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ministrative Law Judge and upon all parties to the proceeding in person or by certified mail.
§ 501.43 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Secretary's Notice pursuant to § 501.42 of these regulations, the Office of Administrative Law Judges shall, promptly forward a copy of the complete hearing record to the Secretary.
§ 501.44 Additional information, if required.
Where the Secretary has determined to review such decision and order, the Secretary shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submission shall be made (i.e., briefs, oral argument, etc.); and the time within which such presentation shall be submitted.
the Federal Government and to any individual replenishment agricultural worker.
(b) The statute requires the Director of the Bureau of Census, on the basis of information which is reported to the Federal Government, to estimate
(1) The number of special agricultural workers employed in seasonal agricultural services in the United States at any time during the fiscal year and
(2) The average number of "mandays" of labor performed by these workers during the fiscal year.
(For purposes of this part, an alternative term work-day is adopted and incorporated into the text in lieu of "man-day" and means any day when at least four (4) hours are worked.)
(c) The regulations contained in this part are issued in accordance with section 210A of INA in order to establish the rules necessary to carry out the provisions of INA.
(d) The Office of Management and Budget (OMB) has cleared the paperwork requirements of this regulation at §§ 502.11, 502.12, and 502.13, and of Forms ESA-92 and WH-501R (optional), under control numbers 1215-0148, 1215-0168, and 1215-0169.
§ 502.1 Purpose and scope.
(a) The INA was amended by the Immigration Reform and Control Act (IRCA) in 1986, in order to more effectively control illegal immigration to the United States and to make certain changes in the system for legal immigration.
(b) (1) Section 210 of the INA provides that the Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that the alien resided in the United States and performed work in seasonal agricultural services in the United States for at least 90 "mandays" during the 12-month period ending on May 1, 1986. An individual so legalized is called a special agricultural worker (SAW). A special agricultural worker is given an Immigration and Naturalization Service (INS) Alien Registration Number in either the A90000000 or A090000000 series.
(2) Section 210A of the INA provides that before the beginning of each fiscal year (beginning 1990 and ending 1993), the Secretaries of Labor and Agriculture shall jointly determine the number (if any) of replenishment agricultural workers (RAWS) to be admitted to the United States, or otherwise acquire the status of aliens lawfully admitted for temporary residence, to meet a shortage of agricultural workers. A replenishment agricultural worker is identified by an INS Alien Registration Number beginning with either A94 or A094, and followed by any six digits within the specific range of 399501 to 500000.
(c) This regulation establishes a method whereby an employer must assemble employment information on certain resident alien workers employed in seasonal agricultural services to be reported to the Federal Government and to any replenishment agricultural worker. This will assist the Secretaries of Labor and Agriculture in determining the number of replenishment agricultural workers, if any, to be admitted, and will assist the replenishment agricultural worker in establishing a work history to retain legal status and avoid deportation, and so that after three (3) consecutive years after admission the worker can apply for and be granted permanent residency in the United States. After five (5) years with such work history the worker can apply for naturalization. The work history needed is 90 work-days a year employed in seasonal agricultural services for three consecutive years after admission to retain legal status and qualify for permanent residency, and for five years to apply for citizenship. The Act and these regulations require reporting by the employer to the Federal Government and to the replenishment agricultural worker on employment in seasonal agricultural services from October 1, 1988, until September 30, 1992.
(d) Any person who hires any worker must complete the Employment Eligibility Verification Form (INS Form I-9). Any resident alien who is identified with an Alien Registration Number ("A" number) in either the A90000000 or A090000000 series on the I-9 Form (including any
replenishment agricultural worker, who is identified by an INS Alien Registration Number beginning with either A94 or A094 and followed by any six digits within the specific range of 399501 to 500000) and who is employed in seasonal agricultural services, is an employee subject to this part (termed "reportable worker"). Employers cannot reliably determine whether such an employee is a special agricultural worker since employees cannot be required to document such status to anyone other than INS (see 8 CFR 274a.2 (b)(v)).
(e) The provisions of section 210A(b)(2) of INA establish reporting requirements applicable to the employment of certain workers in seasonal agricultural services. These regulations require that for the period beginning October 1, 1988, and ending September 30, 1992,
(1) Any person or entity employing any reportable worker in seasonal agricultural services for at least one work-day shall report employment information to the Federal Government each quarter;
(2) Any person or entity employing any replenishment agricultural worker in seasonal agricultural services for at least one work-day shall report employment information directly to the replenishment agricultural worker individually on a pay period basis at the time of each wage payment and no less frequently than twice per month (as well as to the Federal Government each quarter).
(f) Any employment of a reportable worker for at least one work-day in seasonal agricultural services is subject to reporting to the Federal Government. Additionally, any employment of a replenishment agricultural worker (who is identified by an INS Alien Registration Number beginning with either A94 or A094 and followed by any six digits within the specific range of 399501 to 500000) in seasonal agricultural services is subject to both the reporting requirements to the Federal Government and to the individual worker.
(g) The certified report submitted by an employer to the Federal Government shall contain the number of work-days of employment in seasonal
agricultural services performed by each reportable worker employed for at least one workday during the preceding fiscal quarter. This information will be provided to the Commissioner of the INS who will determine which reportable workers are special agricultural workers. Information concerning them will be provided to the Director of the Bureau of Census for use in
(1) Estimating the number of special agricultural workers employed in seasonal agricultural services;
(2) Determining the average number of work-days performed by special agricultural workers; and
(3) Reporting to the Congress.
(h) Any person or entity who employs a reportable worker in seasonal agricultural services will meet the requirements of this regulation when
(1) Accurate records are kept and reports are made as required under this part to the Federal Government (see §§ 502.10, 502.11, and 502.12);
(2) Accurate records are kept and reports are made as required under this part to each replenishment agricultural worker (see §§ 502.10, 502.11, and 502.13);
(3) The same transportation provided to any replenishment agricultural worker is provided to any other worker (see § 502.17);
(4) There is no prohibited discrimination against any replenishment agricultural worker (see § 502.15); and,
(5) A replenishment agricultural worker is not knowingly furnished false or misleading information concerning the terms, conditions, or existence of agricultural employment with respect to the disclosure, posting, and recordkeeping requirements found in section 301(a), (b), and (c) of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1801 et seq. (see §§ 502.13, 502.14, and 502.16).
(i) An employer of a reportable worker who is subject to the requirements of the Fair Labor Standards Act (FLSA) (29 U.S.C. 201 et seq.) and/or MSPA is required to comply with both the requirements of this part and the statutory labor standards protections provided by FLSA and/or MSPA.
(j) The Secretary of Labor may impose sanctions pursuant to section
210A(f)(4)(C) of the INA, which incorporate the penalty provisions of MSPA. Accordingly, these regulations provide that the Secretary of Labor is empowered to impose an assessment and to collect a civil money penalty of not more than $1,000 for each violation. In addition, the Secretary may seek a temporary or permanent restraining order in a United States District Court. Criminal penalties under 18 U.S.C. 1001 may also be applicable for submission of false information (see §§ 502.26).
(k) Subparts A and B set forth the substantive regulations relating to any employer of a reportable worker. These subparts cover the applicability of the Act, the recordkeeping and reporting requirements, antidiscrimination protections, the prohibition against furnishing false statements, and the equal transportation requirements.
(1) Subpart C sets forth enforcement responsibility and procedure.
(m) Subpart D sets forth the rules of practice for administrative hearings on the assessment of civil money penalties.
(n) The Department of Labor has developed two (2) forms for carrying out the purposes of the Act:
(1) The optional form WH-501R is offered to assist in carrying out the requirement that each replenishment agricultural worker receive a report each pay period in the form of a certificate from each employer indicating the number of work-days (any day with at least four (4) hours worked) employed in seasonal agricultural services; and
(2) The Work-Day Report (Form ESA-92) required to be submitted to the Federal Government, to certify the number of work-days performed in seasonal agricultural services by each reportable worker each quarter in which any reportable worker was employed in seasonal agricultural services for at least one work-day.
[53 FR 35163, Sept. 9, 1988, as amended at 57 FR 27343, June 18, 1992]
§ 502.2 Definitions pertaining solely to a reportable worker employed in seasonal agricultural services.
For purposes of this part:
(a) Act and INA mean the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986 (IRCA 8 U.S.C. 1101 et seq.), with references particularly to §§ 210 and 210A.
(b) Administrator means the Administrator of the Wage and Hour Division, Employment Standards Administration, United States Department of Labor, and such authorized representatives as may be designated by the Administrator to perform any of the functions of the Administrator under this part.
(c) Administrative Law Judge means a person appointed as provided in Title 5 U.S.C and qualified to preside at hearings under 5 U.S.C. 3105. Chief Administrative Law Judge means the Chief Administrative Law Judge, United States Department of Labor, Washington, DC 20036.
(d) Alien 'A' Number or A number refers to an INS Alien Registration Number assigned to each alien.
(e) DOL means the United States Department of Labor.
(f) Employee, employer, employment and independent contractor are defined for purposes of the INA in regulations issued by INS at 8 CFR 274a.1, which definitions are adopted herein in pertinent part. They are as follows:
(1) The term Employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors.
(2) The term Employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor and not the person entity using the contract labor.
(3) The term Employment means any service or labor performed by an employee for an employer within the United States.
(4) The term Independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis. Factors to be considered in that determination include, but are not limited to, whether the individual or entity: Supplies the tools or materials; makes services available to the general public; works for a number of clients at the same time; directs the order or sequence in which the work is to be done; and determines the hours during which the work is to be done. The use of labor or services of an independent contractor is subject
to the restrictions in section 274A(a)(4) of the Act, and any person or entity who knowingly uses a contract, subcontract, or exchange entered into, renegotiated, or extended after the date of enactment, to obtain labor or services of an unauthorized alien shall be considered to have hired the alien for employment in the United States in violation of section 274A(a)(1)(A) of the Act.
(g) Employment Standards Administration means the agency within the Department of Labor (DOL), which inIcludes the Wage and Hour Division, and which is charged with carrying out certain functions of the Secretary under section 210A of the INA.
(h) Exempt person means a person or entity who would be subject to the provisions of MSPA but for paragraph (1) or (2), or both, of section 4(a) of MSPA.
(i) Form I-9 is an INS Form, Employment Eligibility Verification (EEV), which reflects the requirements established under section 274A(9)(b) of INA requiring employers to examine documents which establish the identity and employment eligibility of individuals hired since November 6, 1986. The EEV information must be recorded on an INS Form I-9 and be made available for inspection by INS and/or DOL representatives.
(j) Immigration and Naturalization Service (INS) is the component of the