(a) Section 210 of the Immigration and Nationality Act (INA), as added by section 302 of the Immigration Reform and Control Act of 1986 (IRCA), established the special agricultural worker (SAW) program. Under this program, aliens could apply (during the 18-month period ending November 30, 1988) to have their status adjusted to that of an alien lawfully admitted for temporary residence, provided they could demonstrate residence in the United States and performance of seasonal agricultural services (SAS) for at least 90 man-days during the 12-month period ending May 1, 1986. While employment in SAS was required in order to qualify for SAW status, there is no requirement that SAWS continue to work in agriculture. Because SAWS

may seek employment in any occupation or industry, the INA provides a framework for admitting additional aliens to work in SAS if a shortage of workers develops.

(b) Pursuant to section 210A(a)(1) of the INA, before the beginning of each fiscal year (FY), beginning with FY 1990 and ending with FY 1993, the Secretaries of Agriculture and Labor (the Secretaries) shall determine jointly the number (if any) of additional aliens who should be admitted to the United States or who should otherwise acquire the status of aliens lawfully admitted for temporary residence under section 210A of the INA during the FY to meet a shortage of workers to perform SAS. Such number is known as the "shortage number", which may not exceed the annual numerical limitation on the admission of additional SAWS, known in this part as replenishment agricultural workers (RAWS).

(c) This part sets forth the procedure that will be used by the Secretaries in making a determination of the shortage number, and of the annual numerical limitation. This part also establishes the procedure which a group or association of employers of individuals who work in SAS must use in order to request the Secretaries to increase the shortage number. Further, this part sets forth the procedure through which a group of RAWS may request the Secretaries to decrease the number of work-days of employment required for a given FY in order to maintain their temporary resident alien status.

§ 1e.1 Purpose and scope.

(a) This part has a narrow focus. It is based in part on regulations already promulgated by the United States Department of Labor (DOL), the United States Department of Agriculture (USDA), and the Immigration and Naturalization Service (INS), all of which have responsibilities under the INA. Where appropriate in this part, reference will be made to existing regulations and their location.

(b) Section 210A(a)(1) of the INA requires action by the Secretaries to determine the shortage number. That

number will become the basis upon which the Attorney General will provide for the admission for lawful temporary resident status, or for the adjustment of status to lawful temporary resident status, of a number of aliens. The number (if any) of such aliens to be admitted will be the lesser of the shortage number or the annual numerical limitation on admission of additional SAWS, which is set by formula in section 210A(b) of the INA. These additional SAWS are known as RAWS and may be admitted beginning with FY 1990.

(c) This part establishes the procedure by which the Secretaries will use available information to make the determination required by the INA. This part is not concerned with the procedure, nor qualifications, through which individuals may become eligible for RAW status.

For purposes of this part:

(a) Act" and INA" mean the Immigration and Nationality Act (8 U.S.C. 1101, et seq.), as amended by the Immigration Reform and Control Act of 1986 (IRCA), with reference particularly to sections 210 and 210A (8 U.S.C. 1160 and 1161).

(b) Alien 'A' Number" refers to an INS Alien Registration Number assigned to each alien.

(c) Annual numerical limitation" refers to the upper limit on the number of aliens who may be admitted as RAWS in any FY and is set by statutory formula in section 210A(b) of INA. If the shortage number determined under this part exceeds the annual numerical limitation, the number of aliens who may be admitted, or have their status adjusted, cannot exceed the annual numerical limitation.

(d) Director" means the Director of the Bureau of the Census, United States Department of Commerce.

(e) DOL" means the United States Department of Labor.

(f) Immigration and Naturalization Service (INS)" is the agency within the United States Department of Justice which is responsible for administering the INA.

with an INS Alien Registration Number in the A94000000 series (A94 followed by any six digits) who is admitted during FY 1990 through FY 1993 for lawful temporary resident alien status or whose status is adjusted to that of an alien lawfully admitted for temporary residence, in accordance with section 210A of the INA, to meet a shortage of workers employed in SAS.

(h) Reportable Worker" is an alien employed in SAS who is admitted with lawful temporary resident alien status or whose status is adjusted to that of an alien lawfully admitted for temporary residence, and who is identified by an INS Alien Registration Number in the A90000000 series (A9 followed by any seven digits). This series includes (1) resident aliens admitted under section 245A of the INA, (2) resident alienSAWS admitted under section 210 of the INA, and (3) anticipated resident alien-RAWs admitted between FY 1990 and FY 1993 under section 210A of the INA.

NOTE.-This series also includes aliens employed in SAS who have applied for admission or adjustment of status under section 210.

(i) Seasonal Agricultural Services (SAS)" as provided by section 210(h) of the Act means the "performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture." 8 U.S.C. 1160(h). The definitions of SAS promulgated by the Secretary of Agriculture are located at 7 CFR part 1d, and are restated for informational purposes at 29 CFR 502.2(0)(2).

(j) Secretaries" for purposes of this part means the Secretary of the United States Department of Agriculture and the Secretary of the United States Department of Labor.

