1603/22526.
Decided by Board January 25, 1955.
Agricultural laborer — Title V of Agricultural Act of 1949 — Classification as nonimmigrant — Section 101 (a) (15) (H) of Immigration and Nationality Act — Permanent nature of employment.
(1) Where an alien who was previously admitted as an agricultural laborer under Title V of the Agricultural Act of 1949, applies for readmission to continue his existing employment and is in possession of appropriate documents, he may not be classified as an immigrant merely because he has been employed in the United States during all of the preceding seven years and expresses a desire to enter into a new contract as an agricultural laborer when his present contract expires.
(2) Where an alien seeks temporary admission as an agricultural laborer under Title V of the Agricultural Act of 1949, to engage in the milking of 40 cows as well as other work in connection with the operation of a dairy ranch, his admission as such agricultural laborer is not precluded by section 101 (a) (15) (H) of the Immigration and Nationality Act on the theory that the alien is destined to employment of a permanent nature. Administrative classification of agricultural laborers as nonimmigrants under section 101 (a) (15) (H) does not make the qualifications of that section applicable to agricultural laborers seeking admission under Title V.
EXCLUDABLE:
Section 212 (a) (20), Act of 1952 — No immigrant visa.
BEFORE THE BOARD
Discussion: The appellant, a 37-year-old male, a native and citizen of Mexico, made application for readmission to the United States to continue his employment as an agricultural worker. He is in possession of the appropriate documents. He was found to be an immigrant and excluded because he was not in possession of an immigrant visa. Three grounds, each self-sufficient, are urged as the basis for the finding that the alien is an immigrant.
Appellant was found to be an immigrant because he wished to enter the United States to work and stay indefinitely. We believe this conclusion is not supported by the record. The following questions by the special inquiry officer and answers by the appellant are pertinent to this issue:
Q. What are you going to do when your contract is completed?
A. I will return to my home.
Q. Do you intend to go back to work in Mexico?
A. Yes.
Q. Have you ever made an application for an immigration visa?
A. No, never.
* * * * * * *
Q. If you haven't worked in Mexico since 1947, why have you decided as soon as your present contract expires you will return to Mexico?
A. If I can contract another time I will contract another time.
The appellant, when informed of the decision of the special inquiry officer, stated that he was not going to stay in the United States permanently and that if he had to, he would go back to Mexico. On the record before us, we believe it is established that the appellant intends to enter the United States temporarily as an agricultural worker and that he will remain in the United States solely in accordance with the conditions of his admission. In forming this opinion, we have given weight to the fact that the appellant has been in the United States illegally before and has testified in a conflicting manner concerning his past.
A second reason was used for classifying the appellant as an immigrant. It was found that he had no residence in Mexico to which he intended to return. On this issue, the appellant testified that his only residence in Mexico is with his mother who resides with a niece; that he had not lived in the home of his mother for many years and had not worked outside the United States since 1947 when he had entered illegally. The special inquiry officer found, therefore, that the appellant's reference to his mother's place of residence as his "home" was not a reference in the term of residence. We cannot concur. The appellant testified that he would return to Mexico as required by law. It appears that he is admissible to Mexico. He regularly sends money to his mother in Mexico; he has an alien laborer's permit and a Mexican identification card. His presence in the United States since 1952 when he was admitted as an agricultural laborer, has been under authorization of law. Under these circumstances, we believe it proper to find that the appellant has a residence in Mexico which he has no intention of abandoning.
The final ground on which the appellant was found to be an immigrant was the fact that he was destined to employment of a permanent nature. Appellant will be engaged in the milking and care of some 40 cows and will do other work required in connection with the operation of a dairy ranch. We do not find that the nature of the employment prevents the appellant's entry as an agricultural worker.
The alien's identification card reveals that he was admitted to the United States under section 101 (a) (15) (H) of the Immigration and Nationality Act, which relates to the admission of nonimmigrants coming to the United States temporarily to perform temporary services. This is apparently in accordance with the authority contained in 8 C.F.R. 475.2 which in pertinent part provides that an "agricultural worker" may be admitted as a nonimmigrant pursuant to section 101 (a) (15) (H) of the Immigration and Nationality Act. The special inquiry officer has apparently taken this notation of admission as requiring the "agricultural worker" to meet the requirements of section 101 (a) (15) (H). We believe this is error.
