SSR 86-11c: SECTION 210(a)(1) OF THE SOCIAL SECURITY ACT (42 U.S.C. 410(a)(1)) COVERAGE -- STATUS OF SERVICE PERFORMED BY CERTAIN ALIEN AGRICULTURAL WORKERS LAWFULLY IN THE UNITED STATES

20 CFR 404.1016

SSR 86-11c

Moorhead v. United States, 774 F.2d 936 (9th Cir. 1985)

BREWATER, District Judge:

BACKGROUND FACTS AND PROCEEDINGS

In this case we are called upon to decide whether an alien "commuter"

commuting daily or seasonally to the United States to perform agricultural

labor in the United States is exempt from the Federal Insurance

Contributions Act ("FICA), 26 U.S.C. §§ 3101-3126, under the

foreign-agricultural-worker exemption of Section 3121 of the Internal

Revenue Code. [1]

The appellant-employers brought suit against the United States of America

(the "Government") claiming that the wages they had paid to their alien

"commuter" employees were exempt from FICA taxation. The district court

granted the Government's motion for summary judgement and dismissed the

plaintiffs' complaints, holding that the wages appellants had paid to

their alien "commuter" employees are not exempt from FICA taxes under 26

U.S.C § 3121(b)(1) because that section exempts only agricultural workers

admitted under the H-2 program. We affirm because the employees' status as

"commuter" aliens precludes their "employment" from being exempted under

section 3121(b)(1).

Plaintiff-appellant Don Moorhead ("Moorhead") operated an agricultural

harvesting business during the years 1977, 1978, and 1979, in which he

employed hundreds of agricultural workers during the harvesting season to

work in the Imperial Valley of California and elsewhere. Moorhead would

contract with a grower to harvest a crop, usually lettuce crop, the grower

paying a fixed rate per pound or crate of produce harvested. A majority of

these workers were aliens, [2] mostly Mexican citizens or residents of

Mexico. [3] Each alien worker

held a valid Alien Registration Receipt Card or "green

card," [4] permitting him to

commute to the United States, daily or seasonally, from Mexico

with a grower to harvest a crop, usually lettuce crop, the grower

paying a fixed rate per pound or crate of produce harvested. A majority of

these workers were aliens, [2] mostly Mexican citizens or residents of

Mexico. [3] Each alien worker

held a valid Alien Registration Receipt Card or "green

card," [4] permitting him to

commute to the United States, daily or seasonally, from Mexico. During the

harvesting season, Moorhead's foremen would transport Mexican workers from

California border towns to the fields in the morning and return them to

the border towns in the evening, when the workers would presumably return

to their residences in Mexico.

In the years 1977, 1978, and 1979, Moorhead withheld and collected FICA

taxes from the alien workers and paid the employer and employee portions

of the tax. Thereafter Moorhead filed a claim for refund of the employer

portions of the tax he had paid for those three years. He claimed the

workers were lawfully admitted to the United States on a temporary basis

to perform agricultural services and, therefore, their wages were exempt

from FICA taxation under the foreign-agricultural-worker exemption of 26

U.S.C. section 3121(b)(1). The IRS disallowed the claims and Moorhead

filed this suit in the district court in November 1980, seeking, inter

alia, a refund of the employer portion of FICA taxes paid during those

years, approximately $100,000.

to perform agricultural services and, therefore, their wages were exempt

from FICA taxation under the foreign-agricultural-worker exemption of 26

U.S.C. section 3121(b)(1). The IRS disallowed the claims and Moorhead

filed this suit in the district court in November 1980, seeking, inter

alia, a refund of the employer portion of FICA taxes paid during those

years, approximately $100,000.

