§ 2232 : ESTABLISHMENT OF NONIMMIGRANT AGRICULTURAL WORKER PROGRAM

IN GENERAL.—Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:

SEC. 218A. NONIMMIGRANT AGRICULTURAL WORKER PROGRAM.

a.

DEFINITIONS.—In this section and in clauses (iii) and (iv) of 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.

AT-WILL AGRICULTURAL WORKER.—The term at-will agricultural worker means an alien present in the United States pursuant to section 101(a)(15)(W)(iv).

3.

BLUE CARD.—The term blue card means an employment authorization and travel document issued to an alien granted blue card status under section 2211(a) of the Agricultural Worker Program Act of 2013.

4.

CONTRACT AGRICULTURAL WORKER.—The term contract agricultural worker means an alien present in the United States pursuant to section 101(a)(15)(W)(iii).

5.

DESIGNATED AGRICULTURAL EMPLOYER.—The term designated agricultural employer means an employer who is registered with the Secretary of Agriculture pursuant to subsection (e)(1).

6.

ELECTRONIC JOB REGISTRY.—The term Electronic Job Registry means the Electronic Job Registry of a State workforce agency (or similar successor registry).

7.

EMPLOYER.—Except as otherwise provided, the term employer means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.

8.

NONIMMIGRANT AGRICULTURAL WORKER.—The term nonimmigrant agricultural worker mean a nonimmigrant described in clause (iii)or (iv) of section 101(a)(15)(W).

9.

PROGRAM.—The term Program means the Nonimmigrant Agricultural Worker Program established under subsection (b).

10.

SECRETARY.—Except as otherwise specifically provided, the term Secretary means the Secretary of Agriculture.

11.

UNITED STATES WORKER.—The term United States worker means an individual who—

A.

is a national of the United States; or

B.

is an alien who—

i.

is lawfully admitted for permanent residence;

ii.

is admitted as a refugee under section 207;

iii.

is granted asylum under section 208;

iv.

holds a blue card; or

v.

is an immigrant otherwise authorized by this Act or by the Secretary of Homeland Security to be employed in the United States.

b.

REQUIREMENTS.—

1.

EMPLOYER.—An employer may not employ an alien for agricultural employment under the Program unless such employer is a designated agricultural employer and complies with the terms of this section.

2.

WORKER.—An alien may not be employed for agricultural employment under the Program unless such alien is a nonimmigrant agricultural worker and complies with the terms of this section.

c.

NUMERICAL LIMITATION.—

1.

FIRST 5 YEARS OF PROGRAM.—

A.

IN GENERAL.—Subject to paragraph (2), the worldwide level of visas for nonimmigrant agricultural workers for the fiscal year during which the first visa is issued to a nonimmigrant agricultural worker and for each of the following 4 fiscal years shall be equal to—

i.

112,333; and

ii.

the numerical adjustment made by the Secretary for such fiscal year in accordance with paragraph (2).

B.

QUARTERLY ALLOCATION.—The annual allocation of visas described in subparagraph (A) shall be evenly allocated between the 4 quarters of the fiscal year unless the Secretary determines that an alternative allocation would better accommodate the seasonal demand for visas. Any unused visas in a quarter shall be added to the allocation for the subsequent quarter of the same fiscal year.

C.

EFFECT OF 2ND OR SUBSEQUENT DESIGNATED AGRICULTURAL EMPLOYER.—A nonimmigrant agricultural worker who has a valid visa issued under this section that counted against the allocation described in subparagraph (A) shall not be recounted against the allocation if the worker is petitioned for by a subsequent designated agricultural employer.

2.

ANNUAL ADJUSTMENTS FOR FIRST 5 YEARS OF PROGRAM.—

A.

IN GENERAL.—The Secretary, in consultation with the Secretary of Labor, and after reviewing relevant evidence submitted by agricultural producers and organizations representing agricultural workers, may increase or decrease, as appropriate, the worldwide level of visas under paragraph (1) for each of the 5 fiscal years referred to in paragraph (1) after considering appropriate factors, including —

i.

a demonstrated shortage of agricultural workers;

ii.

the level of unemployment and underemployment of agricultural workers during the preceding fiscal year;

iii.

the number of applications for blue card status;

iv.

the number of blue card visa applications approved;

v.

the number of nonimmigrant agricultural workers sought by employers during the preceding fiscal year;

vi.

the estimated number of United States workers, including blue card workers, who worked in agriculture during the preceding fiscal year;

vii.

the number of nonimmigrant agricultural workers issued a visa in the most recent fiscal year who remain in the United States in compliance with the terms of such visa;

viii.

the number of United States workers who accepted jobs offered by employers using the Electronic Job Registry during the preceding fiscal year;

ix.

any growth or contraction of the United States agricultural industry that has increased or decreased the demand for agricultural workers, and

x.

any changes in the real wages paid to agricultural workers in the United States as an indication of a shortage or surplus of agricultural labor.

B.

NOTIFICATION; IMPLEMENTATION.— The Secretary shall notify the Secretary of Homeland Security of any change to the worldwide level of visas for nonimmigrant agricultural workers. The Secretary of Homeland Security shall implement such changes.

C.

EMERGENCY PROCEDURES.—The Secretary shall establish, by regulation, procedures for immediately adjusting an annual allocation under paragraph (1) for labor shortages, as determined by the Secretary. The Secretary shall make a decision on a petition for an adjustment of status not later than 30 days after receiving such petition.

