USC - Special agricultural workers

View all text of Part I [§ 1151 - § 1161]

§ 1160. Special agricultural workers

(a) Lawful residence

(1) In generalThe 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:

(A) Application period

(B) Performance of seasonal agricultural services and residence in the United StatesThe alien must establish that he has—

(i) resided in the United States, and

(ii) 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.

(2) Adjustment to permanent residenceThe 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:

(A) Group 1

(B) Group 2

(3) Termination of temporary residence

(A) 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.

(B) 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—

(i) 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 1182(a)(6)(C)(i) of this title, or

(ii) the alien commits an act that (I) makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(2), or (II) is convicted of a felony or 3 or more misdemeanors committed in the United States.

(4) Authorized travel and employment during temporary residence

(5) In general

(b) Applications for adjustment of status

(1) To whom may be made

(A) Within the United StatesThe Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed—

(i) with the Attorney General, or

(ii) with a designated entity (designated under paragraph (2)), but only if the applicant consents to the forwarding of the application to the Attorney General.

(B) Outside the United States

(2) Designation of entities to receive applicationsFor purposes of receiving applications under this section, the Attorney General—

(A) shall designate qualified voluntary organizations and other qualified State, local, community, farm labor organizations, and associations of agricultural employers, and

(B) 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 1159 or 1255 of this title, Public Law 89–732 [8 U.S.C. 1255 note], or Public Law 95–145 [8 U.S.C. 1255 note].

(3) Proof of eligibility

(A) In general

(B) Documentation of work history

(i) An alien applying for adjustment of status under subsection (a)(1) 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)).

(ii) 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.

(iii) 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) 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.

(4) Treatment of applications by designated entities

(5) Limitation on access to information

(6) Confidentiality of information

(A) In generalExcept 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—

(i) 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), or for enforcement of paragraph (7);

(ii) make any publication whereby the information furnished by any particular individual can be identified; or

(iii) 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.

(B) Required disclosures

(i) In general

(ii) Criminal convictions

(D) Crime

(7) Penalties for false statements in applications

(A) Criminal penaltyWhoever—

(i) 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

(ii) 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.

(B) Exclusion

(1) Numerical limitations do not apply

(2) Waiver of grounds for exclusionIn the determination of an alien’s admissibility under subsection (a)(1)(C)—

(A) Grounds of exclusion not applicable

(B) Waiver of other grounds

(i) In general

(ii) Grounds that may not be waivedThe following provisions of section 1182(a) of this title may not be waived by the Attorney General under clause (i):(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).(II) Paragraph (4) (relating to aliens likely to become public charges).(III) 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.(IV) Paragraph (3) (relating to security and related grounds), other than subparagraph (E) thereof.

(d) Temporary stay of exclusion or deportation and work authorization for certain applicants

(1) Before application period

(A) may not be excluded or deported, and

(B) shall be granted authorization to engage in employment in the United States and be provided an “employment authorized” endorsement or other appropriate work permit.

(2) During application periodThe Attorney General shall provide that in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made in accordance with this section, the alien—

(A) may not be excluded or deported, and

(B) shall be granted authorization to engage in employment in the United States and be provided an “employment authorized” endorsement or other appropriate work permit.

(3) Use of application fees to offset program costsNo 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:

(A) During the application period described in subsection (a)(1)(A) 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) 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.

(B) During the application period described in subsection (a)(1)(A) any alien who has filed an application for adjustment of status within the United States as provided in subsection (b)(1)(A) pursuant to the provision of 8 CFR section 210.1(j) is subject to paragraph (2) of this subsection.

(C) 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.

(e) Administrative and judicial review

(1) Administrative and judicial review

(2) Administrative review

(A) Single level of administrative appellate review

(B) Standard for review

(3) Judicial review

(A) Limitation to review of exclusion or deportation

(B) Standard for judicial review

(f) Temporary disqualification of newly legalized aliens from receiving aid to families with dependent children

(g) Treatment of special agricultural workers

(h) “Seasonal agricultural services” defined

(June 27, 1952, ch. 477, title II, ch. 1, § 210, as added Pub. L. 99–603, title III, § 302(a)(1), Nov. 6, 1986, 100 Stat. 3417; amended Pub. L. 100–202, § 101(a) [title II, § 211], Dec. 22, 1987, 101 Stat. 1329, 1329–18; Pub. L. 100–525, § 2(m), Oct. 24, 1988, 102 Stat. 2613; Pub. L. 101–238, § 4, Dec. 18, 1989, 103 Stat. 2103; Pub. L. 101–649, title VI, § 603(a)(5), Nov. 29, 1990, 104 Stat. 5082; Pub. L. 102–232, title III, §§ 307(j), 309(b)(6), Dec. 12, 1991, 105 Stat. 1756, 1758; Pub. L. 103–416, title II, § 219(d), (z)(7), Oct. 25, 1994, 108 Stat. 4316, 4318; Pub. L. 104–132, title IV, § 431(b), Apr. 24, 1996, 110 Stat. 1273; Pub. L. 104–193, title I, § 110(s)(1), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 104–208, div. C, title III, §§ 308(g)(2)(B), 384(d)(1), title VI, § 623(b), Sept. 30, 1996, 110 Stat. 3009–622, 3009–653, 3009–697.)