During 1972, plaintiff-appellant Clifton Gattis ("Gattis") provided

similar agricultural harvesting services in Arizona, New Mexico, and

Michigan, employing hundreds of alien agricultural workers. Like

Moorhead's employees, most of Gattis' workers were "green card" holders

who resided in Mexico and commuted daily or seasonally to the United

States. Unlike Moorhead, Gattis did not pay any FICA taxes on the wages he

had paid to such alien workers in 1972. After an audit, the IRS determined

FICA taxes were due, Gattis paid the tax, and he filed a claim for a

refund. The basis of Gattis' initial failure to pay as well as the basis

for his refund claim was the foreign-agricultural-worker exemption of

section 3121(b)(1). The IRS disallowed the claim and in November 1981,

Gattis filed this suit claiming damages in the amount of his claimed

refund, approximately $11,500.

The district court consolidated the two suits for discovery and pretrial

motions. In February 1984, the district court granted the Government's

summary judgment motion and dismissed appellants' complaints. In an

unpublished memorandum decision, the district court held that only

agricultural workers admitted under the H-2 program, 8 U.S.C. §

1101(a)(15)(H)(ii), are admitted to the United States for the purpose of

performing agricultural work on a temporary basis; since appellants' alien

workers are not H-2 workers, the section 3121(b)(1)(B) exemption is

inapplicable.

pellants' complaints. In an

unpublished memorandum decision, the district court held that only

agricultural workers admitted under the H-2 program, 8 U.S.C. §

1101(a)(15)(H)(ii), are admitted to the United States for the purpose of

performing agricultural work on a temporary basis; since appellants' alien

workers are not H-2 workers, the section 3121(b)(1)(B) exemption is

inapplicable.

Appellants bring this consolidated appeal claiming the district court

erred in not holding that section 3121(b)(1) exempts form FICA taxes the

wages paid to their alien agricultural workers, who were lawfully admitted

to the United States on a temporary basis as "commuter" aliens.

STANDARD OF REVIEW

Both parties agree that there are no genuine issues of material fact to

preclude the entry of summary judgment. See, e.g., Prestin v. Mobil Oil

Corp. 741 F.2d 268 (9th Cir. 1984). In fact, before the Government had

moved for summary judgment, the parties had entered into an extensive

stipulation of facts, which was the foundation of the district court's

findings of fact. [5] A grant of

summary judgment is reviewed de novo. Lane v. Goren, 743 F.2d 1337

(9th Cir. 1984); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.

1983). Where, as here, there are not contested issues of fact, we need

only decide whether the district court correctly applied the substantive

law, Lane 743 F.2d at 1339; Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir. 1984), that is, did the district court

correctly interpret and apply the statutes in issue. See, e.g., United

States v. Roberts, 747 F.2d 537, 546 (9th Cir. 1984).

DISCUSSION

as here, there are not contested issues of fact, we need

only decide whether the district court correctly applied the substantive

law, Lane 743 F.2d at 1339; Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir. 1984), that is, did the district court

correctly interpret and apply the statutes in issue. See, e.g., United

States v. Roberts, 747 F.2d 537, 546 (9th Cir. 1984).

DISCUSSION

We begin with FICA and the particular language of section 3121(b)(1).

FICA imposes on every employee, 26 U.S.C. § 3101, and employer, id. § 3111, a tax with respect to the

"wages" [6] paid in

"employment." [7] The employee's

FICA tax is a fixed percentage of the wages he is paid, id. § 3101,

and the employer portion is a fixed percentage of the wages he pays to

each employee. Id. § 3111. It is undisputed that the remuneration

appellants paid their alien workers during the years in question is

"wages," the dispute concerns whether the workers were engaged in

"employment," as FICA defines that term.

FICA excludes twenty enumerated categories of employment from its general

definition of "employment." One of the excluded categories is defined

as:

26 U.S.C. § 3121(b)(1). The Social Security Act of 1954 sets forth a

parallel exclusion, which uses verbatim language to preclude temporary

foreign agricultural workers from obtaining social security

benefits. [8]

The Government argues that the plain language of section 3121(b)(1)

exempts the wages only of those agricultural workers: (1) lawfully

admitted to the United States on a temporary basis; and (2) lawfully

admitted to the United States for the purpose of performing agricultural

labor. The Government concludes that since the status of an alien

"commuter" is that of a permanent resident, the exemption is inapplicable

to appellants' workers. Only H-2 program workers are admitted to the

United States on a temporary basis for the purpose of performing

agricultural work, and, as a result, only H-2 workers can be exempt.

ates for the purpose of performing agricultural

labor. The Government concludes that since the status of an alien

"commuter" is that of a permanent resident, the exemption is inapplicable

to appellants' workers. Only H-2 program workers are admitted to the

United States on a temporary basis for the purpose of performing

agricultural work, and, as a result, only H-2 workers can be exempt.

