[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR210.3]



[Page 175-179]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 210_SPECIAL AGRICULTURAL WORKERS--Table of Contents

 

Sec. 210.3  Eligibility.



    (a) General. An alien who, during the twelve-month period ending on 

May 1, 1986, has engaged in qualifying agricultural employment in the 

United States for at least 90 man-days is eligible for status as an 

alien lawfully admitted for temporary residence if otherwise admissible 

under the provisions of section 210(c) of the Act and if he or she is 

not ineligible under the provisions of paragraph (d) of this section.

    (b) Proof of eligibility--(1) Burden of proof. An alien applying for 

adjustment of status under this part has the burden of proving by a 

preponderance of the evidence that he or she has worked the requisite 

number of man-days, is admissible to the United States under the 

provisions of section 210(c) of the Act, is otherwise eligible for 

adjustment of status under this section and in the case of a Group 1 

applicant, has resided in the United States for the



[[Page 176]]



requisite periods. If the applicant cannot provide documentation which 

shows qualifying employment for each of the requisite man-days, or in 

the case of a Group 1 applicant, which meets the residence requirement, 

the applicant may meet his or her burden of proof by providing 

documentation sufficient to establish the requisite employment or 

residence as a matter of just and reasonable inference. The inference to 

be drawn from the documentation provided shall depend on the extent of 

the documentation, its credibility and amenability to verification as 

set forth in paragraphs (b)(2) and (3) of this section. If an applicant 

establishes that he or she has in fact performed the requisite 

qualifying agricultural employment by producing sufficient evidence to 

show the extent of that employment as a matter of just and reasonable 

inference, the burden then shifts to the Service to disprove the 

applicant's evidence by showing that the inference drawn from the 

evidence is not reasonable.

    (2) Evidence. The sufficiency of all evidence produced by the 

applicant will be judged according to its probative value and 

credibility. Original documents will be given greater weight than 

copies. To meet his or her burden of proof, an applicant must provide 

evidence of eligibility apart from his or her own testimony. Analysis of 

evidence submitted will include consideration of the fact that work 

performed by minors and spouses is sometimes credited to a principal 

member of a family.

    (3) Verification. Personal testimony by an applicant which is not 

corroborated, in whole or in part, by other credible evidence (including 

testimony of persons other than the applicant) will not serve to meet an 

applicant's burden of proof. All evidence of identity, qualifying 

employment, admissibility, and eligibility submitted by an applicant for 

adjustment of status under this part will be subject to verification by 

the Service. Failure by an applicant to release information protected by 

the Privacy Act or related laws when such information is essential to 

the proper adjudication of an application may result in denial of the 

benefit sought. The Service may solicit from agricultural producers, 

farm labor contractors, collective bargaining organizations and other 

groups or organizations which maintain records of employment, lists of 

workers against which evidence of qualifying employment can be checked. 

If such corroborating evidence is not available and the evidence 

provided is deemed insufficient, the application may be denied.

    (4) Securing SAW employment records. When a SAW applicant alleges 

that an employer or farm labor contractor refuses to provide him or her 

with records relating to his or her employment and the applicant has 

reason to believe such records exist, the Service shall attempt to 

secure such records. However, prior to any attempt by the Service to 

secure the employment records, the following conditions must be met: a 

SAW application (Form I-700) must have been filed; an interview must 

have been conducted; the applicant's testimony must support credibly his 

or her claim; and, the Service must determine that the application 

cannot be approved in the absence of the employer or farm labor 

contractor records. Provided each of these conditions has been met, and 

after unsuccessful attempts by the Service for voluntary compliance, the 

District Directors shall utilize section 235 of the Immigration and 

Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in 

such cases where the employer or farm labor contractor refuses to 

release the needed employment records.

    (c) Documents. A complete application for adjustment of status must 

be accompanied by proof of identity, evidence of qualifying employment, 

evidence of residence and such evidence of admissibility or eligibility 

as may be requested by the examining immigration officer in accordance 

with requirements specified in this part. At the time of filing, 

certified copies of documents may be submitted in lieu of originals. 

However, at the time of the interview, wherever possible, the original 

documents must be presented except for the following: Official 

government records; employment or employment related records maintained 

by employers, unions, or collective bargaining organizations; medical 

records;



[[Page 177]]



school records maintained by a school or school board; or other records 

maintained by a party other than the applicant. Copies of records 

maintained by parties other than the applicant which are submitted in 

evidence must be certified as true and correct by such parties and must 

bear their seal or signature or the signature and title of persons 

authorized to act in their behalf. If at the time of the interview the 

return of original documents is desired by the applicant, they must be 

accompanied by notarized copies or copies certified true and correct by 

a qualified designated entity or by the alien's representative in the 

format prescribed in Sec. 204.2(j)(1) or (2) of this chapter. At the 

discretion of the district director or consular officer, original 

documents, even if accompanied by certified copies, may be temporarily 

retained for further examination.

