The opinion of the court was delivered by: GASCH
OLIVER GASCH, District Judge
This matter is before the Court on plaintiffs' motion for a preliminary injunction to prohibit defendants from refusing to accept applications by plaintiffs and their proposed class members for a change of status under the Special Agricultural Worker ("SAW") program. See 8 U.S.C. § 1160. Plaintiffs seek the rights and benefits accorded to applicants of the SAW program under the statute. Id. Plaintiffs challenge an Immigration & Naturalization Service ("INS") regulation, which provides that aliens entering the United States after June 26, 1987, may not file such applications from inside the United States, but may only file from outside the country. See 8 C.F.R. § 210.2(c)(1).
Plaintiffs entered this country with temporary visas that were issued pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii) (current version at id. § 1101 (a)(15)(H)(ii)(a)) ("H-2" and "H-2A") to work in the Virginia tobacco harvest. By statute, 8 U.S.C. § 1160, they are eligible to apply for a change of status and to be accorded the rights and benefits under the immigration laws and INS policies. Those rights and benefits include employment authorization and immunity from deportation or exclusion, pending the adjudication of their SAW applications. Plaintiffs ask the Court to order that defendants be prohibited from failing to consider those H-2 and H-2A aliens, who last entered the United States after June 25, 1987, as eligible to file applications in the United States. Plaintiffs do not seek to have their applications adjudicated pending the resolution of this action, but merely to file their applications and to be accorded the rights granted by statute to SAW applicants.
Plaintiffs also seek to maintain a class action on behalf of all persons who entered the United States on H-2 or H-2A temporary work visas on or after June 26, 1987 to work in the Virginia tobacco harvest and who seek to file an application for adjustment of status under section 210 of the Immigration and Nationality Act (the "SAW" program). According to plaintiff, more than 500 other H-2 aliens are currently working in the Virginia tobacco harvest, and are eligible to apply for SAW status, were it not for a regulation that disqualifies them from filing their applications in the United States. The Court will hear oral argument on the class action issue on Thursday, October 8, 1987, at 4:00 p.m., and make its determination on that issue thereafter.
The plaintiffs in this case are Mexican natives who last entered the United States lawfully in early July 1987, with H-2 temporary work visas authorizing them to work in the Virginia tobacco harvest. The statute authorizing the type of visa that plaintiffs hold provides that where a grower can demonstrate to the satisfaction of the Labor Department and the INS that there are insufficient American workers available for harvest requirements and that employment of temporary workers will not adversely affect the wages and working conditions of workers in the United States similarly situated, the grower can receive a certification to bring in foreign laborers. 8 U.S.C. § 1101(a)(15)(H)(ii)(a); 8 C.F.R. § 214.2(h)(3)(A). The H-2 visas are limited to the term of employment, and the employer is responsible for ensuring that the workers leave the country at the end of the harvest season. Normally, the grower arranges return transportation for the H-2 workers to their native country at the end of the harvest. Those H-2 workers who receive extensions of authorization to remain and work in this country by the INS need not depart the United States at the end of their H-2 work contract.
Plaintiffs' visas will expire upon the termination of the tobacco harvest, which is expected to occur during the last two weeks of September. Upon expiration of the visas, plaintiffs will be considered deportable aliens. Each of the plaintiffs claims eligibility to apply for SAW status, but is disqualified from submitting an application in the United States by an INS regulation. The regulation limits such applications to persons who last entered the United States before June 26, 1987. 8 C.F.R. § 210.2(c)(1). A pending application for SAW status has the effect of staying the INS from deporting the applicant, and permits the applicant to gain employment authorization.
Defendants are Edwin Meese, III, in his capacity as Attorney General of the United States, and the Immigration and Naturalization Service. Defendants are responsible for the administration of immigration laws of the United States, including the Special Agricultural Worker program.
