[Federal Register Volume 62, Number 141 (Wednesday, July 23, 1997)]
[Rules and Regulations]
[Pages 39417-39425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19242]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 141 / Wednesday, July 23, 1997 /
Rules and Regulations
[[Page 39417]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 245 and 274a
[INS No. 1676-94]
RIN 1115-AD83
Adjustment of Status to That of Person Admitted for Permanent
Residence; Temporary Removal of Certain Restrictions of Eligibility
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This second interim rule responds to public comments on the
first interim rule and also implements various provisions of the
Illegal Immigration Reform and Immigration Responsibility Act of 1996.
This rule amends the Immigration and Naturalization Service regulations
to reflect the new surcharge required of certain persons in the United
States who are seeking to apply for adjustment of status pursuant to
section 245(i) of the Immigration and Nationality Act. This rule also
amends the list of persons prohibited from applying for adjustment of
status by adding two new categories that were created by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996. In
addition, this interim regulation enables the Immigration and
Naturalization Service to complete adjudication of timely filed section
245(i) adjustment applications after September 30, 1997.
DATES: Effective Date: This rule is effective July 23, 1997.
Comment Date: Written comments must be submitted on or before
September 22, 1997.
ADDRESSES: Written comments must be submitted, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW, Room 5307, Washington, D.C.
20536. To ensure proper handling, please reference the INS number 1676-
94 on your correspondence. Comments are available for public inspection
at this location by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Gerard Casale, Staff Officer,
Immigration and Naturalization Service, 425 I Street, NW, Room 3214,
Washington, D.C. 20536, Telephone (202) 514-5014 or Lisa Rainville,
Center Adjudications Officer, Vermont Service Center, Immigration and
Naturalization Service, 75 Lower Welden Street, St. Albans, VT 05479-
0001, Telephone (802) 527-3114.
SUPPLEMENTARY INFORMATION:
Background
Under the Immigration and Nationality Act (the ``Act''), an alien
seeking to immigrate to the United States normally must obtain an
immigrant visa at a United States embassy or consulate abroad. Section
245 of the Act, however, allows certain persons who are physically
present in the United States to adjust status to that of lawful
permanent resident. Section 245(a) of the Act limits eligibility for
adjustment to aliens who have entered the United States after having
been inspected and admitted or paroled by an immigration officer.
Section 245(c) of the Act, in turn, bars the adjustment of most
applicants who have been employed in the United States without
authorization; who have not complied with the terms of their
nonimmigrant visa; or who are among certain classes of nonimmigrants
whose basis for admission precludes them from eligibility for
adjustment of status. Many intending immigrants who were physically
present in the United States and were ineligible for adjustment of
status under the provisions of section 245(a) and 245(c) of the Act had
been obliged to depart the United States to obtain immigrant visas and
seek admission to the United States as lawful permanent residents. This
resulted in an increased burden on United States consulates and
embassies abroad. Additionally, aliens physically present in the United
States who sought lawful permanent resident status were required to
incur the expense and inconvenience of applying for an immigrant visa
at a United States consulate or embassy abroad.
Public Law 103-317
To address these problems, Congress enacted section 506(b) of the
Department of Commerce, Justice, State, the Judiciary and Related
Agencies Appropriations Act, 1995, Pub. L. 103-317 (August 26, 1994).
Section 506(b) of Pub. L. 103-317 added a new section 245(i) to the Act
which allows certain persons already in the United States to adjust
status, despite the provisions of sections 245 (a) and (c) of the Act,
upon payment of a fee in addition to the base filing fee for an
adjustment of status application. Section 245(i) of the Act does not,
however, waive other grounds of ineligibility enumerated elsewhere in
section 245. The provisions of section 245(i) apply only to
applications filed on or after October 1, 1994, and before October 1,
1997. See section 506(c) of Pub. L. 103-317. It should be emphasized
that, despite enactment of section 245(i) of the Act, adjustment of
status remains the exception, and not the rule, to the normal process
of immigrant visa issuance. See 59 FR 51091-100.
On October 7, 1994, the Immigration and Naturalization Service (the
``Service'') published an interim rule with request for comments which
established procedures for filing for adjustment of status pursuant to
the provisions of section 245(i) of the Act. See 59 FR 51091-100. The
interim rule took effective retroactively on October 1, 1994.
Interested persons were invited to submit written comments on or before
December 6, 1994. After publication of the interim rule on October 7,
1994, the Service received seven written comments during the comment
period.
On September 30, 1996, President Clinton signed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (the
``IIRIRA'') into law. Among other changes, effective September 30,
1996, the IIRIRA established two new groups of aliens who are
ineligible to adjust status under section 245(a) of the Act. The
present rule, which contains regulatory changes to 8 CFR part 245
mandated by statutory amendments to sections 245(c) and 245(i) of the
Act, is being published as a second interim rule to provide the public
an opportunity to comment on the Service's interpretation of the new
[[Page 39418]]
law as well as on the provisions of the first interim rule that remain
in effect.
Comments
The following discussions summarizes the issues which were raised
by the commenters in response to publication of the first interim rule
and explains the Service's position on those issues.
Conclusion of Application Period
One commenter asserted that the provisions of section 245(i) should
apply to all applications properly filed before October 1, 1997, rather
than only those applications which have been adjudicated by that date.