    (1) Proof of identity. Evidence to establish identity is listed 

below in descending order of preference:

    (i) Passport;

    (ii) Birth certificate;

    (iii) Any national identity document from a foreign country bearing 

a photo and/or fingerprint (e.g., ``cedula'', ``cartilla'', ``carte 

d'identite,'' etc.);

    (iv) Driver's license or similar document issued by a state if it 

contains a photo;

    (v) Baptismal record or marriage certificate;

    (vi) Affidavits, or

    (vii) Such other documentation which may establish the identity of 

the applicant.

    (2) Assumed names--(i) General. In cases where an applicant claims 

to have met any of the eligibility criteria under an assumed name, the 

applicant has the burden of proving that the applicant was in fact the 

person who used that name.

    (ii) Proof of common identity. The most persuasive evidence is a 

document issued in the assumed name which identifies the applicant by 

photograph, fingerprint or detailed physical description. Other evidence 

which will be considered are affidavit(s) by a person or persons other 

than the applicant, made under oath, which identify the affiant by name 

and address and state the affiant's relationship to the applicant and 

the basis of the affiant's knowledge of the applicant's use of the 

assumed name. Affidavits accompanied by a photograph which has been 

identified by the affiant as the individual known to the affiant under 

the assumed name in question will carry greater weight. Other documents 

showing the assumed name may serve to establish the common identity when 

substantiated by corroborating detail.

    (3) Proof of employment. The applicant may establish qualifying 

employment through government employment records, or records maintained 

by agricultural producers, farm labor contractors, collective bargaining 

organizations and other groups or organizations which maintain records 

of employment, or such other evidence as worker identification issued by 

employers or collective bargaining organizations, union membership cards 

or other union records such as dues receipts or records of the 

applicant's involvement or that of his or her immediate family with 

organizations providing services to farmworkers, or work records such as 

pay stubs, piece work receipts, W-2 Forms or certification of the filing 

of Federal income tax returns on IRS Form 6166, or state verification of 

the filing of state income tax returns. Affidavits may be submitted 

under oath, by agricultural producers, foremen, farm labor contractors, 

union officials, fellow employees, or other persons with specific 

knowledge of the applicant's employment. The affiant must be identified 

by name and address; the name of the applicant and the relationship of 

the affiant to the applicant must be stated; and the source of the 

information in the affidavit (e.g. personal knowledge, reliance on 

information provided by others, etc.) must be indicated. The affidavit 

must also provide information regarding the crop and the type of work 

performed by the applicant and the period during which such work was 

performed. The affiant must provide a certified copy of corroborating 

records or state the affiant's willingness to personally verify the 

information provided. The weight and probative value of any affidavit 

accepted will be determined on the basis of the substance of the 

affidavit and any documents which



[[Page 178]]



may be affixed thereto which may corroborate the information provided.

    (4) Proof of residence. Evidence to establish residence in the 

United States during the requisite period(s) includes: Employment 

records as described in paragraph (c)(3) of this section; utility bills 

(gas, electric, phone, etc.), receipts, or letters from companies 

showing the dates during which the applicant received service; school 

records (letters, report cards, etc.) from the schools that the 

applicant or his or her children have attended in the United States 

showing the name of school, name and, if available, address of student, 

and periods of attendance, and hospital or medical records showing 

similar information; attestations by churches, unions, or other 

organizations to the applicant's residence by letter which: Identify 

applicant by name, are signed by an official (whose title is shown), 

show inclusive dates of membership, state the address where applicant 

resided during the membership period, include the seal of the 

organization impressed on the letter, establish how the author knows the 

applicant, and the origin of the information; and additional documents 

that could show that the applicant was in the United States at a 

specific time, such as: Money order receipts for money sent out of the 

country; passport entries; birth certificates of children born in the 

United States; bank books with dated transactions; letters of 

correspondence between the applicant and another person or organization; 

Social Security card; Selective Service card; automobile license 

receipts, title, vehicle registration, etc.; deeds, mortgages, contracts 

to which applicant has been a party; tax receipts; insurance policies, 

receipts, or letters; and any other document that will show that 

applicant was in the United States at a specific time. For Group 2 

eligibility, evidence of performance of the required 90 man-days of 

seasonal agricultural services shall constitute evidence of qualifying 

residence.

    (5) Proof of financial responsibility. Generally, the evidence of 

employment submitted under paragraph (c)(3) of this section will serve 

to demonstrate the alien's financial responsibility. If it appears that 

the applicant may be inadmissible under section 212(a)(15) of the Act, 

he or she may be required to submit documentation showing a history of 

employment without reliance on public cash assistance for all periods of 

residence in the United States.