(k) Shortage Number" means the number, determined jointly by the Secretaries, of additional aliens who should be admitted to the United States or who should otherwise acquire the status of aliens lawfully admitted for temporary residence under section 210A of the INA to meet a shortage of

workers to perform SAS in the United States during a specific FY.

Worker

(1) Special Agricultural (SAW)" is (1) an alien granted temporary resident alien status as a result of an application filed pursuant to section 210 of the INA, establishing residence in the United States and employment in SAS for at least 90 man-days (days in which at least one hour is worked) during the 12-month period ending May 1, 1986; and (2) a RAW granted temporary resident alien status pursuant to section 210A of the INA.

(m) Starting number” is the number of individuals whose status has been finally adjudicated to that of SAWS under section 210 of the INA, as reported to the Secretaries by the Director by September 1 of each FY. It is the base number from which the annual numerical limitation is determined.

(n) USDA" means the United States Department of Agriculture.

(0) Work-day” means a calendar day during which at least 4 hours of work in SAS is performed.

NOTE.-Work-day is a term specific to the SAW/RAW program and carries with it employer reporting requirements under 29 CFR part 502. The term is to be distinguished from "man-day" (one hour per day) which is used in other labor standards statutes, and is used under the INA and INS regulations to determine whether an alien has sufficient experience in agricultural employment to be eligible for SAW/RAW status.

§ 1e.3 Overall determination of the shortage number.

The shortage number is:

(a) the anticipated need in workdays for labor to perform SAS (as determined in § 1e.5 of this part) for the FY, minus

(b) the supply in work-days of labor to perform SAS (as determined in § 1e.6 of this part) for that FY,

(c) divided by the factor (determined under § 1e.13 of this part) for workdays per worker.

The formula set forth in this section is (paragraph (a) paragraph (b)) ÷ paragraph (c).

§ 1e.4 No replenishment if no shortage. The Secretaries may not determine that there is a shortage unless, based

on the criteria set forth in §§ 1e.5 and 1e.6 of this part, the Secretaries determine that there will not be sufficient able, willing, and qualified workers available to perform SAS required in the FY involved. If there is no determination of shortage, no RAWS may be admitted for the FY involved, except as provided under section 210A(a)(7) of the Act, and § 1e.20 of this part.

§ 1e.5 Determination of need.

(a) The anticipated need for labor to perform SAS for a FY is determined as follows:

(1) Base-The Secretaries shall estimate jointly, using statistically valid methods, the number of work-days of labor performed in SAS in the United States in the previous FY. This is an estimate of the total work-days of labor performed by hired labor in SAS-not just those work-days performed by SAWs.

(2) Adjustment for crop losses and changes in industry-The Secretaries shall jointly

(i) Increase the base number by the number of work-days of labor in SAS in the United States that the Secretaries estimate would have been needed in the previous FY to avoid any crop damage or other loss that resulted from the unavailability of labor, and

(ii) Increase or decrease the base number by the projected change in the number of work-days of labor in SAS as a result of

(A) The forecast of growth or contraction in the production of crops included in SAS, and

(B) The forecast of changes in the number of work-days of labor due to on-farm changes in technologies and personnel practices that affect the need for, and retention of, workers to perform such services.

(b) The Secretary of Agriculture shall collect the data necessary for making the estimate described in paragraph (a) of this section.

§ 1e.6 Determination of supply.

(a) The anticipated supply of labor to perform SAS for a FY is determined as follows:

(1) Base-The Secretaries shall use the number estimated under § 1e.5(a)(1) of this part as the base number for estimating the anticipated supply of such labor.

(2) Adjustments for retirements and increased recruitment-The Secretaries shall jointly

(i) Decrease the base number by the number of work-days of labor in SAS in the United States that the Secretaries estimate will be lost due to retirement and movement of workers out of performance of SAS, and

(ii) Increase the base number by the number of additional work-days of labvor in SAS in the United States that the Secretaries estimate can reasonably be expected to result from the availability of able, willing, qualified, and unemployed SAWs, rural low skill or manual laborers, and domestic agricultural workers.

(3) Bases for increased number-In making the adjustment under paragraph (a)(2) of this section, the Secretaries shall consider

(i) The effect, if any, that improvements in wages and working conditions offered by employers are projected to have on the availability of workers to perform SAS, taking into account the adverse effect, if any, such improvements in wages and working conditions are projected to have on the economic competitiveness of the perishable agricultural industry,

(ii) The effect, if any, of enhanced recruitment efforts by employers of such workers and government employment services in the traditional and expected areas of supply of such workers, and

(iii) The number of able, willing, and qualified individuals who apply for employment opportunities in SAS listed with offices of government employment services.

(b) The Secretary of Labor shall collect the data necessary for making the adjustments described in paragraphs (a)(2) and (a)(3) of this section, except that the Secretary of Agriculture shall determine any adverse effect on the economic competitiveness of the perishable agricultural industry described above in paragraph (a)(3)(i) of this section.