Appellants argue that section 3121(b)(1)'s temporariness requirement

should not be defined by reference to immigration laws, but rather

determined as a matter of fact on a case-by-case basis. They claim section

3121(b)(1)'s legislative history "clearly indicates" that Congress

intended to eliminate the migrant farm worker or "commuter" segment of

employees from FICA tax withholding and the corresponding benefits.

When interpreting a statute, the court's objective is to ascertain the

intent of Congress and to give effect to legislative will. E.g.,

Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44

L.Ed.2d 525 (1975); United States v. American Trucking

Associations, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345,

(1940); Trailer Train Co. v. State Board of Equalization, 697 F.2d

860, 865 (9th Cir.), cert. denied, -- U.S. --, 104 S.Ct. 149, 78

L.Ed.2d 139 (1983). It is assumed that the legislative purpose is

expressed by the ordinary meaning of the words used, Richards v. United

States, 369 U.S. 1, 9, 82 S.Ct. 585, 590, 7 L.Ed.2d 492 (1962); Hughes Air Corp. v. Public Utilities Commission, 644 F.2d 1334,

1337 (9th Cir. 1981), and absent a clearly expressed legislative intention

to the contrary, the language must ordinarily be regarded as conclusive. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534,

1537, 71 L.Ed.2d 748 (1982); Consumer Products Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d

766 (1980).

ission, 644 F.2d 1334,

1337 (9th Cir. 1981), and absent a clearly expressed legislative intention

to the contrary, the language must ordinarily be regarded as conclusive. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534,

1537, 71 L.Ed.2d 748 (1982); Consumer Products Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d

766 (1980).

We read the language of the statute according to its plain meaning and

agree with the Government's construction of section 3121(b)(1); i.e., that

the statute imposes two requirements. The foreign agricultural worker must

be: (1) lawfully admitted to the United States on a temporary basis

(temporariness requirement); and (2) lawfully admitted to the United

States . . . to perform agricultural labor (purpose-of-admission

requirement). See 26 U.S.C. § 3121(b)(1).

Another canon of statutory construction, while not a controlling

consideration, supports this construction of section 3121(b)(1). Grants of

tax exemptions are narrowly construed against the assertions of the

taxpayers and in favor of the taxing power. E.g., Bingler v.

Johnson, 394 U.S. 741, 752-53, 89 S.Ct. 1439, 1445-46, 22 L.Ed.2d 695

(1969); Commissioner v. Jacobson, 336 U.S. 28, 48-49, 69 S.Ct. 358,

368-69, 93 L.Ed. 477 (1949); Atlantic Coast Line Railroad v.

Phillips, 332 U.S. 168, 172, 67 S.Ct. 1584, 1586, 91 L.Ed. 1977

(1947); Helvering v. Northwest Steel Rolling Mills, Inc., 311 U.S.

46, 49, 61 S.Ct. 109, 111, 85 L.Ed. 29 (1940); 3C. Sands, Sutherland

Statutory Construction § 66.09, at 207 (1974). This canon seeks to tax

income comprehensively, Commissioner v. Jacobson, 336 U.S. at 49,

69 S.Ct. at 369, and to minimize differential treatment and foster

impartiality, fairness and equality of treatment among taxpayers.

ng v. Northwest Steel Rolling Mills, Inc., 311 U.S.

