine the number 

21 of nonimmigrant agricultural workers required 

22 by month and annually for a 10-month period. 

23 ‘‘(B) A process developed by the Secretary 

24 of Agriculture for the enrollment of qualified 

25 agricultural employers in the program that reVerDate Mar 15 2010 00:08 Sep 16, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2895.IH H2895

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1 quires enrolled employers to abide by the obli2 gations described in subsection (f). 

3 ‘‘(C) A process developed by the Depart4 ment of Homeland Security, based upon the de5 termination made under subsection (d) by the 

6 Secretary of Agriculture, on the need for non7 immigrant agricultural workers, for imposition 

8 of monthly and annual numerical limitations, 

9 established under such subsection, on the 

10 issuance of nonimmigrant visas for non11 immigrant agricultural employment. These visas 

12 shall be made available subject to such limita13 tions on such workers in accordance with the 

14 preference system established under subsection 

15 (g). 

16 ‘‘(D) A process developed by the Secretary 

17 of Homeland Security, in consultation with the 

18 Secretary of Agriculture, by which such Secre19 taries can determine that persons employing 

20 nonimmigrant agricultural workers are enrolled 

21 in the program and that the nonimmigrant ag22 ricultural workers so employed possess a valid 

23 visa pursuant to section 101(a)(15)(W). 

24 ‘‘(E) A nonimmigrant visa issued pursuant 

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1 graphical area within which an alien may be 

2 employed or limit the type of agricultural em3 ployment the alien may perform, except that 

4 the employment shall only be with a qualified 

5 agricultural employer enrolled in the program. 

6 ‘‘(b) PRE-ENROLLMENT REQUIREMENTS.— 

7 ‘‘(1) RECRUITMENT OF UNITED STATES WORK8 ERS.—Not later than 30 days before filing a request 

9 to enroll in the nonimmigrant agricultural worker 

10 program pursuant to subsection (c), each person fil11 ing such a request shall list with the Department of 

12 Labor’s Employment and Training Administration’s 

13 Electronic Job Registry a description of the antici14 pated period for which workers will be needed ex15 pected beginning and ending dates), as well as a de16 scription of the wages and other terms and condi17 tions of agricultural employment that satisfy the dis18 closure requirements of sections 201 and 301 of the 

19 Migrant and Seasonal Agricultural Worker Protec20 tion Act (29 U.S.C. 1821; 1831), except that noth21 ing in this paragraph shall cause such listing to be 

22 treated as an interstate job order under section 653 

23 of title 20, Code of Federal Regulations. 

24 ‘‘(2) RECORD OF UNITED STATES WORKERS.— 

25 A person or entity shall keep a record of all eligible 


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1 able, willing, and qualified United States workers 

2 applying for employment with the person in response 

3 to its filing on the Electronic Job Registry and pro4 vide such record in its request to enroll filed under 

5 subsection (c). 

6 ‘‘(c) ENROLLMENT IN THE NONIMMIGRANT AGRI7 CULTURAL WORKER PROGRAM.— 

8 ‘‘(1) IN GENERAL.—A person who employs indi9 viduals to perform agricultural employment (includ10 ing an association of such persons and a person who 

11 contracts for the performance of agricultural em12 ployment) with respect to agricultural commodities 

13 may submit to the Secretary of Agriculture, at such 

14 time and in such manner as the Secretary specifies, 

15 a request for enrollment in the nonimmigrant agri16 cultural worker program. 

17 ‘‘(2) INFORMATION REQUIRED.—The request 

18 must specify for each month concerned— 

19 ‘‘(A) the total number and qualifications of 

20 nonimmigrant agricultural workers required in 

21 agricultural employment in each month; 

22 ‘‘(B) the type of agricultural work required 

23 to be performed by these workers; 


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1 ‘‘(C) the anticipated period (expected be2 ginning and ending dates) for which workers 

3 will be needed; 

4 ‘‘(D) a copy of the information submitted 

5 to the Electronic Job Registry pursuant to sub6 section (b)(1); and 

7 ‘‘(E) the record of United States workers 

8 described in subsection (b)(2) at the time of the 

9 request. 