3.

SIXTH AND SUBSEQUENT YEARS OF PROGRAM.—The Secretary, in consultation with the Secretary of Labor, shall establish the worldwide level of visas for nonimmigrant agricultural workers for each fiscal year following the fiscal years referred to in paragraph (1) after considering appropriate factors, including—

A.

a demonstrated shortage of agricultural workers;

B.

the level of unemployment and underemployment of agricultural workers during the preceding fiscal year;

C.

the number of applications for blue card status;

D.

the number of blue card visa applications approved;

E.

the number of nonimmigrant agricultural workers sought by employers during the preceding fiscal year;

F.

the estimated number of United States workers, including blue card workers, who worked in agriculture during the preceding fiscal year;

G.

the number of nonimmigrant agricultural workers issued a visa in the most recent fiscal year who remain in the United States in compliance with the terms of such visa;

H.

the number of United States workers who accepted jobs offered by employers using the Electronic Job Registry during the preceding fiscal year;

I.

any growth or contraction of the United States agricultural industry that has increased or decreased the demand for agricultural workers; and

J.

any changes in the real wages paid to agricultural workers in the United States as an indication of a shortage or surplus of agricultural labor.

4.

EMERGENCY PROCEDURES. — The Secretary shall establish, by regulation, procedures for immediately adjusting an annual allocation under paragraph (3) for labor shortages, as determined by the Secretary. The Secretary shall make a decision on a petition for an adjustment of status not later than 30 days after receiving such petition.

d.

REQUIREMENTS FOR NONIMMIGRANT AGRICULTURAL WORKERS.—

1.

ELIGIBILITY FOR NONIMMIGRANT AGRICULTURAL WORKER STATUS.—

A.

IN GENERAL.—An alien is not eligible to be admitted to the United States as a nonimmigrant agricultural worker if the alien—

i.

violated a material term or condition of a previous admission as a nonimmigrant agricultural worker during the most recent 3-year period (other than a contract agricultural worker who voluntarily abandons his or her employment before the end of the contract period or whose employment is terminated by the employer for cause);

ii.

has not obtained successful clearance of any security and criminal background checks required by the Secretary of Homeland Security or any other examination required under this Act; or

iii.

 I. departed from the United States while subject to an order of exclusion, deportation, or removal, or pursuant to an order of voluntary departure; and

II.

 aa. is outside of the United States; or

bb.

has reentered the United States illegally after December 31, 2012, without receiving consent to the alien’s reapplication for admission under section 212(a)(9).

B.

WAIVER.—The Secretary of Homeland Security may waive the application of subparagraph (A)(iii) on behalf of an alien if the alien—

i.

is the spouse or child of a United States citizen or lawful permanent resident;

ii.

is the parent of a child who is a United States citizen or lawful permanent resident;

iii.

meets the requirements set forth in clause (ii)or (iii) of section 245D(b)(1)(A); or

iv.

 I. meets the requirements set forth in section 245D(b)(1)(A)(ii);

II.

is 16 years or older on the date on which the alien applies for nonimmigrant agricultural status; and

III.

was physically present in the United States for an aggregate period of not less than 3 years during the 6-year period immediately preceding the date of the enactment of this section.

2.

TERM OF STAY FOR NONIMMIGRANT AGRICULTURAL WORKERS.—

A.

IN GENERAL.—

i.

INITIAL ADMISSION.—A nonimmigrant agricultural worker may be admitted into the United States in such status for an initial period of 3 years.

ii.

RENEWAL.—A nonimmigrant agricultural worker may renew such worker’s period of admission in the United States for 1 additional 3-year period.

B.

BREAK IN PRESENCE.—A nonimmigrant agricultural worker who has been admitted to the United States for 2 consecutive periods under subparagraph (A) is ineligible to renew the alien’s nonimmigrant agricultural worker status until such alien—

i.

returns to a residence outside the United States for a period of not less than 3 months; and

ii.

seeks to reenter the United States under the terms of the Program as a nonimmigrant agricultural worker.

3.

LOSS OF STATUS.—

A.

IN GENERAL.—An alien admitted as a nonimmigrant agricultural worker shall be ineligible for such status and shall be required to depart the United States if such alien—

i.

after the completion of his or her contract with a designated agricultural employer, is not employed in agricultural employment by a designated agricultural employer; or

ii.

is an at-will agricultural worker and is not continuously employed by a designated agricultural employer in agricultural employment as an at-will agricultural worker.

B.

EXCEPTION.—Subject to subparagraph (C), a nonimmigrant agricultural worker has not violated subparagraph (A) if the nonimmigrant agricultural worker is not employed in agricultural employment for a period not to exceed 60 days.

C.

WAIVER.—Notwithstanding subparagraph (B), the Secretary of Homeland Security may waive the application of clause (i) or (ii) of subparagraph (A) for a nonimmigrant agricultural worker who was not employed in agricultural employment for a period of more than 60 days if such period of unemployment was due to—

i.

the injury of such worker; or

ii.

a natural disaster declared by the Secretary.

D.

TOLLING OF EMPLOYMENT REQUIREMENT.—A nonimmigrant agricultural worker may leave the United States for up to 60 days in any fiscal year while in such status. During the period in which the worker is outside of the United States, the 60-day limit specified in subparagraph (B) shall be tolled.

4.

PORTABILITY OF STATUS.—

A.

CONTRACT AGRICULTURAL WORKERS.—

i.