46, 49, 61 S.Ct. 109, 111, 85 L.Ed. 29 (1940); 3C. Sands, Sutherland

Statutory Construction § 66.09, at 207 (1974). This canon seeks to tax

income comprehensively, Commissioner v. Jacobson, 336 U.S. at 49,

69 S.Ct. at 369, and to minimize differential treatment and foster

impartiality, fairness and equality of treatment among taxpayers.

Turning to the temporariness requirement of section 3121(b)(1), we reject

appellants' argument that "on a temporary basis" should be decided on a

case-by-case basis. Appellants ask the court to examine the facts of this

case and fashion a test to determine whether appellants' workers were

working in the United States "on a temporary basis." A common law approach

is unnecessary, however, because Congress has spoken.

A statute is passed in whole and not piecemeal. Thus, in interpreting a

statute, examination of the whole, not isolated words, will disclose

legislative intent. See Stanford v. Commissioner, 297 F.2d 298 (9th

Cir. 1961). When viewed in context, section 3121(b)(1) exempts foreign

agricultural workers lawfully admitted to the United States on a temporary

basis.

Nothing in FICA or the Social Security Act defines which aliens are

lawfully admitted to the United States on a temporary basis. However, the

Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101-1503,

establishes a comprehensive scheme for aliens' exclusion from and

admission to the united States. One looks to the INA and immigration

regulations to ascertain the prerequisites of lawful admission and the

term and conditions of an alien's lawful presence in the United States.

In the absence of a definition in FICA, we find that when Congress wrote

"lawfully admitted" to the United States it intended to incorporate the

INA and concomitant body of regulations and administrative practice to

define that term.

immigration

regulations to ascertain the prerequisites of lawful admission and the

term and conditions of an alien's lawful presence in the United States.

In the absence of a definition in FICA, we find that when Congress wrote

"lawfully admitted" to the United States it intended to incorporate the

INA and concomitant body of regulations and administrative practice to

define that term.

The INA establishes a status for aliens seeking admission to the United

States, which status dictates the admissibility of an alien. The

immigration status of appellants' alien workers is determinative of

whether the workers are "lawfully admitted" to the United States on a

temporary basis.

The INA distinguishes two categories of aliens: nonimmigrants and

immigrants. 8 U.S.C. § 1101(a)(15) supplies a negative definition of

immigrant: "The term 'immigrant' means every alien except an alien who is

within one of the following classes of nonimmigrant aliens -- [listing 15

nonimmigrant categories]." An alien who fits in one of the 15 exclusionary

categories in section 1101(a)(15) is a nonimmigrant. The number of

immigrants admitted to the United States is restricted by immigrant

quotas. See 8 U.S.C. § 1181(a); Saxbe v. Bustos, 419 U.S. 65,

66-67, 95 S.Ct. 272, 275, 42 L.Ed.2d 231 (1974). However, a nonimmigrant

is permitted admission to the United States irrespective of such quota

limitations. See id. at 67, 95 S.Ct. at 275.

One category of nonimmigrant, the H-2 worker, is "an alien having a

residence in a foreign country which he has no intention of abandoning . .

. who is coming temporarily to the United States to perform temporary

services or labor, if unemployed persons capable of performing such

service or labor cannot be found in this country . . ." 8 U.S.C. §

1101(a)(15)(H)(ii).

67, 95 S.Ct. at 275.

One category of nonimmigrant, the H-2 worker, is "an alien having a

residence in a foreign country which he has no intention of abandoning . .

. who is coming temporarily to the United States to perform temporary

services or labor, if unemployed persons capable of performing such

service or labor cannot be found in this country . . ." 8 U.S.C. §

1101(a)(15)(H)(ii).

Appellants' workers are not H-2 workers because they cannot show that

"unemployed persons capable of performing such service or labor cannot be

found in this country." See Gooch v. Clark, 433 F.2d 74, 78 (9th

Cir. 1970), quoting 8 U.S.C. § 1101(a)(15)(H)(ii), cert.

denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971); 8 C.F.R. §

214.2 (1985). Appellants' workers are not H-2 workers and do not fit

within any of the other exclusionary categories of section 1101(a)(15).

