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time and place needed to perform the work for which such workers are to be employed, (2) the employment of such workers will not adversely affect the wages and working conditions of domestic agricultural workers similarly employed, and (3) reasonable efforts have been made to attract domestic workers for such employment at wages, standard hours of work, and working conditions comparable to those offered to foreign workers. In carrying out the provision of clauses (1) and (2) of this section, provision shall be made for consultation with agricultural employers and workers for the purpose of obtaining facts relevant to the supply of domestic farm workers and the wages paid such workers engaged in similar employment. Information with respect to certifications under clause (1) and (2) shall be posted in the appropriate local public employment offices and such other public places as the Secretary may require.

Sec. 504. No workers recruited under this title shall be made available to any employer or permitted to remain in the employ of any employer

(1) for employment in other than temporary or seasonal occupations, except in specific cases when found by the Secretary of Labor necessary to avoid undue hardship; or

(2) for employment to operate or maintain power-driven self-propelled harvesting, planting, or cultivating machinery, except in specific cases when found by the Secretary of Labor necessary for a temporary period to avoid undue

hardship SEC. 505. Workers recruited under this title who are not citizens of the United States shall be admitted to the United States subject to the immigration laws (or if already in, for not less than the preceding five years or by virtue of legal entry, and otherwise eligible for admission to, the United States may, pursuant to arrangements between the United States and the Republic of Mexico, be permitted to remain therein) for such time and under such conditions as may be specified by the Attorney General but, notwithstanding any other provision of law or regulation, no penalty bond shall be required which imposes liability upon any person for the failure of any such worker to depart from the United States upon termination of employment: Provided, That no workers shall be made available under this title to, nor shall any workers made available under this title be permitted to remain in the employ of, any employer who has in his employ any Mexican alien when such employer knows or has reasonable grounds to believe or suspect or by reasonable inquiry could have ascertained that such Mexican alien is not lawfully within the United States.

Sec. 506. (a) Section 210(a)(1) of the Social Security Act, as amended, is amended by adding at the end thereof a new subparagraph as follows:

"(©) Service performed by foreign agricultural workers under contract entered into in accordance with title V of the Agricultural Act of 1949, as

amended.” (b) Workers recruited under the provisions of this title shall not be subject to the head tax levied under section 2 of the Immigration Act of 1917 (8 U.S.C. 132).

(c) Workers recruited under the provisions of this title shall not be subject to any Federal or State tax levied to provide illness or disability benefits for them. SEC. 507. For the purposes of this title, the Secretary of Labor is authorized

(1) to enter into agreements with Federal and State agencies; to utilize (pursuant to such agreements) the facilities and services of such agencies, and to allocate or transfer funds or otherwise to pay or reimburse such agencies for expenses in connection therewith;

(2) to accept and utilize voluntary and uncompensated services; and

(3) when necessary to supplement the domestic agricultural labor force, to cooperate with the Secretary of State in negotiating and carrying out agreements or arrangements relating to the employment in the United States, subject to

the immigration laws, of agricultural workers from the Republic of Mexico. Sec. 508. For the purposes of this title

(1) The term "agricultural employment” includes services or activities included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938, as amended, or section 1426(h) of the Internal Revenue Code [of 1954], as amended.

(2) The term “employer" shall include an association, or other group, of employers, but only if (A) those of its members for whom workers are being obtained are bound, in the event of its default, to carry out the obligations undertaken by it pursuant to section 502, or (B) the Secretary determines that such

individual liability is not necessary to assure performance of such obligations. SEC. 509. Nothing in this Act shall be construed as limiting the authority of the Attorney General, pursuant to the general immigration laws, to permit the importation of aliens of any nationality for agricultural employment as defined in section 508, or to permit any such alien who entered the United States legally to remain for the purpose of engaging in such agricultural employment under such conditions and for such time as he, the Attorney General, shall specify.

SEC. 510. No workers will be made available under this title for employment after December 31, 1964.



(Source: Visa Office, Department of State, as of January 1, 1992)



Some form of numerical limitation has been imposed on immigration into the United States since 1921, although certain classes of immigrants have traditionally been able to obtain visas outside these limitations. The Immigration Act of 1990 modified this concept by establishing an overall limit within which immediate relatives (IR's) and certain special immigrants would continue not to be delayed by the requirement of an available visa number but the IR's would be "counted” as a deduction of the total from the overall ceiling the following year to determine certain other ceilings. Outlined below are the basic elements of the system applicable at present; unless otherwise stated, the section of law cited refers to the Immigration and Nationality Act, as amended. I. Classes not subject to the numerical limitations: A. Immediate Relatives:

(1) Spouse and children of U.S. citizens and parents of citizens at least 21 years of age; (Sec. 201(b)(2XAX(i)). (2) Certain surviving spouses

of deceased U.S. citizens; (Sec. 201(b)(2)(A)(i)). B. Special Immigrants:

(1) Returning residents; (Sec. 101(a)(27)(A) and Sec. 201(b)(1)(A)).

