Modernizing the h–2a visa program for non-immigrant agricultural labor

Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is amended— (1) by striking Attorney General each place it appears and inserting Secretary of Homeland Security; (2) in subsection (a)— (A) by striking (1) A petition and inserting A petition; (B) by striking paragraph (2); and (C) by redesignating subparagraphs (A) and (B) as paragraphs (1) and (2), respectively; (3) in subsection (b)(4)— (A) by striking within a multi-state region of traditional or expected labor supply where the Secretary finds and inserting and; (B) by striking the second sentence; and (C) by striking terminate on the date the H–2A workers depart for the employer's place of employment and inserting begin on the date the job opportunity is posted on the electronic job registry maintained by the Secretary under this section and terminate on the date on which the final H–2A worker whose position is covered by a petition approved in connection with a labor certification departs for the employer's place of employment; (4) in subsection (c)— (A) in paragraph (2)— (i) in subparagraph (A), by striking in writing; and (ii) in subparagraph (B), by striking for the prompt resubmission of a modified application and inserting to submit a modified application within 7 days of the date of receipt of such notice; (B) by amending paragraph (3) to read as follows: (3) Issuance of certification (A) In general The Secretary of Labor shall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) if— (i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary); and (ii) the employer does not actually have, or has not been provided with referrals of, a sufficient number of qualified eligible individuals who have indicated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary. (B) Job qualifications An employer may establish specific qualifications in a job offer that are normal and accepted qualifications required by non-H–2A-employers in the same or comparable occupations and crops. (C) Duration The Secretary of Labor may issue labor certifications under this paragraph that are valid for up to three consecutive years from the date of certification.; (C) by amending paragraph (4) to read as follows: (4) Housing (A) In general An employer employing H–2A workers under this section shall provide housing to such workers in accordance with this paragraph. (B) Rulemaking The Secretary of Labor shall make rules to ensure that housing provided under this paragraph meets applicable local standards (or the applicable alternate standards under subparagraph (D)) for rental, public accommodations, or other substantially similar class of habitation, related to essential health and safety. (C) Duration The Secretary of Labor shall inspect and certify housing provided to workers under this section, which may be valid for a period of up to 3 years after the date of certification. The Secretary of Labor may delegate authority to conduct housing inspection to appropriate State agencies. (D) Alternate standards (i) Absence of local standards If no local standards described in subparagraph (B) exist, the Secretary shall ensure such housing meets applicable State standards related to essential health and safety. (ii) Absence of State standards If no such State standards exist, the Secretary shall ensure that such housing meets applicable Federal standards related to essential health and safety. (E) Provision expense (i) In general The Secretary of Labor shall establish a maximum daily charge an employer may deduct from the wages of a worker for the provision of housing. (ii) Calculation The maximum daily charge established under clause (i) shall be calculated by dividing— (I) the Statewide average of fair market rent for a 4-bedroom housing unit weighted by population, as determined by the Secretary of Labor, using data reported by the Department of Housing and Urban Development; by (II) 240. (iii) Disclosure A job offer submitted in connection with a petition under subsection (a) shall clearly state the daily charge, if any, that will be applied to the wages of the H–2A worker for the provision of housing.; and (D) by adding at the end the following: (5) Staggered entry and exit of workers The Secretary of Homeland Security shall authorize an employer to stagger the entry and exit of H–2A workers for a job offer submitted in connection with a petition under subsection (a) with multiple start or end dates, if— (A) the employment is in the same occupational classification, as determined by the Secretary of Labor; (B) no more than 180 days separate the first start date and the final start date or the first end date and last end date, listed in the job offer; (C) the need for multiple dates arises from variations in labor needs associated with the job offer identified in the petition; and (D) the employer will continue to accept referrals of all eligible United States workers who apply until the final H–2A worker whose position is covered by the petition departs for the employer's place of employment. (6) Subsequent employment of workers (A) In general Beginning not earlier than 90 days before the end of the authorized period of employment for H–2A workers, an employer seeking a subsequent period of employment for such workers shall post the job opportunity on the online job registry created under this section, and may submit a petition to the Secretary of Homeland Security for such subsequent period of employment for such workers. (B) Approval The Secretary of Homeland Security shall approve a petition submitted under subparagraph (A) unless— (i) the employer makes a substantial change to the petition that was approved; (ii) the requirements of this section are no longer met; (iii) a condition in subsection (b) is met; or (iv) the employer is found to be in substantial violation of this section. (C) Recruitment The Secretary of Labor shall prescribe criteria for recruitment of eligible individuals for employers seeking a subsequent period of employment of H–2A workers under this paragraph.; (5) in subsection (d)— (A) by amending the heading to read as follows: Roles of agricultural associations and joint employers; (B) in paragraph (1)— (i) by amending the heading to read as follows Permitted filing; and (ii) by striking may be filed by and all that follows and inserting the following: may be filed by— (A) an association (including a cooperative association) of agricultural producers which use agricultural labor or services; (B) two or more employers that use agricultural labor or services and that submit a joint application for a labor certification; or (C) other entities that use agricultural labor or services and that submit a joint application for a labor certification, as determined appropriate by the Secretary of Labor, in consultation with the Secretary of Homeland Security.; (C) in paragraph (2)— (i) in the heading, by striking associations and inserting permitted filers; (ii) by striking If an association and inserting If a permitted filer under paragraph (1); (iii) by striking the association and inserting such filer; (iv) by striking producer each place it appears; and (v) by striking of a temporary or seasonal nature and inserting of a temporary nature; (D) in paragraph (3)— (i) in subparagraph (A)— (I) by amending the heading to read as follows: Individual violations; (II) by striking producer member of a joint employer association and inserting member of a permitted filer; and (III) by striking of the association unless the Secretary determines that the association and inserting unless the Secretary of Labor determines that the permitted filer; and (ii) by amending subparagraph (B) to read as follows: (B) Permitted filer’s violations If a permitted filer is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the permitted filer, the denial shall apply only to the permitted filer and does not apply to any individual member of the permitted filer unless the Secretary of Labor determines that the member participated in, had knowledge of, or reason to know of, the violation.; and (E) by adding at the end the following: (4) Minimum and maximum hours In the case of a permitted filer under subparagraph (B) or (C) of paragraph (1) there shall be no weekly minimum or maximum hours required for each employer to employ an H–2A worker, except that each employer shall employ such worker for at least one hour during every 30-day period.; (6) in subsection (h), by adding at the end the following: (3) Special procedures The Secretary of Labor, in consultation with the Secretary of Agriculture and the Secretary of Homeland Security, may establish, by regulation, alternate procedures that modify the requirements under this section (including the requirements under subsection (c)(4) (related to housing)) when the Secretary of Labor determines that such a modification is necessary due to the unique nature of the work involved, which may include herding, care, or production of livestock on the range, commercial beekeeping, and itinerant custom harvesting. (4) Heat illness prevention plan (A) In general An employer that employs H–2A workers under this section shall maintain a plan to prevent heat illness for workers of that employer, which plan shall include— (i) prevention measures that are at least as protective as the applicable Federal and State requirements; (ii) training for workers; and (iii) protocols for— (I) workers’ access to water and shade; (II) the provision of breaks; and (III) emergency response. (B) Posting requirement An employer that employs H–2A workers under this section shall make the plan required under this paragraph available to employees in English and, if a significant portion of such workers are not fluent in English, in a language that such workers understand, by— (i) posting the plan in a conspicuous location at the worksite; and (ii) making the plan available to such workers prior to the date on which they start work. (5) Force majeure termination (A) In general If, before the expiration of the period of employment specified in a work contract for H–2A workers, the services of the workers are no longer required due to any form of natural disaster, including flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease, pest infestation, or any other reason that the Secretary of Labor, in consultation with the Secretary of Agriculture, determines is beyond the control of the employer, the employer may terminate the workers’ employment. (B) Requirements If a worker’s employment is terminated under subparagraph (A), the employer shall— (i) make efforts to transfer the worker to other comparable employment permitted by the Secretary of Labor and acceptable to the worker; and (ii) no later than 72 hours after termination, notify the Secretary of Labor and Secretary of Agriculture of such termination and state the nature of the contract impossibility. (6) Transfer of h–2a workers (A) In general An H–2A worker may begin employment with a new employer on the date that the employer files a non-frivolous petition with the Secretary of Homeland Security on behalf of such worker. (B) Eligible employer A transfer of an H–2A worker under this paragraph may only occur between agricultural employers that possess a valid labor certification approved by the Secretary of Labor under this section. (C) Timing The H–2A worker shall be considered authorized to be employed by the petitioning employer until the earlier of the end date of the employment contract pursuant to which the H–2A worker was working prior to the transfer under this paragraph or the receipt of a notice of denial for the petition. (D) Petition denial or withdrawal If the petition under subparagraph (A) is denied or withdrawn the H–2A worker’s employment authorization shall be terminated and such worker shall voluntarily depart the United States within 30 days after the date of denial or withdrawal, unless such worker is employed by an H–2A employer prior to that date. (7) Waiver (A) In general Subject to the limitation in this paragraph, the grounds of inadmissibility under paragraphs (5)(A), (6)(A), (6)(C), (7), and (9)(B) of section 212(a), and the grounds of deportability under paragraphs (1)(A) (with respect to the grounds of inadmissibility waived under this paragraph), (1)(B), (1)(C)(i), and (3)(A) of section 237(a) shall be waived with respect to conduct that occurred prior to the alien first receiving status as an H–2A worker, for the purpose of providing the alien with such status if the alien is otherwise eligible. (B) Limitations (i) Alien An alien described in this paragraph is an alien who— (I) has voluntarily departed the country; or (II) (aa) was unlawfully present in the United States on May 31, 2026; and (bb) performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 180 days during the 2-year period ending on the date of enactment of Securing Agriculture's Workforce Act of 2026. (ii) Conduct A waiver provided under this paragraph shall— (I) only apply to unlawful conduct that occurred in relation to obtaining employment performing agricultural labor or services, in the United States; and (II) not extend to conduct that occurred in pursuit of obtaining public benefits, as determined by the Secretary of Homeland Security. (8) Employer responsibilities and protections (A) Record of employment An employer of an alien seeking to establish their qualifications under clause (ii) of paragraph (7)(B) and receive status as an H–2A worker shall provide such alien with a written record of employment upon the alien’s request. (B) Continuing employment It shall not be a violation of section 274A(a)(2) for an employer to continue to employ an alien described in paragraph (7)(B)(i)(II) knowing that the alien intends to apply for status as an H–2A worker for the duration of the period during which the alien’s application is pending final determination. (C) Employment records Any employment record or other evidence of employment provided by an alien or by an alien’s employer in support of an alien’s application for status as an H–2A worker under this section may not be used in a civil or criminal prosecution or investigation of that employer under section 274A or the Internal Revenue Code of 1986 for the prior unlawful employment of that alien regardless of the outcome of such application. (D) Additional protections (i) In general An employer that provides a record in accordance with subparagraph (A) shall not be subject to civil and criminal liability pursuant to such section 274A for employing such unauthorized aliens. Records or other evidence of employment provided by employers in response to a request for such records for the purpose of establishing eligibility for status under this section may not be used for any purpose other than establishing such eligibility. (ii) Limitation on protection The protections for employers under this section shall not apply if the employer provides employment records to the alien that are determined to be fraudulent. (9) Essential functions In the case of a lapse of government appropriations, all functions necessary for the processing, certification, and admission of H–2A workers shall be deemed essential to the protection of life and property and such functions shall continue uninterrupted for the duration of such lapse.; (7) by redesignating subsection (i) as subsection (m); (8) by inserting after subsection (h) the following: (i) Roles of Federal agencies and states in the H–2A program (1) Department of homeland security (A) In general The authority of the Secretary of Homeland Security under this section does not include the authority that is specifically reserved for the head of another Federal agency under this subsection. (B) Fees The Secretary of Homeland Security, in consultation with the Secretary of Labor, may require by regulation, as a condition of issuing a certification under subsection (a)(1), the payment of a fee to recover the reasonable costs of processing applications and certifications by the Department of Homeland Security and Department of Labor with respect to H–2A workers, and shall not include any costs of processing other visa categories, asylum or refugee processing, or any other functions of the Department of Homeland Security or Department of Labor other than those which are applicable to the admission of H–2A workers. (C) Prioritization Not later than 15 days after receiving a petition for an H–2A worker, the Secretary of Homeland Security shall approve, deny, or request additional information from the employer. (2) Department of labor (A) In general The Secretary of Labor shall— (i) establish standards for the recruitment of United States workers, that are reasonable and cost effective; (ii) ensure employer compliance with the requirements under this section; and (iii) determine the labor needs of agricultural employers in the United States. (B) Post certification amendments The Secretary of Labor shall create an expedited process to allow an employer to file an amendment to a labor certification that has been approved, including an amendment to— (i) the dates of employment; (ii) the places of employment, due to unforeseen circumstances; (iii) the housing provided, due to unforeseen circumstances; (iv) the modes of daily transportation; and (v) the agricultural activities that will be performed by an H–2A worker, if such activities are substantially similar to the activities included in the approved labor certification. (C) Housing The Secretary of Labor shall make rules under subsection (c)(4). (D) Online job registry The Secretary of Labor shall maintain a national, publicly accessible online job registry and database of all job offers submitted by employers seeking a labor certification required to employ H–2A workers under this section. (3) Department of state (A) In general The Secretary of State shall prioritize the adjudication of visa issuance for H–2A workers and shall ensure sufficient and trained staffing at consulates through which a significant number of applications by H–2A workers originate during periods of increased H–2A visa applications. (B) Returning workers The Secretary of State may waive the interview requirement under section 222(h)(1) for an alien seeking admission to the United States as an H–2A worker if the alien has been previously admitted to the United States as an H–2A worker, and appears to be eligible for such status. (4) Department of agriculture The Secretary of Agriculture shall— (A) provide input and comment to the Secretary of Homeland Security and the Secretary of Labor regarding the implementation of the requirements under this section; and (B) make rules to define the term agricultural labor or services under section 101. (j) Applicable wage (1) In general An employer shall offer at minimum a contract wage to an H–2A worker that is the highest of— (A) the agreed-upon collective bargaining wage; (B) the Federal, State, or local minimum wage applicable to all agricultural workers; or (C) the adverse effect wage rate determined under subsection (k), if applicable. (2) Limitation on mid-contract wage changes The applicable wage under paragraph (1), as determined on the date the job opportunity is posted on the electronic job registry maintained by the Secretary, shall remain in effect for the duration of the contract period and shall not be modified based on any subsequent adjustment to the adverse effect wage rate determined and published pursuant to subsection (k). (3) Use of Federal survey data To calculate an adverse effect wage rate, the Secretary of Labor shall use data that is available pursuant to a Federal Government survey of base wages paid to domestic workers in the occupational classification and may not consider in the calculation additional forms of compensation, such as shift differential pay, on-call pay, special assignments, overtime, bonuses, incentive-based pay, or piece rates. (k) Determination of adverse effect on wages (1) In general The Secretary of Labor shall make an annual determination as to whether the employment of H–2A workers from the prior year adversely affected the wages and working conditions of workers in the United States similarly employed. Such determination shall be subject to review under chapter 7 of title 5, United States Code. (2) Contracting authority The Secretary of Labor may enter into a contract with an independent entity to assist in making the determination under paragraph (1). (3) Publication of rate The Secretary of Labor, on making a determination under paragraph (1) that an adverse effect existed from the prior year, shall calculate and publish in the Federal Register, an adverse effect wage rate, in accordance with this subsection. (4) Calculation The Secretary shall calculate an adverse effect wage rate as follows: (A) Entry-level occupations For occupations that the Secretary of Labor determines the qualifications of the job offer are entry-level (including field and livestock worker occupations combined), as compared to the qualifications possessed by an average worker in such occupation, the adverse effect wage rate shall be equal to— (i) if a statewide annual hourly gross wage in the State for the occupation described in the job offer is reported in the Occupational Employment and Wage Statistics survey, the required minimum hourly wage for entry-level qualifications shall be the 17th percentile of the wage distribution for the occupation in that State; or (ii) if a statewide annual hourly gross wage in the State for the occupation described in the job offer is not reported in the Occupational Employment and Wage Statistics survey, the required minimum hourly wage for entry-level qualifications shall be the 17th percentile of the wage distribution for the occupation on a nationwide basis, as reported in such survey. (B) Experience-level occupations For any other occupation that the Secretary of Labor determines the qualifications of the job offer are representative of the qualifications possessed by an average worker in such occupation (including field and livestock worker occupations combined), the adverse effect wage rate shall be equal to— (i) if a statewide annual hourly gross wage in the State for experience-level qualifications for the occupation described in the job offer is reported in the Occupational Employment and Wage Statistics survey, the required minimum hourly wage for experience-level qualifications shall be the 50th percentile of the wage distribution for the occupation for that State described in the job offer, as reported in such survey; or (ii) if a statewide annual hourly gross wage in the State for experience-level qualifications for the occupation described in the job offer is not reported in such survey, the required minimum hourly wage shall be the 50th percentile of the national wage distribution for the occupation, as reported in such survey. (C) Limitations on fluctuations The adverse effect wage rate calculated under this paragraph may not— (i) be more than 1.5 percent lower than the wage in effect for the immediately preceding calendar year; and (ii) be more than 3.25 percent higher than the wage in effect for the preceding calendar year. (5) Job classification (A) In general If the Secretary of Labor establishes an adverse effect wage rate under this subsection, the Secretary may aggregate occupational classifications for purposes of establishing such rate. (B) Primary duty When determining the occupation in which to classify an H–2A worker, the Secretary shall classify the worker in an occupation that reflects the duties and work tasks described in the employment contract that will constitute the greatest percentage of the worker’s working hours.; and (9) in subsection (m), as so redesignated, by adding at the end the following: (3) The term employer means a person or entity who hires workers to perform agricultural labor or services and includes— (A) a single employer; (B) an association or farm labor contractor; (C) an agricultural cooperative association, as such term is defined in section 15 of the Agricultural Marketing Act (12 U.S.C. 1141j); and (D) other persons or entities as determined by the Secretary of Labor..