Blue Card Status and Non-Immigrant Agricultural Visa Program
One of the provisions in the Border Security, Economic Opportunity and Immigration Modernization Act is to establish an Agricultural Worker Program that includes both undocumented agricultural workers currently residing in the US as well as a temporary guest worker program for agricultural workers not residing in the US.

Below is the information on both “Blue Card” status and “Non-Immigrant Agricultural Visa Programs:

(1) Blue Card:

What is Blue Card Status?  Terms and conditions of Blue Card Status:

  • Legal Authorization to work: people with Blue Card Status will be “authorized to be employed in the US while in such status”.
  • Travel outside US: people with Blue Card Status may travel outside the US and may be allowed to reenter without obtaining a visa. (Must have documentation of Blue Card Status or a travel document and absence from the United States may not exceed 180 days)  

What kind of status is Blue Card Status?

  • A person with Blue Card Status is to be considered “lawfully admitted to the US” and may NOT be classified as a NONIMMIGRANT or as an alien “Lawfully admitted FOR PERMANENT RESIDENCE (e.g. LPR).  

Can Blue Card Status be revoked?
Blue Card Status may be revoked at ANY TIME after providing notice, and after exhaustion or waiver of all applicable administrative review procedures if the person:

  • No longer meets the eligibility requirements
  • Knowingly used documentation for an unlawful or fraudulent purpose
  • Is absent from the US for any single period longer than 180 days or was absent for more than an aggregate 180 days during any calendar year 

Is a person with Blue Card Status eligible for public benefits?

  • A person with Blue Card Status is not eligible for any Federal means-tested public benefit  

What other ineligibilities are there for Blue Card Status holders?
Blue Card Status holders are to be considered lawfully present in the US for all purposes while in status, EXCEPT:

  • A person with Blue Card Status is not entitled to the “premium assistance tax credit” authorized by the IRS for his/her coverage
  • A person with Blue Card Status will be subject to the rules applicable to individuals NOT lawfully present under the “Patient Protection and Affordable Care Act”
  • A person with Blue Card Status will be subject to the rules applicable to individuals not lawfully present under certain sections of the IRS code. 

What are the eligibility requirements – How does Blue Card Status work?

  • Previous agricultural employment in the US: not fewer than 575 hours or 100 work days during the 2-year period ending on December 31, 2012
  • A spouse and/or child of an agricultural worker who has been physically present in the US and has maintained continuous presence since on or before December 31, 2012 may apply for Blue Card Status as a dependent

 Application Procedure:

  • Must abide by the 1 year deadline to submit an application (time starts when final rules of the bill are made public).
  • Submit Blue Card Status application
  • Submit biometric, biographic and other data necessary to conduct national security and law enforcement clearances and screenings
  • Pay all applicable processing fees including application fees, biometrics fees; for national security, criminal background and fraud checks as well as fees to cover the administration of collecting such fees.
  • The applicant must be represented by an attorney or a nonprofit religious, charitable, social service, or similar organization recognized by the Board of Immigration Appeals.

Grounds for ineligibility: Convictions of offenses:
Conviction defined: Conviction does not include a judgment that has been expunged, set aside, or the equivalent.

  • Conviction for an offense classified as a felony (in your jurisdiction)
  • Aggravated felony as defined by Congress
  • 3 or more misdemeanor offenses
  • Unlawful voting
  • Other international law offenses

While waiting for approval or denial of Blue Card application, what happens?

  • Applicants may receive “advance parole” to be able to leave and reenter the US under humanitarian circumstances only;
  • May not be detained or removed from the US, UNLESS the person IS, OR HAS BECOME, INELIGIBLE for Blue Card Status;
  • Applicants are not to be considered unlawfully present or unauthorized alien during this time

What happens if someone is apprehended or in removal proceedings before having applied for Blue Card Status? 

  • If a person is apprehended during the period beginning on the date of the enactment of this Act and ending of the application period appears prima facie eligible for blue card status, he or she will be provided with a reasonable opportunity to file an application under this section during such application period; and may not be removed until a final administrative determination is made on the application.

Can someone who has been deported or removed be eligible for Blue Card Status? 

Eligibility after Departure (for deportees) – although there are some waivers available for deportees to apply for RPI status, it is unclear whether similar waivers would be available to someone applying for Blue Card Status.  These provisions do not appear to apply to applicants for Blue Card Status.

What if an applicant cannot supply the requested documentation? 

