Section 1 Short title
This Act may be cited as the “Bracero Program 2.0 Act”.
Bracero Program 2.0 Act
A BILL
To reform the H–2A worker program, and for other purposes.
Sec. 2 Reforms to employer processes under H–2A program
Establishment of portal— Not later than 18 months after the date of enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of Labor, shall establish and implement an online portal for use by employers to—
file a petition to import an alien as an H–2A worker (as such term is defined in section 218 of the Immigration and Nationality Act (8 U.S.C. 1188)); and
post a job on an electronic job registry, which posting shall satisfy any requirement to advertise a job.
Portal requirements for petitions— The Secretary of Homeland Security shall ensure that a petition filed using the portal established under this subsection—
may be processed simultaneously by the Secretary, the Secretary of Labor, and a State Workforce Agency; and
may reflect staggered labor needs and staggered date of entry needs of the employer in a single petition.
Sec. 3 H–2A wage reform; period of authorized admission
Section 218 of the Immigration and Nationality Act is amended—
by redesignating subsections (g) through (i) as subsections (j) through (l), respectively; and
by inserting after subsection (f) the following:
“(g) Wage rate—For purposes of this section, a wage rate for an H–2A worker that is equal to the applicable minimum wage of the State in which the labor or services will be performed plus $2.00 per hour shall be considered to not adversely affect the wages of workers in the United States similarly employed.
“(h) Period of authorized admission—The period of authorized admission for an H–2A worker shall be one year.
“(i) Expedited review of returning workers—An alien seeking admission to the United States as an H–2A worker who has previously been admitted as an H–2A worker and who the Secretary of Homeland Security determines pursuant to security and law enforcement background checks does not pose a criminal or national security threat to the United States shall not be required to undergo an in-person interview.”
Sec. 4 Portable H–2A visa pilot program
Establishment of pilot program—
In general— Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of Agriculture, shall establish through regulation a 6-year pilot program to facilitate the free movement and employment of temporary or seasonal H–2A workers to perform agricultural labor or services for agricultural employers registered with the Secretary of Agriculture within the State in which the worker is initially admitted to be employed. Notwithstanding the requirements of section 218 of the Immigration and Nationality Act, such regulation shall establish the requirements for the pilot program, consistent with subsection (b). For purposes of this section, such a worker shall be referred to as a portable H–2A worker, and status as such a worker shall be referred to as portable H–2A status.
Online platform— The Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of Agriculture, shall maintain an online electronic platform to connect portable H–2A workers with registered agricultural employers seeking workers to perform temporary or seasonal agricultural labor or services. Employers shall post on the platform available job opportunities, including a description of the nature and location of the work to be performed, the anticipated period or periods of need, and the terms and conditions of employment. Such platform shall allow portable H–2A workers to search for available job opportunities using relevant criteria, including the types of jobs needed to be filled and the dates and locations of need.
Limitation— Notwithstanding the issuance of the regulation described in paragraph (1), the Secretary of State may not issue a portable H–2A visa and the Secretary of Homeland Security may not confer portable H–2A status on any alien until the Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of Agriculture, has determined that a sufficient number of employers have been designated as registered agricultural employers under subsection (b)(1) and that such employers have sufficient job opportunities to employ a reasonable number of portable H–2A workers to initiate the pilot program.
Pilot program elements— The pilot program in subsection (a) shall contain the following elements:
Registered agricultural employers—
Designation— Agricultural employers shall be provided the ability to seek designation as registered agricultural employers. Reasonable fees may be assessed commensurate with the cost of processing applications for designation. A designation shall be valid for a period of up to 3 years unless revoked for failure to comply with program requirements. Registered employers that comply with program requirements may apply to renew such designation for additional periods of up to 3 years for the duration of the pilot program.
Limitations— Registered agricultural employers may employ aliens with portable H–2A status without filing a petition. Such employers shall pay such aliens at least the wage required under section 218 of the Immigration and Nationality Act (8 U.S.C. 1188).
Workers’ compensation— If a job opportunity is not covered by or is exempt from the State workers’ compensation law, a registered agricultural employer shall provide, at no cost to the worker, 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 workers’ compensation law.
Designated workers—
In general— Individuals who have been previously admitted to the United States in H–2A status, and maintained such status during the period of admission, shall be provided the opportunity to apply for portable H–2A status. Portable H–2A workers shall be subject to the period of authorized admission for H–2A workers described in section 218 of the Immigration and Nationality Act (8 U.S.C. 1188).
