Legal Agricultural Workforce Act - Amends the Immigration and Nationality Act to establish a W-visa nonimmigrant classification for temporary agricultural workers.
Directs the Secretary of Agriculture (USDA) to establish: (1) a nonimmigrant temporary agricultural worker program (W-visa) which shall include annual numerical limitations and monthly limitations based on enrollment requests, historical agricultural employment needs, and the reports of U.S. workers applying for agricultural employment; and (2) a trust fund to administer and enforce the program and provide a monetary incentive for such workers to return to their countries upon visa expiration.
Sets forth program provisions, including: (1) enrollment requirements, (2) a visa preference allocation system, (3) a biometric identification card requirement, (4) U.S. worker protections, and (5) visa increases due to extraordinary and unusual employment circumstances.
Makes such agricultural workers ineligible for need-based federal financial assistance.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 242 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 242
To amend the Immigration and Nationality Act to provide for a temporary
agricultural worker program, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 14, 2013
Mr. Ross 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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Legal Agricultural Workforce Act''.
SEC. 2. NONIMMIGRANT AGRICULTURAL PROGRAM.
(a) New ``W'' Nonimmigrant Classification for Nonimmigrant
Agricultural Workers.--Section 101(a)(15) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)) is amended--
(1) by striking ``or'' at the end of the subparagraph (U);
(2) by striking the period at the end of subparagraph (V)
and inserting ``; or''; and
(3) by adding at the end the following:
``(W) an alien having a residence in a foreign
country which the alien has no intention of abandoning
who is coming to the United States for a temporary
period (as defined in section 220(o)) to perform
services or labor in agricultural employment, as
defined in section 3 of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1802),
who meets the requirements specified in section 220,
and with respect to whom the Secretary of Agriculture
has notified the Secretary of Homeland Security and the
Secretary of State that the intending employer has
accepted the terms and conditions of such employment
through successful enrollment in the nonimmigrant
agricultural worker program pursuant to section
220(c).''.
(b) Establishment of Nonimmigrant Agricultural Worker Program.--
(1) In general.--Chapter 2 of title II of such Act is
amended by adding at the end the following:
``SEC. 220. NONIMMIGRANT AGRICULTURAL WORKER PROGRAM.
``(a) Establishment of Program.--
``(1) In general.--The Secretary of Agriculture, in
consultation with the Secretary of Homeland Security, shall
establish a nonimmigrant agricultural worker program (in this
section referred to as the `program') for the admission into
the United States of nonimmigrants described in section
101(a)(15)(W) (in this section referred to as `nonimmigrant
agricultural workers') and issue all relevant regulations
implementing the program.
``(2) Components of program.--The program shall include the
following components:
``(A) A process developed by the Secretary of
Agriculture for the submission of data and information
by agricultural employers that will allow such
Secretary to determine the number of nonimmigrant
agricultural workers required by month and annually for
a 10-month period.
``(B) A process developed by the Secretary of
Agriculture for the enrollment of qualified
agricultural employers in the program that requires
enrolled employers to abide by the obligations
described in subsection (f).
``(C) A process developed by the Department of
Homeland Security, based upon the determination made
under subsection (d) by the Secretary of Agriculture,
on the need for nonimmigrant agricultural workers, for
imposition of monthly and annual numerical limitations,
established under such subsection, on the issuance of
nonimmigrant visas for nonimmigrant agricultural
employment. These visas shall be made available subject
to such limitations on such workers in accordance with
the preference system established under subsection (g).
``(D) A process developed by the Secretary of
Homeland Security, in consultation with the Secretary
of Agriculture, by which such Secretaries can determine
that persons employing nonimmigrant agricultural
workers are enrolled in the program and that the
nonimmigrant agricultural workers so employed possess a
valid visa pursuant to section 101(a)(15)(W).
``(E) A nonimmigrant visa issued pursuant to
subsection (g) shall not limit the geographical area
within which an alien may be employed or limit the type
of agricultural employment the alien may perform,
except that the employment shall only be with a
qualified agricultural employer enrolled in the
program.
``(b) Pre-Enrollment Requirements.--
``(1) Recruitment of united states workers.--Not later than
30 days before filing a request to enroll in the nonimmigrant
agricultural worker program pursuant to subsection (c), each
person filing such a request shall list with the Department of
Labor's Employment and Training Administration's Electronic Job
Registry a description of the anticipated period for which
workers will be needed (expected beginning and ending dates),
as well as a description of the wages and other terms and
conditions of agricultural employment that satisfy the
disclosure requirements of sections 201 and 301 of the Migrant
and Seasonal Agricultural Worker Protection Act (29 U.S.C.