IN GENERAL.—Except as provided in clause (ii), an alien who entered the United States as a contract agricultural worker may—

I.

seek employment as a nonimmigrant agricultural worker with a designated agricultural employer other than the designated agricultural employer with whom the employee had a contract described in section 101(a)(15)(W)(iii)(I); and

II.

accept employment with such new employer after the date the contract agricultural worker completes such contract.

ii.

VOLUNTARY ABANDONMENT; TERMINATION FOR CAUSE.—A contract agricultural worker who voluntarily abandons his or her employment before the end of the contract period or whose employment is terminated for cause by the employer—

I.

may not accept subsequent employment with another designated agricultural employer without first departing the United States and reentering pursuant to a new offer of employment; and

II.

is not entitled to the 75 percent payment guarantee described in subsection (e)(4)(B).

iii.

TERMINATION BY MUTUAL AGREEMENT.—The termination of an employment contract by mutual agreement of the designated agricultural employer and the contract agricultural worker shall not be considered voluntary abandonment for purposes of clause (ii).

B.

AT-WILL AGRICULTURAL WORKERS.—An alien who entered the United States as an at-will agricultural worker may seek employment as an at-will agricultural worker with any other designated agricultural employer referred to in section 101(a)(15)(W)(iv)(I).

5.

PROHIBITION ON GEOGRAPHIC LIMITATION.—A nonimmigrant visa issued to a nonimmigrant agricultural worker—

A.

shall not limit the geographical area within which such worker may be employed;

B.

shall not limit the type of agricultural employment such worker may perform; and

C.

shall restrict such worker to employment with designated agricultural employers.

6.

TREATMENT OF SPOUSES AND CHILDREN.—A spouse or child of a nonimmigrant agricultural worker—

A.

shall not be entitled to a visa or any immigration status by virtue of the relationship of such spouse or child to such worker; and

B.

may be provided status as a nonimmigrant agricultural worker if the spouse or child is independently qualified for such status.

e.

EMPLOYER REQUIREMENTS.—

1.

DESIGNATED AGRICULTURAL EMPLOYER STATUS.—

A.

REGISTRATION REQUIREMENT.— Each employer seeking to employ nonimmigrant agricultural workers shall register for designated agricultural employer status by submitting to the Secretary, through the Farm Service Agency in the geographic area of the employer or electronically to the Secretary, a registration that includes—

i.

the employer’s employer identification number; and

ii.

a registration fee, in an amount determined by the Secretary, which shall be used for the costs of administering the program.

B.

CRITERIA.—The Secretary shall grant designated agricultural employer status to an employer who submits a registration for such status that includes—

i.

documentation that the employer is engaged in agriculture;

ii.

the estimated number of nonimmigrant agricultural workers the employer will need each year;

iii.

the anticipated periods during which the employer will need such workers; and

iv.

documentation establishing need for a specified agricultural occupation or occupations.

C.

DESIGNATION.—

i.

REGISTRATION NUMBER.—The Secretary shall assign each employer that meets the criteria established pursuant to subparagraph (B) with a designated agricultural employer registration number.

ii.

TERM OF DESIGNATION.—Each employer granted designated agricultural employer status under this paragraph shall retain such status for a term of 3 years. At the end of such 3-year term, the employer may renew the registration for another 3-year term if the employer meets the requirements set forth in subparagraphs (A) and (B).

D.

ASSISTANCE.—In carrying out the functions described in this subsection, the Secretary may work through the Farm Service Agency, or any other agency in the Department of Agriculture—

i.

to assist agricultural employers with the registration process under this paragraph by providing such employers with—

I.

technical assistance and expertise;

II.

internet access for submitting such applications; and

III.

a nonelectronic means for submitting such registrations; and

ii.

to provide resources about the Program, including best practices and compliance related assistance and resources or training to assist in retention of such workers to agricultural employers.

E.

DEPOSIT OF REGISTRATION FEE.—Fees collected pursuant to subparagraph (A)(ii) —

i.

shall be deposited into the Immigration Examinations Fee Account pursuant to section 286(m); and

ii.

shall remain available until expended pursuant to section 286(n).

2.

NONIMMIGRANT AGRICULTURAL WORKER PETITION PROCESS.—

A.

IN GENERAL.—Not later than 45 days before the date on which nonimmigrant agricultural workers are needed, a designated agricultural employer seeking to employ such workers shall submit a petition to the Secretary of Homeland Security that includes the employer’s designated agricultural employer registration number.

B.

ATTESTATION.—A petition submitted under subparagraph (A) shall include an attestation of the following

i.

The number of named or unnamed nonimmigrant agricultural workers the designated agricultural employer is seeking to employ during the applicable period of employment.

ii.

The total number of contract agricultural workers and of at-will agricultural workers the employer will require for each occupational category.

iii.

The anticipated period, including expected beginning and ending dates, during which such employees will be needed;

iv.

Evidence of contracts or written disclosures of employment terms and conditions in accordance with the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.), which have been disclosed or provided to the nonimmigrant agricultural workers, or a sample of such contract or disclosure for unnamed workers.

v.

The information submitted to the State workforce agency pursuant to paragraph (3)(A)(i).

vi.

The record of United States workers described in paragraph (3)(A)(iii) on the date of the request.

vii.

Evidence of offers of employment made to United States workers as required under paragraph (3)(B).

viii.

The employer will comply with the additional program requirements for designated agricultural employers described in paragraph (4).

