[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1815 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1815

     To provide for the adjustment of status of certain aliens who 
previously performed agricultural work in the United States to that of 
 aliens who are lawfully admitted to the United States to perform that 
                                 work.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 27, 1999

    Mr. Graham (for himself and Mr. Smith of Oregon) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To provide for the adjustment of status of certain aliens who 
previously performed agricultural work in the United States to that of 
 aliens who are lawfully admitted to the United States to perform that 
                                 work.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Farmworker Adjustment Act of 1999''.

SEC. 2. AGRICULTURAL WORKERS.

    (a) Nonimmigrant Status.--
            (1) In general.--The Attorney General shall adjust the 
        status of an alien agricultural worker who qualifies under this 
        subsection to that of an alien lawfully admitted for 
        nonimmigrant status under section 101(a)(15) of the Immigration 
        and Nationality Act if the Attorney General determines that the 
        following requirements are satisfied with respect to the alien:
                    (A) Performance of agricultural employment in the 
                united states.--The alien must establish that the alien 
                has performed agricultural employment in the United 
                States for at least 880 hours or 150 work days, 
                whichever is lesser, during the 12-month period prior 
                to October 27, 1999.
                    (B) Application period.--The alien must apply for 
                such adjustment not later than 12 months after the 
                effective date of this Act.
                    (C) Admissibility.--
                            (i) In general.--The alien must establish 
                        that the alien is otherwise admissible to the 
                        United States under section 212 of the 
                        Immigration and Nationality Act, except as 
                        otherwise provided under subsection (d).
                            (ii) Waiver of ineligibility for unlawful 
                        presence.--An alien who has not previously been 
                        admitted to the United States pursuant to this 
                        section, and who is otherwise eligible for 
                        admission in accordance with clause (i), shall 
                        not be deemed inadmissible by virtue of section 
                        212(a)(9)(B) of that Act.
            (2) Period of validity of nonimmigrant status.--
                    (A) In general.--The status granted in paragraph 
                (1) shall be valid for a period of not to exceed 7 
                consecutive calendar years, except that the alien may 
                not be present in the United States for more than an 
                aggregate of 300 days in any calendar year.
                    (B) Exception.--The 300-day-per-year limitation in 
                subparagraph (A) shall not apply to any period of 
                validity of the status of any alien who--
                            (i) has established a permanent residence 
                        in the United States and has a minor child who 
                        was born in the United States prior to the date 
                        of enactment of this Act who resides in the 
                        alien's household; and
                            (ii) performs agricultural employment for 
                        not less than 240 days in a calendar year.
            (3) Authorized travel.--During the period an alien is in 
        lawful nonimmigrant status granted under this subsection, the 
        alien has the right to travel abroad (including commutation 
        from a residence abroad).
            (4) Authorized employment.--During the period an alien is 
        in lawful nonimmigrant status granted under this subsection, 
        the alien shall be granted authorization to engage in the 
        performance only of agricultural employment in the United 
        States and shall be provided an ``employment authorized'' 
        endorsement or other appropriate work permit, only for the 
        performance of such employment. A nonimmigrant alien under this 
        subsection may perform agricultural employment anywhere in the 
        United States.
            (5) Termination of nonimmigrant status.--Except as 
        otherwise provided in paragraph (2), the Attorney General shall 
        terminate the status, and bring proceedings under section 240 
        of the Immigration and Nationality Act to remove, any 
        nonimmigrant alien under this subsection who failed during 3 
        prior calendar years to perform 1,040 hours or 180 work days, 
        whichever is lesser, of agricultural services in any single 
        calendar year.
            (6) Record of employment.--Each employer of a nonimmigrant 
        agricultural worker whose status is adjusted under this 
        subsection shall--
                    (A) provide a written record of employment to the 
                alien; and
                    (B) provide a copy of such record to the 
                Immigration and Naturalization Service.