1821; 1831), except that nothing in this paragraph shall cause
such listing to be treated as an interstate job order under
section 653 of title 20, Code of Federal Regulations.
``(2) Record of united states workers.--A person or entity
shall keep a record of all eligible able, willing, and
qualified United States workers applying for employment with
the person in response to its filing on the Electronic Job
Registry and provide such record in its request to enroll filed
under subsection (c).
``(c) Enrollment in the Nonimmigrant Agricultural Worker Program.--
``(1) In general.--A person who employs individuals to
perform agricultural employment (including an association of
such persons and a person who contracts for the performance of
agricultural employment) with respect to agricultural
commodities may submit to the Secretary of Agriculture, at such
time and in such manner as the Secretary specifies, a request
for enrollment in the nonimmigrant agricultural worker program.
``(2) Information required.--The request must specify for
each month concerned--
``(A) the total number and qualifications of
nonimmigrant agricultural workers required in
agricultural employment in each month;
``(B) the type of agricultural work required to be
performed by these workers;
``(C) the anticipated period (expected beginning
and ending dates) for which workers will be needed;
``(D) a copy of the information submitted to the
Electronic Job Registry pursuant to subsection (b)(1);
and
``(E) the record of United States workers described
in subsection (b)(2) at the time of the request.
``(3) Optional information on aliens preferred.--The person
may also include a statement indicating a preference as to
country of nationality of aliens (or names of particular
aliens) desired to perform agricultural services in any such
month.
``(d) Determination of Numerical Limitations on Nonimmigrant
Agricultural Visas by Month and Annually.--Based upon requests for
enrollment described in subsection (c), and taking into consideration
the historical employment needs of agricultural employers and the
reports of United States workers applying for agricultural employment
listed on requests for enrollment, the Secretary of Agriculture shall
advise the Secretary of Homeland Security of a numerical limitation on
the issuance of nonimmigrant visas to nonimmigrant agricultural workers
sufficient to meet the labor needs of agricultural employers by month
and annually.
``(e) Standards for Approval of Requests for Enrollment.--
``(1) In general.--The Secretary of Agriculture shall
approve a request for enrollment submitted under subsection
(c)(1) if--
``(A) the person is an agricultural employer and
the worker is to be employed in agricultural work;
``(B) the request complies with the provisions of
subsection (c) and the request sets forth the need for
such workers;
``(C) the person has not employed or petitioned for
a nonimmigrant described in section
101(a)(15)(H)(ii)(a) at the time when a request on
behalf of the person is pending or granted under this
subsection, or during any previous period during which
the employer had a request granted under this section;
and
``(D) the person is not disqualified under
subsection (f)(6).
``(2) Review of certain denials.--Except as provided under
subsection (f), a person who is determined not to be eligible
under paragraph (1) (other than because of subparagraph (D)
thereof) is entitled to an expedited review of the
determination by the Secretary of Agriculture.
``(f) Obligations Under Program.--Any person whose request to
enroll in the nonimmigrant agricultural worker program has been granted
shall ensure as follows:
``(1) No displacement of the united states workers.--The
employer did not displace and will not displace a United States
worker employed by the employer, other than for good cause,
during the period of employment and for a period of 30 days
preceding the period of employment in the occupation at the
place of employment for which the employer seeks to employ
nonimmigrant agricultural workers.
``(2) Offers to united states workers.--The employer shall
offer the job to any eligible United States worker who applies
and is equally or better qualified for the job for which the
nonimmigrant is sought, and will be available at the time and
place of need. The employer shall post all such job openings on
the Electronic Job Registry administered by the Employment and
Training Administration of the Department of Labor.
``(3) Workers' compensation.--If the job opportunity is not
covered by the State workers' compensation law, the employer
will provide, at no cost to United States and nonimmigrant
agricultural workers, insurance covering injury and disease
arising out of, and in the course of, the worker's employment
which will provide benefits at least equal to those provided
under the State's workers' compensation law for comparable
employment.
``(4) Labor dispute.--The person shall not employ a
nonimmigrant agricultural worker for a specific job opportunity
for which the employer is requesting a nonimmigrant
agricultural worker because the former occupant of the job is
on strike or being locked out in the course of a labor dispute.
``(5) Not used for nonagricultural services.--The person
shall not employ a nonimmigrant agricultural worker for
services other than agricultural services.
``(6) Violation of program requirements.--If the Secretary
of Agriculture determines, after an opportunity for a hearing,
that an enrolled employer has violated this subsection the
Secretary may impose penalties, including fines and, in cases
of serious violations, the disqualification of the employer
from future enrollment in the program for a period of up to
three years.
``(g) Allocation of Visas.--
``(1) Preference system.--Nonimmigrant agricultural workers
who are subject to the numerical limitations specified in
subsection (d) shall be allotted nonimmigrant visas and work
authority as follows:
``(A) Identified workers.--Visas shall first be
made available to qualified nonimmigrant agricultural
workers specifically identified pursuant to subsection
(c)(3).
``(B) Previously employed workers.--Visas shall
next be made available to qualified nonimmigrant
agricultural workers who have previously been employed
in agricultural employment in the United States,
providing priority in consideration among such workers
in the order of the length of time in which they were
employed.
``(C) Order in which applied.--The remaining visas
shall be made available to other qualified nonimmigrant
agricultural workers strictly in the chronological
order in which they apply. Waiting lists of applicants
shall be maintained in accordance with regulations
prescribed by the Secretary of State.
``(2) Treatment of spouses and children.--A spouse or child
of such a worker is not entitled to visa or such status by
virtue of such relationship, but may be provided the same
status as such a worker if the spouse or child also is a
qualified nonimmigrant agricultural worker to perform
agricultural employment.
``(3) Criminal background check.--In addition to any other
examination required under this Act, no visa or other
documentation may be issued to an alien under section
101(a)(15)(W) until the alien has obtained successful clearance
of the security and criminal background checks specified by the
Secretary of Homeland Security for purposes of this section.
``(h) Application for an Increase Where Extraordinary and Unusual
Circumstances.--
``(1) In general.--If an agricultural employer (or
association or representative thereof) establishes that
extraordinary and unusual circumstances have resulted in a
significant change in the employer's need for nonimmigrant
agricultural workers specified in the application, or in the
availability of domestic workers who are able, willing, and
qualified to perform agricultural employment, the employer may
apply to the Secretary of Agriculture (in such form and manner
as the Secretary shall provide) for an increase in the
numerical limitations otherwise established under subsection
(d) to accommodate such emergency need. If approved, the
Secretary shall forward the application to the Secretary of
Homeland Security with a recommendation on the additional
number of nonimmigrant agricultural worker visas found
necessary.
``(2) Timely determination on application.--The Secretary
of Agriculture shall make a determination on an application
under subparagraph (A) and forward its recommendations to the
Secretary of Homeland Security within 72 hours of the date the
application is completed.
``(3) Increase in limitation.--To the extent the
application is approved, the Secretary of Homeland Security
shall provide for an appropriate increase in the appropriate
numerical limitation within 72 hours.
``(i) Entry of Workers.--
``(1) In general.--An alien may not be admitted to the
United States as a nonimmigrant agricultural worker during the
three-year period beginning on the most recent date (if any) on
which the alien violated a material term or condition of a
previous admission as a nonimmigrant agricultural worker.
``(2) Disqualification for commission of crime.--An alien
who commits a crime while in the United States as a
nonimmigrant agricultural worker shall be ineligible to retain
such status and shall be required to depart from the United
States.
``(3) Continuous employment.--Nonimmigrant agricultural
workers admitted under this program shall be continuously
employed or actively seeking employment in agricultural
employment throughout the term of their admission.
``(4) Direction of nonimmigrant agricultural workers to
employment opportunities.--The Secretary of State and Secretary
of Agriculture, in consultation with the Secretary of Labor,
shall establish a system for providing information on available
agricultural employment opportunities to individuals whose
applications for nonimmigrant agricultural visas have been
approved if those individuals are not named by an employer or
do not have a letter of employment opportunity provided by a
person enrolled in the program.
``(j) Applicability of Employment Laws.--All Federal, State, and
local employment related laws applicable to United States agricultural
workers shall apply to nonimmigrant agricultural workers admitted
pursuant to this program.
``(k) Biometric Identification Card.--The Secretary of Homeland
Security shall provide each nonimmigrant agricultural worker with an
identification card that contains--
``(1) an encrypted, machine-readable, electronic
identification strip that is unique to the alien to whom the
card is issued;
``(2) biometric identifiers, including fingerprints and a
digital photograph; and
``(3) physical security features designed to prevent
tampering, counterfeiting, or duplication of the card for
fraudulent purposes.
``(l) Trust Fund.--
``(1) Establishment.--The Secretary of Agriculture shall
establish by regulation a trust fund the purpose of which is to
provide, without further appropriation, funds for the
administration and the enforcement of the program under this
section, for the cost of the cards issued under subsection (k),
for a monetary incentive for nonimmigrant agricultural workers
to return to their country of origin upon expiration of their
visas under the program, and for payment with respect to
emergency medical services furnished to nonimmigrant
agricultural workers. The Secretary of Agriculture in
consultation with the Secretary of the Treasury shall
promulgate such other regulations as may be necessary to carry
out this subsection.