    (d) Ineligible classes. The following classes of aliens are 

ineligible for temporary residence under this part:

    (1) An alien who at any time was a nonimmigrant exchange visitor 

under section 101(a)(15)(J) of the Act who is subject to the two-year 

foreign residence requirement unless the alien has complied with that 

requirement or the requirement has been waived pursuant to the 

provisions of section 212(e) of the Act;

    (2) An alien excludable under the provisions of section 212(a) of 

the Act whose grounds of excludability may not be waived, pursuant to 

section 210(c)(2)(B)(ii) of the Act;

    (3) An alien who has been convicted of a felony, or three or more 

misdemeanors.

    (e) Exclusion grounds--(1) Grounds of exclusion not to be applied. 

Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act 

shall not apply to applicants applying for temporary resident status.

    (2) Waiver of grounds for exclusion. Except as provided in paragraph 

(e)(3) of this section, the Service may waive any other provision of 

section 212(a) of the Act only in the case of individual aliens for 

humanitarian purposes, to assure family unity, or when the granting of 

such a waiver is in the public interest. If an alien is excludable on 

grounds which may be waived as set forth in this paragraph, he or she 

shall be advised of the procedures for applying for a waiver of grounds 

of excludability on Form I-690. When an application for waiver of 

grounds of excludability is submitted in conjunction with an application 

for temporary residence under this section, it shall be accepted for 

processing at the legalization office, overseas processing office, or 

designated port of entry. If an application for waiver of grounds of 

excludability is submitted after the alien's preliminary interview at 

the legalization office it shall be forwarded to the appropriate 

regional processing facility. All applications for waivers of



[[Page 179]]



grounds of excludability must be accompanied by the correct fee in the 

exact amount. All fees for applications filed in the United States other 

than those within the provisions of Sec. 210.2(c)(4) must be in the 

form of a money order, cashier's check, or bank check. No personal 

checks or currency will be accepted. Fees for waiver applications filed 

at the designated port of entry under the preliminary application 

standard must be submitted in United States currency. Fees will not be 

waived or refunded under any circumstances. Generally, an application 

for waiver of grounds of excludability under this part submitted at a 

legalization office or overseas processing office will be approved or 

denied by the director of the regional processing facility in whose 

jurisdiction the applicant's application for adjustment of status was 

filed. However, in cases involving clear statutory ineligibility or 

admitted fraud, such application for a waiver may be denied by the 

district director in whose jurisdiction the application is filed; in 

cases filed at overseas processing offices, such application for a 

waiver may be denied by a consular officer; or, in cases returned to a 

legalization office for reinterview, such application may be approved at 

the discretion of the district director. Waiver applications filed at 

the port of entry under the preliminary application standard will be 

approved or denied by the district director having jurisdiction over the 

port of entry. The applicant shall be notified of the decision and, if 

the application is denied, of the reason(s) therefor. The applicant may 

appeal the decision within 30 days after the service of the notice 

pursuant to the provisions of Sec. 103.3(a)(2) of this chapter.

    (3) Grounds of exclusion that may not be waived. The following 

provisions of section 212(a) of the Act may not be waived:

    (i) Paragraphs (9) and (10) (criminals);

    (ii) Paragraph (15) (public charge) except as provided in paragraph 

(c)(4) of this section.

    (iii) Paragraph (23) (narcotics) except for a single offense of 

simple possession of thirty grams or less of marijuana.

    (iv) Paragraphs (27), (prejudicial to the public interest), (28), 

(communists), and (29) (subversive);

    (v) Paragraph (33) (Nazi persecution).

    (4) Special Rule for determination of public charge. An applicant 

who has a consistent employment history which shows the ability to 

support himself and his or her family, even though his income may be 

below the poverty level, is not excludable under paragraph (e)(3)(ii) of 

this section. The applicant's employment history need not be continuous 

in that it is uninterrupted. It should be continuous in the sense that 

the applicant shall be regularly attached to the workforce, has an 

income over a substantial period of the applicable time, and has 

demonstrated the capacity to exist on his or her income and maintain his 

or her family without reliance on public cash assistance. This 

regulation is prospective in that the Service shall determine, based on 

the applicant's history, whether he or she is likely to become a public 

charge. Past acceptance of public cash assistance within a history of 

consistent employment will enter into this decision. The weight given in 

considering applicability of the public charge provisions will depend on 

many factors, but the length of time an applicant has received public 

cash assistance will constitute a significant factor.



[53 FR 10064, Mar. 29, 1988, as amended at 53 FR 27335, July 20, 1988; 

54 FR 4757, Jan. 31, 1989; 55 FR 12629, Apr. 5, 1990]