10 ‘‘(3) OPTIONAL INFORMATION ON ALIENS PRE11 FERRED.—The person may also include a statement 

12 indicating a preference as to country of nationality 

13 of aliens (or names of particular aliens) desired to 

14 perform agricultural services in any such month. 

15 ‘‘(d) DETERMINATION OF NUMERICAL LIMITATIONS

16 ON NONIMMIGRANT AGRICULTURAL VISAS BY MONTH

17 AND ANNUALLY.—Based upon requests for enrollment de18 scribed in subsection (c), and taking into consideration the 

19 historical employment needs of agricultural employers and 

20 the reports of United States workers applying for agricul21 tural employment listed on requests for enrollment, the 

22 Secretary of Agriculture shall advise the Secretary of 

23 Homeland Security of a numerical limitation on the 

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1 tural workers sufficient to meet the labor needs of agricul2 tural employers by month and annually. 

3 ‘‘(e) STANDARDS FOR APPROVAL OF REQUESTS FOR

4 ENROLLMENT.— 

5 ‘‘(1) IN GENERAL.—The Secretary of Agri6 culture shall approve a request for enrollment sub7 mitted under subsection (c)(1) if— 

8 ‘‘(A) the person is an agricultural employer 

9 and the worker is to be employed in agricultural 

10 work; 

11 ‘‘(B) the request complies with the provi12 sions of subsection (c) and the request sets 

13 forth the need for such workers; 

14 ‘‘(C) the person has not employed or peti15 tioned for a nonimmigrant described in section 

16 101(a)(15)(H)(ii)(a) at the time when a request 

17 on behalf of the person is pending or granted 

18 under this subsection, or during any previous 

19 period during which the employer had a request 

20 granted under this section; and 

21 ‘‘(D) the person is not disqualified under 

22 subsection (f)(6). 

23 ‘‘(2) REVIEW OF CERTAIN DENIALS.—Except as 

24 provided under subsection (f), a person who is deter25 mined not to be eligible under paragraph (1) (other 


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1 than because of subparagraph (D) thereof) is enti2 tled to an expedited review of the determination by 

3 the Secretary of Agriculture. 

4 ‘‘(f) OBLIGATIONS UNDER PROGRAM.—Any person 

5 whose request to enroll in the nonimmigrant agricultural 

6 worker program has been granted shall ensure as follows: 

7 ‘‘(1) NO DISPLACEMENT OF THE UNITED

8 STATES WORKERS.—The employer did not displace 

9 and will not displace a United States worker em10 ployed by the employer, other than for good cause, 

11 during the period of employment and for a period of 

12 30 days preceding the period of employment in the 

13 occupation at the place of employment for which the 

14 employer seeks to employ nonimmigrant agricultural 

15 workers. 

16 ‘‘(2) OFFERS TO UNITED STATES WORKERS.— 

17 The employer shall offer the job to any eligible 

18 United States worker who applies and is equally or 

19 better qualified for the job for which the non20 immigrant is sought, and will be available at the 

21 time and place of need. The employer shall post all 

22 such job openings on the Electronic Job Registry ad23 ministered by the Employment and Training Admin24 istration of the Department of Labor. 


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1 ‘‘(3) WORKERS’ COMPENSATION.—If the job op2 portunity is not covered by the State workers’ com3 pensation law, the employer will provide, at no cost 

4 to United States and nonimmigrant agricultural 

5 workers, insurance covering injury and disease aris6 ing out of, and in the course of, the worker’s em7 ployment which will provide benefits at least equal to 

8 those provided under the State’s workers’ compensa9 tion law for comparable employment. 

10 ‘‘(4) LABOR DISPUTE.—The person shall not 

11 employ a nonimmigrant agricultural worker for a 

12 specific job opportunity for which the employer is re13 questing a nonimmigrant agricultural worker be14 cause the former occupant of the job is on strike or 

15 being locked out in the course of a labor dispute. 

16 ‘‘(5) NOT USED FOR NONAGRICULTURAL SERV17 ICES.—The person shall not employ a nonimmigrant 

18 agricultural worker for services other than agricul19 tural services. 

20 ‘‘(6) VIOLATION OF PROGRAM REQUIRE21 MENTS.—If the Secretary of Agriculture determines, 

22 after an opportunity for a hearing, that an enrolled 

23 employer has violated this subsection the Secretary 

24 may impose penalties, including fines and, in cases 

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1 ployer from future enrollment in the program for a 

2 period of up to three years. 

3 ‘‘(g) ALLOCATION OF VISAS.— 

4 ‘‘(1) PREFERENCE SYSTEM.—Nonimmigrant 

5 agricultural workers who are subject to the numer6 ical limitations specified in subsection (d) shall be al7 lotted nonimmigrant visas and work authority as fol8 lows: 

9 ‘‘(A) IDENTIFIED WORKERS.—Visas shall 

10 first be made available to qualified non11 immigrant agricultural workers specifically 

12 identified pursuant to subsection (c)(3). 

13 ‘‘(B) PREVIOUSLY EMPLOYED WORKERS.— 

14 Visas shall next be made available to qualified 

15 nonimmigrant agricultural workers who have 

16 previously been employed in agricultural em17 ployment in the United States, providing pri18 ority in consideration among such workers in 

19 the order of the length of time in which they 

20 were employed. 

21 ‘‘(C) ORDER IN WHICH APPLIED.—The re22 maining visas shall be made available to other 

23 qualified nonimmigrant agricultural workers 

24 strictly in the chronological order in which they 

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1 tained in accordance with regulations prescribed 

2 by the Secretary of State. 

3 ‘‘(2) TREATMENT OF SPOUSES AND CHIL4 DREN.—A spouse or child of such a worker is not 

5 entitled to visa or such status by virtue of such rela6 tionship, but may be provided the same status as 

7 such a worker if the spouse or child also is a quali8 fied nonimmigrant agricultural worker to perform 

9 agricultural employment. 

10 ‘‘(3) CRIMINAL BACKGROUND CHECK.—In the 

11 addition to any other examination required under 

12 this Act, no visa or other documentation may be 

13 issued to an alien under section 101(a)(15)(W) until 

14 the alien has obtained successful clearance of the se15 curity and criminal background checks specified by 

16 the Secretary of Homeland Security for purposes of 

17 this section. 

18 ‘‘(h) APPLICATION FOR AN INCREASE WHERE EX19 TRAORDINARY AND UNUSUAL CIRCUMSTANCES.— 

20 ‘‘(1) IN GENERAL.—If an agricultural employer 

21 (or association or representative thereof) establishes 

22 that extraordinary and unusual circumstances have 

23 resulted in a significant change in the employer’s 

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1 mestic workers who are able, willing, and qualified 

2 to perform agricultural employment, the employer 

3 may apply to the Secretary of Agriculture (in such 

4 form and manner as the Secretary shall provide) for 

5 an increase in the numerical limitations otherwise 

6 established under subsection (d) to accommodate 

7 such emergency need. If approved, the Secretary 

8 shall forward the application to the Secretary of 

9 Homeland Security with a recommendation on the 

10 additional number of nonimmigrant agricultural 

11 worker visas found necessary. 

12 ‘‘(2) TIMELY DETERMINATION ON APPLICA13 TION.—The Secretary of Agriculture shall make a 

14 determination on an application under subparagraph 

15 (A) and forward its recommendations to the Sec16 retary of Homeland Security within 72 hours of the 

17 date the application is completed. 

18 ‘‘(3) INCREASE IN LIMITATION.—To the extent 

19 the application is approved, the Secretary of Home20 land Security shall provide for an appropriate in21 crease in the appropriate numerical limitation within 

22 72 hours. 

23 ‘‘(i) ENTRY OF WORKERS.— 

24 ‘‘(1) IN GENERAL.—An alien may not be admit25 ted to the United States as a nonimmigrant agriculVerDate Mar 15 2010 00:08 Sep 16, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H2895.IH H2895

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1 tural worker during the three-year period beginning 

2 on the most recent date (if any) on which the alien 

3 violated a material term or condition of a previous 

4 admission as a nonimmigrant agricultural worker. 

5 ‘‘(2) DISQUALIFICATION FOR COMMISSION OF

6 CRIME.—An alien who commits a crime while in the 

7 United States as a nonimmigrant agricultural work8 er shall be ineligible to retain such status and shall 

9 be required to depart from the United States. 

10 ‘‘(3) CONTINUOUS EMPLOYMENT.—Non11 immigrant agricultural workers admitted under this 

12 program shall be continuously employed or actively 

13 seeking employment in agricultural employment 

14 throughout the term of their admission. 