81e.7 Estimate of the number of SAWs in SAS and determination of work-day per worker factor.

(a) Employers who utilize reportable workers (identified by an INS alien registration number beginning A9 followed by any seven digits) to perform SAS during FY 1989 through FY 1992 are required by section 210A(b)(2) of the INA and regulations located at 29 CTR part 502 to report to the Federal government on the utilization of such workers. An official form, ESA-92 (OMB approval number 1215-0168) must be submitted quarterly, by any employers who employed such workers in SAS during the quarter. The Secretaries have designated the Committee for Employment Information on Special Agricultural Workers, 1201 East 10th Street, Jeffersonville, Indiana 47132, as the entity to receive the reports. No additional reporting of such information is required by this regulation.

(b) The Director shall, before the end of each FY (beginning with FY 1989 and ending with FY 1992), estimate the number of SAWS who have performed SAS in the United States for at least 15 work-days during the FY. The Act further requires that the Director determine the average number of work-days worked in SAS by certain SAWS during the FY under consideration.

(c) The Committee for Employment Information on Special Agricultural Workers shall furnish to the Director, in the form and manner specified by the Director, information contained in the reports (ESA-92's) submitted by employers. The Director shall base estimates of the number of SAWs working in SAS and the average number of work-days worked by SAWS on the information received from the Committee.

(d) In making the estimates, the Director shall take into account (to the extent feasible) the underreporting or duplicate reporting on the number of SAWS that may be occurring. The Director shall periodically conduct appropriate surveys of agricultural employers and others to ascertain the extent of such underreporting or duplicate reporting.

(e) Subject to the provisions of section § 1e.13 of this part for each FY, the estimate of the average number of work-days so derived by the Director is the basis for determination of the work-day per worker factor. That factor is the denominator in the formula specified in section § 1e.3 of this part for making the overall determination of the shortage number.

§ 1e.8 Announcement of the annual numerical limitation on the admission of replenishment agricultural workers.

(a) The Secretaries will make the calculation of the "annual numerical limitation" according to the statutory formula established by section 210A(b) of the INA. In doing so, the Secretaries will use information from INS regarding the number of individuals whose status was finally adjudicated (approved) as SAWS under section 210 of the INA. In the event that INS is not able to make final determinations on all SAW applications prior to the beginning of FY 1990, the Secretaries will use the number of final adjudications reported by INS to the Director as the "starting number" for the calculation applicable to FY 1990. The Director will advise the Secretaries by September 1, 1989, of the number to be used in the calculation, based upon the latest available INS data. However, in the event INS is unable to complete its adjudication of all SAW applications by the end of FY 1989, the Secretaries, prior to the end of each of the following fiscal quarters, will recalculate the annual numerical limitation by including in the "starting number" all those aliens who the Director reports have been finally adjudicated as SAWS subsequent to any earlier determination of the annual numerical limitation, and by adjusting the number of SAWs who worked in SAS to take into account the increase in the number of reportable workers who obtained SAW status.

(b) Section 210A(b)(3)(i) of the INA requires that before the end of each FY, beginning with FY 1989 and ending with FY 1992, the Director estimate the number of SAWS (those individuals whose status was finally adjusted under section 210 of the INA or who were admitted or whose status

was adjusted under section 210A of the INA) who performed SAS at any time (for at least 15 work-days) during the FY. The estimate of the Director will be determined pursuant to § § 1e.7 of this part and will be used by the Secretaries as specified in the formula for calculating the annual numerical limitation.

(c) Section 210A(b)(1)(C) of the INA requires that the estimate of the Director be increased or decreased to reflect any increase or decrease in the number of nonimmigrant aliens admitted to perform temporary SAS (H-2A workers) in the FY, compared to the prior FY. The Secretaries will use the difference between the number of H2A workers admitted to perform SAS during FY 1989 compared to FY 1988 as the basis for adjusting the estimate of the Director of SAWS who worked in SAS in FY 1989, and in each of the following FY's will use the change between the current and the prior year as the basis for adjusting the estimate of the Director. Specifically, if there is an increase in the number of H-2A workers who performed SAS in FY 1989 compared to FY 1988, the amount of the increase will be added to the estimate of the Director of the number of SAWS who performed SAS in FY 1989. If there is a decrease in the number of H-2A workers who performed SAS, the amount of the decrease will be subtracted from the estimate of the Director.

(d) For FY 1990, the annual numerical limitation is: (1) 95 percent of the number of individuals finally adjudicated as SAWS (described in paragraph (a) of this section as the "starting number”), minus (2) the number of SAWS who performed SAS during FY 1989 as estimated by the Director (as described above in paragraph (b) of this section), and as adjusted to reflect any change in the number of H-2A workers admitted to perform SAS as described above in paragraph (c) of this section.

(e) For FY 1991, the annual numerical limitation is: (1) 90 percent of the number determined in accordance with step 1 in paragraph (d) of this section (that is, 90 percent of 95 percent of the starting number, except, in the event that INS continues to adjust