Consequently, they are deemed immigrants under section 1101(a)(15). See

Gooch, 433 F.2d at 78.

Generally, an immigrant will not be admitted into the United States

without a valid unexpired immigration visa and a passport. 8 U.S.C. §

1181(a). However, "returning resident immigrants, defined in section

1101(a)(27)(A) . . . who are otherwise admissible may be readmitted to the

United States by the Attorney General in his discretion without being

required to obtain a passport, immigrant visa, reentry permit or other

documentation." Id. § 1181(b). A resident immigrant or "special

immigrant" is defined as: "an immigrant, lawfully admitted for permanent

residence, who is returning from a temporary visit abroad." Id. §

1101(a)(27)(A).

ble may be readmitted to the

United States by the Attorney General in his discretion without being

required to obtain a passport, immigrant visa, reentry permit or other

documentation." Id. § 1181(b). A resident immigrant or "special

immigrant" is defined as: "an immigrant, lawfully admitted for permanent

residence, who is returning from a temporary visit abroad." Id. §

1101(a)(27)(A).

In Gooch, 402 U.S. 995, 91 S.Ct. 2170, L.Ed.2d 160 (1971), we

upheld the INS's longstanding practice of classifying "commuters" as

section 1101(a)(27)(B) "special immigrants," 433 F.2d at 78, permitting

the Attorney General to admit "commuters" under the informal documentation

requirements of section 1181(b), and exempting "commuters" from the quota

limitations applicable to immigrants and the labor certification

requirements applicable to H-2 workers.

The Supreme Court adopted much of Gooch's reasoning in Saxbe v.

Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974). In Saxbe the United Farm Workers Committee brought suit challenging

the INS's practice of allowing aliens to commute to places of employment

in the United States on a daily or seasonal basis as "special immigrants."

The Court upheld the INS's practice and reasoned that because "commuters"

do not fall within any of the nonimmigrant categories of section

1101(a)(15), they are immigrants. Id. at 71, 95 S.Ct. at 277. A

"special immigrant" is "an immigrant, lawfully admitted for permanent

residence, who is returning from a temporary visit abroad." 8 U.S.C. §

1101(a)(27)(B)

asis as "special immigrants."

The Court upheld the INS's practice and reasoned that because "commuters"

do not fall within any of the nonimmigrant categories of section

1101(a)(15), they are immigrants. Id. at 71, 95 S.Ct. at 277. A

"special immigrant" is "an immigrant, lawfully admitted for permanent

residence, who is returning from a temporary visit abroad." 8 U.S.C. §

1101(a)(27)(B). Section 1101(a)(20) defines "lawfully admitted for

permanent residence," as "the status of having been lawfully accorded the

privilege of residing permanently in the United States as n immigrant in

accordance with the immigration laws, such status not having changed."

This section 1101(a)(20) status is acquired when "an alien satisfies (1)

any numerical limitations on the entry of immigrants, (2) requirements as

to qualitative matters such as health, morals, and economic status, and

(3) the need for an immigrant visa. The applicant must also state whether

he plans to remain in the United States permanently." Saxbe, 419

U.S. at 72, 95 S.Ct. at 277 (footnotes omitted). The INA does not state

that the status will be denied him if he does not intend to reside

permanently in the United States. Id. "[T]he status acquired

carries several important privileges: [the commuter] may remain in the

United States indefinitely; he is free to work in this country; he may

return to this country after a temporary absence abroad; and he has the

privilege of establishing a permanent residence in the United States." Id. Relying on the reasoning of Gooch, the Court found that

a "commuter's" nightly or seasonal departure from the United States to his

foreign residence is a temporary visit abroad" from which he returns when

he reenters the United States for employment. Id

o this country after a temporary absence abroad; and he has the

privilege of establishing a permanent residence in the United States." Id. Relying on the reasoning of Gooch, the Court found that

a "commuter's" nightly or seasonal departure from the United States to his

foreign residence is a temporary visit abroad" from which he returns when

he reenters the United States for employment. Id. Finally, in

concluding that "commuters" are :special immigrants" admittable

irrespective of quotas or labor certification, the court placed great

weight upon the INS's longstanding construction of the statute and

practice of treating "commuters" as "special immigrants," which

longstanding practice had been acquiesced in by Congress. Id. at

73-80, 95 S.Ct. at

278-281. [9]