(2) Certain former U.S. citizens; (Sec. 101(a)(27)(B) and Sec. 201(b)(1)(A)). C. Others

(1) Child born abroad subsequent to issuance of immediate relative visa to parent; (Secs. 211(a) and 201(b)(2)(A)(ii)).

(2) Child born to a lawful permanent resident temporarily abroad; (Secs. 211(a) and 201(b)(2)(B).

(3) Vietnam Amerasians, a category created by Sec. 584 (as contained in $ 101(e)) of P.L. 100-204 for Vietnam Amerasians and their immediate family members. Initially time-limited to March 20, 1990, the provision was made permanent by P.L. 101-513.

(4) Refugees admitted under $ 207 or adjusted under $ 209; (Sec. 201(b)(1)(B)).

(5) Aliens legalized under $$ 210, 210A, or 245A; (Sec. 201(b)(1)(C)).

(6) Aliens whose deportation is suspended under $ 244(a); (Sec. 201(b)(1)(D)).

(7) Aliens acquiring lawful permanent resident status under $ 249; (Sec.

201(b)(1)(E)). II. Numerically Limited Classes: A. Special Categories:

(1) Certain former employees of the Panama Canal Company or Canal Zone Government, up to a total of 15,000 immigrants, but no more than 5,000 in any fiscal year; (Sec. 101(a)(27)(E),(F) and (G)).

[See also employment-based fourth preference, below.]

(2) Spouses and children of legalized aliens. Sec. 112 of P.L. 101-649 provided up to 55,000 visa numbers annually for such immigrants in each of Fiscal Years 1992, 1993, and 1994.

(3) Certain employees (and family members) of United States businesses in Hong Kong. Sec. 124 of P. L. 101-649 provided up to 12,000 visa numbers annually for such immigrants during Fiscal Years 1991, 1992 and 1993.

(4) Sec. 134 of P.L. 101-649 authorized not more than 1,000 visas for certain displaced Tibetans (and their spouses and children) over the three-year period of Fiscal Years 1991-1993.

(5) Transition diversity immigrants. Sec. 132 of P.L. 101-649 provided 40,000 visa numbers annually during Fiscal Years 1992, 1993, and 1994 for natives of foreign states adversely affected by the 1965 Act and their spouses and children, of which at least 40% are reserved for natives of Ireland. Under a subsequent technical amendment (8 302(b)(6) of P.L. 102-232), natives of Northern Ireland are deemed to be natives of Ireland for the purpose of this provision. (For more detailed information on this program, see

App. VIII.B.5.)
B. Numerical Limits under $8 201, 202 and 203:

In addition to the overall limits described below, the INA contains a percountry ceiling to preclude preemption of the annual numbers by one or more foreign states of heavy emigration. Under the formula in the Immigration Act of 1990, the per-country limit is at least 25,620, i.e., 7% of the combined total available to family-sponsored and employment-based immigrants. (When the permanent diversity classification goes into effect in FY95, there will be a separate 7% per-country limit on such applicants.)

As a selective mechanism to enable distribution of the numbers to the immigrants desired, a system of preference classes, commingling certain types of relatives and needed workers, has long existed. The Immigration Act of 1990, however, divided such preference classes into two broad catego ries: family-sponsored immigrants and employment-based immigrants, with a separate numerical limitation for each category. (See chart, in Appendix B.2.Ă, for a comparison of former and current preference classes.) (1) Family-sponsored:

(a) The overall ceiling for relatives is 480,000 (465,000 in Fiscal Years 1992, 1993 and 1994), from which the total of immediate relatives and other family classes which are exempt from the numerical ceiling (I.A. and I.C.(1) and (2) above) are deducted to determine the level of familybased preference immigration. Although the residuum could exceed or be less than 226,000, that figure is established as a minimum for family-sponsored immigrants.