C.

EMPLOYMENT AUTHORIZATION WHEN CHANGING EMPLOYERS.—Nonimmigrant agricultural workers in the United States who are identified in a petition submitted pursuant to subparagraph (A) and are in lawful status may commence employment with their designated agricultural employer after such employer has submitted such petition to the Secretary of Homeland Security.

D.

REVIEW.—The Secretary of Homeland Security shall review each petition submitted by designated agricultural employers under this paragraph for completeness or obvious inaccuracies. Unless the Secretary of Homeland Security determines that the petition is incomplete or obviously inaccurate, the Secretary shall accept the petition. The Secretary shall establish a procedure for the processing of petitions filed under this subsection. Not later than 7 working days after the date of the filing, the Secretary, by electronic or other means assuring expedited delivery, shall submit a copy of notice of approval or denial of the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate, as appropriate, if the petitioner has indicated that the alien beneficiary or beneficiaries will apply for a visa or admission to the United States.

3.

EMPLOYMENT OF UNITED STATES WORKERS.—

A.

RECRUITMENT.—

i.

FILING A JOB OPPORTUNITY WITH LOCAL OFFICE OF STATE WORKFORCE AGENCY.—Not later than 60 days before the date on which the employer desires to employ a nonimmigrant agricultural worker, the employer shall submit the job opportunity for such worker to the local office of the State workforce agency where the job site is located and authorize the posting of the job opportunity on the appropriate Department of Labor Electronic Job Registry for a period of 45 days.

ii.

CONSTRUCTION.—Nothing in clause (i) may be construed to cause a posting referred to in clause (i) to be treated as an interstate job order under section 653.500 of title 20, Code of Federal Regulations (or similar successor regulation).

iii.

RECORD OF UNITED STATES WORKERS.—An employer shall keep a record of all eligible, able, willing, and qualified United States workers who apply for agricultural employment with the employer for the agricultural employment for which the nonimmigrant agricultural nonimmigrant workers are sought.

B.

REQUIREMENT TO HIRE.—

i.

UNITED STATES WORKERS.—An employer may not seek a nonimmigrant agricultural worker for agricultural employment unless the employer offers such employment to any equally or better qualified United States worker who will be available at the time and place of need and who applies for such employment during the 45-day recruitment period referred to in subparagraph (A)(i).

ii.

EXCEPTION. —Notwithstanding clause (i), the employer may offer the job to a nonimmigrant agricultural worker , instead of an alien in blue card status if —

I.

such worker was previously employed by the employer as an H–2A worker;

II.

such worker worked for the employer for 3 years during the most recent 4-year period; and

III.

the employer pays such worker the adverse effect wage rate calculated under subsection (f)(5)(B).

4.

ADDITIONAL PROGRAM REQUIREMENTS FOR DESIGNATED AGRICULTURAL EMPLOYERS.— Each designated agricultural employer shall comply with the following requirements:

A.

NO DISPLACEMENT OF UNITED STATES WORKERS.—

i.

IN GENERAL.—The employer shall not displace a United States worker employed by the employer, other than for good cause, during the period of employment of the nonimmigrant agricultural worker and for a period of 30 days preceding such period in the occupation and at the location of employment for which the employer seeks to employ nonimmigrant agricultural workers.

ii.

LABOR DISPUTE.—The employer shall not employ a nonimmigrant agricultural worker for a specific job 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.

B.

GUARANTEE OF EMPLOYMENT FOR CONTRACT AGRICULTURAL WORKERS.—

i.

OFFER TO CONTRACT WORKER.— The employer shall guarantee to offer contract agricultural workers employment for the hourly equivalent of at least 75 percent of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. In this clause, the term hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker’s Sabbath and Federal holidays. If the employer affords the contract agricultural worker less employment than the number of hours required under this subparagraph, the employer shall pay such worker the amount the worker would have earned had the worker worked the guaranteed number of hours.

ii.

FAILURE TO WORK.—Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker’s Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.

iii.

CONTRACT IMPOSSIBILITY.—If, before the expiration of the period of employment specified in the job offer, the services of a contract agricultural worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in clause (i) is fulfilled, the employer—

I.

may terminate the worker’s employment;

II.

shall fulfill the employment guarantee described in clause (i) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment;

III.

shall make efforts to transfer the worker to other comparable employment acceptable to the worker; and

IV.

if such a transfer does not take place, shall provide the return transportation required under subparagraph (J).

C.

WORKERS’ COMPENSATION.—

i.

REQUIREMENT TO PROVIDE.—If a job referred to in paragraph (3) is not covered by the State workers’ compensation law, the employer shall provide, at no cost to the nonimmigrant agricultural worker, insurance covering injury and disease arising out of, and in the course of, such job.

ii.

BENEFITS.—The insurance required to be provided under clause (i) shall provide benefits at least equal to those provided under and pursuant to the State workers’ compensation law for comparable employment.

D.

PROHIBITION FOR USE FOR NONAGRICULTURAL SERVICES.—The employer may not employ a nonimmigrant agricultural worker for employment other than agricultural employment.

E.

WAGES.—The employer shall pay not less than the wage required under subsection (f).

F.

DEDUCTION OF WAGES.—The employer shall make only deductions from a nonimmigrant agricultural worker’s wages that are authorized by law and are reasonable and customary in the occupation and area of employment of such worker.

G.

REQUIREMENT TO PROVIDE HOUSING OR A HOUSING ALLOWANCE.—

i.

