BARN Act

I 116TH CONGRESS 1ST SESSION H. R. 60 To reform the H–2A program for nonimmigrant agricultural workers, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 3, 2019 Mr. ALLEN 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- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as— 4 (1) the ‘‘Better Agriculture Resources Now 5 Act’’; or 6 (2) the ‘‘BARN Act’’. 7 SEC. 2. H–2A PROGRAM REFORMS. 8 (a) DEFINITION OF AGRICULTURAL LABOR OR SERV- 9 ICES.—Section 101(a)(15)(H)(ii)(a) of the Immigration 10 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 2 •HR 60 IH and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is 1 amended— 2 (1) by striking ‘‘Secretary of Labor’’ and in- 3 serting ‘‘Secretary of Agriculture’’; 4 (2) by striking ‘‘and the pressing’’ and insert- 5 ing ‘‘the pressing’’; and 6 (3) by striking ‘‘of a temporary’’ and all that 7 follows through the end and inserting ‘‘, and the 8 handling, planting, drying, packing, packaging, proc- 9 essing, freezing, grading, storing, or delivering to 10 storage or to market or to a carrier for transpor- 11 tation to market, in its unmanufactured state, any 12 agricultural or horticultural commodity, or’’. 13 (b) ADMINISTERING OFFICIAL.—Section 218 of such 14 Act (8 U.S.C. 1188) is amended by striking ‘‘Secretary 15 of Labor’’ each place such term appears and inserting 16 ‘‘Secretary of Agriculture’’. 17 (c) DEEMED APPROVAL.—Section 218(c)(3)(A) of 18 such Act (8 U.S.C. 1188(c)(3)(A)) is amended by insert- 19 ing before ‘‘In considering’’ the following: ‘‘The Secretary 20 of Agriculture shall review such application and shall pro- 21 vide a determination on the application within 15 days of 22 the date of the filing of the application. If the Secretary 23 does not comply with the deadline in the preceding sen- 24 tence, the application shall be deemed approved.’’. 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 3 •HR 60 IH (d) EXPERIENCE REQUIREMENT.—Section 1 218(c)(3)(A) of such Act (8 U.S.C. 1188(c)(3)(A)), as 2 amended by subsection (c), is further amended by adding 3 at the end the following: ‘‘A job offer may contain an expe- 4 rience requirement as long as work performed in an illegal 5 status may not be counted towards such requirement.’’. 6 (e) ELIMINATION OF 50-PERCENT RULE.—Section 7 218(c)(3) of such Act (8 U.S.C. 1188(c)(3)) is amended— 8 (1) by striking ‘‘(A)’’; 9 (2) by striking subparagraph (B); and 10 (3) by redesignating clauses (i) and (ii) as sub- 11 paragraphs (A) and (B). 12 (f) WAGE RATE.—Section 218(a)(1)(B) of such Act 13 (8 U.S.C. 1188(a)(1)(B)) is amended by striking the pe- 14 riod at the end and inserting ‘‘, except that no employer 15 shall be required to pay a wage rate greater than 115 per- 16 cent of the greatest of the Federal and State minimum 17 wage rates.’’. 18 (g) DEADLINE FOR FILING APPLICATIONS.—Section 19 218(c)(1) of such Act (8 U.S.C. 1188(c)(1)) is amended 20 by striking ‘‘45’’ and inserting ‘‘30’’. 21 (h) PERIOD OF AUTHORIZED NONIMMIGRANT STA- 22 TUS.—Section 218(h) of such Act (8 U.S.C. 1188(h)) is 23 amended by adding at the end the following: 24 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 4 •HR 60 IH ‘‘(3) The initial period of authorized status as a non- 1 immigrant described in section 101(a)(15)(H)(ii)(a) shall 2 not exceed 1 year. Such period may be extended once by 3 the Secretary of Homeland Security for a period of up 4 to 1 year, except that such extension may be granted only 5 if the Secretary of Agriculture determines that the em- 6 ployer has engaged in the positive recruitment efforts de- 7 scribed in subsection (b)(4) (including the obligation to 8 circulate the employer’s job offer through the interstate 9 employment service system). In the case of a non- 10 immigrant who has remained in the United States for the 11 full 2-year period, the nonimmigrant shall be obliged to 12 depart the United States and shall not be eligible to re- 13 apply for a visa to re-enter the United States as such a 14 nonimmigrant for a period of 2 months. If at any time 15 during a period of authorized admission the alien has a 16 work lapse period of 60 days or more, the visa of the alien 17 shall be deemed revoked and the alien shall be required 18 to depart from the United States, except that if an em- 19 ployer has applied for a certification under subsection 20 (a)(1) with respect to an alien who has a work lapse of 21 60 days or less, such period shall not begin until after 22 the Secretary has made a determination on the application 23 consistent with subsection (c).’’