Limitations on availability of portable H–2A status—
Initial offer of employment required— No alien may be granted portable H–2A status without an initial valid offer of employment to perform temporary or agricultural labor or services from a registered agricultural employer.
Numerical limitations— The total number of aliens who may hold valid portable H–2A status at any one time may not exceed 10,000. Notwithstanding such limitation, the Secretary of Homeland Security may further limit the number of aliens with valid portable H–2A status if the Secretary determines that there are an insufficient number of registered agricultural employers or job opportunities to support the employment of all such portable H–2A workers.
Scope of employment— During the period of admission, a portable H–2A worker may perform temporary or seasonal agricultural labor or services for any employer in the United States that is designated as a registered agricultural employer pursuant to paragraph (1) that is located in the State of the alien’s initial offer of employment under subparagraph (B)(i). An employment arrangement under this section may be terminated by either the portable H–2A worker or the registered agricultural employer at any time.
Transfer to new employment— At the cessation of employment with a registered agricultural employer, a portable H–2A worker shall have 60 days to secure new employment with a registered agricultural employer.
Maintenance of status— A portable H–2A worker who does not secure new employment with a registered agricultural employer within 60 days shall be considered to have failed to maintain such status and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1188(a)(1)(C)(i)).
Enforcement— The Secretary of Labor shall be responsible for conducting investigations and random audits of employers to ensure compliance with the employment-related requirements of this section. The Secretary of Labor shall have the authority to collect reasonable civil penalties for violations, which shall be utilized by the Secretary for the administration and enforcement of the provisions of this section.
Eligibility for services— Section 305 of Public Law 99–603 (100 Stat. 3434) is amended by striking “other employment rights as provided in the worker’s specific contract under which the nonimmigrant was admitted” and inserting “employment-related rights”.
Report— Not later than 6 months before the end of the third fiscal year of the pilot program, the Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of Agriculture, shall prepare and submit to the Committees on the Judiciary of the House of Representatives and the Senate, a report that provides—
the number of employers designated as registered agricultural employers, broken down by geographic region, farm size, and the number of job opportunities offered by such employers;
the number of employers whose designation as a registered agricultural employer was revoked;
the number of individuals granted portable H–2A status in each fiscal year, along with the number of such individuals who maintained portable H–2A status during all or a portion of the 3-year period of the pilot program;
an assessment of the impact of the pilot program on the wages and working conditions of United States farm workers;
the results of a survey of individuals granted portable H–2A status, detailing their experiences with and feedback on the pilot program;
the results of a survey of registered agricultural employers, detailing their experiences with and feedback on the pilot program;
an assessment as to whether the program should be continued and if so, any recommendations for improving the program; and
findings and recommendations regarding effective recruitment mechanisms, including use of new technology to match workers with employers and ensure compliance with applicable labor and employment laws and regulations.
Sec. 5 Greenhouse and indoor farm workers eligible for h–2a nonimmigrant status
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended by inserting after “of a temporary or seasonal nature,” the following: “, and including work in a greenhouse or indoor farm (whether or not of a temporary or seasonal nature)”.
Sec. 6 GAO Report on H–2A Program Integrity
Not later than one year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on this Act and the amendments made by this Act that includes the following:
Whether United States employers are increasingly reliant on H–2A workers.
Any challenges for employers in securing adequate and affordable housing for H–2A workers and potential effects on hiring.
Compliance of employers with the employment conditions of the H–2A worker program.
The effects of wage rate requirement under subsection (g) of section 218 of the Immigration and Nationality Act (8 U.S.C. 1188).
How the admission of H–2A workers may be affecting working conditions for the United States.
Whether staffing at the Department of Labor and the Department of Homeland Security is sufficient to administer the H–2A worker program effectively and efficiently.
Sec. 7 GAO Report on H–2A Worker Protections and Enforcement
Not later than 2 years after the date of enactment of this Act, and every 2 years thereafter, the Comptroller General of the United States shall submit to Congress a report that describes, for each State in which H–2A workers are employed, the following:
The mechanisms for H–2A workers to report workplace violations, including unsafe working conditions, crimes, unsafe living conditions, and underpayment of wages.
How H–2A workers are made aware of such mechanisms.
The daily accessibility of such mechanisms.
How H–2A workers are educated about their rights.
Any barriers H–2A workers face when attempting to use such mechanisms.
The processes in place after an H–2A worker reports a workplace violation.