II

106TH CONGRESS

1ST SESSION S. 1815

To provide for the adjustment of status of certain aliens who previously

performed agricultural work in the United States to that of aliens who

are lawfully admitted to the United States to perform that work.

IN THE SENATE OF THE UNITED STATES

OCTOBER 27, 1999

Mr. GRAHAM (for himself and Mr. SMITH of Oregon) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide for the adjustment of status of certain aliens

who previously performed agricultural work in the United

States to that of aliens who are lawfully admitted to

the United States to perform that work.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Farmworker Adjust5 ment Act of 1999’’.

6 SEC. 2. AGRICULTURAL WORKERS.

7 (a) NONIMMIGRANT STATUS.—
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1 (1) IN GENERAL.—The Attorney General shall

2 adjust the status of an alien agricultural worker who

3 qualifies under this subsection to that of an alien

4 lawfully admitted for nonimmigrant status under

5 section 101(a)(15) of the Immigration and Nation6 ality Act if the Attorney General determines that the

7 following requirements are satisfied with respect to

8 the alien:

9 (A) PERFORMANCE OF AGRICULTURAL EM10 PLOYMENT IN THE UNITED STATES.—The alien

11 must establish that the alien has performed ag12 ricultural employment in the United States for

13 at least 880 hours or 150 work days, whichever

14 is lesser, during the 12-month period prior to

15 October 27, 1999.

16 (B) APPLICATION PERIOD.—The alien

17 must apply for such adjustment not later than

18 12 months after the effective date of this Act.

19 (C) ADMISSIBILITY.—

20 (i) IN GENERAL.—The alien must es21 tablish that the alien is otherwise admis22 sible to the United States under section

23 212 of the Immigration and Nationality

24 Act, except as otherwise provided under

25 subsection (d).
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1 (ii) WAIVER OF INELIGIBILITY FOR

2 UNLAWFUL PRESENCE.—An alien who has

3 not previously been admitted to the United

4 States pursuant to this section, and who is

5 otherwise eligible for admission in accord6 ance with clause (i), shall not be deemed

7 inadmissible by virtue of section

8 212(a)(9)(B) of that Act.

9 (2) PERIOD OF VALIDITY OF NONIMMIGRANT

10 STATUS.—

11 (A) IN GENERAL.—The status granted in

12 paragraph (1) shall be valid for a period of not

13 to exceed 7 consecutive calendar years, except

14 that the alien may not be present in the United

15 States for more than an aggregate of 300 days

16 in any calendar year.

17 (B) EXCEPTION.—The 300-day-per-year

18 limitation in subparagraph (A) shall not apply

19 to any period of validity of the status of any

20 alien who—

21 (i) has established a permanent resi22 dence in the United States and has a

23 minor child who was born in the United

24 States prior to the date of enactment of
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1 this Act who resides in the alien’s house2 hold; and

3 (ii) performs agricultural employment

4 for not less than 240 days in a calendar

5 year.

6 (3) AUTHORIZED TRAVEL.—During the period

7 an alien is in lawful nonimmigrant status granted

8 under this subsection, the alien has the right to trav9 el abroad (including commutation from a residence

10 abroad).

11 (4) AUTHORIZED EMPLOYMENT.—During the

12 period an alien is in lawful nonimmigrant status

13 granted under this subsection, the alien shall be

14 granted authorization to engage in the performance

15 only of agricultural employment in the United States

16 and shall be provided an ‘‘employment authorized’’

17 endorsement or other appropriate work permit, only

18 for the performance of such employment. A non19 immigrant alien under this subsection may perform

20 agricultural employment anywhere in the United

21 States.

22 (5) TERMINATION OF NONIMMIGRANT STA23 TUS.—Except as otherwise provided in paragraph

24 (2), the Attorney General shall terminate the status,

25 and bring proceedings under section 240 of the Im-
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1 migration and Nationality Act to remove, any non2 immigrant alien under this subsection who failed

3 during 3 prior calendar years to perform 1,040

4 hours or 180 work days, whichever is lesser, of agri5 cultural services in any single calendar year.

6 (6) RECORD OF EMPLOYMENT.—Each employer

7 of a nonimmigrant agricultural worker whose status

8 is adjusted under this subsection shall—

9 (A) provide a written record of employ10 ment to the alien; and

11 (B) provide a copy of such record to the

12 Immigration and Naturalization Service.

13 (b) ADJUSTMENT TO PERMANENT RESIDENCE.—

14 (1) IN GENERAL.—Except as provided in para15 graph (2), the Attorney General shall adjust the sta16 tus of any alien provided lawful nonimmigrant status

17 under subsection (a) to that of an alien lawfully ad18 mitted for permanent residence if the Attorney Gen19 eral determines that the following requirements are

20 satisfied:

21 (A) QUALIFYING YEARS.—The alien has

22 performed a minimum period of agricultural

23 employment in the United States in each of 5

24 calendar years during the period of validity of

25 the alien’s adjustment to nonimmigrant status
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1 pursuant to subsection (a). Qualifying years

2 under this subparagraph may include non3 consecutive years.

4 (B) MINIMUM PERIODS OF AGRICULTURAL

5 EMPLOYMENT.—

6 (i) IN GENERAL.—Except as provided

7 in clause (ii), the minimum period of agri8 cultural employment in any calendar year

9 is 1,040 hours or 180 work days, which10 ever is lesser.

11 (ii) EXCEPTION.—An alien described

12 in subsection (a)(2)(B) who remains in the

13 United States for more than 300 days in

14 a calendar year may only be credited with

15 satisfaction of the minimum period of agri16 cultural employment requirement for that

17 year if the alien performed agricultural

18 employment in the United States for at

19 least 240 work days that year.

20 (C) APPLICATION PERIOD.—The alien ap21 plies for adjustment of status not later than 6

22 months after completing the fifth year of quali23 fying employment in the United States.

24 (2) GROUNDS FOR DENIAL OF ADJUSTMENT OF

25 STATUS.—The Attorney General may deny adjust-
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1 ment to nonimmigrant status and provide for termi2 nation of the nonimmigrant status granted such

3 alien under subsection (a) if—

4 (A) the Attorney General finds by a pre5 ponderance of the evidence that the adjustment

6 to nonimmigrant status was the result of fraud

7 or willful misrepresentation as set out in section

8 212(a)(6)(C)(i) of the Immigration and Nation9 ality Act, or

10 (B) the alien commits an act that (i)

11 makes the alien inadmissible to the United

12 States under section 212 of the Immigration

13 and Nationality Act, except as provided under

14 subsection (c)(2), or (ii) is convicted of a felony

15 or 3 or more misdemeanors committed in the

16 United States.

17 (3) TREATMENT OF ALIENS DEMONSTRATING

18 PRIMA FACIE CASE FOR ADJUSTMENT.—Any alien

19 who demonstrates a prima facie case of eligibility for

20 adjustment under this subsection in accordance with

21 regulations promulgated by the Attorney General,

22 shall be considered a temporary resident alien and,

23 pending adjudication of an application for perma24 nent resident status under this subsection—
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1 (A) may remain in the United States and

2 shall be granted authorization to engage in any

3 employment in the United States; and

4 (B) shall become eligible for any assistance

5 or benefit to which a person granted lawful per6 manent resident status would be eligible on the

7 date of enactment of this Act.

8 (4) GROUNDS FOR REMOVAL.—Any non9 immigrant alien under subsection (a) who does not

10 apply for adjustment of status under this subsection

11 before the expiration of the application period de12 scribed in paragraph (1)(C) is deportable and may

13 be removed.

14 (5) NUMERICAL LIMITATION.—In any fiscal

15 year not more than 20 percent of the number of

16 aliens obtaining nonimmigrant status under sub17 section (a) may be granted adjustment of status

18 under this subsection. In granting such adjustment,

19 aliens having the greater number of work hours shall

20 be accorded priority. Any temporary resident alien

21 under paragraph (3) who does not receive adjust22 ment of status under this subsection in a fiscal year

23 by reason of the limitation in this paragraph may

24 continue to work in any employment, and shall be

25 credited with any additional hours of agricultural
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1 employment performed for purposes of being ac2 corded priority for adjustment of status.