(b) Specifically, if, in FY-92, 93, or 94, such numerically exempt classes are fewer than 239,000, the family-sponsored preferences will be entitled to more than 226,000. (This is a permanent provision, so such deductions will be made from 480,000 beginning in FY-95.) On the other hand, if, during FY-92, 93, or 94, family-related, numerically-exempt immigrants exceed 239,000, the surplus will be deducted from the 55,000 separately established visa numbers for the spouses and children

of legalized aliens (see II.A.(2) above). (2) Employment-based:

The overall ceiling for this category is 140,000. The term “employmentbased” is more broadly defined than a strict interpretation would provide; that is, it encompasses all non-family immigration, whether or not the im

migrant is actually destined to employment in the United States. C. Preference classes as set forth in § 203:

Class limitations are expressed in absolute numbers for the family-sponsored immigrants and by percentages applied against the annual limitation for the employment-based category as set forth in 8 201. (1) Family-sponsored:

(a) First preference: Unmarried sons and/or daughters (i.e., offspring aged 21 or older) of United States citizens: not more than 23,400 (plus any numbers unused by the fourth preference; (sec. 203(a)(1)).

(b) Second preference; (A) Spouses and children of lawful permanent residents, and (B) unmarried sons and/or daughters of lawful perma. nent residents: not more than 114,200, plus any numbers not required for the first preference, of which 77% are designated for sub-category (A); (sec. 203(a)(2)).

(c) Third preference: Married sons and daughters of United States citizens: not more than 23,400, plus any numbers not required by first and second preference; (sec. 203(a)(3)).

(d) Fourth preference: Siblings of United States citizens who are at least 21 years of age: not more than 65,000 plus any numbers not re

quired by the first three classes; (sec. 203(a)(4)). (2) Employment-based:

(a) First preference: Priority workers (aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers): not more than 28.6%, plus any visa numbers not required by the fourth and fifth preference; (sec. 203(b)(1)).

(b) Second preference: Members of the professions with advanced degrees and aliens of exceptional ability: not more than 28.6%, plus any numbers unused by the first preference; (sec. 203(b)(2)).

(c) Third preference: Skilled workers, professionals (without advanced degrees), and other (i.e., unskilled) workers: not more than 28.6%, plus any numbers unused by the first two preferences, of which not more than 10,000 numbers are available for unskilled workers; (sec. 203(b)(3)).

(d) Fourth preference: Special immigrants (other than returning residents and certain former citizens—see I. A. (2)): not more than 7.1%, of which not more than 5,000 numbers may be allocated for certain religious workers. There is no “fall-down” of numbers from higher classes into this class; the limit is absolute. The class includes not only aliens defined as special immigrants in past legislation (ministers of religion, certain employees/retirees of the U. S. Government abroad, Panama Canal and/or Zone employees, certain doctors, certain international organizations-related aliens) but also two new classes, aliens dependent on a juvenile court and certain members of the U.S. Armed Forces recruited abroad, as well as a time-limited expansion of the minister of religion provision to include certain religious workers. These provisions are found in § 101(a)(27)(C) through (K) and $ 203(b)(4).

(e) Fifth preference: Employment creators, i.e., aliens whose investments will create employment for at least ten United States citizens and/or lawful permanent residents: not more than 7.1%, with no fall

down; (sec. 203(b)(5)). (3) Diversity immigrants: This classification does not become effective until FY-95. It is designed to provide immigration opportunities for aliens from foreign states from which immigration levels are low relative to the level from other countries. When effective, the annual limitation on this

class will be 55,000. III. Related Provisions

A. The applicability of the labor certification requirement (§ 212(a/5)(A)) for immigrants is explicitly restricted to aliens in the employment-based 2nd and 3rd preferences. The Attorney General is authorized to waive the requirement for an employer, however, in certain 2nd preference cases; the labor certification is also waived, by regulation, in those cases as a matter of practicality.

B. A spouse or child accompanying or following to join a preference immigrant (whether family-sponsored or employment-based) is entitled to the same classification and priority date as the principal alien if not otherwise entitled to an immigrant classification and the immediate issuance of a visa. (Sec. 203(d).)

C. The Marriage Fraud Amendments of 1986 (P.L. 89-639, November 10, 1986) established a conditional immigration status for aliens whose entitlement to an immigrant classification derived from a marriage entered into less than two years prior to admission. This provision affects not only the spouse of such marriage but the also any sons or daughters. The conditionality may be removed only by approval of a petition jointly filed by the marriage partners during the 90-day period prior to the second anniversary of acquiring conditional status.

D. Aliens who obtain a visa or adjustment of status under a private law are subject to the numerical limitations in $8 201 and 202 unless explicitly exempted therefrom.

E. An alien may adjust status from that of nonimmigrant to lawful permanent resident, subject to certain conditions, through the Immigration and Naturalization Service. Unless the adjustment is in a numerically-exempt category, it is charged against all appropriate limitations. (Sec. 245.)

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