Upon further consideration of this issue, the Service is persuaded that
the commenter's position represents the best reading of these statutory
provisions. The first interim regulation provided that, in order to
meet the October 1, 1997, sunset date provided in section 506(c) of
Pub. L. 103-317, section 245(i) applications should be filed at the
earliest possible date to ensure complete processing prior to October
1, 1997. Read together, sections 245(i)(1) of the Act and 506(c) of
Pub. L. 103-317, however, provide that an alien may apply to the
Attorney General for adjustment of status under section 245(i) through
September 30, 1997, and that the Attorney General ``may'' accept such
an adjustment application through September 30, 1997. Section 245(i)(2)
of the Act and section 506(c) of Pub. L. 103-317, in turn, specifically
provide that the Attorney General may adjust an alien's status under
section 245(i) of the Act only through September 30, 1997. Finally,
section 506(d) of Pub. L. 103-317, requires the Service to conduct full
fingerprint identification checks through the FBI for all individuals
over 16 years of age who adjust status pursuant to section 245(i) of
the Act.
In drafting the first interim regulation, the Service adopted the
position that, based on the language of section 245(i)(2) of the Act
and section 506(c) of Pub. L. 103-317, its authority to complete
processing of any properly filed section 245(i) adjustment application
would lapse on the October 1, 1997, sunset date. If left to stand, the
first interim rule, in effect, would have precluded an alien from
filing an application for adjustment of status through September 30,
1997, as is mandated in section 506(c) of Pub. L. 103-317, since the
normal period of time necessary to complete full fingerprint
identification checks on adjustment applicants may be 120 days or more.
Upon further consideration, the Service now believes that the first
interim rule is incompatible with the language of section 506(c) of
Pub. L. 103-317 and section 245(i)(1) of the Act, which specifically
permit an alien to apply for adjustment under section 245(i) through
September 30, 1997. In making this determination, the Service is aware
that, upon expiration of section 245(i)(2) of the Act on October 1,
1997, the Attorney General no longer will have the explicit authority
to adjust an alien's status under section 245(i) of the Act. We
nevertheless conclude that, based on the statutory scheme, Congress
gave the Service the implicit authority to complete processing of all
adjustment applications which were properly filed in accordance with
section 245(i)(1) of the Act prior to the October 1, 1997, sunset. Not
only was Congress aware that the Service, as a practical matter, is
unable to complete processing of an application for adjustment of
status on the date such application is received, but Congress also
specifically mandated that the Service not act upon section 245(i)
applications until a ``full'' background check has been conducted on
the adjustment applicant. See section 506(d) of Pub. L. 103-317.
Clearly, Congress did not intend to permit the filing of what would in
effect be a meaningless section 245(i) adjustment application,
accompanied with, in most cases, a substantial additional surcharge,
which the Service would be required to deny soon thereafter because of
the passage of the October 1, 1997, sunset date.
In short, this second interim rule reconciles any potential
inconsistency between sections 245 (i)(1) and (i)(2) of the Act based
on section 506(c) of Pub. L. 103-317 by specifically permitting the
filing of section 245(i) applications through September 30, 1997, in
accordance with section 245(i)(1) of the Act, while recognizing the
Service's implicit authority to complete processing of such properly
filed applications, even when that processing takes place after
September 30, 1997. This second interim rule therefore revises 8 CFR
245.10(c) to allow the filing of adjustment applications pursuant to
section 245(i) of the Act through September 30, 1997.
Applications Submitted to the Service After September 30, 1997
The statutory authority for granting benefits, as well as for
collecting the surcharge, under section 245(i) of the Act ends on
September 30, 1997. See section 506(c) of Pub. L. 103-317. By law, the
Service may not a grant the benefits of section 245(i) of the Act to
aliens who attempt to file a new application for adjustment of status
under that subsection after September 30, 1997. All applications for
adjustment of status filed pursuant to section 245 of the Act which are
submitted after September 30, 1997, must be adjudicated pursuant to
section 245(a) of the Act. Therefore, in cases where an applicant
attempts to file a new section 245(i) adjustment after September 30,
1997, the Service will retain the base filing fee, return any
surcharge, and adjudicate the application pursuant to section 245(a) of
the Act.
Readjustment of Lawful Permanent Residents
One commenter noted the language in the preamble to the first
interim regulation which states that (a) person who is currently a
lawful permanent resident * * * continues to be ineligible for
adjustment.'' See 59 FR 51093. The commenter asserted that this
statement was contrary to established case law and added that the
statute does not preclude lawful permanent residents from adjusting
status under section 245 of the Act. Contrary to this comment, a lawful
permanent resident generally may not ``adjust'' to the same status he
or she already holds. The Service recognizes, however, that there
exists at least one limited exception to this general rule in the
context of an alien in deportation proceedings. See Matter of
Gabryelsky, 20 I & Dec. 750 (BIA 1993) (allowing an alien to
``bootstrap'' eligibility for relief under section 245 and 212(c) of
the Act). This should not be construed, however, to mean that any
lawful permanent resident, whether or not in proceedings, may apply for
adjustment of status under section 245 of the Act. First, the language
of the statute itself makes it clear that there is no absolute right to
adjustment of status. On the contrary, the Attorney General ``may''
adjust an alien's status ``to'' that of an alien lawfully admitted for
permanent residence. It is, therefore, within the Attorney General's
discretion to determine if it is appropriate to grant such status. In
this regard, the Service believes it would be an inappropriate use of
its limited resources to accord the same privilege, i.e., permanent
residence, to an alien currently holding permanent resident status. In
any event, an alien, if otherwise eligible, may change the basis of his
or her permanent residence by abandoning such status and obtaining an
immigrant visa abroad. Finally, we note that the reference in section
245(a) of adjustment ``to that of an alien lawfully admitted for
permanent residence'' clearly demonstrates that Congress intended
aliens to adjust from a different
[[Page 39419]]
immigration status. Accordingly, the Service will not adopt the
commenter's suggestion.
Family Unity
Section 245(i) of the Act and 8 CFR 245.10(b) provide that spouses
and unmarried children who are under the age of 21 of aliens who were
legalized and special agricultural workers programs are exempt from
payment of the additional sum, provided those individuals were
qualified for, and had properly applied for, benefits under the Family
Unity program. See section 301 of the Immigration Act of 1990, Pub. L.