3 (c) APPLICATIONS FOR ADJUSTMENT OF STATUS.—

4 (1) TO WHOM MAY BE MADE.—

5 (A) WITHIN THE UNITED STATES.—The

6 Attorney General shall provide that—

7 (i) applications for adjustment of sta8 tus under subsection (a) may be filed—

9 (I) with the Attorney General; or

10 (II) with a qualified designated

11 entity (designated under paragraph

12 (2)), but only if the applicant consents

13 to the forwarding of the application to

14 the Attorney General; and

15 (ii) applications for adjustment of sta16 tus under subsection (b) shall be filed di17 rectly with the Attorney General.

18 (B) OUTSIDE THE UNITED STATES.—The

19 Attorney General, in cooperation with the Sec20 retary of State, shall provide a procedure

21 whereby an alien may apply for adjustment of

22 status under subsection (a) at an appropriate

23 consular office outside the United States. The

24 Attorney General shall prescribe regulations

25 setting forth procedures for notification of im-
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1 migration officials by the alien before departing

2 the United States.

3 (C) TRAVEL DOCUMENTATION.—The At4 torney General shall provide each alien whose

5 status is adjusted under this section with a

6 counterfeit-resistant document of authorization

7 to enter or reenter the United States.

8 (2) DESIGNATION OF ENTITIES TO RECEIVE AP9 PLICATIONS.—For purposes of receiving applications

10 under subsection (a), the Attorney General—

11 (A) shall designate qualified voluntary or12 ganizations and other qualified State, local,

13 community, farm labor organizations, and asso14 ciations of agricultural employers; and

15 (B) may designate such other persons as

16 the Attorney General determines are qualified

17 and have substantial experience, demonstrated

18 competence, and traditional long-term involve19 ment in the preparation and submittal of appli20 cations for adjustment of status under section

21 209 or 245 of the Immigration and Nationality

22 Act, Public Law 89–732, or Public Law 95–

23 145.

24 (3) PROOF OF ELIGIBILITY.—
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1 (A) IN GENERAL.—An alien may establish

2 that the alien meets the requirement of sub3 section (a)(1)(A) through government employ4 ment records or records supplied by employers

5 or collective bargaining organizations. The At6 torney General shall establish special proce7 dures to properly credit work in cases in which

8 an alien was employed under an assumed name.

9 (B) DOCUMENTATION OF WORK HIS10 TORY.—(i) An alien applying for adjustment of

11 status under subsection (a)(1) has the burden

12 of proving by a preponderance of the evidence

13 that the alien has worked the requisite number

14 of hours (as required under subsection

15 (a)(1)(A)).

16 (ii) If an employer or farm labor con17 tractor employing such an alien has kept proper

18 and adequate records respecting such employ19 ment, the alien’s burden of proof under clause

20 (i) may be met by securing timely production of

21 those records under regulations to be promul22 gated by the Attorney General.

23 (4) TREATMENT OF APPLICATIONS BY QUALI24 FIED DESIGNATED ENTITIES.—Each qualified des25 ignated entity must agree to forward to the Attorney
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1 General applications filed with it in accordance with

2 paragraph (1)(A)(ii) but not to forward to the Attor3 ney General applications filed with it unless the ap4 plicant has consented to such forwarding. No such

5 entity may make a determination required by this

6 section to be made by the Attorney General. Upon

7 the request of the alien, a qualified designated entity

8 shall assist the alien in obtaining documentation of

9 the work history of the alien.

10 (5) LIMITATION ON ACCESS TO INFORMA11 TION.—Files and records prepared for purposes of

12 this section by qualified designated entities operating

13 under this section are confidential and the Attorney

14 General and the Service shall not have access to

15 such files or records relating to an alien without the

16 consent of the alien, except as allowed by a court

17 order issued pursuant to paragraph (6).

18 (6) CONFIDENTIALITY OF INFORMATION.—

19 (A) IN GENERAL.—Except as provided in

20 this paragraph, neither the Attorney General,

21 nor any other official or employee of the De22 partment of Justice, or bureau or agency there23 of, may—

24 (i) use the information furnished by

25 the applicant pursuant to an application
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1 filed under this section, or the information

2 provided to the applicant by a person des3 ignated under paragraph (2)(B), for any

4 purpose other than to make a determina5 tion on the application, including a deter6 mination under subsection (b)(3), or for

7 enforcement of paragraph (7);

8 (ii) make any publication whereby the

9 information furnished by any particular in10 dividual can be identified; or

11 (iii) permit anyone other than the

12 sworn officers and employees of the De13 partment or bureau or agency or, with re14 spect to applications filed with a des15 ignated entity, that designated entity, to

16 examine individual applications.