15 ‘‘(4) DIRECTION OF NONIMMIGRANT AGRICUL16 TURAL WORKERS TO EMPLOYMENT OPPORTUNI17 TIES.—The Secretary of State and Secretary of Ag18 riculture, in consultation with the Secretary of 

19 Labor, shall establish a system for providing infor20 mation on available agricultural employment oppor21 tunities to individuals whose applications for non22 immigrant agricultural visas have been approved if 

23 those individuals are not named by an employer or 

24 do not have a letter of employment opportunity pro25 vided by a person enrolled in the program. 


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1 ‘‘(j) APPLICABILITY OF EMPLOYMENT LAWS.—All 

2 Federal, State, and local employment related laws applica3 ble to United States agricultural workers shall apply to 

4 nonimmigrant agricultural workers admitted pursuant to 

5 this program. 

6 ‘‘(k) BIOMETRIC IDENTIFICATION CARD.—The Sec7 retary of Homeland Security shall provide each non8 immigrant agricultural worker with an identification card 

9 that contains— 

10 ‘‘(1) an encrypted, machine-readable, electronic 

11 identification strip that is unique to the alien to 

12 whom the card is issued; 

13 ‘‘(2) biometric identifiers, including fingerprints 

14 and a digital photograph; and 

15 ‘‘(3) physical security features designed to pre16 vent tampering, counterfeiting, or duplication of the 

17 card for fraudulent purposes. 

18 ‘‘(l) TRUST FUND.— 

19 ‘‘(1) ESTABLISHMENT.—The Secretary of Agri20 culture shall establish by regulation a trust fund the 

21 purpose of which is to provide, without further ap22 propriation, funds for the administration and the en23 forcement of the program under this section, for the 

24 cost of the cards issued under subsection (k), for a 

25 monetary incentive for nonimmigrant agricultural 


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1 workers to return to their country of origin upon ex2 piration of their visas under the program, and for 

3 payment with respect to emergency medical services 

4 furnished to nonimmigrant agricultural workers. The 

5 Secretary of Agriculture in consultation with the 

6 Secretary of the Treasury shall promulgate such 

7 other regulations as may be necessary to carry out 

8 this subsection. 

9 ‘‘(2) PAYMENT OF FICA AND FUTA AMOUNTS

10 INTO TRUST FUND.—In the case of employment of 

11 a nonimmigrant agricultural worker— 

12 ‘‘(A) the employer shall provide for pay13 ment into the trust fund established under 

14 paragraph (1) of the sum of— 

15 ‘‘(i) an amount equivalent to the 

16 amount of excise taxes which the employer 

17 would pay under the chapter 21 of the In18 ternal Revenue Code of 1986 with respect 

19 to such employment if it were considered 

20 employment for the purpose of such Act; 

21 and 

22 ‘‘(ii) an amount equivalent to (and in 

23 lieu of) the amount of excise taxes which 

24 the employer would otherwise pay under 


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1 chapter 23 of such Code with respect to 

2 such employment; and 

3 ‘‘(B) there shall be deducted from the 

4 wages of the worker and paid into such trust 

5 fund an amount equivalent to the amount of ex6 cise taxes that the employee would pay under 

7 such chapter 21 with respect to such employ8 ment if it were considered employment for the 

9 purposes of such Act. 

10 ‘‘(3) EXPENDITURES FROM TRUST FUND.— 

11 ‘‘(A) USE OF EMPLOYER CONTRIBUTIONS

12 FOR ADMINISTRATION.—Amounts described in 

13 paragraph (2)(A) paid into the trust fund shall 

14 be used for the purpose of administering and 

15 enforcing the program under this section and 

16 for the cost of the cards issued under sub17 section (k). 

18 ‘‘(B) USE OF EMPLOYEE CONTRIBUTIONS

19 FOR REPAYMENT OF EMPLOYEE CONTRIBU20 TIONS UPON RETURN TO COUNTRY OF ORI21 GIN.—Except as provided in subparagraph (C), 

22 amounts described in paragraph (2)(B) paid 

23 into the trust fund with respect to a non24 immigrant agricultural worker shall, upon ap25 plication by the worker at the United States 


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1 consulate nearest the worker’s residence in the 

2 country of origin, be paid to the worker if the 

3 worker demonstrates the compliance of the 

4 worker with the terms and conditions of the 

5 program. 

6 ‘‘(C) USE OF EMPLOYEE CONTRIBUTIONS

7 ATTRIBUTABLE TO HI TAXES FOR EMERGENCY

8 MEDICAL SERVICES FOR NONIMMIGRANT AGRI9 CULTURAL WORKERS.— 

10 ‘‘(i) IN GENERAL.—Amounts de11 scribed in paragraph (2)(B) paid into the 

12 trust fund which relate to excise tax in sec13 tion 3101(b) of the Internal Revenue Code 

14 of 1986 shall be used to provide payment 

15 with respect to emergency medical services 

16 (as defined in clause (iii)) for non17 immigrant agricultural workers. 

18 ‘‘(ii) ADMINISTRATION.—The Sec19 retary of Agriculture shall establish rules, 

20 in consultation with the Secretary of 

21 Health and Human Services, with respect 

22 to the payments under this subparagraph, 

23 including methods for determining quali24 fications for payment and the amount of 


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1 payment to be made with respect to emer2 gency medical services. 

3 ‘‘(iii) EMERGENCY MEDICAL SERVICES

4 DEFINED.—In this subparagraph, the term 

5 ‘emergency medical services’ means those 

6 items and services required to be provided 

7 under section 1867 of the Social Security 

8 Act (42 U.S.C. 1395dd) with respect to an 

9 individual who is a nonimmigrant agricul10 tural worker and does not include items 

11 and services for which coverage under 

12 workers’ compensation is required under 

13 subsection (f)(3) with respect to the work14 er. 

15 ‘‘(m) SEMIANNUAL REPORTS TO CONGRESS.—The 

16 Secretary of Agriculture shall report to Congress semi17 annually regarding the program under this section. Each 

18 such report shall include a statement of the number of 

19 nonimmigrant visas issued under the program, an evalua20 tion of the effectiveness of the program, a description of 

21 any problems related to the enforcement of the program, 

22 and any recommendations for legislation relating to the 

23 program. 

24 ‘‘(n) MISCELLANEOUS PROVISIONS.— 


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1 ‘‘(1) DISQUALIFICATION OF NONIMMIGRANT AG2 RICULTURAL WORKERS FROM FINANCIAL ASSIST3 ANCE.—An alien admitted as a nonimmigrant agri4 cultural worker is not eligible for any program of fi5 nancial assistance under Federal law (whether 

6 through grant, loan, guarantee, or otherwise) on the 

7 basis of financial need, as such programs are identi8 fied by the Secretary of Agriculture in consultation 

9 with other appropriate heads of the various depart10 ments and agencies of Government. 

11 ‘‘(2) EXPANSION OF CONSULATES.—The Sec12 retary of State is authorized to take such steps as 

13 may be necessary in order to expand and establish 

14 consulates in foreign countries in which aliens are 

15 likely to apply to become nonimmigrant agricultural 

16 workers under the program to the extent such ex17 pansion is fully covered by the funds obtained in 

18 subsection (l)(3)(A). 

19 ‘‘(3) PREEMPTION.—The provisions of this sec20 tion preempt any State or local law on the same sub21 ject. 

22 ‘‘(o) DEFINITIONS.—For purposes of this section and 

23 section 101(a)(15)(W): 

24 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term 

25 ‘agricultural employment’ has the meaning given 


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1 such term in section 3 of the Migrant and Seasonal 

2 Agricultural Worker Protection Act (29 U.S.C. 

3 1802), without regard to whether the specific service 

4 or activity is temporary or seasonal. 

5 ‘‘(2) TEMPORARY PERIOD.—The term ‘tem6 porary period’ means that period during which a 

7 nonimmigrant agricultural worker may remain in 

8 the United States to perform agricultural employ9 ment, not to exceed 10 months in any 12 month pe10 riod.’’. 

11 (2) CLERICAL AMENDMENT.—The table of con12 tents of such Act is amended by inserting after the 

13 item relation to section 219 the following new item: 

‘‘Sec. 220. Nonimmigrant agricultural worker program.’’. 

Æ 


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