Preliminary Guidance for Title I, Part C
Public Law 103-382
Procedures for Documenting Eligibility
States must record the basis on which eligibility determinations were made for each child who is enrolled in the MEP. Generally, this is done by an individual authorized to recruit for the MEP who records, usually on a single COE form, all eligible child ren in a family who arrived on the same date in the state or district where the child, parent, guardian, or spouse, obtained or sought qualifying agricultural or fishing work. It is advisable to maintain a separate record for each child of a family who has a (l) different qualifying arriv al date (QAD); or (2) a different residency date (the terms are discussed later in this section).
The only time a state would need to complete a new COE is when an eligible child is identified for the first time in that state. The state would also need to document any move that extends the child's eligibility, either by completing a new COE or amendi ng the current COE. States need not complete new COEs for children who have not moved.
Any temporary or seasonal agricultural or fishing work (as defined in CFR 200.40) can be considered qualifying employment if it constitutes a principal means of livelihood.
Principal Means of Livelihood. To be qualifying, an agricultural or fishing activity must play an important part in providing a living for the worker and his or her family (34 CFR 200.40(c), (e) and (f)). The intent of this reg ulation is to focus MEP services on children who are truly migrant, that is, are members of families who depend on migrant agricultural or fishing work as an important part of their livelihood. The work need not be the "most important" or the "only" type of work performed by family members during the year. Nor does it have to provide the largest portion of the family's income or employ those working for a majority of their time. In all cases, however, states and recruiters should establish procedur es that don't burden parents and also don't lead to misidentification of migrant children.
If during the parent interview, the interviewer learns that the qualifying worker has another occupation (in addition to agricultural or fishing work), the interviewer should confirm that the agricultural or fishing work is important to the family's livel ihood.
Examples of Determining Principal Means of Livelihood
A parent is a commercial fisher during the summer, but also works as a janitor in the school the remainder of the year. When the interviewer visits the parent, she asks him "Is this fishing work important for providing a living for your family?" The parent tells her that without the revenue he earns from fishing, he doesn't know how his family would make ends meet. Based on his verbal affirmation and the interviewer's belief that his statement is credible, she concludes that fishing is an important part of providing a living for the family. She qualifies the children for MEP services.
The same interviewer visits a family that plans to reside in the school district for four weeks while harvesting cherries. She asks the family what they do to earn a living during the rest of the year. The mother tells her that they follow other sea sonal crops. The interviewer qualifies the children for the MEP.
A father who is unemployed moves to a northern state with his children after hearing that he can find field work there. When he arrives at his destination, he looks all over for work but finds that the crop is poor this year and work is not available . Since the father had no other employment and the work he was seeking would have been a principal means of livelihood for the family, the interviewer qualifies the children for the MEP.
Interviewers should base their determination of whether or not work is a principal means of livelihood on interviews with the child (where the child is the worker), or the child's parent or guardian, and should record that determination on the COE. Since there is no income test for eligibility under the MEP, neither the worker nor his or her family is expected to maintain, nor is the SEA or its operating agency expected to review, written documentation on income or work history as a condition of determining the eligibility of childr en for the MEP. Moreover, when conducting eligibility interviews, interviewers should never ask the amount of income derived from employment. Rather, interviewers should focus on whether the agricultural or fishing work is an important part of providing a living for the family. Absen t obvious evidence to the contrary, the interviewer can rely on any information the worker or employer or other relevant person provides and on his or her judgment of that information to make this determination. In cases where a statement made by the worker as to the family's rel iance on the agricultural or fishing work does not seem reasonable to the interviewer in light of other, non-qualifying work, the interviewer should probe further. If the interviewer continues to question the reasonableness of the worker's statement, the interviewer should find the child to be ineligible or refer the situation to a higher level official within the state.
An Agricultural Activity is --
"Any activity directly related to the production or processing of crops, dairy production, poultry, or livestock for initial commercial sale or personal subsistence" (34 CFR 200.40(a)(1)). (Itali cized words are defined below.)
Production. The production of crops, dairy products, or animals includes, among other things, planting, cultivation, or harvesting crops4 or preparing land for such activities, raising or milking dairy far m animals, gathering eggs, and raising livestock for eventual slaughter (but not for sport or recreational use). Planting, cultivating, and harvesting fruits and vegetables (e.g., apples, oranges, grapes, tomatoes, potatoes, celery, etc.) are the major a ctivities which employ migrant workers.