101-649. One commenter suggested that the first interim rule should
clearly specify that persons whose voluntary departure status under the
Family Unity program had expired are covered by this provisions. The
Service agrees that the statute and regulations require only that such
persons are qualified for and have applied for Family Unity benefits.
Those persons whose voluntary departure status under the Family Unity
program has expired remain exempt from paying the additional sum
specified in 8 CFR 245.10(b). It is, therefore, not necessary to amend
the regulation.
The same commenter contends that persons eligible for benefits
under the Family Unity program who had not yet filed Form I-817,
Application for Voluntary Departure under the Family Unity Program,
should be allowed to apply for that program concurrently with their
application for adjustment of status. The commenter asserted that
requiring applicants to file Form I-817 and obtain a receipt before
applying the adjustment of status is inefficient for the Service and
inconvenient for applicants.
The statutory language limits the exemption of payment of the
additional sum of those applicants ``who * * * applied for benefits
under'' the Family Unity program. This explicit use of the past tense
precludes consideration of persons who have yet to file and be
determined eligible for benefits under the Family Unity Program.
Accordingly, there has been no change to the rule in response to this
comment.
Another commenter disagreed with the language of 8 CFR
245.10(b)(3), which exempts from payment of the additional sum an
applicant who is ``(t)he child of a legalized alien, is unmarried and
less than 21 years of age'' and who was qualified for and had properly
applied for benefits under the Family Unity program. The commenter
asserted that this definition is too restrictive, contending that
section 245(i)(1)(i) of the Act extends benefits to any applicant who
``as of May 5, 1988, was the unmarried child (under the age of 21)'' of
legalized alien and had applied for benefits under the Family Unity
program.
The Service disagrees with the commenter for the following reasons.
The Service recognizes that Congress, in establishing the Family Unity
program under section 301 of the Immigration Act of 1990 (IMMACT 90),
intended, in part, to ensure that families of legalized aliens are able
to remain together until such time as their dependents become
statutorily eligible to apply for permanent resident status in the
United States. In particular, Congress recognized that such dependents
must wait a significant period of time in order for a visa number to
become available. Section 301 of IMMACT 90, however, did not address
the question of what fee such person must pay in order to apply for
adjustment of status. The fee issue, instead, was specifically
addressed in section 245(i)(1) of the Act, which clearly provides that
the alien must have been an unmarried child both in 1988 as well as at
the time he or she applies for permanent resident status in order to be
exempt from payment of the surcharge. Further, requiring payment of the
surcharge from offspring over the age of 21 years if they wish to
remain permanently in this country is in no way contrary to Congress'
intent to ensure family unification. For this reason, the Service
cannot accept the commenter's suggestion, and will continue to follow
the plain language of section 245(i)(1)(i) of the Act.
Payment of Additional Sum
One commenter asserted that the first interim regulation required
applicants to submit a sum in excess of that required by statute. The
first interim regulation requires applicants to submit the standard
application fee plus an additional sum equal to five times that fee.
The commenter contended that section 245(i) requires applicants to
submit the ``penalty'' portion of the filing fee in lieu of the
standard filing fee for adjustment of status applications.
Section 245(i)(1)(b)(iii) of the Act states that ``(t)he sum
specified herein shall be in addition to the fee normally required for
the processing of an application under this section'' (emphasis added).
The placement of this sentence within a subparagraph of the statute may
have caused some confusion. Nonetheless, the statute refers to this
additional amount not as a ``fee'' but as a ``sum'' which is to
accompany the application and fee under section 245(i). The Service has
no discretion to alter this statutory provision.
One commenter objected to 8 CFR 103.7(c)(1), which states that
``[t]he payment of the additional sum . . . may not be waived except as
directed in section 245(i).'' The commenter contended that section
245(i) of the Act does not address the issue of fee waivers and argued
that the Service should take ``the standard regulatory approach to
fees'' found in 8 CFR 103.7(c). Section 245(i) of the Act, however,
specifically lists which categories of applicants are not required to
submit the additional sum. Unlike the case of other types of petitions
and applications filed with the Service, under the plain language of
section 245(i) of the Act, the additional sum is specifically mandated
by statute. Absent specific statutory authority to waive the surcharge,
the Service, therefore, may not waive the additional sum. Accordingly,
the Service will not adopt the commenter's suggestion.
Technical Revision to 8 CFR 103.7(c)(1)
This second interim regulation modifies the final sentence of 8 CFR
103.7(c)(1) by removing the words ``except as directed in section
245(i) of the Act.'' As one commenter noted, the first regulation is
misleading in that it implies that a statutory exemption of the
surcharge equates to a waiver of payment of such surcharge. This
technical change clarifies that, under the plain language of the
statute, persons listed in section 245(i)(1) (i) through (iii) of the
Act are exempt from payment of the surcharge, and the Service lacks
discretionary authority to waive the surcharge. Since, to date, the
Service has not required payment of the surcharge from the individuals
listed in section 245(i)(1) (i) through (iii), this technical change,
as a practical matter, will have no adverse effect on such persons.
Clarification of Instructions to Supplement A to Form I-485
One of the commenters indicated that the instructions which
accompany Supplement A to Form I-485 ``seem to suggest that an
applicant must be the approved beneficiary of a valid unexpired visa
petition in order to file the form.'' Supplement A clearly does not
limit eligibility for adjustment of status to an applicant who is the
beneficiary of an approved immigrant visa petition. The instructions to
the form specify only that an applicant ``have an immediately available
immigrant visa number.'' This language echoes section 245(i)(2)(B) of
the Act, which requires ``an immigrant visa [to be] immediately
available to the alien at the time the application is filed.''
Furthermore, apart from its instructions,
[[Page 39420]]
Supplement A lists a broad spectrum of grounds for eligibility for
adjustment of status. Accordingly, no change has been made to the rule
as a result of this recommendation.
Interview Waivers
One commenter requested that the Service incorporate language
regarding interview waivers into the regulation. However, as the same
commenter noted, 8 CFR 245.6 currently allows for a waiver of the
interview for adjustment of status applications. Applications filed
under section 245(i) of the Act are adjudicated in accordance with the
regulations at 8 CFR part 245, which already contain provisions
authorizing immigration officers to waive the interview under certain
specified circumstances. Further regulatory language relating to
interview waivers would be redundant. Accordingly, the Service will not
adopt the commenter's suggestion.
Adjustment as a Means of Relief From Deportation
One commenter urged the Service to clarify that prospective
immigrants who qualify for adjustment under section 245(i) may file
such an application while they are in deportation proceedings. (While
no new deportation cases may be brought after March 31, 1997, section
309(c) of the IIRIRA permits the continuation of deportation
proceedings initiated prior to April 1, 1997.) However, under 8 CFR
242.17(a), respondents in deportation proceedings are already permitted
to apply for adjustment of status under section 245 of the Act.
Additional regulatory language to that effect would, therefore, be
redundant. Accordingly, the rule has not been changed in response to
this recommendation. It should be noted that the Service published an
interim rule on March 6, 1997, effective April 1, 1997, that
implemented certain changes to the removal process resulting from the
IIRIRA. See 62 FR 10312. The March 6, 1997, regulation provides for
adjustment of status in certain circumstances, where appropriate,
during removal proceedings.
Fingerprint Checks
One commenter noted that section 506(d) of Pub. L. 103-317 requires
fingerprint checks for all applicants for adjustment of status under
section 245(i) of the Act who are more than 16 years of age. The
commenter suggested that this provision should be included in the
regulations to avoid confusion. However, fingerprint checks are covered
by 8 CFR 264.1, a regulation not covered by the present rulemaking.
While this point is well taken, the Service intends to address this
matter in a separate rulemaking. Accordingly, the regulation has not
been changed as a result of this comment.
Pending Applications and the Chinese Student Protection Act
A number of commenters were concerned about the impact of the first
interim regulation on individuals who applied for adjustment of status
under the Chinese Student Protection Act (CSPA), as well as dependents
of CSPA applicants. One commenter suggested that the regulations at 8
CFR 245.1 should be amended to remind Service officers that qualifying
family members who are following to join immigrants who adjusted status
under the CSPA retain the priority date of a CSPA principal. As the
commenter observed, however, the issue of priority dates for late-
arriving dependents of CSPA principals has already been addressed at 8
CFR 245.9(m). Because statutory and regulatory provisions are already
in place for late-arriving dependents of CSPA applicants, there is no
need to promulgate further regulations merely to refer interested
parties to existing provisions.
Several commenters observed that the provisions of section 245(i)
``shall take effect on October 1, 1994.'' The commenters asserted that,
because of this wording, the provisions of section 245(i) should apply
not only to applications filed after October 1, 1994, but to any
adjustment application pending on that date. They urged the Service to
allow applicants for adjustment of status to file motions to reopen or
reconsider under section 245(i) of the Act.
The language of section 245(i), however, clearly states that a
prospective immigrant under this section ``may apply'' for adjustment
of status. This wording is prospective and not retroactive. Because
section 245(i) became effective on October 1, 1994, the plain language
of the statute limits the application of section 245(i) to applications
for adjustment of status filed on or after October 1, 1994. Therefore,
the Service cannot apply the provisions of section 245(i) to
applications filed prior to October 1, 1994, or to motions to reopen or
reconsider such applications.
A number of these commenters argued that, although applicants who
entered without inspection were ineligible for adjustment of status
under the CSPA, the provisions of section 245(i) should apply
retroactively to any CSPA application pending as of October 1, 1994.
One commenter noted that, whole most aliens with pending adjustment of
status applications could simply file a new application under section
245(i), CSPA applicants cannot file a new application because of the
CSPA's statutory filing deadline of June 30, 1994. Another commenter
urged the Service to reopen or reconsider denied CSPA applications
under section 245(i) because ``[t]he INS unlawfully stopped advance
paroles for Chinese nationals'' who had entered without inspection. As
stated previously, the provisions of section 245(i) apply only to
applications filed on or after October 1, 1994. Further, had Congress
intended any special consideration for CSPA applications, such
provisions would have been incorporated into the statute. Accordingly,
the provisions of the rule have not been changed in response to these
comments.
IIRIRA
Surcharge Increased by Congress
Section 376(a) of the IIRIRA increased the amount of the additional
sum for applicants seeking the benefits of section 245(i) of the Act
from five times the fee required for processing of applications under
this section ($650) to $1,000. The regulations are, therefore, amended
to reflect the change in the additional fee.
The new 245(i) surcharge in the amount of $1,000 applies to all
applications properly filed with this Service on or after the end of
the 90-day period beginning on the date of enactment. The section
245(i) fee increase, therefore, became effective on December 29, 1996,
for applications for adjustment of status under section 245(i) of the
Act which were properly filed in accordance with 8 CFR 103.2(a) on or
after that date. Under new 8 CFR 245.10(f), if at any time during the
pendency of the adjustment application, the application is determined
to be subject to the section 245(i) surcharge, and the application is
not accompanied by the required amount (i.e., base fee of $130 plus
$1,000 surcharge), the Service will afford the alien an opportunity to
amend the application in accordance with 8 CFR 245.10(d). If the alien
elects to amend such an application, he or she will be credited for the
$130 base filing fee that was submitted with the initial adjustment
application and, therefore, will be required to submit only the $1,000
surcharge amount and Supplement A to Form I-485.