    (b) Adjustment to Permanent Residence.--
            (1) In general.--Except as provided in paragraph (2), the 
        Attorney General shall adjust the status of any alien provided 
        lawful nonimmigrant status under subsection (a) to that of an 
        alien lawfully admitted for permanent residence if the Attorney 
        General determines that the following requirements are 
        satisfied:
                    (A) Qualifying years.--The alien has performed a 
                minimum period of agricultural employment in the United 
                States in each of 5 calendar years during the period of 
                validity of the alien's adjustment to nonimmigrant 
                status pursuant to subsection (a). Qualifying 
years under this subparagraph may include nonconsecutive years.
                    (B) Minimum periods of agricultural employment.--
                            (i) In general.--Except as provided in 
                        clause (ii), the minimum period of agricultural 
                        employment in any calendar year is 1,040 hours 
                        or 180 work days, whichever is lesser.
                            (ii) Exception.--An alien described in 
                        subsection (a)(2)(B) who remains in the United 
                        States for more than 300 days in a calendar 
                        year may only be credited with satisfaction of 
                        the minimum period of agricultural employment 
                        requirement for that year if the alien 
                        performed agricultural employment in the United 
                        States for at least 240 work days that year.
                    (C) Application period.--The alien applies for 
                adjustment of status not later than 6 months after 
                completing the fifth year of qualifying employment in 
                the United States.
            (2) Grounds for denial of adjustment of status.--The 
        Attorney General may deny adjustment to nonimmigrant status and 
        provide for termination of the nonimmigrant status granted such 
        alien under subsection (a) if--
                    (A) the Attorney General finds by a preponderance 
                of the evidence that the adjustment to nonimmigrant 
                status was the result of fraud or willful 
                misrepresentation as set out in section 212(a)(6)(C)(i) 
                of the Immigration and Nationality Act, or
                    (B) the alien commits an act that (i) makes the 
                alien inadmissible to the United States under section 
                212 of the Immigration and Nationality Act, except as 
                provided under subsection (c)(2), or (ii) is convicted 
                of a felony or 3 or more misdemeanors committed in the 
                United States.
            (3) Treatment of aliens demonstrating prima facie case for 
        adjustment.--Any alien who demonstrates a prima facie case of 
        eligibility for adjustment under this subsection in accordance 
        with regulations promulgated by the Attorney General, shall be 
        considered a temporary resident alien and, pending adjudication 
        of an application for permanent resident status under this 
        subsection--
                    (A) may remain in the United States and shall be 
                granted authorization to engage in any employment in 
                the United States; and
                    (B) shall become eligible for any assistance or 
                benefit to which a person granted lawful permanent 
                resident status would be eligible on the date of 
                enactment of this Act.
            (4) Grounds for removal.--Any nonimmigrant alien under 
        subsection (a) who does not apply for adjustment of status 
        under this subsection before the expiration of the application 
        period described in paragraph (1)(C) is deportable and may be 
        removed.
            (5) Numerical limitation.--In any fiscal year not more than 
        20 percent of the number of aliens obtaining nonimmigrant 
        status under subsection (a) may be granted adjustment of status 
        under this subsection. In granting such adjustment, aliens 
        having the greater number of work hours shall be accorded 
        priority. Any temporary resident alien under paragraph (3) who 
        does not receive adjustment of status under this subsection in 
        a fiscal year by reason of the limitation in this paragraph may 
        continue to work in any employment, and shall be credited with 
        any additional hours of agricultural employment performed for 
        purposes of being accorded priority for adjustment of status.
    (c) Applications for Adjustment of Status.--
            (1) To whom may be made.--
                    (A) Within the united states.--The Attorney General 
                shall provide that--
                            (i) applications for adjustment of status 
                        under subsection (a) may be filed--
                                    (I) with the Attorney General; or
                                    (II) with a qualified designated 
                                entity (designated under paragraph 
                                (2)), but only if the applicant 
                                consents to the forwarding of the 
                                application to the Attorney General; 
                                and
                            (ii) applications for adjustment of status 
                        under subsection (b) shall be filed directly 
                        with 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) at an 
                appropriate consular office outside the United States. 
                The Attorney General shall prescribe regulations 
                setting forth procedures for notification of 
                immigration officials by the alien before departing the 
                United States.
