I 
112TH CONGRESS 
1ST SESSION H. R. 3443 
To reform the H–2A program for nonimmigrant agricultural workers, and 
for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
NOVEMBER 16, 2011 
Mr. KINGSTON (for himself and Mr. WESTMORELAND) introduced the 
following bill; which was referred to the Committee on the Judiciary 
A BILL 
To reform the H–2A program for nonimmigrant agricultural 
workers, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as— 
(1) the ‘‘Better Agriculture Resources Now 
Act’’; or 
(2) the ‘‘BARN Act’’. 
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SEC. 2. H–2A PROGRAM REFORMS. 
(a) DEFINITION OF AGRICULTURAL LABOR OR SERV-
ICES.—Section 101(a)(15)(H)(ii)(a) of such Act (8 U.S.C. 
1101(a)(15)(H)(ii)(a)) is amended— 
(1) by striking ‘‘and the pressing’’ and insert-
ing ‘‘the pressing’’; and 
(2) by striking ‘‘of a temporary’’ and all that 
follows through the end and inserting ‘‘, and the 
handling, planting, drying, packing, packaging, proc-
essing, freezing, grading, storing, or delivering to 
storage or to market or to a carrier for transpor-
tation to market, in its unmanufactured state, any 
agricultural or horticultural commodity, or’’. 
(b) DEEMED APPROVAL.—Section 218(c)(3)(A) of 
such Act (8 U.S.C. 1188(c)(3)(A)) is amended by insert-
ing before ‘‘In considering’’ the following: ‘‘The Secretary 
of Labor shall review such application and shall provide 
a determination on the application within 30 days of the 
date of the filing of the application. If the Secretary does 
not comply with the deadline in the preceding sentence, 
the application shall be deemed approved.’’. 
(c) 
EXPERIENCE
REQUIREMENT.—Section 
218(c)(3)(A) of such Act (8 U.S.C. 1188(c)(3)(A)), as 
amended by subsection (b), is further amended by adding 
at the end the following: ‘‘A job offer may contain an expe-
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rience requirement as long as work performed in an illegal 
status may not be counted towards such requirement.’’. 
(d) ELIMINATION OF 50 PERCENT RULE.—Section 
218(c)(3) of such Act (8 U.S.C. 1188(c)(3)) is amended— 
(1) by striking ‘‘(A)’’; and 
(2) by striking subparagraph (B). 
(e) WAGE RATE.—Section 218(a)(1)(B) of such Act 
(8 U.S.C. 1188(a)(1)(B)) is amended by striking the pe-
riod at the end and inserting ‘‘, except that no employer 
shall be required to pay a wage rate greater than 115 per-
cent of the greatest of the Federal, State, and local min-
imum wage rates.’’. 
(f) DEADLINE FOR FILING APPLICATIONS.—Section 
218(c)(1) of such Act (8 U.S.C. 1188(c)(1)) is amended 
by striking ‘‘45’’ and inserting ‘‘30’’. 
(g) PERIOD OF AUTHORIZED NONIMMIGRANT STA-
TUS.—Section 218(h) of such Act (8 U.S.C. 1188(h)) is 
amended by adding at the end the following: 
‘‘(3) The initial period of authorized status as a non-
immigrant described in section 101(a)(15)(H)(ii)(a) shall 
not exceed 1 year. Such period may be extended once by 
the Secretary of Homeland Security for a period of up 
to 1 year, except that such extension may be granted only 
if the Secretary of Labor determines that the employer 
has engaged in the positive recruitment efforts described 
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in subsection (b)(4) (including the obligation to circulate 
the employer’s job offer through the interstate employ-
ment service system). In the case of a nonimmigrant who 
has remained in the United States for the full 2-year pe-
riod, the nonimmigrant shall be obliged to depart the 
United States and shall not be eligible to re-apply for a 
visa to re-enter the United States as such a nonimmigrant 
for a period of 2 months. If at any time during a period 
of authorized admission the alien has a work lapse period 
of 60 days or more, the visa of the alien shall be deemed 
revoked and the alien shall be required to depart from the 
United States, except that if an employer has applied for 
a certification under subsection (a)(1) with respect to an 
alien who has a work lapse of 60 days or less, such period 
shall not begin until after the Secretary has made a deter-
mination on the application consistent with subsection 
(c).’’. 
(h) HOUSING.—Section 218(c)(4) of such Act (8 
U.S.C. 1188(c)(4)) is amended to read as follows: 
‘‘(4) HOUSING REQUIREMENT.— 
‘‘(A) IN
GENERAL.—Except as provided 
under subparagraph (F), each employer apply-
ing for workers under subsection (b) shall offer 
to provide housing at no cost to— 
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‘‘(i) REQUEST.—At the time an em-
ployer that plans to provide housing de-
scribed in subparagraph (B) to H–2A 
workers files an application for H–2A 
workers with the Secretary of Labor, the 
employer shall request a certificate of in-
spection by an approved Federal or State 
agency. 
‘‘(ii) INSPECTION; FOLLOW UP.—Not 
later than 28 days after the receipt of a re-
quest under clause (i), the Secretary of Ag-
riculture 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 Sec-
retary of Agriculture may not delay the ap-
proval of an application for failing to com-
ply with the deadlines set forth in clause 
(iii). 