Section 245(c)(6) of the Act
Under the IIRIRA, Congress amended section 245(c)(6) of the Act by
changing the reference to section 241(a)(4)(B) to
[[Page 39421]]
section 237(a)(4)(B) of the Act. Section 237(a)(4)(B) of the Act
renders any alien who has engaged, is engaged, or at any time after
admission engages in any terrorist activity, as defined in section
212(a)(3)(B)(iii) of the Act, ``deportable.'' Under section 245(c)(6),
persons who are deportable under section 237(a)(4)(B) of the Act are
ineligible to adjust status under section 245(a) of the Act. This
second interim regulation reflects the position of the Service that any
person who is deportable under section 237(a)(4)(B) of the Act is also
ineligible to adjust status under section 245(i) of the Act.
New Section 245(c)(7) of the Act
Section 375 of the IIRIRA, which took effect on September 30, 1996,
amended section 245(c) of the Act by adding two new groups of aliens to
the list of those who are ineligible to adjust status under section
245(a) of the Act. The first group, described in new section 245(c)(7)
of the Act, consists of any alien beneficiary of an employment-based
immigrant visa petition who is not in a lawful nonimmigrant status at
the time she or he applies for adjustment of status. In enacting new
section 245(c)(7) of the Act, Congress changed preexisting law by
rendering aliens who are legally permitted to remain in the United
States, such as parolees, but who are not among the classes of
nonimmigrants defined in section 101(a)(15) or other provisions of the
Act, ineligible to adjust status under section 245(a) of the Act on the
basis of an approved employment-based immigrant petition. This second
interim rule amends 8 CFR 245.1(b) to add such aliens to the group of
people currently ineligible for adjustment of status. It should be
noted, however, that the section 245(c)(7) bar to adjustment does not
apply to aliens who were in a lawful nonimmigrant status at the time
they applied for adjustment of status, subsequently departed from the
United States, and then reentered this country pursuant to an approved
advance parole.
New Section 245(c)(8) of the Act
Section 375 of the IIRIRA also added a new section 245(c)(8) to the
Act, which renders ``any alien who was employed while the alien was an
unauthorized alien as defined in section 274A(h)(3) [of the Act] or who
has otherwise violated the terms of a nonimmigrant visa'' ineligible to
adjust status pursuant to section 245(a) of the Act. With respect to
the employment of an alien at a particular time, section 274A(h)(3) of
the Act defines the term ``unauthorized alien'' as an alien who is not
either an alien lawfully admitted for permanent residence or authorized
to be so employed under the Act or by the Attorney General.
Except as noted below with regard to immediate relatives and
certain special immigrants, the Service interprets new section
245(c)(8) of the Act as rendering an alien ineligible to adjust status
to permanent resident under section 245(a) of the Act if she or he at
any time engaged in unauthorized employment or violated nonimmigrant
status while physically present in the United States. This second
interim rule amends 8 CFR 245.1(b) accordingly by adding any alien who
has violated the terms of a nonimmigrant visa to the list of persons
currently ineligible to adjust status under section 245(a) of the Act.
In addition, since the statute does not state that the violation of the
terms of a nonimmigrant visa or the unauthorized employment must have
occurred during a particular time period, this rule similarly places no
time restrictions on when such a violation must have occurred. For this
reason, this rule provides that any such violation of the terms of a
nonimmigrant visa or unauthorized employment, either before or after
the filing of Form I-485, will render an alien ineligible to adjust
status under section 245(a) of the Act. Thus, as described below, under
new section 245(c)(8) of the Act, an alien seeking employment during
the pendency of his or her adjustment application must fully comply
with the requirements of section 274A of the Act and 8 CFR part 274a.
Clarification of the Term ``Otherwise Violated the Terms of a
Nonimmigrant Visa'' in New Section 245(c)(8) of the Act
For purposes of section 245(c)(8) of the Act, an alien will not be
deemed to have ``otherwise violated the terms of a nonimmigrant visa''
merely by filing an application for adjustment of status, provided that
such filing was in accordance with 8 CFR 103.2(a) and occurred prior to
the expiration of the alien's nonimmigrant status. Further, for
purposes of section 245(c)(8) of the Act, an alien will not be deemed
to have ``otherwise violated the terms of a nonimmigrant visa'' if: (a)
The alien's failure to maintain status was through no fault of his or
her own or for technical reasons, as defined in 8 CFR 245.1(d)(2); (b)
the alien was granted a change of nonimmigrant status pursuant to 8 CFR
248.1(b); (c) the alien was granted an extension of nonimmigrant stay
pursuant to current Operations Instructions 214.1 or any previous
analogous Operations Instructions; (d) the alien was granted an
extension of nonimmigrant stay based on a timely filed extension
application which the Service approved after the alien's authorized
nonimmigrant period of stay expired; or (e) the alien was granted
reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the
basis of circumstances beyond the student's control.
Clarification of the Term ``Unauthorized Alien'' in New Section
245(c)(8) of the Act
For purposes of section 245(c)(8) of the Act, an alien will not be
deemed to be an ``authorized alien'' as defined in section 274A(h)(3)
of the Act while his or her properly filed Form I-485 application is
pending final adjudication, if the alien has otherwise obtained
permission from the Service to engage in employment, or if the alien:
(a) Has not previously engaged in unauthorized employment at any time;
(b) was authorized, at the time of filing the adjustment application,
to be employed by his or her current employer pursuant to a
nonimmigrant classification permitting such employment; and (c) would
otherwise have been authorized to continue employment had he or she not
filed the application for adjustment of status. In all other cases,
including those in which the alien's previously granted employment
authorization expires during the pendency of the adjustment
application, the adjustment applicant must await issuance of an
employment authorization document (``EAD'') from the Service before he
or she may lawfully engage in employment. For this reason, adjustment
applicants are strongly urged to file a Form I-765 application on the
basis of 8 CFR 274a.12(c)(9) concurrently or as soon as possible after
filing the Form I-485 to avoid a lapse of employment authorization.