Processing means working with a raw agricultural or fishing product that will become a more refined product. Processing ends at the point where the crop, dairy product, poultry, or livestock ceases to be recognized as the entity that beg an to be processed and becomes part of a more refined product (e.g. potato soup, apple pie, macaroni and cheese, chicken pot pie, beef stew) or when the product (e.g. fresh packaged chicken, bagged grapefruit, boxed broccoli) is readied for initial co mmercial sale to the next stage processor, the wholesaler, the retailer, or the consumer.
Initial Commercial Sale can occur at the conclusion of the production or processing activity(ies), when the product or processed product is sold: (1) for refining to the next stage processor; (2) to the wholesaler; (3) to the retailer; or (4) directly to the consumer. Processing a product for "initial commercial sale" may occur at the same site or at multiple sites.
Personal Subsistence means that a worker and his or her family consume the crops produced or the fish caught in order to survive.
"Any activity directly related to the cultivation or harvesting of trees" (34 CFR 200.40(a)(2)).
Examples of Cultivation or Harvesting Activities
"Cultivation or harvesting" could include soil preparation, planting, tending, pruning and felling, Christmas tree cutting and bundling, and planting of tree seedlings for restoration of forests. Normally, once the trees are ready to be transported from a harvesting site to a processor (sawmill), there is no longer a sufficiently direct involvement in cultivation or harvesting of trees. Therefore, transporting trees would not qualify as an "agricultural activity." Moreover, any activity directly relate d to the processing of trees is not an agricultural activity.
- "Any activity directly related to fish farms" (34 CFR 200.40(a)(3)).
Examples of Fish Farms
A "fish farm" can be a tract of water reserved for the artificial cultivation of fish or shellfish, such as catfish, eels, oysters, or clams. The fish are artificially cultivated, rather than caught in open running water as they would be in a "fishing ac tivity."
A Fishing Activity is --
"...any activity directly related to the catching or processing of fish or shellfish for initial commercial sale or personal subsistence" (34 CFR 200.40(b)).
Examples of Fishing Activities
A "fishing activity" could include the catching, digging, trolling, or otherwise capturing or processing of clams, crab, halibut, herring, oysters, salmon, shrimp, trout, or other types of fish or shellfish.
Temporary Employment--employment related to agricultural or fishing activities that is not permanent and that usually lasts no longer than 12 months. Temporary employment does not always have beginning and ending dates at particular time s of the year. Mending fences, digging irrigation ditches, plucking chickens, and other activities not dependent upon a natural cycle of events may occur at any time, and be for any length of time. Therefore, these jobs may be either permanent or temporary.
In a wide variety of situations, employment can readily be determined to be temporary or seasonal. Sometimes, however, while employment may be available to a worker on a year-round basis, the employment may still be temporary in the sense that, perhaps b ecause of working conditions or intermittent periods of slack demand, the worker does not intend to remain at the job permanently, or otherwise is not likely to do so.
When deciding whether work is temporary, the interviewer should determine whether the work is likely to be available on a year-round basis. The basis of the individual's eligibility should be carefully documented so that the reasons for the determination can be readily understood.
Tests to Determine Whether an Agricultural or Fishing Activity Qualifies as Temporary Employment
The activity itself has a clearly defined beginning and end (e.g., digging an irrigation ditch, making packing boxes, building a fence) and is not one of a series of activities for the same employer that is typical of permanent employment; OR
The employer establishes a time frame for completion of the worker's tasks (e.g., the employer hires the worker for a three-month period); OR
An "industrial survey" establishes that, despite the apparent permanency of the work, the job may be considered temporary (see the following discussion); OR
The agricultural or fishing work might be permanent but the interviewer has specific reasons for believing that the worker does not intend to perform the tasks indefinitely (e.g., the worker states that he plans to leave the job after four months).
Seasonal Employment. Whether agricultural or fishing, seasonal employment is generally easy to determine since it is dependent upon natural cycles. In agriculture, for example, planting, cultivating, pruning, harvesting, and related foo d processing are seasonal activities. In commercial fishing, planting and harvesting of clams and oysters, fishing during seasonal runs of fish, and related food processing are seasonal activities. The production of meat and poultry may also be seasonal ; for example, turkey production increases significantly prior to Thanksgiving.
An "industrial survey" is an alternate way for an SEA to establish that work that could be perceived as year-round can be considered "temporary" for the MEP. Industrial surveys give States added flexibility by providing another way to document that emplo yment is temporary.