                    (C) Travel documentation.--The Attorney General 
                shall provide each alien whose status is adjusted under 
                this section with a counterfeit-resistant document of 
                authorization to enter or reenter the United States.
            (2) Designation of entities to receive applications.--For 
        purposes of receiving applications under subsection (a), the 
        Attorney General--
                    (A) shall designate qualified voluntary 
                organizations and other qualified State, local, 
                community, farm labor organizations, and associations 
                of agricultural employers; and
                    (B) may designate such other persons as the 
                Attorney General determines are qualified and have 
                substantial experience, demonstrated competence, and 
                traditional long-term involvement in the preparation 
                and submittal of applications for adjustment of status 
                under section 209 or 245 of the Immigration and 
                Nationality Act, Public Law 89-732, or Public Law 95-
                145.
            (3) Proof of eligibility.--
                    (A) In general.--An alien may establish that the 
                alien meets the requirement of subsection (a)(1)(A) 
                through government employment records or records 
                supplied by employers or collective bargaining 
                organizations. The Attorney General shall establish 
                special procedures to properly credit 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 hours (as required under subsection 
                (a)(1)(A)).
                    (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.
            (4) Treatment of applications by qualified designated 
        entities.--Each qualified designated entity must agree to 
        forward to the Attorney General applications filed with it in 
        accordance with paragraph (1)(A)(ii) but not to forward to the 
        Attorney General applications filed with it unless the 
        applicant has consented to such forwarding. No such entity may 
        make a determination required by this section to be made by the 
        Attorney General. Upon the request of the alien, a qualified 
        designated entity shall assist the alien in obtaining 
        documentation of the work history of the alien.
            (5) Limitation on access to information.--Files and records 
        prepared for purposes of this section by qualified designated 
        entities operating under this section are confidential and the 
        Attorney General and the Service shall not have access to such 
        files or records relating to an alien without the consent of 
        the alien, except as allowed by a court order issued pursuant 
        to paragraph (6).
          (6) Confidentiality of information.--
                    (A) In general.--Except as provided in this 
                paragraph, neither the Attorney General, nor any other 
                official or employee of the Department of Justice, or 
                bureau or agency thereof, may--
                            (i) use the information furnished by the 
                        applicant pursuant to an application filed 
                        under this section, or the information provided 
                        to the applicant by a person designated under 
                        paragraph (2)(B), for any purpose other than to 
                        make a determination on the application, 
                        including a determination under subsection 
                        (b)(3), or for enforcement of paragraph (7);
                            (ii) make any publication whereby the 
                        information furnished by any particular 
                        individual can be identified; or
                            (iii) permit anyone other than the sworn 
                        officers and employees of the Department or 
                        bureau or agency or, with respect to 
                        applications filed with a designated entity, 
                        that designated entity, to examine individual 
                        applications.
                    (B) Crime.--Whoever knowingly uses, publishes, or 
                permits information to be examined in violation of this 
                paragraph shall be fined not more than $10,000.
            (7) Penalties for false statements in applications.--
                    (A) Criminal penalty.--Whoever--
                            (i) files an application for adjustment of 
                        status under this section and knowingly and 
                        willfully falsifies, conceals, or covers up a 
                        material fact or makes any false, fictitious, 
                        or fraudulent statements or representations, or 
                        makes or uses any false writing or document 
                        knowing the same to contain any false, 
                        fictitious, or fraudulent statement or entry, 
                        or
                            (ii) creates or supplies a false writing or 
                        document for use in making such an application,
                shall be fined in accordance with title 18, 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)(6)(C)(i) of the Immigration 
                and Nationality Act.
    (d) Waiver of Numerical Limitations and Certain Grounds for 
Inadmissibility.--
            (1) Numerical limitations do not apply.--The numerical 
        limitations of sections 201 and 202 of the Immigration and 
        Nationality Act shall not apply to the adjustment of aliens to 
        lawful permanent resident status under this section.
