§ 2212 : ADJUSTMENT TO PERMANENT RESIDENT STATUS

IN GENERAL.—Except as provided in subsection (b), and not earlier than 5 years after the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act, the Secretary shall adjust the status of an alien granted blue card status to that of an alien lawfully admitted for permanent residence if the Secretary determines that the following requirements are satisfied:

1.

QUALIFYING EMPLOYMENT.—Except as provided in paragraph (3), the alien—

A.

during the 8-year period beginning on the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act, performed not less than 100 work days of agricultural employment during each of 5 years; or

B.

during the 5-year period beginning on such date of enactment performed not less than 150 work days of agricultural employment during each of 3 years.

2.

EVIDENCE.—An alien may demonstrate compliance with the requirement under paragraph (1) by submitting—

A.

the record of employment described in section 2211(d)of the Border Security, Economic Opportunity, and Immigration Modernization Act;

B.

documentation that may be submitted under subsection (e)(4); or

C.

any other documentation designated by the Secretary for such purpose.

3.

EXTRAORDINARY CIRCUMSTANCES.—

A.

IN GENERAL.—In determining whether an alien has met the requirement under paragraph (1), the Secretary may credit the alien with not more than 12 additional months of agricultural employment in the United States to meet such requirement if the alien was unable to work in agricultural employment due to—

i.

pregnancy, disabling injury, or disease that the alien can establish through medical records;

ii.

illness, disease, or other special needs of a child that the alien can establish through medical records;

iii.

severe weather conditions that prevented the alien from engaging in agricultural employment for a significant period of time; or

iv.

termination from agricultural employment, if the Secretary determines that—

I.

the termination was without just cause; and

II.

the alien was unable to find alternative agricultural employment after a reasonable job search.

B.

EFFECT OF DETERMINATION.—A determination under subparagraph (A)(iv), with respect to an alien, shall not be conclusive, binding, or admissible in a separate or subsequent judicial or administrative action or proceeding between the alien and a current or prior employer of the alien or any other party.

4.

APPLICATION PERIOD.—The alien applies for adjustment of status before the alien’s blue card status expires.

5.

FINE.—The alien pays a fine of $400 to the Secretary, which 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.

GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS.—

1.

IN GENERAL.—The Secretary may not adjust the status of an alien granted blue card status if the alien—

A.

is no longer eligible for blue card status; or

B.

failed to perform the qualifying employment requirement under subsection (a)(1), considering any amount credited by the Secretary under subsection (a)(3).

2.

MAINTENANCE OF WAIVERS OF INADMISSIBILITY.—The grounds of inadmissibility set forth in section 212(a)that were previously waived for the alien or made inapplicable shall not apply for purposes of the alien’s adjustment of status under this section.

3.

PENDING REVOCATION PROCEEDINGS.—If the Secretary has notified the applicant that the Secretary intends to revoke the applicant’s blue card status, the Secretary may not approve an application for adjustment of status under this section unless the Secretary makes a final determination not to revoke the applicant’s status.

4.

PAYMENT OF TAXES.—

A.

IN GENERAL.—An applicant may not file an application for adjustment of status under this section unless the applicant has satisfied any applicable Federal tax liability.

B.

DEFINITION OF APPLICABLE FEDERAL TAX LIABILITY. —In this paragraph, the term applicable federal tax liability means all Federal income taxes assessed in accordance with section 6203 of the Internal Revenue Code of 1986 since the date on which the applicant was authorized to work in the United States in blue card status.

C.

COMPLIANCE.—The applicant may demonstrate compliance with subparagraph (A) by submitting such documentation as the Secretary, in consultation with the Secretary of the Treasury, may require by regulation.

SPOUSES AND CHILDREN.—Notwithstanding any other provision of law, the Secretary shall grant permanent resident status to the spouse or child of an alien whose status was adjusted under subsection (a) if—

1.

the spouse or child (including any individual who was a child on the date such alien was granted blue card status) applies for such status;

2.

the principal alien includes the spouse and children in an application for adjustment of status to that of a lawful permanent resident; and

3.

the spouse or child is not ineligible for such status under section 245B.