17 (B) CRIME.—Whoever knowingly uses,

18 publishes, or permits information to be exam19 ined in violation of this paragraph shall be fined

20 not more than $10,000.

21 (7) PENALTIES FOR FALSE STATEMENTS IN AP22 PLICATIONS.—

23 (A) CRIMINAL PENALTY.—Whoever—

24 (i) files an application for adjustment

25 of status under this section and knowingly
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1 and willfully falsifies, conceals, or covers

2 up a material fact or makes any false, fic3 titious, or fraudulent statements or rep4 resentations, or makes or uses any false

5 writing or document knowing the same to

6 contain any false, fictitious, or fraudulent

7 statement or entry, or

8 (ii) creates or supplies a false writing

9 or document for use in making such an ap10 plication,

11 shall be fined in accordance with title 18,

12 United States Code, or imprisoned not more

13 than five years, or both.

14 (B) EXCLUSION.—An alien who is con15 victed of a crime under subparagraph (A) shall

16 be considered to be inadmissible to the United

17 States on the ground described in section

18 212(a)(6)(C)(i) of the Immigration and Nation19 ality Act.

20 (d) WAIVER OF NUMERICAL LIMITATIONS AND CER21 TAIN GROUNDS FOR INADMISSIBILITY.—

22 (1) NUMERICAL LIMITATIONS DO NOT APPLY.—

23 The numerical limitations of sections 201 and 202

24 of the Immigration and Nationality Act shall not
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1 apply to the adjustment of aliens to lawful perma2 nent resident status under this section.

3 (2) WAIVER OF CERTAIN GROUNDS OF INAD4 MISSIBILITY.—In the determination of an alien’s ad5 missibility under subsection (a)(1)(D), the following

6 provisions of section 212(a) of the Immigration and

7 Nationality Act shall not apply:

8 (A) GROUNDS OF EXCLUSION NOT APPLI9 CABLE.—The provisions of paragraphs (5) and

10 (7)(A) of section 212(a) of the Immigration and

11 Nationality Act shall not apply.

12 (B) WAIVER OF OTHER GROUNDS.—

13 (i) IN GENERAL.—Except as provided

14 in clause (ii), the Attorney General may

15 waive any other provision of section 212(a)

16 of that Act in the case of individual aliens

17 for humanitarian purposes, to assure fam18 ily unity, or when it is otherwise in the

19 public interest.

20 (ii) GROUNDS THAT MAY NOT BE

21 WAIVED.—The following provisions of sec22 tion 212(a) of that Act may not be waived

23 by the Attorney General under clause (i):

24 (I) Paragraph (2) (A) and (B)

25 (relating to criminals).
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1 (II) Paragraph (4) (relating to

2 aliens likely to become public

3 charges).

4 (III) Paragraph (2)(C) (relating

5 to drug offenses), except for so much

6 of such paragraph as relates to a sin7 gle offense of simple possession of 30

8 grams or less of marijuana.

9 (IV) Paragraph (3) (relating to

10 security and related grounds), other

11 than subparagraph (E) thereof.

12 (C) SPECIAL RULE FOR DETERMINA13 TION OF PUBLIC CHARGE.—An alien is not

14 ineligible for adjustment of status under

15 this section due to being inadmissible

16 under section 212(a)(4) of that Act if the

17 alien demonstrates a history of employ18 ment in the United States evidencing self19 support without reliance on public cash as20 sistance.

21 (e) TEMPORARY STAY OF REMOVAL AND WORK AU22 THORIZATION FOR CERTAIN APPLICANTS.—

23 (1) BEFORE APPLICATION PERIOD.—The Attor24 ney General shall provide that in the case of an alien

25 who is apprehended before the beginning of the ap-
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1 plication period described in subsection (a)(1) and

2 who can establish a nonfrivolous case of eligibility to

3 have his status adjusted under subsection (a) (but

4 for the fact that he may not apply for such adjust5 ment until the beginning of such period), until the

6 alien has had the opportunity during the first 30

7 days of the application period to complete the filing

8 of an application for adjustment, the alien—

9 (A) may not be removed, and

10 (B) shall be granted authorization to en11 gage in agricultural employment in the United

12 States and be provided an ‘‘employment author13 ized’’ endorsement or other appropriate work

14 permit for such purpose.

15 (2) DURING APPLICATION PERIOD.—The Attor16 ney General shall provide that in the case of an alien

17 who presents a nonfrivolous application for adjust18 ment of status under subsection (a) during the ap19 plication period, including an alien who files such an

20 application within 30 days of the alien’s apprehen21 sion, and until a final determination on the applica22 tion has been made in accordance with this section,

23 the alien—

24 (A) may not be removed, and
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1 (B) shall be granted authorization to en2 gage in agricultural employment in the United

3 States and be provided an ‘‘employment author4 ized’’ endorsement or other appropriate work

5 permit for such purpose.

6 (3) PROHIBITION.—No application fees col7 lected by the Service pursuant to this subsection

8 may be used by the Service to offset the costs of the

9 agricultural worker adjustment program under this

10 Act until the Service implements the program con11 sistent with the statutory mandate as follows:

12 (A) During the application period de13 scribed in subsection (a)(1)(A) the Service may

14 grant nonimmigrant admission to the United

15 States, work authorization, and provide an

16 ‘‘employment authorized’’ endorsement or other

17 appropriate work permit to any alien who pre18 sents a preliminary application for adjustment

19 of status under subsection (a) at a designated

20 port of entry on the southern land border. An

21 alien who does not enter through a port of

22 entry is subject to deportation and removal as

23 otherwise provided in this Act.

24 (B) During the application period de25 scribed in subsection (a)(1)(A) any alien who
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1 has filed an application for adjustment of status

2 within the United States as provided in sub3 section (b)(1)(A) is subject to paragraph (2) of

4 this subsection.

5 (C) A preliminary application is defined as

6 a fully completed and signed application with

7 fee and photographs which contains specific in8 formation concerning the performance of quali9 fying employment in the United States and the

10 documentary evidence which the applicant in11 tends to submit as proof of such employment.

12 The applicant must be otherwise admissible to

13 the United States and must establish to the

14 satisfaction of the examining officer during an

15 interview that his or her claim to eligibility for

16 agriculture worker status is credible.

17 (f) ADMINISTRATIVE AND JUDICIAL REVIEW.—

18 (1) ADMINISTRATIVE AND JUDICIAL REVIEW.—

19 There shall be no administrative or judicial review of

20 a determination respecting an application for adjust21 ment of status under this section except in accord22 ance with this subsection.

23 (2) ADMINISTRATIVE REVIEW.—

24 (A) SINGLE LEVEL OF ADMINISTRATIVE

25 APPELLATE REVIEW.—The Attorney General
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1 shall establish an appellate authority to provide

2 for a single level of administrative appellate re3 view of such a determination.

4 (B) STANDARD FOR REVIEW.—Such ad5 ministrative appellate review shall be based

6 solely upon the administrative record estab7 lished at the time of the determination on the

8 application and upon such additional or newly

9 discovered evidence as may not have been avail10 able at the time of the determination.

11 (3) JUDICIAL REVIEW.—

12 (A) LIMITATION TO REVIEW OF EXCLU13 SION OR DEPORTATION.—There shall be judicial

14 review of such a denial only in the judicial re15 view of an order of removal under section 242

16 of the Immigration and Nationality Act.

17 (B) STANDARD FOR JUDICIAL REVIEW.—

18 Such judicial review shall be based solely upon

19 the administrative record established at the

20 time of the review by the appellate authority

21 and the findings of fact and determinations

22 contained in such record shall be conclusive un23 less the applicant can establish abuse of discre24 tion or that the findings are directly contrary to
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1 clear and convincing facts contained in the

2 record considered as a whole.

3 (g) DISSEMINATION OF INFORMATION ON ADJUST4 MENT PROGRAM.—Beginning not later than the date des5 ignated by the Attorney General under subsection

6 (a)(1)(A), the Attorney General, in cooperation with quali7 fied designated entities, shall broadly disseminate informa8 tion respecting the benefits which aliens may receive under

9 this section and the requirements to obtain such benefits.

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