In many situations, agricultural or fishing employment can readily be determined to be temporary or seasonal. Sometimes, however, while such employment may be available to a worker on a year-round basis, the employment may still be temporary in the sense that, perhaps because of working conditions or intermittent periods of slack demand, the worker is not likely to remain at the job permanently. An industrial survey provides flexibility in determining that an agricultural or fishing activity qualifies as temporary employment, fo r purposes of the MEP.
An industrial survey is based on agricultural or fishing work-sites with employment practices that are comparable to the one at which the worker is employed, and demonstrate a significant probability that a worker in a specific job category will leave the place of employment within a short period of time; for example, a 50 percent turnover rate in a 12-month period, a 60 percent turnover in 18 months, or a 75 percent turnover in 24 months. Surveys are based upon evidence of a high degree of turnover, frequent layoffs without pay, a h igh incidence of part-time employment, or few or no opportunities for full-time employment. A new survey may (1) be conducted at least once every two years, (2) be based on work-sites with employment practices that are comparable to the one at which the worker is employed, and (3) demonstrate a significant probability that the worker will leave the place of employment within a short period of time.
Items to Include on an Industrial Survey
- The industry being surveyed (e.g., beef processing);
- The individual employer (e.g., Beef Packers, Inc.);
- Location of the workplace (e.g., Anytown, Iowa);
- Description of unique characteristics that might affect employee turnover (e.g., size, working conditions, hours, management);
- The job category (e.g., slaughtering);
- The number of employees in the job category;
- The turnover rate and how it was calculated;
- How turnover information was obtained (e.g., the employer provided a computer printout of employment statistics);
- The date the survey was conducted, the time period it covers, and pertinent explanatory comments (e.g., how precise and credible the information is believed to be); and
- The reviewer's initials and date.
A move can be considered qualifying if:
It is from one school district to another (e.g., a move from a school district into territorial waters is not considered a qualifying move, regardless of distance traveled, unless the worker and child cross into a different school district);
The worker, as a result of the move, is seeking or engaged in qualifying employment; OR
The worker moved to find qualifying work believed to be available, even though qualifying work was not found; AND
The worker clearly did not move for the purpose of relocating on a permanent basis.
Children Who Do Not Move. Children (or spouses) of migrant agricultural workers or migrant fishers are not eligible for MEP services if the children (or spouses) themselves do not move from one school district to another, even if the par ent or guardian moves. The MEP definitions provide that children must have moved before they can be eligible to be counted or served as migrant children under the MEP.
Children Identified After They Stop Moving. A child who was not identified when he/she was actively moving may be recruited after he/she settles out, provided that the SEA records the basis for determining that the child qualified as a m igrant child during the preceding three years. In such a case, the child would retain MEP eligibility as a migrant child for the remainder of the three-year period, or until he or she (1) extends the eligibility period (e.g., makes another qualifying move); or (2) terminates eligibility (e.g., receives a high school diploma or its equivalent, or turns 22).
Previous Qualifying Moves. An SEA may identify and recruit a migrant child in the child's current State of residence based on a qualifying move that occurred in another state within the last three years. The interviewer must record the date on which the qualifying move occurred and the other information needed to establish the child's eligibility for the MEP. The child is then eligible for the remainder of the three-year period.
Moves From Other Countries. In order to explain a child's move from a country other than Mexico or Canada, the interviewer should summarize, generally as a comment on the COE, the reasons for believing the initial move from that country to the new location was made to enable the child, parent, guardian, or spouse to obtain (or seek) temporary or seasonal employment in an agricultural or fishing activity. Moreover, permanent relocations (e.g., relocating to the United States for political, economic, or personal reasons) are not considered qualifying moves. Any move made after the relocation would be qualifying if all eligibility criteria are met.
Moving Home. Workers who return home to ongoing employment after visiting a sick relative, vacationing, or for other personal reasons, have not made a qualifying move.
Other Key Terms for Establishing Eligibility
Qualifying Arrival Date is the date the family unit or the child (where the child is the worker) arrive(s) at the place where qualifying work is sought. (See guidance on "to join" moves for information on children whose move either precedes or follows the parent, guardian or spouse's move).
For interstate migrant children (children who move from one state to another), this is the date they arrive in the state;
For intrastate migrant children (children who move from one school district or, if the state has only one school district, from one school administrative area to another) this is the date they arrive in the school district or scho ol administrative area.
Residency Date is the date the child(ren) enters the school district. The residency date and the qualifying arrival date (QAD) are the same only if the most current move enables the worker to obtain or seek qualifying agricultural or fishing employment. A subsequent move for a reason other than obtaining qualifying work would create a new residency date, but would not change the qualifying arrival date. The residency date is always the same as or after the date of the qualifying arrival date.