NUMERICAL LIMITATIONS DO NOT APPLY.— The numerical limitations under sections 201and 202shall not apply to the adjustment of aliens to lawful permanent resident status under this section.

SUBMISSION OF APPLICATIONS.—

1.

INTERVIEW.—The Secretary may interview applicants for adjustment of status under this section to determine whether they meet the eligibility requirements set forth in this section.

2.

FEES .—

A.

IN GENERAL.—Applicants for adjustment of status under this section shall pay a processing fee to the Secretary in an amount that will ensure the recovery of the full costs of adjudicating such applications, including—

i.

the cost of taking and processing biometrics;

ii.

expenses relating to prevention and investigation of fraud; and

iii.

costs relating to the administration of the fees collected.

B.

AUTHORITY TO LIMIT FEES.—The Secretary, by regulation—

i.

may limit the maximum processing fee payable under this paragraph by a family, including spouses and unmarried children younger than 21 years of age; and

ii.

may exempt individuals described in section 245B(c)(10), and other defined classes of individuals from the payment of the fee under subparagraph (A).

3.

DISPOSITION OF FEES.—All fees collected under paragraph (2)(A)—

A.

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

B.

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

4.

DOCUMENTATION OF WORK HISTORY.—

A.

BURDEN OF PROOF.—An alien applying for blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act or for adjustment of status under subsection (a) shall provide evidence that the alien has worked the requisite number of hours or days required under subsection (a)(1) of such section 2211or subsection (a)(3) of this section, as applicable.

B.

TIMELY PRODUCTION OF RECORDS.— If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien’s burden of proof under subparagraph (A) may be met by securing timely production of those records under regulations to be promulgated by the Secretary.

C.

SUFFICIENT EVIDENCE.—An alien may meet the burden of proof under subparagraph (A) to establish that the alien has performed the days or hours of work referred to in subparagraph (A) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.

PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.—

1.

CRIMINAL PENALTY.—Any person who—

A.

files an application for blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act or an adjustment of status under this section and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or

B.

creates or supplies a false writing or document for use in making such an application, shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.

2.

INADMISSIBILITY.—An alien who is convicted of a crime under paragraph (1) shall be deemed inadmissible to the United States on the ground described in section 212(a)(6)(C)(i).

3.

DEPOSIT.—Fines collected under paragraph (1) 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.

ELIGIBILITY FOR LEGAL SERVICES.—Section 504(a)(11) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1996 (Public Law 104–134; 110 Stat. 1321–55) may not be construed to prevent a recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) from providing legal assistance directly related to an application for blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act, to an individual who has been granted blue card status, or for an application for an adjustment of status under this section.

ADMINISTRATIVE AND JUDICIAL REVIEW.— Aliens applying for blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act or adjustment to permanent resident status under this section shall be entitled to the rights and subject to the conditions applicable to other classes of aliens under sections 242(h) and 245E.

APPLICABILITY OF OTHER PROVISIONS.—The provisions set forth in section 245E which are applicable to aliens described in section 245B, 245C, and 245D shall apply to aliens applying for blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act or adjustment to permanent resident status under this section.

LIMITATION ON BLUE CARD STATUS.—An alien granted blue card status under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act may only adjust status to an alien lawfully admitted for permanent residence under this section, section 245C of this Act, or section 2302of the Border Security, Economic Opportunity, and Immigration Modernization Act.

DEFINITIONS.—In this section:

1.

BLUE CARD STATUS.—The term blue card status means the status of an alien who has been lawfully admitted into the United States for temporary residence under section 2211of the Border Security, Economic Opportunity, and Immigration Modernization Act.

2.

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.

3.

EMPLOYER.—The term employer means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.

4.

WORK DAY.— The term work day means any day in which the individual is employed 5.75 or more hours in agricultural employment.