  • Application can be denied based on insufficient evidence or not following through with requests/procedures.
  • If an application is denied, an amended application may be filed if it is within the application period and if it contains all the required information and fees that were missing from the initial application.

How long does Blue Card Status last? 

  • No one may remain in Blue Card Status for more than 8 years after the date that regulations are published under this section.
  • The earliest that a Blue Card Status holder would be able to apply for LPR would be 5 years after the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act.

How can status be adjusted to Legal Permanent Resident (LPR)?
The following requirements must be satisfied:

  • QUALIFYING EMPLOYMENT—the applicant, during the 8-year period beginning on the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act, must have performed not less than 100 work days of agricultural employment during 5 of the 8 years; or during the 5-year period beginning on such date of enactment, performed not less than 150 work days of agricultural employment during 3 of the 5 years.
  • EXTRAORDINARY CIRCUMSTANCES— In determining whether  an applicant has met the requirements, s/he may be credited with  with not more than 12 additional months of agricultural employment in the United States to meet such requirement if s/he was unable to work in agricultural employment due to— pregnancy, disabling injury, or disease that can be established through medical records;  illness, disease, or other special needs of a child that can be established through medical records; severe weather conditions that prevented engagement in agricultural employment for a significant period of time; or termination from agricultural employment, if the Secretary determines that—the termination was without just cause; and the applicant was unable to find alternative agricultural employment after a reasonable job search.
    • APPLICATION PERIOD—The application for adjustment of status is submitted before the expiration of Blue Card Status.
    • FINE—The applicant must pay a fine of $400
    • PAYMENT OF TAXES — beginning with the date the applicant was first authorized to work under Blue Card Status: Pay all applicable processing fees including application fees, biometrics fees. ees for national security, criminal background and fraud checks as well as fees to cover the administration of collecting such fees

(2) Non-Immigrant Agricultural Visa Program:

Who may be eligible for a non-immigrant agricultural visa?

  • A person who resides in a foreign country and wishes to come to the US for a temporary period to work in an agricultural job
  • Must have a written contract for a specified period of time with a designated agricultural employer and the contract must specify wages, benefits and working conditions of such full-time employment in an agricultural occupation

What are the grounds for ineligibility?

  • Having violated a term or condition of a previous admission as a non-immigrant agricultural worker in the most recent 3  year period
  • Having not obtained successful clearance of security and criminal background checks
  • Having departed from the US while subject to an order of exclusion, removal, deportation or voluntary departure and is either outside the US or reentered the US illegally after December 31, 2012 (this may be waived for a spouse, parent or child of a US citizen or LPR – must be 16 years or older and have been physically present in the US for at least an aggregate of three years during the 6 year period preceding the enactment of this section

What does  a non-immigrant agricultural visa offer?

  • Allows temporary workers a 3 year visa to work in an agricultural job
  • May be renewed one time for a total of 6 years
  • After 6 years, the worker must leave the US for at least 3 months and may then reapply

Can a spouse or child be included?

  • A spouse or child can only be provided status as a non-immigrant agricultural work if s/he independently qualifies for such status

Can this status be lost or revoked?

  • If, after completion of a contract with a designated agricultural employer, a worker is not continuously employed with another designated agricultural worker (no more than 60 days without employment) – waivers may apply if more than 60 days unemployment was due to a natural disaster or an injury
  • A non-immigrant agricultural worker may leave the US for up to 60 days but this will be tolled against the 60 day limit
  • A contract worker who voluntarily abandons his/her employment or is terminated with cause must leave the US before accepting a new offer of employment (this does not affect a worker who terminates a contract by mutual agreement with the employers)

 [Similar to a person with RPI status or Blue Card status, these provisions place a great deal of power in the hands of the employers and place workers in an extremely vulnerable and dependent position – there is a process specified for dealing with grievances and labor disputes with the Secretary of Labor, but this could be a very complex and intimidating process.]

How many of these visas would be available?

  • The number of visas available each year would be determined by multiple factors including: the number of agricultural workers sought the year before and the number of US workers and Blue Card workers who accepted these positions the year before

What provisions are there for the protection of workers?

  • There are provisions that mandate minimum hourly wages for various classifications of agricultural work as well as standards for employers paying the piece rate
  • There are provisions requiring employers to provide housing or a housing allowance as well as transportation and these expenses cannot be deducted from the workers’ wages
  • There are also provisions that ensure workers’ compensation coverage

*All information is from Senate Bill 744 “Border Security, Economic Opportunity, and Immigration Modernization Act’’ Sections 2231 -2234.


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