IN GENERAL.—Except as provided in clauses (iv) and (v), a designated agricultural employer shall offer to provide a nonimmigrant agricultural worker with housing at no cost in accordance with clause (ii) or (iii).

ii.

HOUSING.—An employer may provide housing to a nonimmigrant agricultural worker that meets—

I.

applicable Federal standards for temporary labor camps; or

II.

applicable local standards (or, in the absence of applicable local standards, State standards) for rental or public accommodation housing or other substantially similar class of habitation.

iii.

HOUSING PAYMENTS.—

I.

PUBLIC HOUSING.—If the employer arranges public housing for nonimmigrant agricultural workers through a State, county, or local government program and such public housing units normally require payments from tenants, such payments shall be made by the employer directly to the landlord.

II.

DEPOSITS.—Deposits for bedding or other similar incidentals related to housing shall not be collected from workers by employers who provide housing for such workers.

III.

DAMAGES.—The employer may require any worker who is responsible for damage to housing that did not result from normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repairing such damage.

iv.

HOUSING ALLOWANCE ALTERNATIVE.—

I.

IN GENERAL.—The employer may provide a reasonable housing allowance instead of providing housing under clause (i). Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker or assists a worker in locating housing, which the worker occupies shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of providing such housing allowance. No housing allowance may be used for housing that is owned or controlled by the employer.

II.

CERTIFICATION REQUIREMENT.—Contract agricultural workers may only be provided a housing allowance if the Governor of the State in which the place of employment is located certifies to the Secretary that there is adequate housing available in the area of intended employment for migrant farm workers and contract agricultural workers who are seeking temporary housing while employed in agricultural work. Such certification shall expire after 3 years unless renewed by the Governor of the State.

III.

AMOUNT OF ALLOWANCE.—

aa.

NONMETROPOLITAN COUNTIES.—If the place of employment of the workers provided an allowance under this clause is a nonmetropolitan county, the amount of the housing allowance under this clause shall be equal to the average fair market rental for existing housing in nonmetropolitan counties in the State in which the place of employment is located, as established by the Secretary of Housing 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.

bb.

METROPOLITAN COUNTIES.—If the place of employment of the workers provided an allowance under this clause is a metropolitan county, the amount of the housing allowance under this clause shall be equal to the average fair market rental for existing housing in metropolitan counties in the State in which the place of employment is located, as established by the Secretary of Housing 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.

EXCEPTION FOR COMMUTING WORKERS.—Nothing in this subparagraph may be construed to require an employer to provide housing or a housing allowance to workers who reside outside of the United States if their place of residence is within normal commuting distance and the job site is within 50 miles of an international land border of the United States.

H.

WORKSITE TRANSPORTATION FOR CONTRACT WORKERS.—During the period a designated agricultural employer employs a contract agricultural worker, such employer shall, at the employer’s option, provide or reimburse the contract agricultural worker for the cost of daily transportation from the contract worker’s living quarters to the contract agricultural worker’s place of employment.

I.

REIMBURSEMENT OF TRANSPORTATION TO THE PLACE OF EMPLOYMENT.—

i.

IN GENERAL.—A nonimmigrant agricultural worker shall be reimbursed by the first employer for the cost of the worker’s transportation and subsistence from the place from which the worker came from to the place of first employment.

ii.

LIMITATION.—The amount of reimbursement provided under clause (i) to a worker shall not exceed the lesser of—

I.

the actual cost to the worker of the transportation and subsistence involved; or

II.

the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

J.

REIMBURSEMENT OF TRANSPORTATION FROM PLACE OF EMPLOYMENT.—

i.

IN GENERAL.—A contract agricultural worker who completes at least 27 months under his or her contract with the same designated agricultural employer shall be reimbursed by that employer for the cost of the worker’s transportation and subsistence from the place of employment to the place from which the worker came from abroad to work for the employer.

ii.

LIMITATION.—The amount of reimbursement required under clause (i) shall not exceed the lesser of—

I.

the actual cost to the worker of the transportation and subsistence involved; or

II.

the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

f.

WAGES.—

1.

WAGE RATE REQUIREMENT.—

A.

IN GENERAL.—A nonimmigrant agricultural worker employed by a designated agricultural employer shall be paid not less than the wage rate for such employment set forth in paragraph (3).

B.

WORKERS PAID ON A PIECE RATE OR OTHER INCENTIVE BASIS.—If an employer pays by the piece rate or other incentive method and requires 1 or more minimum productivity standards as a condition of job retention, such standards shall be specified in the job offer and be no more than those which have been normally required (at the time of the employee’s first application for designated employer status) by other employers for the activity in the geographic area of the job, unless the Secretary approves a higher standard.

2.

JOB CATEGORIES.—

A.

IN GENERAL—For purposes of paragraph (1), each nonimmigrant agricultural worker employed by such employer shall be assigned to 1 of the following standard occupational classifications, as defined by the Bureau of Labor Statistics:

i.

First-Line Supervisors of Farming, Fishing, and Forestry Workers (45–1011).

ii.

Animal Breeders (45-2021).

iii.

Graders and Sorters, Agricultural Products (45–2041).

iv.

Agricultural equipment operator (45– 2091).

v.

Farmworkers and Laborers, Crop, Nursery, and Greenhouse (45–2092).

vi.

Farmworkers, Farm, Ranch and Aquacultural Animals (45-2093).

B.

DETERMINATION OF CLASSIFICATION.—A nonimmigrant agricultural worker is employed in a standard occupational classification described in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (A) if the worker performs activities associated with that occupational classification, as specified on the employer’s petition, for at least 75 percent of the time in a semiannual employment period.

3.

DETERMINATION OF WAGE RATE.—

A.

CALENDAR YEARS 2014 THROUGH 2016.— The wage rate under this subparagraph for calendar years 2014 through 2016 shall be the higher of—

i.

the applicable Federal, State or local minimum wage; or

ii.

 I. for the category described in paragraph [Schumer1](2)(A)(iii) —

aa.

$9.37 for calendar year 2014;

bb.

$9.60 for calendar year 2015; and

cc.

$9.84 for calendar year 2016;

II.

for the category described in paragraph [Schumer1](2)(A)(iv) —

aa.

$11.30 for calendar year 2014;

bb.

$11.58 for calendar year 2015; and

cc.

$11.87 for calendar year 2016;

III.

for the category described in paragraph [Schumer1](2)(A)(v) —

aa.

$9.17 for calendar year 2014;

bb.

$9.40 for calendar year 2015; and

cc.

$9.64 for calendar year 2016; and

IV.

for the category described in paragraph [Schumer1](2)(A)(vi) —

aa.

$10.82 for calendar year 2014;

bb.

$11.09 for calendar year 2015; and

cc.

$11.37 for calendar year 2016;

B.

SUBSEQUENT YEARS.—The Secretary shall increase the hourly wage rates set forth in clauses (i) through (iv) of subparagraph (A), for each calendar year after the calendar years described in subparagraph (A) by an amount equal to—

i.

1.5 percent, if the percentage increase in the Employment Cost Index for wages and salaries during the previous calendar year, as calculated by the Bureau of Labor Statistics, is less than 1.5 percent;

ii.

the percentage increase in such Employment Cost Index, if such percentage increase is between 1.5 percent and 2.5 percent, inclusive; or

iii.

2.5 percent, if such percentage increase is greater than 2.5 percent.

C.

AGRICULTURAL SUPERVISORS AND ANIMAL BREEDERS.—Not later than September 1, 2015, and annually thereafter, the Secretary, in consultation with the Secretary of Labor, shall establish the required wage for the next calendar year for each of the job categories set out in [Schumer1]clauses (i) and (ii) of paragraph (2)(A).

D.

SURVEY BY BUREAU OF LABOR STATISTICS.—Not later than April 15, 2015, the Bureau of Labor Statistics shall consult with the Secretary to expand the Occupational Employment Statistics Survey to survey agricultural producers and contractors and produce improved wage data by State and the job categories set out in clauses (i) through (vi) of subparagraph (A).

4.

CONSIDERATION.—In determining the wage rate under paragraph (3)(C), the Secretary may consider appropriate factors, including—

A.

whether the employment of additional alien workers at the required wage will adversely affect the wages and working conditions of workers in the United States similarly employed;

B.

whether the employment in the United States of an alien admitted under section 101(a)(15)(H)(ii)(a)or unauthorized aliens in the agricultural workforce has depressed wages of United States workers engaged in agricultural employment below the levels that would otherwise have prevailed if such aliens had not been employed in the United States;

C.

whether wages of agricultural workers are sufficient to support such workers and their families at a level above the poverty thresholds determined by the Bureau of Census;

D.

the wages paid workers in the United States who are not employed in agricultural employment but who are employed in comparable employment;

E.

the continued exclusion of employers of nonimmigrant alien workers in agriculture from the payment of taxes under chapter 21 of the Internal Revenue Code of 1986 (26 U.S.C. 3101 et seq.) and chapter 23 of such Code (26 U.S.C. 3301 et seq.);

F.

the impact of farm labor costs in the United States on the movement of agricultural production to foreign countries;

G.

a comparison of the expenses and cost structure of foreign agricultural producers to the expenses incurred by agricultural producers based in the United States; and

H.

the accuracy and reliability of the Occupational Employment Statistics Survey.

5.

ADVERSE EFFECT WAGE RATE.—

A.

PROHIBITION OF MODIFICATION.— The adverse effect wage rates in effect on April 15, 2013, for nonimmigrants admitted under 101(a)(15)(H)(ii)(a)—

i.

shall remain in effect until the date described in section 2233 of the Agricultural Worker Program Act of 2013; and

ii.

may not be modified except as provided in subparagraph (B).

B.

EXCEPTION.—Until the Secretary establishes the wage rates required under paragraph (3)(C), the adverse effect wage rates in effect on the date of the enactment of the Agricultural Worker Program Act of 2013 shall be—

i.

deemed to be such wage rates; and

ii.

after September 1, 2015, adjusted annually in accordance with paragraph (3)(B).

C.

NONPAYMENT OF FICA AND FUTA TAXES.—An employer employing nonimmigrant agricultural workers shall not be required to pay and withhold from such workers —

i.

the tax required under section 3101 of the Internal Revenue Code of 1986; or

ii.

the tax required under section 3301 of the Internal Revenue Code of 1986.

6.

PREFERENTIAL TREATMENT OF ALIENS PROHIBITED.—

A.

IN GENERAL.— Except as provided in subparagraph (B), employers seeking to hire United States workers shall offer the United States workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to nonimmigrant agricultural workers. No job offer may impose on United States workers any restrictions or obligations that will not be imposed on the employer’s nonimmigrant agricultural workers.