. 24 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 5 •HR 60 IH (i) HOUSING.—Section 218(c)(4) of such Act (8 1 U.S.C. 1188(c)(4)) is amended to read as follows: 2 ‘‘(4) HOUSING REQUIREMENT.— 3 ‘‘(A) IN GENERAL.—Except as provided 4 under subparagraph (F), each employer apply- 5 ing for workers under subsection (b) shall offer 6 to provide housing at no cost to— 7 ‘‘(i) all workers in job opportunities 8 for which the employer has applied; and 9 ‘‘(ii) all other workers in the same oc- 10 cupation at the same place of employment 11 whose place of residence is beyond normal 12 commuting distance. 13 ‘‘(B) COMPLIANCE.—An employer meets 14 the requirement under subparagraph (A) if the 15 employer— 16 ‘‘(i) provides the workers with housing 17 that meets applicable Federal standards 18 for temporary labor camps; or 19 ‘‘(ii) secures housing for the workers 20 that— 21 ‘‘(I) meets applicable local stand- 22 ards for rental or public accommoda- 23 tion housing, or other substantially 24 similar class of habitation; or 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 6 •HR 60 IH ‘‘(II) in the absence of applicable 1 local standards, meets State stand- 2 ards for rental or public accommoda- 3 tion housing or other substantially 4 similar class of habitation. 5 ‘‘(C) INSPECTION.— 6 ‘‘(i) REQUEST.—At the time an em- 7 ployer that plans to provide housing de- 8 scribed in subparagraph (B) to H–2A 9 workers files an application for H–2A 10 workers with the Secretary of Agriculture, 11 the employer shall request a certificate of 12 inspection by an approved Federal or State 13 agency. 14 ‘‘(ii) INSPECTION; FOLLOWUP.—Not 15 later than 28 days after the receipt of a re- 16 quest under clause (i), the Secretary of Ag- 17 riculture shall ensure that— 18 ‘‘(I) such an inspection has been 19 conducted; and 20 ‘‘(II) any necessary followup has 21 been scheduled to ensure compliance 22 with the requirements under this 23 paragraph. 24 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 7 •HR 60 IH ‘‘(iii) DELAY PROHIBITED.—The Sec- 1 retary of Agriculture may not delay the ap- 2 proval of an application for failing to com- 3 ply with the deadlines set forth in clause 4 (ii). 5 ‘‘(D) RULEMAKING.—The Secretary of Ag- 6 riculture shall issue regulations that address 7 the specific requirements for the provision of 8 housing to workers engaged in the range pro- 9 duction of livestock. 10 ‘‘(E) HOUSING ALLOWANCE.— 11 ‘‘(i) AUTHORITY.—If the Governor of 12 a State certifies to the Secretary of Agri- 13 culture that there is adequate housing 14 available in the area of intended employ- 15 ment for migrant farm workers and H–2A 16 workers who are seeking temporary hous- 17 ing while employed in agricultural work, an 18 employer in such State may provide a rea- 19 sonable housing allowance instead of offer- 20 ing housing pursuant to subparagraph (A). 21 An employer who provides a housing allow- 22 ance to a worker shall not be required to 23 reserve housing accommodations for the 24 worker. 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 8 •HR 60 IH ‘‘(ii) ASSISTANCE IN LOCATING HOUS- 1 ING.—Upon the request of a worker seek- 2 ing assistance in locating housing, an em- 3 ployer providing a housing allowance under 4 clause (i) shall make a good faith effort to 5 assist the worker in identifying and locat- 6 ing housing in the area of intended em- 7 ployment. 8 ‘‘(iii) LIMITATION.—A housing allow- 9 ance may not be used for housing that is 10 owned or controlled by the employer. An 11 employer who offers a housing allowance to 12 a worker, or assists a worker in locating 13 housing which the worker occupies under 14 this subparagraph shall not be deemed a 15 housing provider under section 203 of the 16 Migrant and Seasonal Agricultural Worker 17 Protect Act (29 U.S.C. 1823) solely by vir- 18 tue of providing such housing allowance. 19 ‘‘(iv) OTHER REQUIREMENTS.— 20 ‘‘(I) NONMETROPOLITAN COUN- 21 TY.—If the place of employment of 22 the workers provided an allowance 23 under this subparagraph is a non- 24 metropolitan county, the amount of 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 9 •HR 60 IH the housing allowance under this sub- 1 paragraph shall be equal to the state- 2 wide average fair market rental for 3 existing housing for nonmetropolitan 4 counties for the State, as established 5 by the Secretary of Housing and 6 Urban Development pursuant to sec- 7 tion 8(c) of the United States Hous- 8 ing Act of 1937 (42 U.S.C. 1437f(c)), 9 based on a 2-bedroom dwelling unit 10 and an assumption of 2 persons per 11 bedroom. 12 ‘‘(II) METROPOLITAN COUNTY.— 13 If the place of employment of the 14 workers provided an allowance under 15 this subparagraph is in a metropolitan 16 county, the amount of the housing al- 17 lowance under this subparagraph shall 18 be equal to the statewide average fair 19 market rental for existing housing for 20 metropolitan counties for the State, as 21 established by the Secretary of Hous- 22 ing and Urban Development pursuant 23 to section 8(c) of the United States 24 Housing Act of 1937 (42 U.S.C. 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 10 •HR 60 IH 1437f(c)), based on a 2-bedroom 1 dwelling unit and an assumption of 2 2 persons per bedroom. 3 ‘‘(v) INFORMATION.—If the employer 4 provides a housing allowance to H–2A em- 5 ployees, the employer shall provide a list of 6 the names and local addresses of such 7 workers to the Secretary of Agriculture 8 and the Secretary of Homeland Security 9 once per contract period.’’. 10 (j) LEGAL ASSISTANCE FROM THE LEGAL SERVICES 11 CORPORATION.—Section 218(h) of such Act (8 U.S.C. 12 1188(h)), as amended by subsection (h) of this Act, is fur- 13 ther amended by adding at the end the following: 14 ‘‘(4)(A) The Legal Services Corporation may not pro- 15 vide legal assistance for, or on behalf of, any alien, and 16 may not provide financial assistance to any person or enti- 17 ty that provides legal assistance for, or on behalf of, any 18 alien, unless— 19 ‘‘(i) the alien is present in the United States at 20 the time the legal assistance is provided; and 21 ‘‘(ii) the parties to the dispute have attempted, 22 in good faith, mediation or other non-binding dis- 23 pute resolution of all issues involving all such par- 24 ties. 25 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 11 •HR 60 IH ‘‘(B) If an employer and a nonimmigrant having sta- 1 tus under section 101(a)(15)(H)(ii)(a) have an arbitration 2 arrangement, the Legal Services Corporation shall respect 3 the arbitration process and outcome. 4 ‘‘(C) No employer of a nonimmigrant having status 5 under section 101(a)(15)(H)(ii)(a) shall be required to 6 permit any recipient of a grant or contract under section 7 1007 of the Legal Services Corporation Act (42 U.S.C. 8 2996f), or any employee of such a recipient, to enter upon 9 the employer’s property, unless such recipient or employee 10 has a pre-arranged appointment with a specific non- 11 immigrant having such status.’’. 12 (k) EFFECT OF VIOLATIONS WHILE IN UNITED 13 STATES.—Section 218(f) of such Act (8 U.S.C. 1188(f)) 14 is amended to read as follows: 15 ‘‘(f) EFFECT OF VIOLATIONS.— 16 ‘‘(1) OVERSTAYS.—An alien may not be admit- 17 ted to the United States as a nonimmigrant having 18 status under section 101(a)(15)(H)(ii)(a) if the alien 19 was admitted to the United States as such a non- 20 immigrant within the previous 5-year period and the 21 alien remained after the alien’s period of authorized 22 admission expired or otherwise violated a term or 23 condition of such previous admission. 24 VerDate Sep 11 2014 00:22 Jan 11, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H60.IH H60 pbinns on DSK79D2C42PROD with BILLS 12 •HR 60 IH ‘‘(2) FRAUD.—An alien may not be admitted to 1 the United States as a nonimmigrant having status 2 under section 101(a)(15)(H)(ii)(a) if the alien was 3 admitted to the United States as such a non- 4 immigrant on the basis of fraud. 5 ‘‘(3) OTHER CRIMES.—An alien may not be ad- 6 mitted to the United States as a nonimmigrant hav- 7 ing status under section 101(a)(15)(H)(ii)(a) if the 8 alien was admitted to the United States as such a 9 nonimmigrant and committed an offense that ren- 10 dered the alien deportable while in the United States 11 pursuant to such admission. 12 ‘‘(4) EMPLOYER BAR.—The Secretary of Agri- 13 culture may not issue a certification under sub- 14 section (a) with respect to an employer if the Sec- 15 retary finds, after notice and an opportunity for a 16 hearing, that the employer knowingly hired an H–2A 17 worker whose period of authorized admission had ex- 18 pired or that the employer otherwise engaged in 19 fraud or misrepresentation with respect to the pro- 20 gram for the admission of such workers into the 21 United States. The Secretary of Homeland Security 22 shall not thereafter approve petitions filed by such 23 employer under section 214(c). An employer that es- 24 tablishes that it has complie [Text truncated for display. Full text available on Congress.gov.]