8 U.S.C. § 1160 : US Code - Section 1160: Special agricultural workers

Search 8 U.S.C. § 1160 : US Code - Section 1160: Special agricultural workers

(a) Lawful residence
(1) 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:
(A) 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.
(B) Performance of seasonal agricultural services and residence
in the United States
The 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.
(C) 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.
(2) 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:
(A) 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 (I) the date
the alien was granted such temporary resident status, or (II)
the day after the last day of the application period described
in paragraph (1)(A).
(B) 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 (I) the date
the alien was granted such temporary resident status, or (II)
the day after the last day of the application period described
in paragraph (1)(A).
(C) 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 subparagraph 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.
(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) of this section, 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
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.
(5) 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 1101(a)(20) of this title),
other than under any provision of the immigration laws.
(b) Applications for adjustment of status
(1) To whom may be made
(A) Within the United States
The 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
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.
(2) Designation of entities to receive applications
For 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
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.
(B) Documentation of work history
(i) 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).
(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) 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.
(4) 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.
(5) 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.
(6) Confidentiality of information
(A) 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 - 
(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) of this
section, 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
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).
(C) Construction
(i) 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.
(ii) 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.
(D) Crime
Whoever knowingly uses, publishes, or permits information to
be examined in violation of this paragraph shall be fined not
more than $10,000.
(7) Penalties for false statements in applications
(A) Criminal penalty
Whoever - 
(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
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 1182(a)(6)(C)(i) of this title.
(c) Waiver of numerical limitations and certain grounds for
exclusion
(1) Numerical limitations do not apply
The numerical limitations of sections 1151 and 1152 of this
title shall not apply to the adjustment of aliens to lawful
permanent resident status under this section.
(2) Waiver of grounds for exclusion
In the determination of an alien's admissibility under
subsection (a)(1)(C) of this section - 
(A) Grounds of exclusion not applicable
The provisions of paragraphs (5) and (7)(A) of section
1182(a) of this title shall not apply.
(B) Waiver of other grounds
(i) In general
Except as provided in clause (ii), the Attorney General may
waive any other provision of section 1182(a) of this title in
the case of individual aliens for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.
(ii) Grounds that may not be waived
The 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.
(C) 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 1182(a)(4)
of this title if the alien demonstrates a history of employment
in the United States evidencing self-support without reliance
on public cash assistance.
(d) Temporary stay of exclusion or deportation and work
authorization for certain applicants
(1) 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 - 
(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 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 - 
(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 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:
(A) 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.
(B) 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 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
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.
(2) Administrative review
(A) 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.
(B) 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.
(3) Judicial review
(A) 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 1105a of this title (as in effect before October 1,
1996).
(B) 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.
(f) 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
1255a(h) of this title 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 1255a(h)(3) of this title to
paragraph (1) is deemed a reference to the previous sentence.
(g) 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 1101(a)(20) of this title).
(h) "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.