§ 210 (8 USC 1160) Special agricultural workers |
§ 210 (8 USC 1160) Special agricultural workers |
Lawful residence
In general
The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that the alien meets the following requirements:
Application period
The alien must apply for such adjustment during the 18-month period beginning on the first day of the seventh month that begins after November 6, 1986.
Performance of seasonal agricultural services and residence in the United States
The alien must establish that he has—
resided in the United States, and
performed seasonal agricultural services in the United States for at least 90 man-days,
during the 12-month period ending on May 1, 1986. For purposes of the previous sentence, performance of seasonal agricultural services in the United States for more than one employer on any one day shall be counted as performance of services for only 1 man-day.
Admissible as immigrant
The alien must establish that he is admissible to the United States as an immigrant, except as otherwise provided under subsection (c)(2) of this section .
Adjustment to permanent residence
The Attorney General shall adjust the status of any alien provided lawful temporary resident status under paragraph (1) to that of an alien lawfully admitted for permanent residence on the following date:
Group 1
Subject to the numerical limitation established under subparagraph (C), in the case of an alien who has established, at the time of application for temporary residence under paragraph (1), that the alien performed seasonal agricultural services in the United States for at least 90 man-days during each of the 12-month periods ending on May 1, 1984, 1985, and 1986, the adjustment shall occur on the first day after the end of the one-year period that begins on the later of
Group 2
In the case of aliens to which subparagraph (A) does not apply, the adjustment shall occur on the day after the last day of the two-year period that begins on the later of
Numerical limitation
Subparagraph (A) shall not apply to more than 350,000 aliens. If more than 350,000 aliens meet the requirements of such subparagraph, such subparagrpah shall apply to the 350,000 aliens whose applications for adjustment were first filed under paragraph (1) and subparagraph (B) shall apply to the remaining aliens.
Termination of temporary residence
During the period of temporary resident status granted an alien under paragraph (1), the Attorney General may terminate such status only upon a determination under this chapter that the alien is deportable.
Before any alien becomes eligible for adjustment of status under paragraph (2), the Attorney General may deny adjustment to permanent status and provide for termination of the temporary resident status granted such alien under paragraph (1) if—
the Attorney General finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation as set out in section 212(a)(6)(C)(i) of this Act [8 U.S.C 1182(a)(6)(C)(i)] , or
the alien commits an act that
Authorized travel and employment during temporary residence
During the period an alien is in lawful temporary resident status granted under this subsection, the alien has the right to travel abroad (including commutation from a residence abroad) and shall be granted authorization to engage in employment in the United States and shall be provided an “employment authorized” endorsement or other appropriate work permit, in the same manner as for aliens lawfully admitted for permanent residence.
In general
Except as otherwise provided in this subsection, an alien who acquires the status of an alien lawfully admitted for temporary residence under paragraph (1), such status not having changed, is considered to be an alien lawfully admitted for permanent residence (as described in section 101(a)(20) of this Act [8 U.S.C 1101(a)(20)] ), other than under any provision of the immigration laws.
Applications for adjustment of status
To whom may be made
Within the United States
The Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed—
Outside the United States
The Attorney General, in cooperation with the Secretary of State, shall provide a procedure whereby an alien may apply for adjustment of status under subsection (a)(1) of this section at an appropriate consular office outside the United States. If the alien otherwise qualifies for such adjustment, the Attorney General shall provide such documentation of authorization to enter the United States and to have the alien's status adjusted upon entry as may be necessary to carry out the provisions of this section .
Designation of entities to receive applications
For purposes of receiving applications under this section , the Attorney General—
shall designate qualified voluntary organizations and other qualified State, local, community, farm labor organizations, and associations of agricultural employers, and
may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under section 209 [8 U.S.C 1159] or section 245 of this Act [8 U.S.C 1255] , Public Law 89–732 [8 U.S.C. 1255 note], or Public Law 95–145 [8 U.S.C. 1255 note].
Proof of eligibility
In general
An alien may establish that he meets the requirement of subsection (a)(1)(B)(ii) of this section through government employment records, records supplied by employers or collective bargaining organizations, and such other reliable documentation as the alien may provide. The Attorney General shall establish special procedures to credit properly work in cases in which an alien was employed under an assumed name.
Documentation of work history
An alien applying for adjustment of status under subsection (a)(1) of this section has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of man-days (as required under subsection (a)(1)(B)(ii) of this section ).
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 clause (i) may be met by securing timely production of those records under regulations to be promulgated by the Attorney General.
An alien can meet such burden of proof if the alien establishes that the alien has in fact performed the work described in subsection (a)(1)(B)(ii) of this section by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference. In such a case, the burden then shifts to the Attorney General to disprove the alien's evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence.