            (2) Waiver of certain grounds of inadmissibility.--In the 
        determination of an alien's admissibility under subsection 
        (a)(1)(D), the following provisions of section 212(a) of the 
        Immigration and Nationality Act shall not apply:
                    (A) Grounds of exclusion not applicable.--The 
                provisions of paragraphs (5) and (7)(A) of section 
                212(a) of the Immigration and Nationality Act 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) of that Act 
                        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) of that 
                        Act may not be waived by the Attorney General 
                        under clause (i):
                                    (I) Paragraph (2) (A) and (B) 
                                (relating to criminals).
                                    (II) Paragraph (4) (relating to 
                                aliens likely to become public 
                                charges).
                                    (III) Paragraph (2)(C) (relating to 
                                drug offenses), except for so much of 
                                such paragraph as relates to a single 
                                offense of simple possession of 30 
                                grams or less of marijuana.
                                    (IV) Paragraph (3) (relating to 
                                security and related grounds), other 
                                than subparagraph (E) thereof.
                            (C) Special rule for determination of 
                        public charge.--An alien is not ineligible for 
                        adjustment of status under this section due to 
                        being inadmissible under section 212(a)(4) of 
                        that Act if the alien demonstrates a history of 
                        employment in the United States evidencing 
                        self-support without reliance on public cash 
                        assistance.
    (e) Temporary Stay of Removal 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 removed, and
                    (B) shall be granted authorization to engage in 
                agricultural employment in the United States and be 
                provided an ``employment authorized'' endorsement or 
                other appropriate work permit for such purpose.
            (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, including an 
        alien who files such an application within 30 days of the 
        alien's apprehension, and until a final determination on the 
        application has been made in accordance with this section, the 
        alien--
                    (A) may not be removed, and
                    (B) shall be granted authorization to engage in 
                agricultural employment in the United States and be 
                provided an ``employment authorized'' endorsement or 
                other appropriate work permit for such purpose.
            (3) Prohibition.--No application fees collected by the 
        Service pursuant to this subsection may be used by the Service 
        to offset the costs of the agricultural worker adjustment 
        program under this Act until the Service implements the program 
        consistent with the statutory mandate as follows:
                    (A) During the application period described in 
                subsection (a)(1)(A) the Service may grant nonimmigrant 
                admission to the United States, work authorization, and 
                provide an ``employment authorized'' endorsement or 
                other appropriate work permit to any alien who presents 
                a preliminary application for adjustment of status 
                under subsection (a) at a designated port of entry on 
                the southern land border. An alien who does not enter 
                through a port of entry is subject to deportation and 
                removal as otherwise provided in this Act.
                    (B) During the application period described in 
                subsection (a)(1)(A) any alien who has filed an 
                application for adjustment of status within the United 
                States as provided in subsection (b)(1)(A) is subject 
                to paragraph (2) of this subsection.
                    (C) A preliminary application is defined as a fully 
                completed and signed application with fee and 
                photographs which contains specific information 
                concerning the performance of qualifying employment in 
                the United States and the documentary evidence which 
                the applicant intends to submit as proof of such 
                employment. The applicant must be otherwise admissible 
                to the United States and must establish to the 
                satisfaction of the examining officer during an 
                interview that his or her claim to eligibility for 
                agriculture worker status is credible.
    (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) Administrative review.--
                    (A) Single level of administrative appellate 
                review.--The Attorney General shall establish an 
                appellate authority to provide for a single level of 
                administrative appellate review of such a 
                determination.
                    (B) Standard for review.--Such administrative 
                appellate review shall be based solely upon the 
                administrative record established at the time of the 
                determination on the application and upon such 
                additional or newly discovered evidence as may not have 
                been available at the time of the determination.
            (3) Judicial review.--
                    (A) Limitation to review of exclusion or 
                deportation.--There shall be judicial review of such a 
                denial only in the judicial review of an order of 
                removal under section 242 of the Immigration and 
                Nationality Act.
                    (B) Standard for judicial review.--Such judicial 
                review shall be based solely upon the administrative 
                record established at the time of the review by the 
                appellate authority and the findings of fact and 
                determinations contained in such record shall be 
                conclusive unless the applicant can establish abuse of 
                discretion or that the findings are directly contrary 
                to clear and convincing facts contained in the record 
                considered as a whole.
    (g) Dissemination of Information on Adjustment 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.
                                 <all>