B.

EXCEPTION.—Notwithstanding subparagraph (A), a designated agricultural employer is not required to provide housing or a housing allowance to United States workers.

g.

WORKER PROTECTIONS AND DISPUTE RESOLUTION.—

1.

EQUALITY OF TREATMENT.—Nonimmigrant agricultural workers shall not be denied any right or remedy under any Federal, State, or local labor or employment law applicable to United States workers engaged in agricultural employment.

2.

APPLICABILITY OF THE MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT.—

A.

MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT.—Nonimmigrant agricultural workers shall be considered migrant agricultural workers for purposes of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.).

B.

ELIGIBILITY OF NONIMMIGRANT AGRICULTURAL WORKERS FOR CERTAIN LEGAL ASSISTANCE.—A nonimmigrant agricultural worker shall be considered to be lawfully admitted for permanent residence for purposes of establishing eligibility for legal services under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) on matters relating to wages, housing, transportation, and other employment rights.

C.

MEDIATION.—

i.

FREE MEDIATION SERVICES.— The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under this section between nonimmigrant agricultural workers and designated agricultural employers without charge to the parties.

ii.

COMPLAINT.—If a nonimmigrant agricultural worker files a complaint under section 504 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1854), not later than 60 days after the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute.

iii.

NOTICE.—Upon filing a request under clause (ii) and giving of notice to the parties, the parties shall attempt mediation within the period specified in clause (iv).

iv.

90-DAY LIMIT.—The Federal Mediation and Conciliation Service may conduct mediation or other nonbinding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives a request for assistance under clause (ii) unless the parties agree to an extension of such period.

v.

AUTHORIZATION OF APPROPRIATIONS.—

I.

IN GENERAL.—Subject to clause (II), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this subparagraph.

II.

MEDIATION.—Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized—

aa.

to conduct the mediation or other dispute resolution activities from any other account containing amounts available to the Director; and

bb.

to reimburse such account with amounts appropriated pursuant to subclause (I).

vi.

PRIVATE MEDIATION.—If all parties agree, a private mediator may be employed as an alternative to the Federal Mediation and Conciliation Service.

3.

OTHER RIGHTS.—Nonimmigrant agricultural workers shall be entitled to the rights granted to other classes of aliens under sections 242(h) and 245E.

4.

WAIVER OF RIGHTS.—Agreements by nonimmigrant agricultural workers to waive or modify any rights or protections under this section shall be considered void or contrary to public policy except as provided in a collective bargaining agreement with a bona fide labor organization.

h.

ENFORCEMENT AUTHORITY.—

1.

INVESTIGATION OF COMPLAINTS.—

A.

AGGRIEVED PERSON OR THIRD-PARTY COMPLAINTS.—

i.

PROCESS.—The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a designated agricultural employer’s failure to meet a condition specified in subsection (e), or an employer’s misrepresentation of material facts in a petition under subsection (e)(2).

ii.

FILING.—Any aggrieved person or organization, including bargaining representatives, may file a complaint referred to in clause (i) not later than 1 year after the date of the failure or misrepresentation, respectively.

iii.

INVESTIGATION OR HEARING.— The Secretary of Labor shall conduct an investigation if there is reasonable cause to believe that such failure or misrepresentation has occurred.

B.

DETERMINATION ON COMPLAINT.— Under such process, the Secretary of Labor shall provide, not later than 30 days after the date on which such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (F). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary of Labor may consolidate the hearings under this subparagraph on such complaints.

C.

FAILURE TO MEET CONDITIONS.—If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition under subsection (e) or (f), or a material misrepresentation of fact in a petition under subsection (e)(2)—

i.

the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; and

ii.

the Secretary may disqualify the designated agricultural employer from the employment of nonimmigrant agricultural workers for a period of 1 year.

D.

WILLFUL FAILURES AND WILLFUL MISREPRESENTATIONS.—If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition under subsection (e) or (f) or a willful misrepresentation of a material fact in a registration or petition under paragraph (1) or (2) of subsection (e)—

i.

the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;

ii.

the Secretary of Labor may seek appropriate legal or equitable relief ; and

iii.

the Secretary may disqualify the designated agricultural employer from the employment of nonimmigrant agricultural workers for a period of 2 years.

E.

DISPLACEMENT OF UNITED STATES WORKERS.—If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition under subsection (e) or (f) or a willful misrepresentation of a material fact in a registration or petition under paragraph (1) or (2) of subsection (e), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer’s petition under subsection (e)(2) or during the period of 30 days preceding such period of employment—

i.

the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; and

ii.

the Secretary may disqualify the employer from the employment of nonimmigrant agricultural workers for a period of 3 years.

F.

FAILURES TO PAY WAGES OR REQUIRED BENEFITS.—If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment required under subsections (e)(4) and (f), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or nonimmigrant agricultural worker employed by the employer in the specific employment in question. The back wages or other required benefits required under subsections (e) and (f) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

G.

DISPOSITION OF PENALTIES.—Civil penalties collected under this paragraph shall be deposited into the Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)of the Border Security, Economic Opportunity, and Immigration Modernization Act.

2.

LIMITATIONS ON CIVIL MONEY PENALTIES.—The Secretary of Labor shall not impose total civil money penalties with respect to a petition under subsection (e)(2) in excess of $90,000.

3.