Further, in all cases, if the district director or service center
director denies the alien's application for adjustment of status, any
employment authorization granted to the alien on the basis of the
adjustment application will be subject to termination pursuant to 8 CFR
274a.14(b). Finally, as this second interim rule is limited to defining
who is an ``unauthorized alien'' for purposes of new section 245(c)(8)
of the Act, an alien who meets the above requirements must, like all
other adjustment applicants, obtain advance parole in order to travel
outside of the United States during the pendency of his or her
adjustment application.
[[Page 39422]]
Immediate Relatives and Certain Special Immigrants Are Exempt From the
Bar to Adjustment Under Section 245(c)(8) of the Act
By its terms, new section 245(c)(8) of the Act applies to ``any
alien'' and does not exempt any individual or group of individuals from
the bar to adjustment under section 245(a) of the Act. This provision,
however, must be harmonized with section 245(c)(2) of the Act, which
also addresses unauthorized employment and failure to maintain lawful
status, but which exempts from its bar to adjustment immediate
relatives, as defined in section 201(b) of the Act, or special
immigrants, as defined in section 101(a)(27) (H), (I), (J), or (K) of
the Act. Despite the reference to ``all aliens'' in new section
245(c)(8) of the Act, it is the position of the Service that the
language of this new section does not supersede the more specific
language of section 245(c)(2) of the Act. See 2B Sutherland Stat.
Const. section 51.02 at p. 121 (where a conflict exists the more
specific statute controls over the more general one). Under this second
interim rule, therefore, immediate relatives as defined in section
201(b) or special immigrants described in section 101(a)(27) (H), (I),
(J), or (K) of the Act who have at any time engaged in unauthorized
employment or otherwise violated the terms of a nonimmigrant status
continue to be eligible to adjust status under section 245(a) of the
Act because of the explicit language to this effect in section
245(c)(2) of the Act. As is currently the case, such individuals are
not required to pay the additional sum required for filing an
adjustment application pursuant to section 245(i) of the Act. See 8 CFR
245.1(b). These persons are still required, however, to pay the base
filing fee required of other adjustment applicants under section 245(a)
of the Act. See 8 CFR part 103.7(b)(1).
Effect of New Ground of Inadmissibility 212(a)(6) on Section 245(i) of
the Act
The IIRIRA added several new grounds of inadmissibility, including
a new section 212(a)(6) of the Act, which became effective on April 1,
1997. Under new section 212(a)(6)(A) of the Act, with certain
exceptions specified therein, aliens who are ``present in the United
States without being admitted or paroled,'' will be inadmissible to the
United States. All inadmissibility grounds are subject, however, to the
general language in the first clause of section 212(a) of the Act:
``[e]xcept as otherwise provided in this Act.'' For the following
reasons, it is the position of the Service that, despite the enactment
of this new ground of inadmissibility, aliens who are physically
present in the United States after having entered without inspection
will continue to be eligible to apply for adjustment of status under
section 245(i) of the Act through the September 30, 1997, sunset date
for section 245(i). In making this determination, we note, as a
preliminary matter, that the first clause of section 212(a) of the Act,
unlike certain other sections of the Act, contains no requirement that
another section of the Act specifically provide that an entrant without
inspection is exempt from the new ground of inadmissibility. By
contrast, in enacting other sections of the Act, when Congress has
intended such specificity, it has expressly imposed this requirement.
See e.g., section 101(a)(38) of the Act (``except as otherwise
specifically herein provided * * *''); section 245A(h)(1) of the Act
(``[u]nless specifically provided by this section or other law''). In
the absence of such a specificity requirement in the first clause of
section 212(a) of the Act, the rules of statutory construction permit
us to conclude, if otherwise warranted, that Congress intended
otherwise eligible applicants who had entered without inspection to be
``admissible'' for the limited purpose of adjusting status under
section 245(i) of the Act, even in the absence of specific language in
section 245(i) referring to section 212(a)(6)(A) of the Act.
The Service finds ample additional evidence of Congress' intent to
permit entrants without inspection to continue to apply for adjustment
of status under section 245(i) of the Act after April 1, 1997. First,
under the plain language of section 245(i)(1)(A) of the Act, aliens who
are physically present in the United States who entered without
inspection are specifically permitted to apply for adjustment of
status. Section 245(i)(2)(A), of the Act, however, requires that such
aliens be ``admissible'' to the United States. To deem such entrants
without inspection ``inadmissible'' would render section 245(i)(1)(A)
of the Act effectively superfluous, since it would preclude nearly all
entrants without inspection from ever obtaining approval of such
applications. On a similar note, since an applicant for adjustment of
status is assimilated to the position of an applicant for admission,
such a person must be ``admissible'' both at the time of application
and at the time of being granted adjustment of status. See 8 CFR
245.10(a)(3) (alien ``may apply'' for adjustment under section 245(i)
if not excludable); section 245(i)(2)(A) of the Act (alien must be
``admissible'' at time of adjustment). Since section 245(i)(1)(A) of
the Act expressly permits entrants without inspection to apply for
adjustment of status, Congress, in effect, has deemed such persons
``admissible'' for the single purpose of filing an adjustment
application under section 245(i) of the Act. The Service does not
believe that Congress, having thus invited such applications, intended
to create the futile situation in which most entrants without
inspection would be admissible solely for the purpose of filing an
adjustment application, but would be precluded from ever being able to
adjust status based on the same application. Finally, as a further
indication of Congress' intent to preserve the status quo with respect
to entrants without inspection, we note that Congress, in enacting the
IIRIRA, amended other portions of section 245(i) of the Act but left
standing 245(i)(1)(A) of the Act, which specifically authorizes those
who entered without inspection to apply for adjustment under the terms
of that subsection. See section 376 (a) and (b) of the IIRIRA.