‘‘(D) RULEMAKING.—The Secretary of Ag-
riculture shall issue regulations that address 
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the specific requirements for the provision of 
housing to workers engaged in the range pro-
duction of livestock. 
‘‘(E) HOUSING ALLOWANCE.— 
‘‘(i) AUTHORITY.—If the Governor of 
a State certifies to the Secretary of Agri-
culture that there is adequate housing 
available in the area of intended employ-
ment for migrant farm workers and H–2A 
workers who are seeking temporary hous-
ing while employed in agricultural work, an 
employer in such State may provide a rea-
sonable housing allowance instead of offer-
ing housing pursuant to subparagraph (A). 
An employer who provides a housing allow-
ance to a worker shall not be required to 
reserve housing accommodations for the 
worker. 
‘‘(ii) ASSISTANCE IN LOCATING HOUS-
ING.—Upon the request of a worker seek-
ing assistance in locating housing, an em-
ployer providing a housing allowance under 
clause (i) shall make a good faith effort to 
assist the worker in identifying and locat-
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ing housing in the area of intended em-
ployment. 
‘‘(iii) LIMITATION.—A housing allow-
ance 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 vir-
tue of providing such housing allowance. 
‘‘(iv) OTHER REQUIREMENTS.— 
‘‘(I) NONMETROPOLITAN
COUN-
TY.—If the place of employment of 
the workers provided an allowance 
under this subparagraph is a non-
metropolitan county, the amount of 
the housing allowance under this sub-
paragraph shall be equal to the state-
wide average fair market rental for 
existing housing for nonmetropolitan 
counties for the State, as established 
by the Secretary of Housing and 
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Urban Development pursuant to sec-
tion 8(c) of the United States Hous-
ing 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 al-
lowance 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 Hous-
ing 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 em-
ployees, the employer shall provide a list of 
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the names and local addresses of such 
workers to the Secretary of Agriculture 
and the Secretary of Homeland Security 
once per contract period.’’. 
(i) LEGAL ASSISTANCE FROM THE LEGAL SERVICES 
CORPORATION.—Section 218(h) of such Act (8 U.S.C. 
1188(h)), as amended by subsection (g), is further amend-
ed by adding at the end the following: 
‘‘(4)(A) The Legal Services Corporation may not pro-
vide legal assistance for, or on behalf of, any alien, and 
may not provide financial assistance to any person or enti-
ty that provides legal assistance for, or on behalf of, any 
alien, unless— 
‘‘(i) the alien is present in the United States at 
the time the legal assistance is provided; and 
‘‘(ii) the parties to the dispute have attempted, 
in good faith, mediation or other non-binding dis-
pute resolution of all issues involving all such par-
ties. 
‘‘(B) If an employer and a nonimmigrant having sta-
tus under section 101(a)(15)(H)(ii)(a) have an arbitration 
arrangement, the Legal Services Corporation shall respect 
the arbitration process and outcome. 
‘‘(C) No employer of a nonimmigrant having status 
under section 101(a)(15)(H)(ii)(a) shall be required to 
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permit any recipient of a grant or contract under section 
1007 of the Legal Services Corporation Act (42 U.S.C. 
2996f), or any employee of such a recipient, to enter upon 
the employer’s property, unless such recipient or employee 
has a pre-arranged appointment with a specific non-
immigrant having such status.’’. 
(j) EFFECT
OF VIOLATIONS WHILE
IN UNITED 
STATES.—Section 218(f) of such Act (8 U.S.C. 1188(f)) 
is amended to read as follows: 
‘‘(f) EFFECT OF VIOLATIONS.— 
‘‘(1) OVERSTAYS.—An alien may not be admit-
ted to the United States as a nonimmigrant having 
status under section 101(a)(15)(H)(ii)(a) if the alien 
was admitted to the United States as such a non-
immigrant within the previous 5-year period and the 
alien remained after the alien’s period of authorized 
admission expired or otherwise violated a term or 
condition of such previous admission. 
‘‘(2) FRAUD.—An alien may not be admitted to 
the United States as a nonimmigrant having status 
under section 101(a)(15)(H)(ii)(a) if the alien was 
admitted to the United States as such a non-
immigrant on the basis of fraud. 
‘‘(3) OTHER CRIMES.—An alien may not be ad-
mitted to the United States as a nonimmigrant hav-
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ing status under section 101(a)(15)(H)(ii)(a) if the 
alien was admitted to the United States as such a 
nonimmigrant and committed an offense that ren-
dered the alien deportable while in the United States 
pursuant to such admission. 
‘‘(4) EMPLOYER BAR.—The Secretary of Labor 
may not issue a certification under subsection (a) 
with respect to an employer if the Secretary finds, 
after notice and an opportunity for a hearing, that 
the employer knowingly hired an H–2A worker 
whose period of authorized admission had expired or 
that the employer otherwise engaged in fraud or 
misrepresentation with respect to the program for 
the admission of such workers into the United 
States. The Secretary of Homeland Security shall 
not thereafter approve petitions filed by such em-
ployer under section 214(c). An employer that estab-
lishes that it has complied in good faith with the re-
quirements of this Act has established an affirmative 
defense in an action brought under this paragraph.’’. 
Æ 
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