This Court again faced the "commuter" issue in Alvarez v. District

Director of INS, 539 F.2d 1220 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1334, 51 L.Ed.2d 597 (1977). The plaintiff, a

native of the Philippines, entered the United States as a permanent

resident in 1968 and returned to the Philippines in 1970 where she worked

as a pharmacist. Between 1970 and 1973, she made several brief trips to

the United States to visit friends, gaining admission to this country with

a "green card." In upholding an immigration judge's order of deportation,

we held the plaintiff did not fall within the "commuter" category because:

she did not come to the United States to work; she did not commute daily

or seasonally; and her home is not in a country contiguous to the United

States. Id. at 1224.

the United States to visit friends, gaining admission to this country with

a "green card." In upholding an immigration judge's order of deportation,

we held the plaintiff did not fall within the "commuter" category because:

she did not come to the United States to work; she did not commute daily

or seasonally; and her home is not in a country contiguous to the United

States. Id. at 1224.

Under Gooch, Saxbe, and Alvarez, appellants' alien workers

may have entered the United States to perform agricultural work; however,

their status as "commuters" precludes us from finding they were lawfully

admitted to the United States on a temporary basis. To have become a

"commuter," each of appellants' workers must have acquired the status

referred to in section 1101(a)(20), viz., "the status of having

been lawfully accorded the privilege of residing permanently in the United

States." 8 U.S.C. § 1101(a)(20); see also Saxbe 419 U.S. at 71-72,

95 S.Ct. at 277. Their "commuter" status permitted them to take up

permanent residence in the United States at the conclusion of their work

for appellants; their status permitted them to leave the United States at

the conclusion of their work for appellants and, subject to certain

limitations, return to the United States sometime thereafter; and their

status permitted them, at the conclusion of their work for appellants, to

engage in nonagricultural work in the United States.

the United States at the conclusion of their work

for appellants; their status permitted them to leave the United States at

the conclusion of their work for appellants and, subject to certain

limitations, return to the United States sometime thereafter; and their

status permitted them, at the conclusion of their work for appellants, to

engage in nonagricultural work in the United States.

Appellants' workers also do not satisfy the purpose-of-admission

requirement of section 3121(b)(1)(B). Appellants' workers were not

admitted to the United States solely for the purpose of performing

agricultural labor. As "commuters" they were admitted to the United States

with no limitation on their lawful activity. When they entered the United

States they could have worked in whatever occupation they chose, without

regard to any labor certification restrictions. A "commuter's" status is

different from that of H-2 workers. See Saxbe, 419 U.S. at 69-70,

95 S.Ct. at 276. An H-2 worker is a nonimmigrant, an alien "having a

residence in a foreign country which he has no intention of abandoning who

is coming temporarily to the United States to perform temporary services

or labor, if unemployed persons capable of performing such service or

labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii). An

H-2 worker must be coming to the United States only for a temporary

period; the employer's need for the alien workers skill or job duties must

be temporary; and in most cases H-2 status requires a certification from

the Department of Labor that qualified persons in the United States are

not available and that the employment of the alien will not adversely

affect the wages and working conditions of similarly employed workers in

the United States. See 8 U.S.C. § 1101(a)(15)(H)(ii); 8 C.F.R. §

214.2(h)(3)(i) (1985); 3 Immigration Law Report 1-3 (January 1984)

es H-2 status requires a certification from

the Department of Labor that qualified persons in the United States are

not available and that the employment of the alien will not adversely

affect the wages and working conditions of similarly employed workers in

the United States. See 8 U.S.C. § 1101(a)(15)(H)(ii); 8 C.F.R. §

214.2(h)(3)(i) (1985); 3 Immigration Law Report 1-3 (January 1984).

While appellants' "commuter" workers do not satisfy the

purpose-of-admission requirement of section 3121(b)(1)(B), H-2

agricultural workers could, in instances where the workers are admitted

specially to perform agricultural

labor. [10]

Appellants argue that section 3121(b)(1)'s legislative history clearly

indicates that Congress intended to eliminate the migrant farm worker or

commuter segment of employees from FICA.

Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 873 (9th

Cir. 1981); accord Tulalip Tribes v. FERC, 732 F.2d 1451, 1454 (9th

Cir. 1984).

In accordance with Heppner, we review the legislative history of

section 3121(b)(1)(B) with caution to determine whether the evidence is

"very strong" and there is "explicit language" to support the assertions

of appellants.

Our review of section 3121(b)(1)'s legislative history reveals that the

foreign-agricultural-worker exemption grew out of the so-called Bracero

Program, a temporary worker program created in World War II to counteract

labor shortages. [11] The

predecessors to section 3121(b)(1) permitted a FICA tax exemption for

foreign workers with a status significantly different from that of

appellants' workers. Not an iota of this history links the "green card"

commuter with the section 3121(b)(1) exemption. None of this history is

antithetical to our conclusion that the status of commuters, possessing

the priviledge to remain and work in the United States, precludes them

from the section 3121(b)(1) exemption

oreign workers with a status significantly different from that of

appellants' workers. Not an iota of this history links the "green card"

commuter with the section 3121(b)(1) exemption. None of this history is

antithetical to our conclusion that the status of commuters, possessing

the priviledge to remain and work in the United States, precludes them

from the section 3121(b)(1) exemption. Thus, we do not find "very strong"

evidence or "explicit language" in the legislative history that Congress

intended to exempt appellants and their employees from the payment of FICA

taxes under section 3121(b)(1).

In conclusion, we find that the appellants' employees status as

"commuters," enjoying the priviledge to establish permanent residence in

the United States, precludes their "employment" from being exempted under

section 3121(b)(1). [12]

AFFIRMED.

[1] The

foreign-agricultural-worker exemption states:

26 U.S.C. § 3121(b)(1)

[2] "The term 'alien' means any

person not a citizen or national of the United States." 8 U.S.C. §

1101(a)(3).

[3] The parties' briefs and

argument did not address the "commuter" status of the few non-Mexican

aliens whose "employment" for appellants is allegedly exempt from FICA

taxation under 26 U.S.C. § 3121(b)(1)(B). See Alvarez v. District

Director of INS, 539 F.2d 1220, 1224 (9th Cir. 1976)("commuters"

reside in a contiguous country), cert. denied, 430 U.S. 918, 97 S.

Ct. 1334, 51 L. Ed. 2d 597 (1977). Because the parties had stipulated that

all of the alien workers were "commuters," we assume that all such

workers, Mexican and non-Mexican, resided in Mexico.

xation under 26 U.S.C. § 3121(b)(1)(B). See Alvarez v. District

Director of INS, 539 F.2d 1220, 1224 (9th Cir. 1976)("commuters"

reside in a contiguous country), cert. denied, 430 U.S. 918, 97 S.

Ct. 1334, 51 L. Ed. 2d 597 (1977). Because the parties had stipulated that

all of the alien workers were "commuters," we assume that all such

workers, Mexican and non-Mexican, resided in Mexico.

[4] "Green card" is the

colloquial name of an Alien Registration Receipt Card (Form I-151). See Gooch v. Clark, 433 F.2d 74 (9th Cir. 1970), cert. denied, 402 U.S. 995, 91 S. Ct. 2170, 29 L. Ed.2d 160 (1971). A "commuter" or

"green-card commuter" is an alien who maintains his residence in Canada or

Mexico and crosses daily into the United States for employment and who is

admitted for permanent residence in the United States. See Alvarez v.

District Director of INS, 539 F.2d 1220, 1224 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1334, 51 L.Ed.2d 597 (1977).

To obtain initial admission into the United States, the commuter must

follow normal immigration procedure. He must apply for an immigration visa

and meet all the requirements of the Immigration and Naturalization Act.

Once he is lawfully admitted, the "commuter" receives a "green card" which

he uses as an entry document following a temporary absence from the United

States.

[5] The parties' stipulation of

fact provides in part:

Thus, appellants admitted that their workers were not admitted under the

H-2 program and both parties agreed the workers were alien "commuters."

[6] "Wages means: "all

remuneration for employment . . . 26 U.S.C. § 3121(a)(1985).

[7] Employment means "any

service, of whatever nature, performed (A) by an employee for the person

employing him, irrespective of the citizenship or residence of either, (i)

within the United States . . . 26 U.S.C. § 3121(b).

er the

H-2 program and both parties agreed the workers were alien "commuters."

[6] "Wages means: "all

remuneration for employment . . . 26 U.S.C. § 3121(a)(1985).

[7] Employment means "any

service, of whatever nature, performed (A) by an employee for the person

employing him, irrespective of the citizenship or residence of either, (i)

within the United States . . . 26 U.S.C. § 3121(b).

[8] 42 U.S.C. § 410(a)(1) (1985)

provides: The term "employment" means any service performed . . . after

1950(A) by an employee for the person employing him, irrespective of the

citizenship or residence of either, (i) within the United States, . . .

except that, in the case of service performed after 1950, such term shall

not include --

[9] In addition to the

discussion in Saxbe the history of the INS's "commuter" practice is

recounted elsewhere. Article, The Alien Commuter After Saxbe v.

Bustos, 8 U.C.D.L. Rev. 33, 35-41 (1975); Note, Aliens in the

Fields; The "Green-Card Commuter" Under the Immigration and Naturalization

Laws, 21 Stan.L.Rev. 1750, 1752-61 (1969).

[10] In granting the

Government's motion for summary judgment, the district court held that

only H-2 workers qualify for the section 3121(b)(1) exemption. Given the

facts in this case and our conclusions that appellants' workers are

"commuters" and not H-2 workers, and that "commuters" are not exempt under

section 3121(b)(1), we do not reach the broader issue.

[11] Congressional Research

Service, The Select Committee on Immigration and Refugee Policy, Temporary

Worker Programs: Background and Issues, 96th Cong., 2d Sess. 6-15

exemption. Given the

facts in this case and our conclusions that appellants' workers are

"commuters" and not H-2 workers, and that "commuters" are not exempt under

section 3121(b)(1), we do not reach the broader issue.

[11] Congressional Research

Service, The Select Committee on Immigration and Refugee Policy, Temporary

Worker Programs: Background and Issues, 96th Cong., 2d Sess. 6-15

(1980).

[12] Appellants also claim

that the Government's position leads to an unfair result: their workers

will contribute to the Social Security system, but they cannot receive

benefits from the system. This is not the case.

Eligibility for old age, disability, and survivor's insurance benefits is

based upon the length of employment in the United States. Generally, one

is not fully insured for such benefits unless he has 40 calendar quarters

("QC") of coverage. 20 C.F.R. § 404.110 (1984). A person is credited with

a QC for any calendar quarter in which he has worked in this country and

was paid $50 or more. Id. § 404.141(b). [20CFR 404.141 is

applicable only to crediting quarters of coverage for calendar years

before 1978. The rules for crediting quarters of coverage for claendar

years after 1977 are provided in 20 CFR 404.143. (Ed. note.)]

A person may become eligible for Social Security benefits regardless of

his country of citizenship or country of residence, although prolonged

absence from the United States can result in the loss of eligibility. See

42 U.S.C. § 402(t)(1) (1983). It is provided, however, that otherwise

eligible citizens of Mexico may be paid benefits regardless of the

duration of their absence from the United States. Id. § 402(t)(2).

This is because Mexico, like the United States, has a social security

system under which benefits are payable to noncitizens regardless of the

country of their residence. See 20 C.F.R. § 404.463(a)(7) (1984).