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New Agricultural Amnesty Law Introduced in Congress
Lal Varghese, Attorney at Law, Dallas, Tel: (972) 788-0777, Fax (972) 788-2202
E-Mail: attylal@aol.com, www.indiaimmigrationusa.com
A new Agricultural Amnesty law like the one in 1986 was introduced in the Congress in the form of an agricultural worker reform bill, namely the Agricultural Jobs, Opportunity, Benefits, and Security (AgJobs) Act. This new bill establishes a program whereby agricultural workers in the United States who lack any authorized immigration status, whether they entered US illegally or legally at any period in time in the past, but who can demonstrate that they have worked 100 or more days in a 12 consecutive month period during the 18-month period ending on August 31, 2003 can apply for adjustment of status or permanent resident status or in lay persons term for Green Card. Eligible applicants would be granted temporary resident status. If the farm worker performs at least 360 work days of agricultural employment during the six year period ending on August 31, 2009, including at least 240 work days during the first 3 years following adjustment, and at least 75 days of agricultural work during each of three 12-month periods in the six years following adjustment to temporary resident status, the farm worker may apply for permanent resident status or permanent Green Card.
During the period of temporary resident status the farm worker’s employment is authorized, and can travel abroad and reenter the United States. We are not sure at this point whether the three year and ten year bar will apply to these workers when they apply for adjustment of status. We hope that the final bill or the rules will cover this issue. We are also not sure whether a physical presence requirement date to be set or anyone entered US after 12/21/2000 (a cut of date set by previous law namely IIRRA) will be eligible for this relief of adjustment of status. Workers adjusting to temporary resident status may work in non-agricultural occupations, as long as their agricultural work requirements are met. While in temporary resident status, workers may select their employers and may switch employers. During the period of temporary resident status, the farm worker’s spouse and minor children who are residing in the United States may remain in the U.S., but are not employment authorized.
We are also not sure about the spouses and children who are residing outside US may be eligible to obtain immigrant visa at the same when the principal alien adjusts status in US. We are also not sure whether children crossed 21 during the processing of temporary to permanent Green Card may be eligible to receive permanent Green Cards. The spouse and minor children may adjust to permanent resident status once the farm worker adjusts to permanent resident status. Caveat is that any unauthorized workers who do not apply or found to be not qualified for adjustment to temporary resident status are subject to removal (deportation). Temporary residents under this program who do not fulfill the agricultural work requirement or are inadmissible under immigration law or commit a felony or 3 or more misdemeanors as temporary residents are denied adjustment to permanent resident status and are subject to removal. The adjustment program is funded through application fees.
This new bill also modifies the existing H-2A (nonimmigrant category) temporary and seasonal foreign agricultural worker program. Employers desiring to employ H-2A foreign workers in seasonal jobs (10 months or less) will file an application and a job offer with the Secretary of Labor. If the application and job offer meets the requirements of the program and there are no obvious deficiencies the Secretary must approve the application. Employers must seek to employ qualified U.S. workers prior to the arrival of H-2A foreign workers by filing a job order with a local job service office at least 28 days prior to date of need and also authorizing the posting of the job on an electronic job registry.
All workers in job opportunities covered by an H-2A application must be provided with workers’ compensation insurance, and no job may be filled by an H-2A worker that is vacant because the previous occupant is on strike or involved in a labor dispute. If the job is covered by a collective bargaining agreement, the employer must also notify the bargaining agent of the filing of the application. If the job opportunity is not covered by a collective bargaining agreement, the employer is required to provide additional benefits, as follows. The employer must provide housing at no cost, or a monetary housing allowance where the Governor of a State has determined that there is sufficient migrant housing available, to workers whose place of residence is beyond normal commuting distance. The employer must also reimburse inbound and return transportation costs to workers who meet employment requirements and who travel more than 100 miles to come to work for the employer. The employer must also guarantee employment for at least three quarters of the period of employment, and assure at least the highest of the applicable statutory minimum wage, the prevailing wage in the occupation and area of intended employment, or a reformed Adverse Effect Wage Rate (AEWR). If the AEWR applies, it will not be higher than that existing on 1/01/03 and if Congress fails to enact a new wage rate within 3 years, the AEWR will be indexed to the change in the consumer price index, capped at 4% per year beginning December 1, 2006. Employers must meet specific motor vehicle safety standards.
H-2A foreign workers are admitted for the duration of the initial job, not to exceed 10 months, and may extend their stay if recruited for additional seasonal jobs, to a maximum continuous stay of 3 years, after which the H-2A foreign worker must depart the United States. H-2A foreign workers are authorized to be employed only in the job opportunity and by the employer for which they were admitted. Workers who abandon their employment or are terminated for cause must be reported by the employer, and are subject to removal. H-2A foreign workers are provided with a counterfeit resistant identity and employment authorization document.
The Secretary of Labor is required to provide a process for filing, investigating and disposing of complaints, and may order back wages and civil money penalties for program violators. The Secretary of Homeland Security may order debarment of violators for up to 2 years. H2A workers are provided with a limited federal private right of action to enforce the requirements of housing, transportation, wages, the employment guarantee, motor vehicle safety, retaliation and any other written promises in the employer’s job offer. Either party may request mediation after the filing of the complaint. State contract claims seeking to enforce terms of the H-2A program are preempted by the limited federal right of action. No other state law rights are preempted or restricted.
We do not anticipate that Congress intends to attract more illegal people to US under the cover of this new bill if it becomes law. This bill may limit the eligibility to those who have already in US, and the relief may not be available to those who entered US at a later date or even after passing the law. By inserting a cut off date, we anticipate that the Congress will limit the eligibility to those who are already in US and worked the required period of time in agricultural jobs in US without any authorization. There will be more questions than answers at this time, which most of the attorneys may not be able to answer at this time. It will become clearer once the bill becomes law and the rules are published by the immigration agency. It may be election propaganda for the coming 2004 general election to the President to be held in next November to attract Hispanic votes. Let us wait and see how it all will turn out in the coming days.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various sources including Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can reach Lal Varghese, Attorney at Law at (972) 788-0777 or (972) 788-1555 or Fax (972) 788-2202 or at e-mail: attylal@aol.com, for a free telephone consultation on this subject matter. You can visit our website at: http://www.indiaimmigrationusa.com for more information about related immigration matters
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