Treatment of applications by designated entities
Each designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(A)(ii) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.
Limitation on access to information
Files and records prepared for purposes of this section by designated entities operating under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to paragraph (6) of this subsection.
Confidentiality of information
In general
Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—
use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application, including a determination under subsection (a)(3)(B) of this section , or for enforcement of paragraph (7);
make any publication whereby the information furnished by any particular individual can be identified; or
permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.
Required disclosures
The Attorney General shall provide information furnished under this section , and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
Construction
In general
Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section , other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.
Criminal convictions
Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.
Crime
Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.
Penalties for false statements in applications
Criminal penalty
Whoever—
files an application for 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
creates or supplies a false writing or document for use in making such an application,
shall be fined in accordance with title 18 or imprisoned not more than five years, or both.
Exclusion
An alien who is convicted of a crime under subparagraph (A) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of this Act [8 U.S.C 1182(a)(6)(C)(i)] .
Waiver of numerical limitations and certain grounds for exclusion
Numerical limitations do not apply
The numerical limitations of section 201 [8 U.S.C 1151] and section 202 of this Act [8 U.S.C 1152] shall not apply to the adjustment of aliens to lawful permanent resident status under this section .
Waiver of grounds for exclusion
In the determination of an alien's admissibility under subsection (a)(1)(C) of this section —
Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of section 212(a) of this Act [8 U.S.C 1182(a)] shall not apply.
Waiver of other grounds
In general
Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) of this Act [8 U.S.C 1182(a)] in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
Grounds that may not be waived
The following provisions of section 212(a) of this Act [8 U.S.C 1182(a)] may not be waived by the Attorney General under clause (i):
Paragraph (4) (relating to aliens likely to become public charges).
Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.
Paragraph (3) (relating to security and related grounds), other than subparagraph (E) thereof.
Special rule for determination of public charge
An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 212(a)(4) of this Act [8 U.S.C 1182(a)(4)] if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.
Temporary stay of exclusion or deportation and work authorization for certain applicants
Before application period
The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1) of this section and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) of this section (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien—
During application period
The Attorney General shall provide that in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) of this section during the application period, and until a final determination on the application has been made in accordance with this section , the alien—
Use of application fees to offset program costs
No application fees collected by the Service pursuant to this subsection may be used by the Service to offset the costs of the special agricultural worker legalization program until the Service implements the program consistent with the statutory mandate as follows:
During the application period described in subsection (a)(1)(A) of this section the Service may grant temporary admission to the United States, work authorization, and provide an “employment authorized” endorsement or other appropriate work permit to any alien who presents a preliminary application for adjustment of status under subsection (a) of this section at a designated port of entry on the southern land border. An alien who does not enter through a port of entry is subject to deportation and removal as otherwise provided in this chapter.
During the application period described in subsection (a)(1)(A) of this section any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) of this section pursuant to the provision of #C{8 CFR section 210.1(j)#C} is subject to paragraph (2) of this subsection.
A preliminary application is defined as a fully completed and signed application with fee and photographs which contains specific information concerning the performance of qualifying employment in the United States and the documentary evidence which the applicant intends to submit as proof of such employment. The applicant must be otherwise admissible to the United States and must establish to the satisfaction of the examining officer during an interview that his or her claim to eligibility for special agriculture worker status is credible.
Administrative and judicial review
Administrative and judicial review
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
Administrative review
Single level of administrative appellate review
The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.
Standard for review
Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.
Judicial review
Limitation to review of exclusion or deportation
There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 106 of this Act [8 U.S.C 1105a] (as in effect before October 1, 1996).
Standard for judicial review
Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
Temporary disqualification of newly legalized aliens from receiving aid to families with dependent children
During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a) of this section , and notwithstanding any other provision of law, the alien is not eligible for assistance under a State program funded under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.]. Notwithstanding the previous sentence, in the case of an alien who would be eligible for assistance under a State program funded under part A of title IV of the Social Security Act but for the previous sentence, the provisions of paragraph (3) of section 245A(h) of this Act [8 U.S.C 1255a(h)] shall apply in the same manner as they apply with respect to paragraph (1) of such section and, for this purpose, any reference in section 245A(h)(3) of this Act [8 U.S.C 1255a(h)(3)] to paragraph (1) is deemed a reference to the previous sentence.
Treatment of special agricultural workers
For all purposes (subject to subsections (a)(5) and (f) of this section ) an alien whose status is adjusted under this section to that of an alien lawfully admitted for permanent residence, such status not having changed, shall be considered to be an alien lawfully admitted for permanent residence (within the meaning of section 101(a)(20) of this Act [8 U.S.C 1101(a)(20)] ).
“Seasonal agricultural services” defined
In this section , the term “seasonal agricultural services” means the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture.