text:
Page:United States Statutes at Large Volume 100 Part 4.djvu/1050

 100 STAT. 3396

PUBLIC LAW 99-603—NOV. 6, 1986 "(ii) TREATMENT OF CERTAIN ABSENCES.—An alien shall not be considered to have lost the continuous residence referred to in clause (i) by reason of an absence from the United States permitted under paragraph (3)(A). "(C) ADMISSIBLE AS IMMIGRANT.—The alien must establish

» ' •"•• '" ' '

'

that he—

. ^if*'

J

"(i) is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), and "(ii) has not been convicted of any felony or three or more misdemeanors committed in the United States. "(D) BASIC CITIZENSHIP SKILLS.—

8 USC 1423.

"(i) IN GENERAL.—The alien must demonstrate that he either— "(I) meets the requirements of section 312 (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States), or "(II) is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a %,: i..,, knowledge and understanding of the history and government of the United States, "(ii)

EXCEPTION

FOR

ELDERLY

INDIVIDUALS.—The

Attorney General may, in his discretion, waive all or . --.;.'/ part of the requirements of clause (i) in the case of an alien who is 65 years of age or older, "(iii) RELATION TO NATURAUZATION EXAMINATION.— ,,-._ In accordance with regulations of the Attorney General, an alien who has demonstrated under clause (i)(I) that the alien meets the requirements of section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a 8 USC 1401. citizen of the United States under title III. "(2) TERMINATION OF TEMPORARY RESIDENCE.—The Attorney General shall provide for termination of temporary resident doi) ' J;; status granted an alien under subsection (a)— (A) if it appears to the Attorney General that the alien was in fact not eligible for such status; .;M.. «^g) j^- ^Y^Q alien commits an act that (i) makes the alien inadmissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii) is convicted of any felony or three or more misdemeanors committed in the United States; or "(C) at the end of the thirty-first month beginning after the date the alien is granted such status, unless the alien ' ^'has filed an application for adjustment of such status pursuant to paragraph (1) and such application has not been ^ denied. "(3) AUTHORIZED TRAVEL AND EMPLOYMENT DURING TEMPORARY

RESIDENCE.—During the period an alien is in lawful temporary resident status granted under subsection (a)— ^r

^

"(A) AUTHORIZATION OF TRAVEL ABROAD.—The Attorney

General shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the

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text:
Page:United States Statutes at Large Volume 100 Part 4.djvu/1051

 PUBLIC LAW 99-603—NOV. 6, 1986

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alien to adjust to lawful permanent resident status under paragraph (1) and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family ' ^ need. "(B) AUTHORIZATION OF EMPLOYMENT.—The

,,'

100 STAT. 3397

i •" '

Attorney

General shall grant the alien authorization to engage in employment in the United States and provide to that alien an 'employment authorized' endorsement or other appropriate work permit. "(c) APPLICATIONS FOR ADJUSTMENT OF STATUS.—

"(1) To WHOM MAY BE MADE.—The Attorney General shall provide that applications for adjustment of status under subsec, 4 tion (a) may be filed— "(A) with the Attorney General, or "(B) with a qualified designated entity, but only if the ,:-,.f applicant consents to the forwarding of the application to .^, the Attorney General. As used in this section, the term "qualified designated entity" means an organization or person designated under paragraph (2). "(2) DESIGNATION OF QUALIFIED ENTITIES TO RECEIVE APPLICA-

TIONS.—For purposes of assisting in the program of legalization provided under this section, the Attorney General— "(A) shall designate qualified voluntary organizations .j^,^ and other qualified State, local, and community organizations, and T •, "(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 209 or 245, 8 USC 1159, 'f J Public Law 89-732, or Public Law 95-145. 1255.e 1255 note. 8 us "(3) TREATMENT OF APPLICATIONS BY DESIGNATED ENTITIES.— Each qualified designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(B) 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. (4) LIMITATION ON ACCESS TO INFORMATION.—Files

and

records of qualified designated entities relating to an alien's seeking assistance or information with respect to filing an application 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. "(5) CONFIDENTIAUTY OF INFORMATION.—Neither the Attorney

iiii General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may— 3 "(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (6), "(B) make any publication whereby the information furnished by any particular individual can be identified, or "(C) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:United States Statutes at Large Volume 100 Part 4.djvu/1052

 100 STAT. 3398

PUBLIC LAW 99-603—NOV. 6, 1986 respect to applications filed with a designated entity, that designated entity, to examine individual applications. Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

Law enforcement and '^"™®

"(6) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.—Who-

ever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, 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, shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both. "(7) APPLICATION FEES.—

"(A) FEE SCHEDULE.—The Attorney General shall provide for a schedule of fees to be charged for the filing of applications for adjustment under subsection (a) or (b)(1). "(B) USE OF FEES.— The Attorney General shall deposit pa3maents received under this paragraph in a separate account and amounts in such account shall be available, without fiscal year limitation, to cover administrative and other expenses incurred in connection with the review of applications filed under this section. "(d) WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR EXCLUSION.— "(1) NUMERICAL LIMITATIONS DO NOT APPLY.—The numerical

8 USC 1151, 1152.

limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful p e r m a n e n t resident s t a t u s under this section. "(2) W A IV E R O F GROUNDS FOR EXCLUSION.—In the determination of an alien's admissibility under subsections (a)(4)(A), (b)(l)(C)(i), and (b)(2)(B)"(A) GROUNDS OF EXCLUSION NOT APPLICABLE.—The provisions of paragraphs (14), (20), (21), (25), and (32) of section 212(a) shall not apply.

if. ^ 8 USC 1182.

"(B) WAIVER OF OTHER GROUNDS.—

..,;.

^

tit p '.

i 42 USC 1381. 42 USC 1382 note.

f

.- *

"(i) IN GENERAL.—Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) 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 212(a) may not be waived by the Attorney General under clause (i): "(I) Paragraphs (9) and (10) (relating to criminals). "(II) Paragraph (15) (relating to aliens likely to become public charges) insofar as it relates to an application for adjustment to permanent residence by an alien other than an alien who is eligible for benefits under title XVI of the Social Security Act or section 212 of Public Law 93-66 for the month in which such alien is granted lawful temporary residence status under subsection (a).

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1053

 PUBLIC LAW 99-603—NOV. 6, 1986 i'

•

100 STAT. 3399

"(HI) Paragraph (23) (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) Paragraphs (27), (28), and (29) (relating to national security and members of certain organizations). "(V) Paragraph (33) (relating to those who assisted in the Nazi persecutions), "(iii) 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)(15) if the alien demonstrates a 8 USC 1182. history of employment in the United States evidencing self-support without receipt of public cash assistance. i»4 J "(C) MEDICAL EXAMINATION.—The alien shall be required, at the alien's expense, to undergo such a medical examination (including a determination of immunization status) as is appropriate and conforms to generally accepted professional standards of medical practice.

"(e) TEMPORARY STAY OF 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)(A) and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) (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 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 prima facie 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 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. "(f) 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) No REVIEW FOR LATE FILINGS.—No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government. "(3) ADMINISTRATIVE REVIEW.—

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1054

 100 STAT. 3400

PUBLIC LAW 99-603—NOV. 6, 1986 "(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 a determination described in paragraph I. (1).

"(B) STANDARD FOR REVIEW.—Such administrative appellate review shall be based solely upon the administrative >f. record established at the time of the determination on the application and upon such additional or newly discovered ,; ':r. evidence as may not have been available at the time of the determination. ., "(4) JUDICIAL REVIEW.— <> » "(A) LIMITATION TO REVIEW OF DEPORTATION.—There

shall be judicial review of such a denial only in the judicial review of an order of deportation under section 106.