On November 6, 1986, Congress enacted the Immigration Reform and Control Act of 1986 (the "Act"), Pub. L. No. 99-603, 100 Stat. 3359, establishing several new procedures for obtaining lawful permanent resident status. Among these procedures is the Special Agricultural Worker program, pursuant to section 302 of the Act, 8 U.S.C. § 1160. Under the SAW program, aliens who worked at least 90 days in certain crops during the twelve month period ending May 1, 1986, are eligible to apply for lawful temporary resident status. 8 U.S.C. § 1160(a). Foreign agricultural workers who file nonfrivolous applications for temporary resident status under the SAW program may reside and work in the United States, as well as travel abroad without relinquishing their rights, pending the adjudication of their applications. 8 U.S.C. § 1160(a)(4). If the application passes approval, the applicant can be granted temporary resident status. This is the first step toward permanent resident status, and ultimately, naturalization as an American citizen. According to defendants, the SAW program will provide a legal agricultural workforce to take the place of the illegal aliens who have contributed to a significant share of the harvest workforce in the past.
Plaintiffs claim that their work in the 1985 and 1986 tobacco harvests in Virginia makes them eligible to apply for SAW status. An INS regulation, 8 C.F.R. § 210.2(c)(1), as amended by 52 Fed. Reg. 28660, 28663 (July 31, 1987), limits the filing of applications in the United States to those workers who were physically present in the United States prior to June 26, 1987, although the application period established by Congress runs through November 30, 1988. Because plaintiffs did not arrive until July, they are disqualified from filing their applications in the United States. In order to apply for SAW status, the INS requires these late arriving laborers to return to Mexico to file their applications. At oral argument, the Assistant United States Attorney represented that the INS adopted a new policy on September 28, 1987, reflected in the declaration of an INS official and an Immigration Wire (Defendants' Exhibits B and C). The policy provides that upon initial screening of an application submitted by an alien who arrived in this country on June 26, 1987 or thereafter, the application will be returned to the applicant with directions to file it abroad. It further provides that if the applicant insists on having it filed, and pays the necessary fee, the application will be accepted with a recommendation noted on its face that it be denied.
The Act provides for filing at consular stations of the INS in Mexico, 8 U.S.C. § 1160(b)(1)(B), but plaintiffs claim that they will be unable to do so because their homes in Mexico are an average of 250 miles away from these offices and their financial situations will preclude their ability to apply. There are three sites in Mexico where aliens may file SAW applications: Mexico City, Monterey and Hermosillo. Additionally, applications may be filed by Mexico residents at a new port of entry facility in Calexico, California. See 8 C.F.R. § 210.2. The Act further provides for qualified designated entities ("QDE") to accept applications for SAW status. 8 U.S.C. § 1160(b)(2). There are many QDEs in the United States that are charitable organizations created to assist aliens such as plaintiffs with social services. There are no such QDEs in Mexico nor any groups to provide assistance to SAW applicants. Declaration of Luis R. Torres (Plaintiffs' Exhibit U). Plaintiffs claim that unless a preliminary injunction issues, their claims to statutory application rights will be mooted by their forced departure.
Applicants who file for a change of status within the United States are accorded substantial benefits and advantages that other applicants do not receive. The difficulties in providing the documentation of employment histories to support the applications and the lack of reliable assistance in preparing applications are among the factors that the government blames for the extremely low number of SAW applications from abroad. INS Legalization Wire No. 27, July 1, 1987 (Plaintiffs' Exhibit P). The success of an application for SAW status may well depend on the place of filing, according to plaintiffs.
Under the original regulations promulgated by the INS after the passage of the Immigration Reform and Control Act the cutoff date for applicants in the United States was November 26, 1987. See INS Legalization Wire No. 1, November 14, 1984. On March 19, 1987, defendants published proposed regulations to implement the SAW program at 52 Fed. Reg. 8745 (March 19, 1987). The proposed regulations imposed a physical presence cutoff date of November 6, 1986. No explanation of the authority for the cutoff date restriction was given. One hundred thirty commentators stated that the proposed regulation limiting applications within the United States to those physically present since the effective date of the Act was inconsistent with section 210(d) of the Act and its legislative history. 52 Fed. Reg. 16195, 16197 (May 1, 1987).
In its final regulations, defendants advanced the cutoff date to May 1, 1987, the date on which the final regulations were published. 52 Fed. Reg. 16195, 16200 (May 1, 1987). Defendants explained that the cutoff date was advanced to "avoid disruption of ongoing agricultural activity which might result from requiring workers currently engaged in agricultural employment to depart the United States to ...