FAQ: Farm Worker Adjustment Program
Under the Kennedy-Craig-Berman Bills
Who is eligible?
Any alien who performed agricultural employment for 575 hours or 100 work days whichever is less during any 12 consecutive months between March 1, 2002 and August 31, 2003.
What is “agricultural employment”?
The definition of “agricultural employment” is the same as under the Fair Labor Standards Act. Agriculture includes the cultivation and tilling of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodity, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operation. Certain packinghouse workers may also be eligible under the slightly broader definition of agricultural labor in the Internal Revenue Code.
What is a “work day”?
A “work day” is any day in which the worker was employed 1 or more hours in agriculture.
Are H-2A workers eligible?
Yes, work done as an H-2A worker is specifically included.
When does the application period begin?
The application period begins on the first day of the seventh month after enactment i.e. if the President signs the bill in November, the application period will start June 1, 2004.
How long does the farm worker have to apply?
The application period lasts 18 months.
How does the farm worker apply?
Unless the farm worker is represented by an attorney, applicants in the United States must apply through a “qualified designated entity” or QDE.
What is a QDE?
A QDE is a farm labor organization, employer association, or organization with substantial immigration experience which the Department of Homeland Security designates to assist applicants under this program.
Are applicants eligible for federally funded legal assistance?
Yes, programs funded by the Legal Services Corporation can provide legal assistance directly related to an application for adjustment under this program.
What happens if a farm worker is detained by Homeland Security before the beginning of the application period?
If the farm worker can show that he or she may be eligible for the adjustment program, he or she may not be deported and must be given work authorization until he or she has had opportunity to file an application when the program starts in June, 2004.
Can a farm worker apply from outside the United States?
Yes, the Department of Homeland Security and State Department are to establish a procedure for applying outside the United States.
What does the farm worker need to show that he or she is eligible for the adjustment program?
The worker can show that he eligible through employer payroll record, wage receipts and government employment records or other credible evidence.
What if the worker was employed under an assumed name?
The Department of Homeland Security is to establish a procedure for properly crediting work where the alien worked under an assumed name.
What happens if the farm worker is determined to be eligible for the program?
The farm worker will be granted temporary resident status.
What does the farm worker have to do to become a permanent resident?
In order to become a permanent resident, the farm worker will have to continue to work in agriculture until each of the following requirements are met:
• The farm worker must work at least 2060 hours or 360 work days in the
6 year period beginning on September 1, 2003 and ending on August 31, 2009.
• The farm worker must work at least 1380 hours or 240 work days in the
3 year period beginning on September 1, 2003 and ending on August 31, 2006.
• The farm worker must work at least 430 hours or 75 work days in at least
3 12-month periods during the period between September 1, 2003 and August 31, 2009.
What happens if the farm worker is injured on the job and unable to work in agriculture?
The Secretary of Homeland Security will credit the worker with any work days lost
because of an injury or disease arising out of the worker’s agricultural employment
provided that the alien has medical records.
What happens if a worker is fired?
If the worker believes he was fired without just cause, he may file a complaint and
there will be an arbitration proceeding to determine whether the employer had good cause
or not. If the arbitrator decides that the worker was fired without good cause, the worker
will be credited with the number of days of work lost.
What rights does the farm worker have as a temporary resident?
Once the farm worker is adjusted to temporary resident status, he or she will have
the same rights as a permanent resident for purposes of any law except the
Immigration and Nationality Act.
Can temporary residents travel outside the United States?
Yes, temporary residents can travel abroad in the same manner as
a permanent resident.
Can temporary residents work in non-agricultural jobs?
Yes, temporary residents will have the same work authorization as permanent residents.
What happens if a temporary resident is convicted of a crime?
The temporary resident may be denied adjustment to permanent resident status
if he or she is convicted of a felony or 3 or more misdemeanors.
What is the deadline for applying for permanent residence?
The farm worker must apply for permanent resident status by August 31, 2010.
What will happen to the spouse and minor children of a farm worker who
are not eligible for the adjustment program?
The farm worker’s spouse and minor children may not be deported while the
farm worker is in temporary resident status; however, they are not eligible for
work authorization. When the farm worker completes the prospective work requirement,
they can be included under the farm worker’s application for permanent resident status,
including any child of the farm worker who was a minor child on the date the farm worker
was granted temporary resident status.