ELECTION.—A nonimmigrant agricultural worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action unless a complaint based on the same violation filed with the Secretary of Labor under paragraph (1) is withdrawn before the filing of such action, in which case the rights and remedies available under this subsection shall be exclusive.

4.

PRECLUSIVE EFFECT.—Any settlement by a nonimmigrant agricultural worker, a designated agricultural employer, or any person reached through the mediation process required under subsection (g)(2)(C) shall preclude any right of action arising out of the same facts between the parties in any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.

5.

SETTLEMENTS.—Any settlement by the Secretary of Labor with a designated agricultural worker on behalf of a nonimmigrant agricultural worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under this subsection shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.

6.

STATUTORY CONSTRUCTION.—Nothing in this subsection may be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section.

7.

DISCRIMINATION PROHIBITED.—It is a violation of this subsection for any person who has filed a petition under subsection (e) or (f) to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee, including a former employee or an applicant for employment, because the employee—

A.

has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of subsection (e) or (f), or any rule or regulation relating to subsection (e) or (f); or

B.

cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements under subsection (e) or (f) or any rule or regulation pertaining to subsection (e) or (f).

8.

ROLE OF ASSOCIATIONS.—

A.

VIOLATION BY A MEMBER OF AN ASSOCIATION.—

i.

IN GENERAL.—If an association acting as the agent of an employer files an application on behalf of such employer, the employer is fully responsible for such application, and for complying with the terms and conditions of subsection (e). If such an employer is determined to have violated any requirement described in this subsection, the penalty for such violation shall apply only to that employer except as provided in clause (ii).

ii.

COLLECTIVE RESPONSIBILITY.— If the Secretary of Labor determines that the association or other members of the association participated in, had knowledge of, or reason to know of a violation described in clause (i), the penalty shall also be invoked against the association and complicit association members.

B.

VIOLATIONS BY AN ASSOCIATION ACTING AS AN EMPLOYER.—

i.

IN GENERAL.—If an association filing an application as a sole or joint employer is determined to have violated any requirement described in this section, the penalty for such violation shall apply only to the association except as provided in clause (ii).

ii.

MEMBER RESPONSIBILITY.—If the Secretary of Labor determines that 1 or more association members participated in, had knowledge of, or reason to know of the violation described in clause (i), the penalty shall be invoked against all complicit association members.

i.

SPECIAL NONIMMIGRANT VISA PROCESSING AND WAGE DETERMINATION PROCEDURES FOR CERTAIN AGRICULTURAL OCCUPATIONS.—

1.

FINDING.—Certain industries possess unique occupational characteristics that necessitate the Secretary of Agriculture adopt special procedures relating to housing, pay, and visa program application requirements for those industries.

2.

SPECIAL PROCEDURES INDUSTRY DEFINED.—In this subsection, the term Special Procedures Industry means—

A.

sheepherding and goat herding;

B.

itinerant commercial beekeeping and pollination;

C.

open range production of livestock;

D.

itinerant animal shearing; and

E.

custom combining industries;

3.

WORK LOCATIONS.—The Secretary shall allow designated agricultural employers in a Special Procedures Industry that do not operate in a single fixed-site location to provide, as part of its registration or petition under the Program, a list of anticipated work locations, which—

A.

may include an anticipated itinerary; and

B.

may be subsequently amended by the employer, after notice to the Secretary.

4.

WAGE RATES.—The Secretary may establish monthly, weekly, or biweekly wage rates for occupations in a Special Procedures Industry for a State or other geographic area. For an employer in those Special Procedures Industries that typically pay a monthly wage, the Secretary shall require that workers will be paid not less frequently than monthly and at a rate no less than the legally required monthly cash wage for such employer as of the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act and in an amount as re-determined annually by the Secretary of Agriculture through rulemaking.

5.

HOUSING.—The Secretary shall allow for the provision of housing or a housing allowance by employers in Special Procedures Industries and allow housing suitable for workers employed in remote locations.

6.

ALLERGY LIMITATION.—An employer engaged in the commercial beekeeping or pollination services industry may require that an applicant be free from bee pollen, venom, or other bee-related allergies.

7.

APPLICATION.—An individual employer in a Special Procedures Industry may file a program petition on its own behalf, or in conjunction with an association of employers. The employer’s petition may be part of several related petitions submitted simultaneously that constitute a master petition.

8.

RULEMAKING.—The Secretary or, as appropriate, the Secretary of Homeland Security or the Secretary of Labor, after consultation with employers and employee representatives, shall publish for notice and comment proposed regulations relating to housing, pay and application procedures for Special Procedures Industries.

j.

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 in consultation with other agencies of the United States.

2.

MONITORING REQUIREMENT.—

A.

IN GENERAL.—The Secretary shall monitor the movement of nonimmigrant agricultural workers through—

i.

the Employment Verification System described in section 274A(b); and

ii.

the electronic monitoring system established pursuant to subparagraph (B).

B.

ELECTRONIC MONITORING SYSTEM.— Not later than 2 years after the effective date of this section, the Secretary of Homeland Security, through the Director of U.S. Citizenship and Immigration Services, shall establish an electronic monitoring system, which shall—

i.

be modeled on the Student and Exchange Visitor Information System (SEVIS) and the SEVIS II tracking system administered by U.S. Immigration and Customs Enforcement;

ii.

monitor the presence and employment of nonimmigrant agricultural workers; and

iii.

assist in ensuring the compliance of designated agricultural employers and nonimmigrant agricultural workers with the requirements of the Program.