Re:
1.
http://a257.g.akamaitech.net/7/257/....access.gpo.gov/cfr_2004/janqtr/8cfr210.1.htm
2.
http://www.murthy.com/print/UDnsc02_P.html
1.
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[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR210.1]
[Page 169-171]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND
NATURALIZATION)
PART 210_SPECIAL AGRICULTURAL WORKERS--Table of Contents
Sec. 210.1 Definition of terms used in this part.
(a) Act. The Immigration and Nationality Act, as amended by the
Immigration Reform and Control Act of 1986.
(b) ADIT. Alien Documentation, Identification and Telecommunications
card, Form I-89. Used to collect key data concerning an alien. When
processed together with an alien's photographs, fingerprints and
signature, this form becomes the source document for generation of Form
I-551, Permanent Resident Card.
(c) Application period. The 18-month period during which an
application for adjustment of status to that of a temporary resident may
be accepted, begins on June 1, 1987, and ends on November 30, 1988.
(d) Complete application. A complete application consists of an
executed Form I-700, Application for Temporary Resident Status as a
Special Agricultural Worker, evidence of qualifying agricultural
employment and residence, a report of medical examination, and the
prescribed number of photographs. An application is not complete until
the required fee has been paid and recorded.
[[Page 170]]
(e) Determination process. Determination process as used in this
part means reviewing and evaluating all information provided pursuant to
an application for the benefit sought and making a determination
thereon. If fraud, willful misrepresentation of a material fact, a false
writing or document, or any other activity prohibited by section
210(b)(7) of the Act is discovered during the determination process the
Service shall refer the case to a U.S. Attorney for possible
prosecution.
(f) Family unity. The term family unity as used in section
210(c)(2)(B)(i) of the Act means maintaining the family group without
deviation or change. The family group shall include the spouse,
unmarried minor children who are not members of some other household,
and parents who reside regularly in the household of the family group.
(g) Group 1. Special agricultural workers who have performed
qualifying agricultural employment in the United States for at least 90
man-days in the aggregate in each of the twelve-month periods ending on
May 1, 1984, 1985, and 1986, and who have resided in the United States
for six months in the aggregate in each of those twelve-month periods.
(h) Group 2. Special agricultural workers who during the twelve-
month period ending on May 1, 1986 have performed at least 90 man-days
in the aggregate of qualifying agricultural employment in the United
States.
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which accept and process
applications for legalization or special agricultural worker status,
under the authority of the district directors in whose districts such
offices are located.
(j) Man-day. The term man-day means the performance during any day
of not less than one hour of qualifying agricultural employment for
wages paid. If employment records relating to an alien applicant show
only piece rate units completed, then any day in which piece rate work
was performed shall be counted as a man-day. Work for more than one
employer in a single day shall be counted as no more than one man-day
for the purposes of this part.
(k) Nonfrivolous application. A complete application will be
determined to be nonfrivolous at the time the applicant appears for an
interview at a legalization or overseas processing office if it
contains:
(1) Evidence or information which shows on its face that the
applicant is admissible to the United States or, if inadmissible, that
the applicable grounds of excludability may be waived under the
provisions of section 210(c)(2)(i) of the Act,
(2) Evidence or information which shows on its face that the
applicant performed at least 90 man-days of qualifying employment in
seasonal agricultural services during the twelve-month period from May
1, 1985 through May 1, 1986, and
(3) Documentation which establishes a reasonable inference of the
performance of the seasonal agricultural services claimed by the
applicant.
(l) Overseas processing office. Overseas processing offices are
offices outside the United States at which applications for adjustment
to temporary resident status as a special agricultural worker are
received, processed, referred to the Service for adjudication or denied.
The Secretary of State has designated for this purpose the United States
Embassy at Mexico City, and in all other countries the immigrant visa
issuing of office at which the alien, if an applicant for an immigrant
visa, would make such application. Consular officers assigned to such
offices are authorized to recommend approval of an application for
special agricultural worker status to the Service if the alien
establishes eligibility for approval and to deny such an application if
the alien fails to establish eligibility for approval or is found to
have committed fraud or misrepresented facts in the application process.
(m) Preliminary application. 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 identifies documentary evidence
which the applicant intends to submit as proof of such employment. The
applicant must be otherwise admissible to the United
[[Page 171]]
States and must establish to the satisfaction of the examining officer
during an interview that his or her claim to eligibility for special
agriculture worker status is credible.
(n) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance. This includes but is not limited to
supplemental security income received by the alien or his immediate
family members through federal, state, or local programs designed to
meet subsistence levels. It does not include assistance in kind, such as
food stamps, public housing, or other non-cash benefits, nor does it
include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or
children under 18 years of age, or treatment in the interest of public
health).
(o) Qualified designated entity. A qualified designated entity is
any state, local, church, community, or voluntary agency, farm labor
organization, association of agricultural employers or individual
designated by the Service to assist aliens in the preparation of
applications for Legalization and/or Special Agricultural Worker status.
(p) Qualifying agricultural employment. Qualifying agricultural
employment means the performance of ``seasonal agricultural services''
described at section 210(h) of the Act as that term is defined in
regulations by the Secretary of Agriculture at 7 CFR part 1d.
(q) Regional processing facility. Regional Processing Facilities are
Service offices established in each of the four Service regions to
adjudicate, under the authority of the Directors of the Regional
Processing Facilities, applications for adjustment of status under
sections 210 and 245a of the Act.
(r) Service. The Immigration and Naturalization Service (INS).
(s) Special agricultural worker. Any individual granted temporary
resident status in the Group 1 or Group 2 classification or permanent
resident status under section 210(a) of the Act.
[53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989; 63
FR 70315, Dec. 21, 1998]
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NSC Update : March 2002
Posted Mar 02, 2002
On January 30, 2002 the American Immigration Lawyers Association had a teleconference with the INS Nebraska Service Center (NSC). We include for our MurthyBulletin and MurthyDotCom readers some helpful, specific information regarding internal INS processing and procedures.
Employment-Based Applications for Adjustment of Status (I-485)
Portability
NSC indicated that I-485 cases utilizing the portability provisions (the "180-day rule") under the American Competitiveness in the Twenty-First Century Act (AC21) are reviewed on a case-by-case basis to determine whether an interview is required. Depending upon the circumstances, the INS may transfer the case to the District Office for an interview. NSC stated that the type of documentation they prefer in portability cases is evidence that will allow them to compare the primary duties of the position described in the labor certification with the new job duties. They state that it would be "helpful" if the new employer provided a letter addressing the nature of the primary duties, job requirements, and salary. "We are interested in essential information that will help us determine whether the new position is similar to the one on which the adjustment application was based."
The MurthyBulletin provided a detailed explanation of the portability provisions in our June 25, 2001 article entitled, INS Finally Issues its Initial Guidance on AC21 in June 2001, available on MurthyDotCom.
Fingerprinting
Fingerprint notices continue to be a problem for employment-based I-485s filed between January and April 2001. Eight thousand (8,000) cases were not scheduled for fingerprinting within the generally prescribed time. Most of these were issued fingerprint notices in November and December of 2001. The INS is running "sweeps" to locate approximately 1,500 remaining cases in need of fingerprint notices.
Processing
The NSC says it has been "hitting new records" in the reduction of I-485 backlogs over the past few months, including both employment-based and other I-485s. The Center is conducting periodic "sweeps" to identify and process older, pending employment-based I-485s.
Green Card Issuance
With respect to the production of the plastic Form I-551 ("green card") following case approval, the NSC has cleared the backlog entirely. They announce it currently takes approximately seven months from the time they receive the completed Form I-89 to the time they produce the plastic "green card." The I-89 is a white, cardboard form bearing the applicant's signature and index fingerprint on two sides. This is used in generating the plastic "green card." The INS prepares the I-89 either at the time of the adjustment of status interview or, in cases when there is no interview, at the time the applicant appears at INS to obtain a "temporary evidence" stamp in his or her passport after the I-485 has been approved.
Relative Petitions (Form I-130)
There is a significant backlog in processing I-130 filings. The backlog for immediate relative cases is 110 days, while the backlog for other categories of I-130s is five and a half months. Immediate relatives are spouses, parents and minor, unmarried children of U.S. citizens. Apparently the LIFE Act created a substantial "bubble" of immediate relative cases filed between the end of December 2000 and April 30, 2001. Since immediate relative cases are a higher priority for INS adjudication, other categories therefore have seen increased delays. For example, NSC reports that, due to the LIFE Act "bubble," it will take longer to complete the processing of the I-130s filed by permanent resident spouses.
Accessibility
It is very difficult to reach the NSC by telephone, which always seems to be busy. NSC says they have looked into adding more lines but their system is at capacity. INS headquarters has advised the NSC that an on-line inquiry system is coming but there is no timetable for this improved system.
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