General Effect of New Section 212(a)(9) of the Act on Adjustment of
Status
This second interim regulation specifically provided that new
section 212(a)(9) of the Act will not be a bar to adjustment of status
for an alien who has not yet departed from the United States. This
interpretation conforms to the plain language of the statue which
requires that an alien must depart from the United States in order to
become inadmissible under section 212(a)(9) of the Act. Such a person,
however, if otherwise within the purview of section 212(a)(9) of the
Act (for example, by virtue of having accumulated the specified periods
of unlawful presence), will be deemed inadmissible under that section
of the Act for purposes of adjustment of status if he or she has
departed from the United States and subsequently reentered the United
States by any means.
Effect of New Section 212(a)(9)(B) of the Act on Adjustment of Status
With certain exceptions, effective April 1, 1997, under new section
212 (a)(9)(B) of the Act, any alien, with the exception of a lawful
resident, who has been ``unlawfully present'' in this country (e.g.,
present beyond the period of stay authorized by the Attorney General or
present without being admitted or paroled) for a period of more than
180 days but less than 1 year, has voluntarily departed from the United
States, and again seeks admission to this country within 3 years from
the date of departure, will be
[[Page 39423]]
inadmissible to the United States. Similarly, an alien who has been
unlawfully present in the United States for 1 year or more, departs
from the United States, and again seeks admission to this country
within 10 years of the date of such departure or removal, will be
deemed inadmissible. In addition to the specific exceptions set forth
under new section 212(a)(9)(B) of the Act, no period prior to April 1,
1997, may be counted toward the period of ``unlawful presence.'' See
section 301(b)(3) of the IIRIRA. Thus, the earliest possible date an
alien could be deemed to be inadmissible under section 212(a)(9)(B) of
the Act would be September 28, 1997. As noted above, otherwise
admissible persons who have been ``unlawfully present'' for any period
of time while in this country are generally ineligible to adjust their
status under section 245(a) of the Act. Under section 245(i) of the
Act, however, such persons, if admissible, are eligible to apply for
adjustments of status upon payment, in most cases, of a substantial
surcharge fee. The Service intends to address the issues relating to
section 212(a)(9) of the Act in a separate proposed rulemaking.
Good Cause Exception
The Service's implementation of this rule as a second interim rule,
with provisions for post-promulgation public comments, is based upon
the ``good cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B), (d)(3).
See Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991).
The immediate implementation of this second interim rule without prior
notice and comment is necessary to implement statutory changes which
have already gone into effect. Consequently, there is insufficient time
to provide pre-publication notice and comment. The Service will fully
consider all comments submitted during the comment period. The Service
notes that this second interim rule continues to allow certain persons
who were previously ineligible for adjustment of status to obtain
lawful permanent residence without having to incur the high costs of
travel abroad.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant adverse economic impact on a substantial
number of small entities. By temporarily removing certain restrictions
on eligibility for adjustment of status in accordance with the statute,
the rule will eliminate inconvenience to a number of individuals
currently in the United States who otherwise would be required to incur
significant monetary expenses by traveling abroad to apply for an
immigrant visa at a United States consulate or embassy. This second
interim rule will have no effect on small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
Executive Order 12612
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
This interim rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
contained in this rule were previously approved for use by the Office
of Management and Budget (OMB). The OMB control numbers for these
collections are contained in 8 CFR 299.5, Display of control numbers.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of Information, Privacy,
Reporting and recordkeeping, Surety bonds.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 274a
Aliens, Immigration, employment authorization and employee
requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Sec. 103.7 [Amended]
2. In Sec. 103.7(b)(1), the entry for ``Supplement A to Form I-
485'' is amended by revising the fee of ``$650.00'' to read:
``$1,000''.
3. In Sec. 103.7, paragraph (c)(1) is amended in the last sentence
by removing the phrase ``except as directed in section 245(i) of the
Act''.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
4. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.
[[Page 39424]]
5. Section 245.1 is amended by:
a. Removing ``.'' at the end of paragraph (b)(7), and replacing it
with a ``;'';
b. Removing the ``.'' at the end of paragraph (b)(8), and replacing
it with a ``;''; and by adding paragraphs (b)(9) and (b)(10), to read
as follows:
Sec. 245.1 Eligibility.
* * * * *
(b) * * *
(9) Any alien who seeks adjustment of status pursuant to an
employment-based immigrant visa petition under section 203(b) of the
Act and who is not maintaining a lawful nonimmigrant status at the time
he or she files an application for adjustment of status; and
(10) Any alien who was ever employed in the United States without
the authorization of the Service or who has otherwise at any time
violated the terms of his or her admission to the United States as a
nonimmigrant, except an alien who is an immediate relative as defined
in section 201(b) of the Act or a special immigrant as defined in
section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of
this paragraph, an alien who meets the requirements of
Sec. 274a.12(c)(9) of this chapter shall not be deemed to have engaged
in unauthorized employment during the pendency of his or her adjustment
application.
* * * * *
6. Section 245.10 is amended by:
a. Revising paragraph (a)(6);
b. Revising paragraph (b) introductory text;
c. Revising paragraph (b)(3);
d. Revising paragraphs (c), (d) and (e); and by
e. Adding new paragraphs (f) and (g), to read as follows:
Sec. 245.10 Adjustment of status upon payment of additional sum under
Public Law 103-317.
(a) * * *
(6) Pays an additional sum of $1,000, unless payment of the
additional sum is not required under section 245(i) of the Act; and
* * * * *
(b) Payment of additional sum. An adjustment applicant filing under
the provisions of section 245(i) of the Act must pay the standard
adjustment application filing fee as specified in Sec. 103.7(b)(1) of
this chapter. Each application submitted to the Service under the
provisions of section 245(i) of the Act on or after October 1, 1994,
and before December 29, 1996, must be submitted with an additional sum
of $650. Each application submitted to the Service under the provisions
of section 245(i) of the Act on or after December 29, 1996, must be
submitted with an additional sum of $1,000. If a determination is made
by an officer of the Service on or after December 29, 1996, that an
applicant is subject to section 245(i) of the Act, and the Form I-485
is not accompanied by Supplement A to Form I-485 and, if required by
section 245(i), the additional sum of $1,000, the applicant will be
afforded the opportunity to amend the application by submitting
Supplement A, the additional sum of $1,000, if required, and any other
required documentation. However, an applicant filing under the
provisions of section 245(i) of the Act is not required to pay the
additional sum if, at the time the application for adjustment of status
is filed, the alien is:
* * * * *
(3) The child of a legalized alien, is unmarried and less than 21
years of age, qualifies for and has filed Form I-817, and submits a
copy of his or her receipt of approval notice for filing Form I-817.
Such an alien must pay the additional sum if he or she has reached the
age of 21 years at the time of filing for adjustment of status. Such an
alien must meet all other conditions for adjustment of status contained
in the Act and in this chapter.
(c) Application period. The Service may not approve an application
for adjustment of status pursuant to section 245(i) of the Act if such
application was filed either before October 1, 1994, or after September
30, 1997. If an alien attempts to file an adjustment of status
application under the provisions of section 245(i) after September 30,
1997, the Service will accept the application and base filing fee, as
set forth in Sec. 103.7(b)(1) of this chapter, return the additional
sum of $1,000 to the alien, and adjudicate the application pursuant to
section 245(a) of the Act. If the alien, in such a case, is not
eligible for adjustment of status, the Service will issue a written
notice advising the alien of the denial of the application for
adjustment of status.
(d) Adjustment application filed on or after October 1, 1994, and
before October 1, 1997, without Supplement A to Form I-485 and
additional sum. An adjustment of status applicant will be allowed the
opportunity to amend an adjustment of status application filed in
accordance with Sec. 103.2 of this chapter on or after October 1, 1994,
and before October 1, 1997, in order to request consideration under the
provisions of section 245(i) of the Act, if it appears that the alien
is not otherwise ineligible for adjustment of status. The Service shall
notify the applicant in writing of the Service's intent to deny the
adjustment of status application, and any other requests for benefits
which derive from the adjustment application, unless supplement A to
Form I-485 and any required additional sum is filed within 30 days of
the date of the notice.
(e) Applications for Adjustment of Status filed before October 1,
1994. The provisions of section 245(i) of the Act shall not apply to an
application for adjustment of status that was filed before October 1,
1994. The provisions of section 245(i) of the Act also shall not apply
to a motion to reopen or reconsider an application for adjustment of
status if the application for adjustment of status was filed before
October 1, 1994. An applicant whose pre-October 1, 1994, application
for adjustment of status has been denied may file a new application for
adjustment of status pursuant to section 245(i) of the Act on or after
October 1, 1994, and before October 1, 1997, provided that such new
application is accompanied by: the required fee; Supplement A to Form
I-485; and additional sum required by section 245(i) of the Act; and
all other required initial and additional evidence.
(f) Completion of processing of pending applications. An
application for adjustment of status filed subsequent to September 30,
1994, and prior to October 1, 1997, shall be adjudicated to completion
by an officer of the Service, regardless of whether the final decision
is made after September 30, 1997. The provisions of paragraph (d) of
this section regarding amended applications shall apply to all such
applications. The Service may consider a motion to reopen or reconsider
an application for adjustment of status on the basis of section 245(i)
of the Act only if:
(1) The application for adjustment of status was filed on or after
October 1, 1994, and before October 1, 1997, and
(2) Prior to October 1, 1997, the applicant submitted Supplement A
to Form I-485, any additional sum required by section 245(i), and any
other required documentation.
(g) Aliens deportable under section 237(a)(4)(B) of the Act are
ineligible to adjust status. Section 237(a)(4)(B) of the Act renders
any alien who has engaged, is engaged, or at any time after admission
engages in any terrorist activity, as defined in section
212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of
the Act, persons who are deportable under section 237(a)(4)(B) of the
Act are ineligible to adjust status under section 245(a) of the Act.
Any person who is deportable under section 237(a)(4)(B) of
[[Page 39425]]
the Act is also ineligible to adjust status under section 245(i) of the
Act.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
7. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a, and 8 CFR part 2.
8. Section 274a.12 is amended by:
a. Removing the ``;'' at the end of paragraph (c)(9) and replacing
it with a ``.''; and by
b. Adding two new sentences at the end of the paragraph (c)(9), to
read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(9) * * * For purposes of section 245(c)(8) of the Act, an alien
will not be deemed to be an ``unauthorized alien'' as defined in
section 274A(h)(3) of the Act while his or her properly filed Form I-
485 application is pending final adjudication, if the alien has
otherwise obtained permission from the Service pursuant to 8 CFR
274a.12 to engage in employment, or if the alien had been granted
employment authorization prior to the filing of the adjustment
application and such authorization does not expire during the pendency
of the adjustment application. Upon meeting these conditions, the
adjustment applicant need not file an application for employment
authorization to continue employment during the period described in the
preceding sentence;
* * * * *
Dated: June 15, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-19242 Filed 7-22-97; 8:45 am]
BILLING CODE 4410-10-M