To Join Date is the date either before or after the date the parent, guardian, or spouse moves to seek qualifying work. When the child's move precedes the worker's move, the qualifying arrival and residency dates are the date the worker arrived. When the child's move follows the worker's move, the qualifying arrival and residency dates are the date the child arrived. As a rule of thumb, the child's move should be within a year of the worker's move.
Comments on the COE
Most COEs include a comment section. Interviewers often add comments to the COE that clarify the reasons for the eligibility determination so anyone who later reviews the form can understand why the interviewer found the child to be eligible. If a COE d oes not have a comment section, and an explanation is needed to clarify eligibility, comments can be attached to the original COE and maintained as a part of the official COE record.
Circumstances that Warrant Further Explanation on a COE
The household is supported, at least in part, by nonagricultural/nonfishing work, but the qualifying work is still the principal means of livelihood.
A "move" is of such brief duration or for such a short distance, or both, that one could question whether any migration had occurred (e.g., intra-city or intra-town move that is across school district boundaries).
The worker did not obtain as a result of the move.
The recorded agricultural or fishing activity may be unusual enough that a reviewer is unlikely to understand that it is a qualifying activity.
The worker's qualifying move is from a country other than Mexico or Canada to a first place of residence in the United States.
The worker's "activity" that is recorded on the COE could logically be part of a "series of activities" that, viewed together, would constitute permanent employment (e.g., mending fences and haying could be two parts of permanent ranching with one emp loyer).
The worker's recorded "activity" might be viewed by an independent review as either temporary or permanent employment (e.g., collecting eggs or milking cows).
The interviewer has used the findings of an occupational or industrial survey to validate the eligibility determination.
In recruiting migrant children, the SEA and its operating agencies are responsible for ensuring the correctness of the information used to determine each child's eligibility under the MEP definitions in Section 1309(2) and 34 CFR 200.40. "Quality control " refers to the procedures that the SEA designs and implements for doing so. Without some type of quality control system, neither the SEA nor its operating agencies will have a reasonable basis for knowing whether the children who are recruited are, in fact, migrant children, and so cannot demonstrate accountability for their receipt of MEP funds.The quality of a state's eligibility determinations is important both to programmatic decisions about who may and may not receive MEP services, and to fiscal decisions about the size of the state's MEP allocation. SEAs should implement quality control pr ocedures so that the Department and the SEA have confidence in the information used to make decisions.
Quality control procedures complement a system of identification and recruitment where interviewers make thorough, reasonable, and consistent eligibility determinations. If these determinations are audited, the SEA's evidence that it has implemented qual ity control procedures can help to resolve audit concerns, as well as lessen the auditor's need to re-interview children, spouses, parents, or guardians to determine whether the state's COEs contain accurate information.
Sample Quality Control Plan
- Adequately train and guide interviewers in practical and, to the extent possible, uncomplicated ways to determine student eligibility;
- Implement a formal process to review and ensure the accuracy of written eligibility information;
- Plan and implement a process to ensure the quality of interviewers' eligibility decisions;
- Develop and distribute both a local and a state-level process for resolving eligibility questions; and
- Periodically evaluate the effectiveness of recruitment efforts and revise procedures, if necessary.
Continuation of Services
The statute permits programs to continue to serve particular students whose eligibility has ended but who still have unmet needs. These children no longer generate MEP funds for the state, however, and the state is not required to continue serving them. Situations in which a child may continue to be served include the following:
A child who ceases to be a migrant child in the middle of a project or school term is still eligible to receive MEP services until the end of that school term (Section 1304(e)(1));
A child who is no longer a migrant child may continue to be served for an additional school year, providing that comparable services are not available through other programs (Section 1304(e)(2)); and
Secondary school students who were eligible for MEP services in secondary school may continue to be served through credit accrual programs until they graduate (Section 1304(e)(3)).
4 Crops--The following are examples of activities that involve the "production" of crops:
Planning - oranges, apples, trees. catfish, oysters
Cultivating - cotton, beans, onions, oysters
Pruning - grapes, trees, hops
Thinning - sugar beets, tomatoes, celery
Fertilizing - peanuts, apples, oranges, cotton, lettuce
Irrigating - cotton, carrots, tomatoes
Harvesting - picking or gathering of products, agricultural and fishing
In addition to foods and fiber (e.g., cotton), the term crop includes nursery plants, Christmas trees, flowers, truf, fibers, and similarly grown items.
Sample Certificate of Eligibility
Eligibility Flow Chart