8 USC 1105a.

"(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
 * i'}«; authority and the findings of fact and determinations contained in such record shall be conclusive unless the ap,, y < ^. plicant 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. "(g) IMPLEMENTATION OF SECTION.—

"(1) REGULATIONS.—The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe— "(A) regulations establishing a definition of the term 'resided continuously', as used in this section, and the -.^ evidence needed to establish that an alien has resided continuously in the United States for purposes of this section, and , "(B) such other regulations as may be necessary to carry out this section. "(2) CONSIDERATIONS.—In prescribing regulations described in paragraph (1)(A)— "(A) PERIODS OF CONTINUOUS RESIDENCE.—The Attorney
 * » i

'' '

General shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into account absences due merely to brief and casual trips abroad. "(B) ABSENCES CAUSED BY DEPORTATION OR ADVANCED

PAROLE.—The Attorney General shall provide that— "(i) an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and iu^.jx. u "(ii) any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered ' • as part of the period of time during which an alien is i outside the United States for purposes of this section. "(C) WAIVERS OF CERTAIN ABSENCES.—The Attorney General may provide for a waiver, in the discretion of the Attorney General, of the periods specified under subpara-

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1055

 PUBLIC LAW 99-603—NOV. 6, 1986 fv

100 STAT. 3401

graph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. "(D) USE OF CERTAIN DOCUMENTATION.—The Attorney

General shall require that— "(i) continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and "(ii) the documents provided under clause (i) be employment-related if employment-related documents with respect to the alien are available to the applicant. "(3) INTERIM FINAL REGULATIONS.—Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Attorney General determines that this is necessary in order to implement this section in a timely manner. "(h) TEMPORARY DISQUALIFICATION OF NEWLY LEGALIZED ALIENS FROM RECEIVING CERTAIN PUBLIC WELFARE ASSISTANCE.—

"(1) IN GENERAL.—During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a), and notwithstanding any other provision of law— "(A) except as provided in paragraphs (2) and (3), the ?'* alien is not eligible for— 4 "(i) any program of financial assistance furnished under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Attorney General in consultation with other appropriate heads of the i« f various departments and agencies of Government (but in any event including the program of aid to families with dependent children under part A of title IV of the Social Security Act), 42 USC 601. "(ii) medical assistance under a State plan approved under title XIX of the Social Security Act, and 42 USC 1396. "(iii) assistance under the Food Stamp Act of 1977; 7 USC 2026. and "(B) a State or political subdivision therein may, to the extent consistent with subparagraph (A) and paragraphs (2) i•. ' and (3), provide that the alien is not eligible for the programs of financial assistance or for medical assistance described in subparagraph (A)(ii) furnished under the law of J*;'..,.L '. that State or political subdivision. '. Unless otherwise specifically provided by this section or other • -""* ^ law, an alien in temporary lawful residence status granted under subsection (a) shall not be considered (for purposes of any law of a State or political subdivision providing for a program of financial assistance) to be permanently residing in the United, ' ' States under color of law. "(2) EXCEPTIONS.—Paragraph (1) shall not apply— om "(A) to a Cuban and Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-422, as 8 USC 1255 note, in effect on April 1, 1983), or • "(B) in the case of assistance (other than aid to families "twith dependent children) which is furnished to an alien ^ » ^

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1056

 100 STAT. 3402 Aged persons. Blind persons.

who is an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act).

person?^

"(3) RESTRICTED MEDICAID BENEFITS.— "(A) CLARIFICATION OF ENTITLEMENT.—Subject to

.',i '1 •

42 USC 1396.

PUBLIC LAW 99-603—NOV. 6, 1986

the

. restrictions under subparagraph (B), for the purpose of providing aliens with eligibility to receive medical assistance— "(i) paragraph (1) shall not apply, "(ii) aliens who would be eligible for medical assistance but for the provisions of paragraph (1) shall be deemed, for purposes of title XIX of the Social Security Act, to be so eligible, and "(iii) aliens lawfully admitted for temporary residence under this section, such status not having changed, shall be considered to be permanently residing in the United States under color of law. "(B) RESTRICTION OF BENEFITS.— "(i) LIMITATION TO EMERGENCY SERVICES AND SERVICES

>lrate,pp.20i,208.

Ante, p. 209.

1 •, 42 USC 1396. J.

FOR PREGNANT WOMEN.—Notwithstanding any provision of title XIX of the Social Security Act (including subparagraphs (B) and (C) of section 1902(a)(10) of such Act), aliens who, but for subparagraph (A), would be ., ineligible for medical assistance under paragraph (1), are onlv eligible for such assistance with respect to— ' (I) emergency services (as defined for purposes of section 1916(a)(2)(D) of the Social Security Act), •. ". and "(II) services described in section 1916(a)(2)(B) of such Act (relating to service for pregnant women). "(ii) No RESTRICTION FOR EXEMPT AUENS AND CHILDREN.—The restrictions of clause (i) shall not apply to aliens who are described in paragraph (2) or who are under 18 years of age. "(C) DEFINITION OF MEDICAL ASSISTANCE.—In this paragraph, the term 'medical assistance' refers to medical 4< assistance under a State plan approved under title XIX of the Social Security Act. "(4) TREATMENT OF CERTAIN PROGRAMS.—Assistance furnished

under any of the following provisions of law shall not be construed to be financial assistance described in paragraph (l)(A)(i): 42 USC 1751 "(A) The National School Lunch Act. ?^^.o^, nr,. "(B) The Child Nutrition Act of 1966. note "^^^ '^^ Vocational Education Act of 1963. 20 USC 2301 y * "(D) Chapter 1 of the Education Consolidation and note. Improvement Act of 1981. 20 USC 3801 ef 'XE) The Headstart-Follow Through Act. / %^hanoQo^ "(F) The Job Training Partnership Act. 29 USC 1501 "(G) Title IV of the Higher Education Act of 1965. note. "(H) The Public Health Service Act. 20 USC 1070. "(I) Titles V, XVI, and XX, and parts B, D, and E of title 42 USC 701 "°*^ ^' °^ ^^^ ^^^^^ Security Act (and titles I, X, XIV, and XVI 1381 1397 620 ®^ such Act as in effect without regard to the amendment 651, 670. ' ' made by section 301 of the Social Security Amendments of 42 USC 301, 1972). 1201, 1351, 1381. "(5) ADJUSTMENT NOT AFFECTING FASCELL-STONE BENEFITS.— I38i-I383e ^^^ *^® purpose of section 501 of the Refugee Education Assist8 USC 1522 note. ance Act of 1980 (Public Law 96-122), assistance shall be contin-

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1057

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3403

ued under such section with respect to an alien without regard to the alien's adjustment of status under this section. "(i) DISSEMINATION OF INFORMATION ON LEGAUZATION PROGRAM.—

Beginning not later than the date designated by the Attorney General under subsection (a)(1)(A), the Attorney General, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.". (2) The table of contents for chapter 5 of title II is amended by inserting after the item relating to section 245 the following new item: "Sec. 245A. Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence.". (b) CONFORMING AMENDMENTS.—(1) Section 402 of the Social Secu-

rity Act is amended by adding at the end thereof the following new subsection: "(f)(1) For temporary disqualification of certain newly legalized aliens from receiving aid to families with dependent children, see subsection (h) of section 245A of the Immigration and Nationality Act.

Children and y°^*^- „„„ ^^ USC 602.

Ante, p. 3394.

"(2) In any case where an alien disqualified from receiving aid under such subsection (h) is the parent of a child who is not so disqualified and who (without any adjustment of status under such section 245A) is considered a dependent child under subsection (a)(33), or is the brother or sister of such a child, subsection (a)(38) shall not apply, and the needs of such alien shall not be taken into account in making the determination under subsection (a)(7) with respect to such child, but the income of such alien (if he or she is the parent of such child) shall be included in making such determination to the same extent that income of a stepparent is included under subsection (a)(31).". (2)(A) Section 472(a) of such Act is amended by adding at the end 42 USC 672. thereof (after and below paragraph (4)) the following new sentence: "In any case where the child is an alien disqualified under section 245A(h) of the Immigration and Nationality Act from receiving aid under the State plan approved under section 402 in or for the month in which such agreement was entered into or court proceedings leading to the removal of the child from the home were instituted, such child shall be considered to satisfy the requirements of paragraph (4) (and the corresponding requirements of section 473(a)(1)(B)), with respect to that month, if he or she would have satisfied such requirements but for such disqualification.". (B) Section 473(a)(1) of such Act is amended by adding at the end 42 USC 673. thereof (after and below subparagraph (O) the following new sentence: "The last sentence of section 472(a) shall apply, for purposes of subparagraph (B), in any case where the child is an alien described in that sentence.". (c) MISCELLANEOUS PROVISIONS.— 8 USC i255a (1) PROCEDURES FOR PROPERTY ACQUISITION OR LEASING.—Not- note. withstanding the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.), the Attorney General is authorized to expend from the appropriation provided for the administration and enforcement of the Immigration and Nationality Act, such amounts as may be necessary for the 8 USC 1101 note. leasing or acquisition of property in the fulfillment of this

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1058

 100 STAT. 3404

PUBLIC LAW 99-603—NOV. 6, 1986 section. This authority shall end two years after the effective date of the legalization program. (2) USE OF RETIRED FEDERAL EMPLOYEES.—Notwithstanding

5 USC 8301 et seg.; crate, p. 516. 8 USC 1255a

'f '

8 USC 1182. 8 USC 1253.

any other provision of law, the retired or retainer pay of a member or former member of the Armed Forces of the United States or the annuity of a retired employee of the Federal Government who retired on or before January 1, 1986, shall not be reduced while such individual is temporarily employed by the Immigration and Naturalization Service for a period of not to exceed 18 months to perform duties in connection with the adjustment of status of aliens under this section. The Service shall not temporarily employ more than 300 individuals under this paragraph. Notwithstanding any other provision of law, the annuity of a retired employee of the Federal Government shall not be increased or redetermined under chapter 83 or 84 of title 5, United States Code, as a result of a period of temporary employment Under this pargigraph. SEC. 202. CUBAN-HAITIAN ADJUSTMENT.

(a) ADJUSTMENT OF STATUS.—The status of any alien described in subsection (b) may be adjusted by the Attorney General, in the Attorney General s discretion and under such regulations as the Attorney General may prescribe, to that of an alien lawfully admitted for permanent residence if— (1) the alien applies for such adjustment within two years after the date of the enactment of this Act; (2) the alien is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for exclusion specified in paragraphs (14), (15), (16), (17), (20), (21), (25), and (32) of section 212(a) of the Immigration and Nationality Act shall not apply; (3) the alien is not an alien described in section 243(h)(2) of such Act; (4) the alien is physically present in the United States on the date the application for such adjustment is filed; and (5) the alien has continuously resided in the United States since January 1, 1982. (b) AUENS ELIGIBLE FOR ADJUSTMENT OF STATUS.—The benefits

provided by subsection (a) shall apply to any alien— (1) who has received an immigration designation as a Cuban/ Haitian Entrant (Status Pending) as of the date of the enactment of this Act, or i i (2) who is a national of Cuba or Haiti, who arrived in the United States before January 1, 1982, with respect to whom any record was established by the Immigration and Naturalization Service before January 1, 1982, and who (unless the alien filed an application for asylum with the Immigration and Naturalization Service before January 1, 1982) was not admitted to the .;;; < United States as a nonimmigrant. (c) No AFFECT ON FASCELL-STONE BENEFITS.—An alien who, as of the date of the enactment of this Act, is a Cuban and Haitian 8 USC 1522 note, entrant for the purpose of section 501 of Public Law 96-422 shall continue to be considered such an entrant for such purpose without regard to any adjustment of status effected under this section. r {; (d) RECORD OF PERMANENT RESIDENCE AS OF JANUARY 1, 1982.— Upon approval of an alien's application for adjustment of status

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1059

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3405

under subsection (a), the Attorney General shall establish a record of the alien's admission for permanent residence as of January 1, 1982. (e) No OFFSET IN NUMBER OF VISAS AVAILABLE.—When an alien is granted the status of having been lawfully admitted for permanent residence pursuant to this section, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under the Immigration and Nationality Act and the 8 USC 1101 note. Attorney General shall not be required to charge the alien any fee. (f) APPLICATION OF IMMIGRATION AND NATIONAUTY ACT PROVI-

SIONS.—Except as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this section. Nothing contained in this section shall be held to repeal, amend, alter, modify, effect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of such Act or any other law relating to immigration, nationality, or naturalization. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this section shall not preclude the alien from seeking such status under any other provision of law for which the alien may be eligible.

= •

\

•-'

SEC. 203. UPDATING REGISTRY DATE TO JANUARY 1, 1972.

(a) IN GENERAL.—Section 249 (8 U.S.C. 1259) is amended— (1) by striking out "JUNE 30, 1948" in the heading and inserting in lieu thereof "JANUARY i, 1972", and (2) by striking out "June 30, 1948" in paragraph (a) and inserting in lieu thereof "January 1, 1972". (b) CONFORMING AMENDMENT TO TABLE OF CONTENTS.—The item in the table of contents relating to section 249 is amended by striking out "June 30, 1948" and inserting in lieu thereof "January 1, 1972". (c) CLARIFICATION.—The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act shall not apply to aliens provided lawful permanent resident status under section 249 of that Act. SEC. 204. STATE LEGALIZATION IMPACT-ASSISTANCE GRANTS. ,, (a) APPROPRIATION OF FUNDS.— (1) IN GENERAL.—Out of any money in the Treasury not otherwise appropriated, there are appropriated to carry out this section (and including Federal, State, and local administrative costs) $1,000,000,000 (less the amount described in paragraph (2)) for fiscal year 1988 and for each of the three succeeding fiscal years.

8 USC 1259 note. 8 USC 1151, 1152.

8 USC i255a note.

(2) OFFSET.—

-':

(A) IN GENERAL.—Subject to subparagraphs (B) through (D), the amount described in this paragraph for a fiscal year is equal to the amount estimated to be expended by the Federal Government in the fiscal year for the programs of financial assistance, medical assistance, and assistance under the Food Stamp Act of 1977 for aliens who would not be eligible for such assistance under paragraph (I)(A) of section 245A(h) of the Immigration and Nationality Act but for the provisions of paragraph (2) or paragraph (3) of such section.

7 USC 2026. Ante, p. 3394.

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1060

 100 STAT. 3406
 * ^ n> V

' --: < 42 USC 1381.

> I

42 USC 1396.

42 USC 1382 note. Ante, p. 8394. 42 USC 1382c.

tto.fv;

PUBLIC LAW 99-603—NOV. 6, 1986 (B) N o OFFSET FOR CERTAIN SSI ELIGIBLE I N D IV I D U A L S. — The

amount described in this paragraph shall not include any amounts attributable to supplemental security benefits paid under title XVI of the Social Security Act or medical assistance furnished under a State plan approved under title XIX of the Social Security Act, in the case of an alien who is determined by the Secretary of Health and Human Services, based on an application for benefits under title XVI of the Social Security Act or section 212 of Public Law 93-66 filed prior to the date designated by the Attorney General in accordance with section 245A(a)(l)(A) of the Immigration and Nationality Act, to be permanently residing in the United States under color of law as provided in section 1614(a)(l)(B)(ii) of the Social Security Act and to be eligible to receive such benefits for the month prior to the month in which such date occurs, for such time as such alien continues without interruption to be eligible to receive such benefits in accordance with the provisions of title XVI of the Social Security Act or section 212 of Public Law 93-66, as appropriate. (C) ESTIMATED INITIAL OFFSET.—For purposes of subparagraph (A), with respect to fiscal year 1988, the amount estimated to be expended is equal to $70,000,000. For subsequent fiscal years, the amount estimated to be expended shall be such estimate as is contained in the annual fiscal budget submitted for that year to the Congress by the President. (D) ADJUSTMENT FOR ESTIMATES.—If the actual amount of

expenditures by the Federal Government described in subparagraph (A) for a fiscal year exceeds, or is less than, the amount estimated to be expended for that year under subparagraph (C) for that year (taking into account any adjustment under this subparagraph), then for the subsequent fiscal year the amount described in this paragraph shall be decreased, or increased, respectively, by the amount of such excess or deficit for that previous fiscal year. OD) ENTITLEMENT OF STATES.—(1) From the sums appropriated under subsection (a) for a fiscal year (less the amount reserved for Federal administrative costs), the Secretary of Health and Human Services (in this section referred to as the "Secretary") shall allot to each State with an application approved under subsection (d)(1) an amount determined in accordance with a formula, established by the Secretary by regulation, which takes into account— (A) the number of eligible legalized aliens (as defined in subsection (j)(4)) residing in the State in that fiscal year; (B) the ratio of the number of eligible legalized aliens in the State to the total number of residents of that State and to the total number of such aliens in all the States in that fiscal year; (C) the amount of expenditures the State is likely to incur in that fiscal year in providing assistance for eligible legalized aliens for which reimbursement or payment may be made under this section; (D) the ratio of the amount of such expenditures in the State to the total of all such expenditures in all the States; (E) adjustments for the difference in previous years between the State's actual expenditures (described in subparagraph (O)

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100 STAT. 3407

incurred and the allocation provided the State under this section for those years; and (F) such other factors as the Secretary deems appropriate to provide for an equitable distribution of such amounts. (2) To the extent that all the funds appropriated under this section for a fiscal year are not otherwise allotted to States either because all the States have not qualified for such allotments under this section for the fiscal year or because some States have indicated in their description of activities that they do not intend to use, in that fiscal year or the succeeding fiscal year, the full amount of such allotments, such excess shall be allotted among the remaining States in proportion to the amount otherwise allotted to such States for the fiscal year without regard to this paragraph. (3) In determining the number of eligible legalized aliens for purposes of paragraph (1)(A), the Secretary may estimate such number on the basis of such data as he may deem appropriate. (4) For each fiscal year the Secretary shall make payments, as provided by section 6503 of title 31, United States Code, to each State from its allotment under this subsection. Any amount paid to a State for any of the following fiscal years and remaining unobligated at the end of such year shall remain available to such State for the purposes for which it was made in subsequent fiscal years, but shall not remain available after September 30, 1994. (c) PROVIDING ASSISTANCE.—(1) Of the amounts allotted to a State under this section, the State may only use such funds, in accordance with this section— (A) for reimbursement of the costs of programs of public assistance provided with respect to eligible legalized aliens, for which such aliens were not disqualified under section 245A(h) of the Immigration and Nationality Act at the time of such assist- Ante, p. 3394. ^ ance, (B) for reimbursement of the costs of programs of public health assistance provided to any alien who is, or is applying on a timely basis under section 245A(a) of such Act to become, an eligible legalized alien, and (C) to make payments to State educational agencies for the purpose of assisting local educational agencies of that State in providing educational services for eligible legalized aliens. Subject to paragraph (2), the State may select the distribution of the use of such funds among such purposes. (2)(A) Subject to subparagraphs (B) and (C), of the amounts allotted to a State under this section in any fiscal year, 10 percent shall be used by the State for reimbursement under paragraph (I)(A), 10 percent shall be used by the State for reimbursement under paragraph (1)(B), and 10 percent shall be used by the State for payments under paragraph (1)(C). (B) If a State does not require the use of the full 10 percent provided under subparagraph (A) for a particular function described in a subparagraph of paragraph (1) for a fiscal year, the unused portion shall be equally distributed among the two other subparagraphs. (C) In no Case shall the funds provided under this section be used to provide reimbursement for more than 100 percent of the costs described in paragraph (1)(A) or (I)(B). (3) To the extent that a State provides for the use of funds for the purpose described in paragraph (1)(C), the definitions and provisions of the Emergency Immigrant Education Act of 1984 (title VI of

71-194 0 - 89 - 35: QL. 3 PartA

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1062

 100 STAT. 3408 h

T '

PUBLIC LAW 99-603—NOV. 6, 1986

Public Law 98-511; 20 U.S.C. 4101 et seq.) shall apply to payments under such paragraph in the same manner as they apply to payments under that Act, except that, in applying this paragraph— (A) any reference in such Act to "immigrant children" shall ,, be deemed to be a reference to "eligible legalized aliens" (including such aliens who are over 16 years of age) during the 60month period beginning with the first month in which such an alien is granted temporary lawful residence under section Ante, p. 3394. 245A(a) of the Immigration and Nationality Act; (B) in determining the amount of payment with respect to eligible legalized aliens who are over 16 years of age, the phrase "described under paragraph (2)" shall be deemed to be stricken from section 606(b)(1)(A) of such Act (20 U.S.C. 4105(b)(1)(A)); (C) the State educational agency may provide such educational services to adult eligible legalized aliens through local educational agencies and other public and private nonprofit ,-,; organizations, including community-based organizations of dem- onstrated effectiveness; and V (D) such services may include English language and other programs designed to enable such aliens to attain the citizenship skills described in section 245A(b)(l)(D)(i) of the Immigration and Nationality Act. (d) STATEMENTS AND ASSURANCES.—(1) No State is eligible for payment under subsection (b) unless the State— (A) has filed with, and had approved by, the Secretary an application containing such information, including the information described in paragraph (2) and criteria for and administrative methods of disbursing funds received under this section, as the Secretary determines to be necessary to carry out this i4'8,ftin v '-M section, and (B) transmits to the Secretary a statement of assurances that ,! certifies that (i) funds allotted to the State under this section .;, local agencies in accordance with paragraph (2) and subsection y; (c)(2), and (iii) fiscal control and fund accounting procedures will be established that are adequate to meet the requirements of paragraph (2) and subsections (e) and (f). (2) The application of each State under this subsection for each fiscal year must include detailed information on— (A) the number of eligible legalized aliens residing in the State, and (B) the costs (excluding any such costs otherwise paid from Federal funds) which the State and each locality is likely to incur for the purposes described in subsection (c)(1). (e) REPORTS AND AUDITS.—(1)(A) Each State shall prepare and submit to the Secretary annual reports on its activities under this section. In order to properly evaluate and to compare the performance of different States assisted under this section and to assure the proper expenditure of funds under this section, such reports shall be in such form and contain such information as the Secretary determines (after consultation with the States and the Comptroller General) to be necessary— (i) to secure an accurate description of those activities, (ii) to secure a complete record of the purposes for which g funds were spent, and of the recipients of such funds, and
 * .( will only be used to carry out the purposes described in subsecffl tion (c)(1), (ii) the State will provide a fair method (EIS determined by the State) for the allocation of funds among State and

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1063

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3409

(iii) to determine the extent to which funds were expended I'i ' consistent with this section. Copies of the report shall be provided, upon request, to any interested public agency, and each such agency may provide its views on these reports to the Congress. .iMiAi ^;. (B) The Secretary shall annually report to the Congress on activities funded under this section and shall provide for transmittal of a copy of such report to each State. (2)(A) For requirements relating to audits of funds received by a State under this section, see chapter 75 of title 31, United States 31 USC 7501 et Code (relating to requirements for single audit). section, or the Secretary may offset such amounts against any other amount to which the State is or may become entitled under this section. (C) The Secretary may, after notice and opportunity for a hearing, withhold payment of funds to any State which is not using its allotment under this section in accordance with this section. The Secretary may withhold such funds until the Secretary finds that the reason for the withholding has been removed and there is reasonable assurance that it will not recur. (3) The State shall make copies of the reports and audits required by this subsection available for public inspection within the State. (4)(A) For the purpose of evaluating and reviewing the assistance provided under this section, the Secretary and the Comptroller General shall have access to any books, accounts, records, correspondence, or other documents that are related to such assistance, and that are in the possession, custody, or control of States, political subdivisions thereof, or any of their grantees. (B) In conjunction with an evaluation or review under subparagraph (A), no State or political subdivision thereof (or grantee of either) shall be required to create or prepare new records to comply with subparagraph (A). (f) LIMITATION ON PAYMENTS.—(1) Payment under this section shall not be made for costs to the extent the costs are otherwise reimbursed or paid for under other Federal programs. (2) Payment may only be made to a State with respect to costs for assistance of a program of public assistance or a program public health assistance to the extent such assistance is otherwise generally available under such programs to citizens residing in the State. ,f-';:;v.:'(g) CRIMINAL PENALTIES FOR FALSE STATEMENTS.—Whoever—
 * ^9(B) Each State shall repay to the United States amounts ultimately found not to have been expended in accordance with this

(1) knowingly and willfully makes or causes to be made any false statement or misrepresentation of a material fact in J., connection with the furnishing of assistance or services for which payment may be made by a State from funds allotted to ^ the State under this section, or (2) having knowledge of the occurrence of any event affecting ~a his initial or continued right to any such payment conceals or fails to disclose such event with an intent fraudulently to secure such payment either in a greater amount than is due or when no such payment is authorized, shall be fined in accordance with title 18, United States Code, imprisoned for not more than five years, or both, (h) ANTI-DISCRIMINATION PROVISION.—(I)(A) For

the

purpose of

applying the prohibitions against discrimination on the bcisis of age

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1064

 100 STAT. 3410 42 USC 3001 note. 29 USC 794. 20 USC 1681. 42 USC 2000d.

Regulations.

8 USC 1101.

PUBLIC LAW 99-603—NOV. 6, 1986

under the Age Discrimination Act of 1975, on the basis of handicap under section 504 of the Rehabilitation Act of 1973, on the basis of sex under title IX of the Education Amendments of 1972, or on the basis of race, color, or national origin under title VI of the Civil Rights Act of 1964, programs and activities funded in whole or in part with funds made available under this section are considered to be programs and activities receiving Federal financial assistance. (B) No person shall on the ground of sex or religion be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity funded in whole or in part with funds made available under this section. (2) Whenever the Secretary finds that a State or locality which has been provided payment from an allotment under this section has failed to comply with a provision of law referred to in paragraph (I)(A), with paragraph (I)(B), or with an applicable regulation (including one prescribed to carry out paragraph (I)(B)), he shall notify the chief executive officer of the State and shall request him to secure compliance. If within a reasonable period of time, not to exceed 60 days, the chief executive officer fails or refuses to secure compliance, the Secretary may— (A) refer the matter to the Attorney General with a recommendation that an appropriate civil action be instituted, (B) exercise the powers and functions provided by title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, as may be applicable, or (C) take such other action as may be provided by law. (3) When a matter is referred to the Attorney General pursuant to paragraph (2)(A), or whenever he has reason to believe that the entity is engaged in a pattern or practice in violation of a provision of law referred to in paragraph (I)(A) or in violation of paragraph (I)(B), the Attorney General may bring a civil action in any appropriate district court of the United States for such relief as may be appropriate, including injunctive relief. (i) (CONSULTATION WITH STATE AND LOCAL OFFICIALS.—In establishing regulations and guidelines to carry out this section, the Secretary shall consult with representatives of State and local governments. (j) DEFINITIONS.—For purposes of this section: (1) The term "State" has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act. (2) The term "programs of public assistance" means programs ,,, in a State or local jurisdiction which— (A) provide for cash, medical, or other assistance (as defined by the Secretary) designed to meet the basic subsist:» ence or health needs of individuals, (B) are generally available to needy individuals residing >6 in the State or locality, and (C) receive funding from units of State or local government. (3) The term "programs of public health assistance" means programs in a State or local jurisdiction which— (A) provide public health services, including immunizations for immunizable diseases, testing and treatment for %:./!''• planning services, .,
 * Jtuberculosis and sexually-transmitted diseases, and family

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1065

 PUBLIC LAW 99-603—NOV. 6, 1986

1, ',

100 STAT. 3411

(B) are generally available to needy individuals residing in the State or locality, and (C) receive funding from units of State or local government. (4) The term "eligible legalized alien" means an alien who has been granted lawful temporary resident status under section 245A of the Immigration and Nationality Act, but only until the Ante, p. 3394. end of the five-year period beginning on the date the alien was granted such status.

i'

TITLE III-REFORM OF LEGAL IMMIGRATION

..^/

PART A—TEMPORARY AGRICULTURAL WORKERS

SEC. 301. H-2A AGRICULTURAL WORKERS.

(a) PROVIDING N E W "H-2A" NONIMMIGRANT CLASSIFICATION FOR TEMPORARY AGRICULTURAL LABOR.—Paragraph (15)(H) of section 101(a) (8 U.S.C. 1101(a)) is amended by striking out "to perform temporary services or labor," in clause (ii) and inserting in lieu thereof "(a) to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 8121(g) of the Internal Revenue Code of 1954 26 USC 3121. and agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal nature, or (b) to perform other temporary service or labor". 03) INVOLVEMENT OF DEPARTMENTS OF LABOR AND AGRICULTURE IN

H-2A PROGRAM.—Section 214(c) (8 U.S.C. 1184(c)) is amended by adding at the end the following: "For purposes of this subsection with respect to nonimmigrants described in section 101(a)(15XH)(ii)(a), the term 'appropriate agencies of Government' Supra. means the Department of Labor and includes the Department of Agriculture. The provisions of section 216 shall apply to the question Infra. of importing any alien as a nonimmigrant under section 101(a)(15)(H)(ii)(a).'\ (c) ADMISSION OF H-2A WORKERS.—Chapter 2 of title II is amended by adding after section 215 the following new section: "ADMISSION OF TEMPORARY H-2A WORKERS "SEC. 216. (a) CONDITIONS FOR APPROVAL OF H-2A

PETITIONS.—(1)

A petition to import an alien as an H-2A worker (as defined in subsection (i)(2)) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that— "(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and "(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. "(2) The Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification. "(h) CONDITIONS FOR DENIAL OF LABOR CERTIFICATION.—The Secretary of Labor may not issue a certification under subsection (a)

8 USC 1186.

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1066

 100 STAT. 3412

PUBLIC LAW 99-603—NOV. 6, 1986

with respect to an employer if the conditions described in that subsection are not met or if any of the following conditions are met: "(1) There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certifi"' cation. "(2)(A) The employer during the previous two-year period r '5 < i,-f.k employed H-2A workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or nonimmigrant workers. "(B) No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such subparagraph. "(3) The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment. •so "(4) The Secretary determines that the employer has not made positive recruitment efforts within a multi-state region of y\ traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation r '.s through the interstate employment service system of the ' employer's job offer. The obligation to engage in positive J. recruitment under this paragraph shall terminate on the date ^ the H-2A workers depart for the employer's place of employment. "(c) SPECIAL RULES FOR CONSIDERATION OF APPLICATIONS.—The
 * 18 jcju »i
 * "'V5t

following rules shall apply in the case of the filing and consideration 55i -^jg.,, of an application for a labor certification under this section: "(1) DEADLINE FOR FILING APPLICATIONS.—The Secretary of

Labor may not require that the application be filed more than 60 days before the first date the employer requires the labor or services of the H-2A worker. "(2)

NOTICE WITHIN SEVEN DAYS OF DEFICIENCIES.—(A)

The

employer shall be notified in writing within seven days of the ^.;n date of filing if the application does not meet the standards (other than that described in subsection (a)(1)(A)) for approval. "(B) If the application does not meet such standards, the notice shall include the reasons therefor and the Secretary shall provide an opportunity for the prompt resubmission of a modi•1 fied application. "(3) ISSUANCE OF CERTIFICATION.—(A) The Secretary of Labor shall make, not later than 20 days before the date such labor or V services are first required to be performed, the certification described in subsection (a)(1) if—

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1067

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3413

"(i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and "(ii) the employer does not actually have, or has not been provided with referrals of, qualified eligible individuals who " ? have indicated their availability to perform such labor or lo * services on the terms and conditions of a job offer which meets the requirements of the Secretary. ^ In considering the question of whether a specific qualification is "' appropriate in a job offer, the Secretary shall apply the normal and accepted qualifications required by non-H-2A-employers in the same or comparable occupations and crops. "(B)(i) For a period of 3 years subsequent to the effective date ? of this section, labor certifications shall remain effective only if, from the time the foreign worker departs for the employer's place of employment, the employer will provide employment to until 50 percent of the period of the work contract, under which "i the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide benefits, wages and working conditions required pursuant to this section and regulations, "(ii) The requirement of clause (i) shall not apply to any ' employer who— "(I) did not, during any calendar quarter during the ^ preceding calendar year, use more than 500 man-days of agricultural labor, as defined in section 3(u) of the Fair & Labor Standards Act of 1938 (29 U.S.C. 203(u)), "(II) is not a member of an association which has petitioned for certification under this section for its members, and "(III) has not otherwise associated with other employers who are petitioning for temporary foreign workers under this section. i "(iii) Six months before the end of the 3-year period described in clause (i), the Secretary of Labor shall consider the findings of the report mandated by section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986 as well as other relevant materials, including evidence of benefits to United States workers and costs to employers, addressing the advisability of continuing a policy which requires an employer, as a condition ' for certification under this section, to continue to accept qualified, eligible United States workers for employment after the date the H-2A workers depart for work with the employer. The Secretary's review of such findings and materials shall lead to the issuance of findings in furtherance of the Congressional policy that aliens not be admitted under this section unless there are not sufficient workers in the United States who are • able, willing, and qualified to perform the labor or service needed and that the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. In the i absence of the enactment of Federal legislation prior to three months before the end of the 3-year peri(xl described in clause (i) which addresses the subject matter of this subparagraph, the Secretary shall immediately publish the findings required by this clause, and shall promulgate, on an interim or final basis.
 * any qualified United States worker who applies to the employer

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1068

 100 STAT. 3414

Regulations. Animals.

PUBLIC LAW 99-603—NOV. 6, 1986 regulations based on his findings which shall be effective no later than three years from the effective date of this section. "(iv) In complying with clause (i) of this subparagraph, an association shall be allowed to refer or transfer workers among its members: Provided, That for purposes of this section an association acting as an agent for its members shall not be considered a joint employer merely because of such referral or transfer. "(v) United States workers referred or transferred pursuant to clause (iv) of this subparagraph shall not be treated disparately. "(vi) An employer shall not be liable for payments under section 655.202(b)(6) of title 20, Code of Federal Regulations (or any successor regulation) with respect to an H-2A worker who is displaced due to compliance with the requirement of this subparagraph, if the Secretary of Labor certifies that the H-2A worker was displaced because of the employer's compliance with clause (i) of this subparagraph. "(viiXD No person or entity shall willfully and knowingly withhold domestic workers prior to the arrival of H-2A workers in order to force the hiring of domestic workers under clause (i). "(II) Upon the receipt of a complaint by an employer that a violation of subclause (I) has occurred the Secretary shall immediately investigate. He shall within 36 hours of the receipt of the complaint issue findings concerning the alleged violation. Where the Secretary finds that a violation has occurred, he shall immediately suspend the application of clause (i) of this subparagraph with respect to that certification for that date of need. "(4) HOUSING.—Employers shall furnish housing in accordance with regulations. The employer shall be permitted at the employer's option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accomodations or other substantially similar class of habitation: Provided, That in the absence of applicable local standards, State standards for rental and/or public accomodations or other substantially similar class of habitation shall be met: Provided further. That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply: Provided further. That the Secretary of Labor shall issue regulations which address the specific requirements of housing for employees principally engaged in the range production of livestock: Provided further. That when it is the prevailing practice in the area and occupation of intended employment to provide family housing, family housing shall be provided to workers with families who request it: And provided further. That nothing in this paragraph shall require an employer to provide or secure housing for workers who are not entitled to it under the temporary labor certification regulations in effect on June 1, 1986. '(d) ROLES OF AGRICULTURAL ASSOCIATIONS.— "(1) PERMITTING FILING BY AGRICULTURAL ASSOCIATIONS.—A

petition to import an alien as a temporary agricultural worker, and an application for a labor certification with respect to such a worker, may be filed by an association of agricultural producers which use agricultural services.

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1069

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3415

"(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS.—If an

association is a joint or sole employer of temporary agricultural workers, the certifications granted under this section to the association may be used for the certified job opportunities of any of its producer members and such workers may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the certifications were granted. I ,:•

'? a

"(3) TREATMENT OF VIOLATIONS.— "(A) MEMBER'S VIOLATION DOES NOT NECESSARILY DISQUAUFY ASSOCIATION OR OTHER MEMBERS.—If an individual

i.. '.V.'

producer member of a joint employer association is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the member, the denial shall apply only to that member of the association unless the Secretary determines that the association or other member participated in, had knowledge of, or reason to know of, the violation. "(B) ASSOCIATION'S VIOLATION DOES NOT NECESSARILY DIS-

1

^ t '^ \«

>-

QUALIFY MEMBERS.—(i) If an association representing agricultural producers as a joint employer is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the association, the denial shall apply only to the association and does not apply to any individual producer member of the association unless the Secretary determines that the member participated in, had knowledge of, or reason to know of, the violation, "(ii) If an association of agricultural producers certified as a sole employer is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the association, no individual producer member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the commodity and occupation in which such aliens were employed by the association which was denied certification during the period such denial is in force, unless such producer member employs such aliens in the commodity and occupation in question directly or through an association which is a joint employer of such workers with the producer member. "(e) EXPEDITED ADMINISTRATIVE APPEALS OF CERTAIN DETERMINA-

TIONS.—(1) Regulations shall provide for an expedited procedure for the review of a denial of certification under subsection (a)(1) or a revocation of such a certification or, at the applicant's request, for a de novo administrative hearing respecting the denial or revocation. "(2) The Secretary of Labor shall expeditiously, but in no case later than 72 hours after the time a new determination is requested, make a new determination on the request for certification in the Case of an H-2A worker if able, willing, and qualified eligible individuals are not actually available at the time such labor or services are required and a certification was denied in whole or in part because of the availability of qualified workers. If the employer asserts that any eligible individual who has been referred is not able, willing, or qualified, the burden of proof is on the employer to establish that the individual referred is not able, willing, or qualified because of employment-related reasons.

5*1; > H

A.

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1070

 100 STAT. 3416

PUBLIC LAW 99-603—NOV. 6, 1986

"(0 VIOLATORS DISQUALIFIED FOR 5 YEARS.—An alien may not be admitted to the United States as a temporary agricultural worker if the alien was admitted to the United States as such a worker within the previous five-year period and the alien during that period violated a term or condition of such previous admission. "(g) AUTHORIZATIONS OF APPROPRIATIONS.—(1) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, $10,000,000 for the purposes— "(A) of recruiting domestic workers for temporary labor and ,&rf services which might otherwise be performed by nonimmigrants described in section 101(a)(15)(H)(ii)(a), and Ante, p. 3411. "(B) of monitoring terms and conditions under which such nonimmigrants (and domestic workers employed by the same employers) are employed in the United States. "(2) The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section. "(3) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purpose of enabling the Secretary of Labor to make determinations and certifications under this section and under section 212(a)(14). 8 USC 1182. "(4) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purposes of enabling the Secretary of Agriculture to carry out the Secretary's duties and responsibilities under this section. "(h) MISCELLANEOUS PROVISIONS.—(1) The Attorney General shall provide for such endorsement of entry and exit documents of nonimmigrants described in section 101(a)(15)(H)(ii) as may be necAnte, p. 3411. essary to carry out this section and to provide notice for purposes of Ante, p. 3360. section 274A. State and local "(2) The provisions of subsections (a) and (c) of section 214 and the governments. provisions of this section preempt any State or local law regulating admissibility of nonimmigrant workers, "(i) DEFINITIONS.—For purposes of this section: "(1) The term 'eligible individual' means, with respect to employment, an individual who is not an unauthorized alien (as rt >i defined in section 274A(h)) with respect to that employment. "(2) The term *H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).". (d) EFFECTIVE DATE.—The amendments made by this section apply 8 USC 1186 note. to petitions and applications filed under sections 214(c) and 216 of the Immigration and Nationality Act on or after the first day of the seventh month beginning after the date of the enactment of this Act (hereinafter in this section referred to as the "effective date"). 8 USC 1186 note. (e) REGULATIONS.—The Attorney General, in consultation with the Secretary of Labor and the Secretary of Agriculture, shall approve Ante, p. 3411. all regulations to be issued implementing sections 101(a)(15)(H)(ii)(a) Ante, p. 3411. and 216 of the Immigration and Nationality Act. Notwithstanding any other provision of law, final regulations to implement such sections shall first be issued, on an interim or other basis, not later than the effective date. President of U.S. 8 USC 1186 note.

(f) SENSE OF CONGRESS RESPECTING CONSULTATION WITH MEXICO.—

It is the sense of Congress that the President should establish an advisory commission which shall consult with the Governments of

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1071

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3417

Mexico and of other appropriate countries and advise the Attorney General regarding the operation of the ahen temporary worker program established under section 216 of the Immigration and Nationality Act. Ante, p. 3411. (g) CONFORMING AMENDMENT TO TABLE OF CONTENTS.—The table of contents is amended by inserting after the item relating to section 215 the following new item: "Sec. 216. Admission of temporary H-2A workers.". SEC. 302. LAWFUL RESIDENCE FOR CERTAIN SPECIAL AGRICULTURAL WORKERS.

(a) IN GENERAL.—(1) Chapter 1 of title II is amended by adding at the end the following new section: "SPECIAL AGRICULTURAL WORKERS

210. (a) LAWFUL RESIDENCE.— 8 USC ii60. "(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 the date of enactment of this section.

"SEC.

f ^, J. ^^,

"(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). "(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 follow•' ing 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 (I)(A). •*^ (B) GROUP 2.—In the case of aliens to which subparagraph (A) does not apply, the adjustment shall occur on the

^

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1072

 100 STAT. 3418

 * iZ n

PUBLIC LAW 99-603—NOV. 6, 1986

•

•/i

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 (I)(A). "(C) NUMERICAL UMiTATiON.—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.—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 Act that the alien is deportable. O) •j&'f B fI

"(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 101(a)(20)), 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

4^,:
 * f;

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) 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

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1073

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3419

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 longterm involvement in the preparation and submittal of applications for adjustment of status under section 209 or 245, Public Law 89-732, or Public Law 95-145. "(3) PROOF OF ELIGIBILITY.— "(A) IN GENERAL.—An alien may establish that he meets the requirement of subsection (a)(l)(B)(ii) 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) 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)(l)(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)(l)(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.—

Each designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (l)(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. "(6) CoNFiDENTiAUTY OF INFORMATION.—Neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may— "(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (7),

8 USC 1159, 1255 ^ use 1255 note.

Regulations.

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1074

 100 STAT. 3420 ,'

PUBLIC LAW 99-603—NOV. 6, 1986

«-

'M' .'V Law enforcement and crime.

"(B) make any publication whereby the information furnished by any particular individual can be identified, or "(C) 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. Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be fined in accordance ^j^j^ ^^^y^ j^g^ United States ODde, or imprisoned not more than five years, or both. "(7) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.—

"(A) CRIMINAL PENALTY.—Whoever—

J, ,-.

Law enforcement and '"™®' 8 USC 1182.

.

"(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, United States Code, 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 212(a)(19).

"(c) WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR EXCLUSION.— "(1) N U M E R I C A L U M I T A T I O N S DO NOT A P P L Y. — The n u m e r i c a l

8 USC 1151, 1152.

limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful p e r m a n e n t resident s t a t u s under t h i s section. "(2) W A IV E R O F GROUNDS FOR EXCLUSION.—In the d e term i n a -

tion of a n alien's admissibility under subsection (a)(l)(C)— "(A) G R O U N D S O F EXCLUSION NOT A P P U C A B L E. — The provi-

8 USC 1182.

-

sions of paragraph s (14), (20), (21), (25), and (32) of section 212(a) 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 212(a) 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 follow-

ing provisions of section 212(a) may not be waived by the Attorney General under clause (i): i! ^v;,>. "(II) Paragraph (15) (relating to aliens likely to become public charges). "(Ill) Paragraph (23) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or <f'\,'; ': less of marihuana. "(IV) Paragraphs (27), (28), and (29) (relating to national security and members of certain organizations). . - ^.-lyi..., • '
 * "(I) Paragraph (9) and (10) (relating to criminals).

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1075

 PUBLIC LAW 99-603—NOV. 6, 1986 •'

I-. • i "(C)

100 STAT. 3421

"(V) Paragraph (33) (relating to those who assisted in the Nazi persecutions). 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)(15) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public Cash assistance.

8 USC 1182.

"(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) and who can establish a nonfrivolous case of eligibility to have his status adjusted under subsection (a) (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) 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.

-

s>

A,.

.iuir>et.j

'

'

»^.T *

"*

'

"(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 DEPORTA-

''

TION.—There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 106.

>;«

"(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

8 USC ll05a. Records,

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1076

 100 STAT. 3422

PUBLIC LAW 99-603—NOV. 6, 1986 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.—

' 2'

42 USC 601.

Ante, p. 3394.

During the five-year period beginning on the date an alien, was granted lawful temporary resident status under subsection (a), and notwithstanding any other provision of law, the alien is not eligible for aid under a State plan approved under part A of title IV of the Social Security Act. Notwithstanding the previous sentence, in the case of an alien who would be eligible for aid under a State plan approved 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) 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) to paragraph (1) is deemed a reference to the previous sentence. "(g)

8 USC 1101.

TREATMENT OF SPECIAL AGRICULTURAL WORKERS.—For

all

purposes (subject to subsections (b)(3) and (f)) 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)). "(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.". (2) The table of contents is amended by inserting after the item relating to section 209 the following new item: "Sec. 210. Special agricultural workers.".

42 USC 602.

42 USC 672.

(b) CONFORMING AMENDMENTS.—(1) Section 402(f) of the Social Security Act (as added by section 201(b)(1) of this Act) is amended— (A) by inserting "and subsection (f) of section 210 of such Act" before the period at the end of paragraph (1); (B) by inserting "or (f)" after "such subsection (h)" in paragraph (2); and (C) by inserting "or 210" after "such section 245A" in paragraph (2). (2) The last sentence of section 472(a) of such Act (as added by section 201(b)(2)(A) of this Act) is amended by inserting "or 210{fy' after "245A(h)". SEC. 303. DETERMINATIONS OF AGRICULTURAL LABOR SHORTAGES AND ADMISSION OF ADDITIONAL SPECIAL AGRICULTURAL WORKERS.

42 USC 401.

(a) IN GENERAL.—Chapter 1 of title II is amended by adding after section 210 (added by section 302 of this title) the following new section: "DETERMINATION OF AGRICULTURAL LABOR SHORTAGES AND ADMISSION OF ADDITIONAL SPECIAL AGRICULTURAL WORKERS

8 USC 1161.

"SEC. 210A. (a) DETERMINATION OF NEED TO ADMIT ADDITIONAL SPECIAL AGRICULTURAL WORKERS.—

"(1) IN GENERAL.—Before the beginning of each fiscal year (beginning with fiscal year 1990 and ending with fiscal year 1993), the Secretaries of Labor and Agriculture (in this section referred to as the 'Secretaries') shall jointly determine the number (if any) of additional aliens who should be admitted to

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1077

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3423

the United States or who should otherwise acquire the status of aliens lawfully admitted for temporary residence under this section during the fiscal year to meet a shortage of workers to perform seasonal agricultural services in the United States during the year. Such number is, in this section, referred to as the 'shortage number'. "(2) OVERALL DETERMINATION.—The shortage number is— "(A) the anticipated need for special agricultural workers (as determined under paragraph (4)) for the fiscal year, minus "(B) the supply of such workers (as determined under paragraph (5)) for that year, divided by the factor (determined under paragraph (6)) for mandays per worker. "(3) No REPLENISHMENT IF NO SHORTAGE.—In determining the shortage number, the Secretaries may not determine that there is a shortage unless, after considering all of the criteria set forth in paragraphs (4) and (5), the Secretaries determine that there will not be sufficient able, willing, and qualified workers available to perform seasonal agricultural services required in the fiscal year involved. "(4) DETERMINATION OF NEED.—For purposes of paragraph

(2)(A), the anticipated need for special agricultural workers for a fiscal year is determined as follows: "(A) BASE.—The Secretaries shall jointly estimate, using statistically valid methods, the number of man-days of labor performed in seasonal agricultural services in the United States in the previous fiscal year. "(B) ADJUSTMENT FOR CROP LOSSES AND CHANGES IN INDUS-

TRY.—The Secretaries shall jointly— "(i) increase such number by the number of man-days of labor in seasonal agricultural services in the United States that would have been needed in the previous fiscal year to avoid any crop damage or other loss that resulted from the unavailability of labor, and "(ii) adjust such number to take into account the projected growth or contraction in the requirements for seasonal agricultural services as a result of— "(I) growth or contraction in the seasonal agriculture industry, and "(II) the use of technologies and personnel practices that affect the need for, and retention of, workers to perform such services. "(5) DETERMINATION OF SUPPLY.—For purposes of paragraph

(2)(B), the anticipated supply of special agricultural workers for a fiscal year is determined as follows: "(A) BASE.—The Secretaries shall use the number estimated under paragraph (4)(A). "(B)

ADJUSTMENT FOR RETIREMENTS AND INCREASED

RECRUITMENT.—The Secretaries shall jointly— "(i) decrease such number by the number of mandays of labor in seasonal agricultural services in the United States that will be lost due to retirement and movement of workers out of performance of seasonal agricultural services, and "(ii) increase such number by the number of additional man-days of labor in seasonal agricultural services in the United States that can reasonably be ex-

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1078

 100 STAT. 3424 I

Wages.

PUBLIC LAW 99-603—NOV. 6, 1986

pected to result from the availability of able, willing, qualified, and unemployed special agricultural workers, rural low skill, or manual, laborers, and domestic agricultural workers. .,. ^ "(C) BASES FOR INCREASED NUMBER.—In making the adjustment under subparagraph (B)(ii), the Secretaries shall consider— .^.j, "(i) the effect, if any, that improvements in wages I f . and working conditions offered by employers will have on the availability of workers to perform seasonal agri,,,,. |, cultural services, taking into account the adverse effect, if any, of such improvements in wages and .». iTt • " working conditions on the economic competitiveness of the perishable agricultural industry, ,,(. _. "(ii) the effect, if any, of enhanced recruitment ef" ' ' forts by the employers of such workers and government emplo3niient services in the traditional and expected areas of supply of such workers, and "(iii) the number of able, willing and qualified individuals who apply for employment opportunities in ' '-•' seasonal agricultural services, listed with offices of government employment services. • "(D) CONSTRUCTION.—Nothing in this subsection shall be deemed to require any individual employer to pay any specified level of wages, to provide any specified working p' conditions, or to provide for any specified recruitment of workers.
 * >:i

"(6) DETERMINATION OF MAN-DAY PER WORKER FACTOR.— "(A) FISCAL YEAR 1990.—For fiscal year 1990—

•^'

"(i) IN GENERAL.—Subject to clause (ii), for purposes of paragraph (2) the factor under this paragraph is the average number, as estimated by the Director of the Bureau of the Census under subsection (b)(3)(A)(ii), of man-days of seasonal agricultural services performed in the United States in fiscal year 1989 by special agricultural workers whose status is adjusted under M: ia I f section 210 and who performed seasonal agricultural im:??'i services in the United States at any time during the fiscal year. i r^ b; "(ii) LACK OF ADEQUATE INFORMATION.—If the Director determines that— .( ' "(I) the information reported under subsection (b)(2)(A) is not adequate to make a reasonable estimate of the average number described in clause (i), r/.', - ' ' but J. > "(II) the inadequacy of the information is not due to the refusal or failure of employers to report the information required under subsection (b)(2)(A), the factor under this paragraph is 90. ij.

... *,j £jjf-

^.

% -'

"(B) FISCAL YEAR 1991.—For purposes of paragraph (2) for

fiscal year 1991, the factor under this paragraph is the average number, as estimated by the Director of the Bureau of the Census under subsection (b)(3)(A)(ii), of man-days of seasonal agricultural services performed in the United States in fiscal year 1990 by special agricultural workers who obtained lawful temporary resident status under this section. "(C) FISCAL YEARS 1992 AND 1993.—For purposes of paragraph (2) for fiscal years 1992 and 1993, the factor under

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Page:United States Statutes at Large Volume 100 Part 4.djvu/1079

 PUBLIC LAW 99-603—NOV. 6, 1986

100 STAT. 3425

this paragraph is the average number, as estimated by the Director of the Bureau of the Census under subsection (b)(SXAXii), of man-days of seasonal agricultural services performed in the United States in each of the two previous fiscal years by special agricultural workers who obtained lawful temporary resident status under this section during either of such fiscal years. "(7) EMERGENCY NUMBER.—

PROCEDURE

FOR INCREASE IN SHORTAGE

"(A) REQUESTS.—After the beginning of a fiscal year, a group or association representing employers (and potential employers) of individuals who perform seasonal agricultural services may request the Secretaries to increase the shortage number for the fiscal year based upon a showing that extraordinary, unusual, and unforeseen circumstances have resulted in a significant increase in the shortage number due to (i) a significant increase in the need for special agricultural workers in the year, (ii) a significant decrease in the availability of able, willing, and qualified workers to perform seasonal agricultural services, or (iii) a significant decrease (below the factor used for purposes of paragraph (6)) in the number of man-days of seasonal agricultural services performed by aliens who were recently admitted (or whose status was recently adjusted) under this section. "(B) NOTICE OF EMERGENCY PROCEDURE.—Not later than 3 days after the date the Secretaries receive a request under subparagraph (A), the Secretaries shall provide for notice in the Federal Register of the substance of the request and shall provide an opportunity for interested parties to submit information to the Secretaries on a timely basis respecting the request. "(C) PROMPT DETERMINATION ON REQUEST.—The Secretar-

ies, not later than 21 days after the date of the receipt of such a request and after consideration of any information submitted on a timely basis with respect to the request, shall make and publish in the Federal Register their determination on the request. The request shall be granted, and the shortage number for the fiscal year shall be increased, to the extent that the Secretaries determine that such an increase is justified based upon the showing and circumstances described in subparagraph (A) and that such an increase takes into account reasonable recruitment efforts having been undertaken. "(8) PROCEDURE FOR DECREASING MAN-DAYS OF SEASONAL AGRICULTURAL SERVICES REQUIRED IN THE CASE OF OVER-SUPPLY OF WORKERS.—

"(A) REQUESTS.—After the beginning of a fiscal year, a group of special agricultural workers may request the Secretaries to decrease the number of man-days required under subparagraphs (A) and (B) of subsection (d)(2) with respect to the fiscal year based upon a showing that extraordinary, unusual, and unforeseen circumstances have resulted in a significant decrease in the shortage number due to (i) a significant decrease in the need for special agricultural workers in the year, (ii) a significant increase in the availability of able, willing, and qualified workers to

Federal Register, publication.

Federal Register, publication.

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