``(2) Payment of fica and futa amounts into trust fund.--In
the case of employment of a nonimmigrant agricultural worker--
``(A) the employer shall provide for payment into
the trust fund established under paragraph (1) of the
sum of--
``(i) an amount equivalent to the amount of
excise taxes which the employer would pay under
the chapter 21 of the Internal Revenue Code of
1986 with respect to such employment if it were
considered employment for the purpose of such
Act; and
``(ii) an amount equivalent to (and in lieu
of) the amount of excise taxes which the
employer would otherwise pay under chapter 23
of such Code with respect to such employment;
and
``(B) there shall be deducted from the wages of the
worker and paid into such trust fund an amount
equivalent to the amount of excise taxes that the
employee would pay under such chapter 21 with respect
to such employment if it were considered employment for
the purposes of such Act.
``(3) Expenditures from trust fund.--
``(A) Use of employer contributions for
administration.--Amounts described in paragraph (2)(A)
paid into the trust fund shall be used for the purpose
of administering and enforcing the program under this
section and for the cost of the cards issued under
subsection (k).
``(B) Use of employee contributions for repayment
of employee contributions upon return to country of
origin.--Except as provided in subparagraph (C),
amounts described in paragraph (2)(B) paid into the
trust fund with respect to a nonimmigrant agricultural
worker shall, upon application by the worker at the
United States consulate nearest the worker's residence
in the country of origin, be paid to the worker if the
worker demonstrates the compliance of the worker with
the terms and conditions of the program.
``(C) Use of employee contributions attributable to
hi taxes for emergency medical services for
nonimmigrant agricultural workers.--
``(i) In general.--Amounts described in
paragraph (2)(B) paid into the trust fund which
relate to excise tax in section 3101(b) of the
Internal Revenue Code of 1986 shall be used to
provide payment with respect to emergency
medical services (as defined in clause (iii))
for nonimmigrant agricultural workers.
``(ii) Administration.--The Secretary of
Agriculture shall establish rules, in
consultation with the Secretary of Health and
Human Services, with respect to the payments
under this subparagraph, including methods for
determining qualifications for payment and the
amount of payment to be made with respect to
emergency medical services.
``(iii) Emergency medical services
defined.--In this subparagraph, the term
`emergency medical services' means those items
and services required to be provided under
section 1867 of the Social Security Act (42
U.S.C. 1395dd) with respect to an individual
who is a nonimmigrant agricultural worker and
does not include items and services for which
coverage under workers' compensation is
required under subsection (f)(3) with respect
to the worker.
``(m) Semiannual Reports to Congress.--The Secretary of Agriculture
shall report to Congress semiannually regarding the program under this
section. Each such report shall include a statement of the number of
nonimmigrant visas issued under the program, an evaluation of the
effectiveness of the program, a description of any problems related to
the enforcement of the program, and any recommendations for legislation
relating to the program.
``(n) Miscellaneous Provisions.--
``(1) Disqualification of nonimmigrant agricultural workers
from financial assistance.--An alien admitted as a nonimmigrant
agricultural worker is not eligible for any program of
financial assistance under Federal law (whether through grant,
loan, guarantee, or otherwise) on the basis of financial need,
as such programs are identified by the Secretary of Agriculture
in consultation with other appropriate heads of the various
departments and agencies of Government.
``(2) Expansion of consulates.--The Secretary of State is
authorized to take such steps as may be necessary in order to
expand and establish consulates in foreign countries in which
aliens are likely to apply to become nonimmigrant agricultural
workers under the program to the extent such expansion is fully
covered by the funds obtained in subsection (l)(3)(A).
``(3) Preemption.--The provisions of this section preempt
any State or local law on the same subject.
``(o) Definitions.--For purposes of this section and section
101(a)(15)(W):
``(1) Agricultural employment.--The term `agricultural
employment' has the meaning given such term in section 3 of the
Migrant and Seasonal Agricultural Worker Protection Act (29
U.S.C. 1802), without regard to whether the specific service or
activity is temporary or seasonal.
``(2) Temporary period.--The term `temporary period' means
that period during which a nonimmigrant agricultural worker may
remain in the United States to perform agricultural employment,
not to exceed 10 months in any 12 month period.''.
(2) Clerical amendment.--The table of contents of such Act
is amended by inserting after the item relation to section 219
the following new item:
``Sec. 220. Nonimmigrant agricultural worker program.''.
<all>
Introduced in House
Introduced in House
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.
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.
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.
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.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Immigration And Border Security.
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