Although an "agricultural worker" must be admissible under the general requirements of the Immigration and Nationality Act, the authority for his admission to engage in employment in agricultural work is found not in the Immigration and Nationality Act, but in Title V of the Agricultural Act of 1949, as amended (Public Law 78, 82nd Cong., 1st sess.). The administrative desire to classify nonimmigrants under categories established by the Immigration and Nationality Act and the placing of an "agricultural worker" in the category in which are placed others admitted under the Immigration and Nationality Act to perform temporary services cannot make the qualifications of section 101 (a) (15) (H) of the act apply to persons seeking admission under Title V. This conclusion is required by the clear import of section 405 (e) of the Immigration and Nationality Act which states that the act shall not be construed to "repeal, alter, or amend" Title V.
The controlling position of Title V of the Agricultural Act of 1949, as amended, is recognized by the regulations. Thus, 8 C.F.R. 214 which contains the general provisions governing the admission of nonimmigrants, specifically provides that its provisions "shall not be applicable to a nonimmigrant agricultural worker applying for admission, or admitted, to the United States in accordance with the provisions of Title V of the Agricultural Act of 1949, as amended" ( 8 C.F.R. 214.6). The regulations which govern the admission of nonimmigrants for temporary services, labor or training (8 C.F.R. 214h) contain a similar limitation providing that its provisions shall not be applicable to a nonimmigrant agricultural worker applying for admission or admitted to the United States in accordance with the provisions of Title V.
Both of the parts mentioned in the preceding paragraph provide that an agricultural worker applying for admission or admitted to the United States in accordance with the provisions of Title V shall be governed by the provisions of Part 475 of Title 8, C.F.R.
We have thus determined that the provisions of Title V of the Agricultural Act of 1949, as amended, and the regulations promulgated thereunder govern the admission of an alien applying to engage in employment as an "agricultural worker." What are the requirements for admission as an "agricultural worker" so established? Title V, insofar as is pertinent, provides that the Secretary of Labor of the United States is authorized to recruit agricultural workers from the Republic of Mexico to come to the United States, subject to immigration laws "for such time and under such conditions as may be specified by the Attorney General" to engage in "agricultural employment."
Title V of the Agricultural Act of 1949, as amended, defines the term "agricultural employment" to include services or activities 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, as amended. Section 3 (f) of the Fair Labor Standards Act of 1938, as amended ( 29 U.S.C.A. 203 (f)) defines the term "agriculture" as follows:
`Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j (g) of Title 12, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
Section 1426 (h) of the Internal Revenue Code (Title 26, U.S.C.A.) provides that the term "agricultural labor" includes all services performed on a farm and the term "farm" includes stock and dairy farms (See Kenan v. McGowan, 69 F. Supp. 95, N.Y.; Navar v. United States, 62 F. Supp. 344, Texas, affirmed 158 F. (2d) 91).
The regulations governing the admission of agricultural workers are found in 8 C.F.R. 475. These regulations provide that an alien who applies for admission under the provisions of Title V must establish that he is admissible under the provisions of the immigration laws; that he has been recruited as an agricultural worker; that he is an agricultural worker; and that he will comply with the conditions of his admission. Only the last two requirements are brought into issue here.
The term "agricultural worker," as defined by the regulations, requires the applicant to be a native-born citizen of Mexico who has been a bona fide resident of Mexico preceding the date of his application and who seeks to enter the United States temporarily under the provisions of Title V of the Agricultural Act of 1949, as amended, for the sole purpose of engaging in agricultural employment. Only the emphasized portion is in issue here.
Assuming that appellant were applying for admission for the first time as an agricultural worker to engage in employment as a dairyman, we would find him admissible because it is clear that he would be seeking to enter the United States temporarily to engage in agricultural employment as that term is established by Title V of the Agricultural Act of 1949, as amended, and that he is an "agricultural worker" as that term is established by the pertinent regulations. Moreover, no ground of inadmissibility under the general immigration laws is established.
It may thus be seen that prior to his departure appellant was engaged as an agricultural worker in agricultural employment. He departed for a brief visit to Mexico. He now seeks to resume the status he enjoyed before his departure. Readmission of an alien admitted as an agricultural worker is governed by the provisions of 8 C.F.R. 475.6. Readmission of such an alien is authorized if he is still maintaining the status of an agricultural worker in the United States. Clearly, appellant meets the requirements of law for readmission as an agricultural worker. The appeal must, therefore, be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained.