99-11954. Adjustment of Status for Certain Nationals of Haiti  

  • [Federal Register Volume 64, Number 91 (Wednesday, May 12, 1999)]
    [Rules and Regulations]
    [Pages 25756-25774]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-11954]
    
    
          
    
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    Part VII
    
    
    
    
    
    Department of Justice
    
    
    
    
    
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    Immigration and Naturalization Service
    
    
    
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    8 CFR Part 3 et al.
    
    
    
    Adjustment of Status for Certain Nationals of Haiti; Interim Final Rule
    
    Federal Register / Vol. 64, No. 91 / Wednesday, May 12, 1999 / Rules 
    and Regulations
    
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    DEPARTMENT OF JUSTICE
    
    Immigration and Naturalization Service
    
    8 CFR Parts 3, 212, 240, 245, 274a, and 299
    
    [INS No. 1963-98; AG Order No. 2221-99]
    RIN 1115-AF33
    
    
    Adjustment of Status for Certain Nationals of Haiti
    
    AGENCY: Immigration and Naturalization Service, Justice, and Executive 
    Office for Immigration Review, Justice.
    
    ACTION: Interim rule with request for comments.
    
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    SUMMARY: This interim rule implements section 902 of the Haitian 
    Refugee Immigration Fairness Act of 1998 (HRIFA) by establishing 
    procedures for certain nationals of Haiti who have been residing in the 
    United States to become lawful permanent residents of this country. 
    This rule allows them to obtain lawful permanent resident status 
    without applying for an immigrant visa at a United States consulate 
    abroad, and waives many of the usual requirements for this benefit.
    
    DATES: Effective date: This interim rule is effective June 11, 1999.
        Comment date: Comments must be submitted on or before July 12, 
    1999.
    
    ADDRESSES: Please submit written comments, original and two copies, to 
    Richard A. Sloan, Director, Policy Directives and Instructions Branch, 
    Immigration and Naturalization Service, 425 I Street NW, Room 5307, 
    Washington, DC 20536. To ensure proper handling, please reference INS 
    No. 1963-98 on your correspondence. Comments are available for public 
    inspection at the above address by calling (202) 514-3048 to arrange 
    for an appointment.
    
    FOR FURTHER INFORMATION CONTACT: For matters relating to the 
    Immigration and Naturalization Service--Suzy Nguyen, Adjudications 
    Officer, Office of Adjudications, Immigration and Naturalization 
    Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone 
    (202) 514-5014; For matters relating to the Executive Office for 
    Immigration Review--Margaret M. Philbin, General Counsel, Executive 
    Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls 
    Church, VA 22041, telephone (703) 305-0470.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        On October 21, 1998, the President signed a Fiscal Year 1999 
    Omnibus Appropriations Act, Pub. L. 105-277 (112 Stat. 2681), into law. 
    Division A, Title IX of that statute, the Haitian Refugee Immigration 
    Fairness Act of 1998 (HRIFA), contained a provision in section 902 
    which allows certain nationals of Haiti to adjust their status to that 
    of lawful permanent resident. Many aspects of section 902 of HRIFA are 
    similar to corresponding aspects of section 202 of the Nicaraguan 
    Adjustment and Central American Relief Act of 1997 (NACARA), enacted as 
    title II of the District of Columbia Appropriations Act, 1998, Pub. L. 
    105-100 (111 Stat. 2160, 2193). In drafting both the supplementary 
    information and the regulatory text contained in this implementing 
    regulation, the Department of Justice (Department) has intentionally 
    replicated much of the rule which implemented NACARA, taking into 
    consideration the Department's experience in administering that 
    statute. Wherever beneficial for purposes of clarity, the Department 
    has endeavored to point out those aspects of HRIFA which differ from 
    corresponding aspects of NACARA.
    
    How Does Section 902 of HRIFA Affect Haitian Nationals?
    
        Section 902 of HRIFA provides that the Attorney General shall 
    adjust the status of certain Haitian nationals who are physically 
    present in the United States to that of lawful permanent resident. In 
    order to be eligible for benefits under HRIFA, an applicant must:
    
         Be a national of Haiti who was present in the United 
    States on December 31, 1995;
         Have been physically present in the United States for a 
    continuous period beginning not later than December 31, 1995, and 
    ending not earlier than the date the application for adjustment is 
    filed (not counting any absence or absences totaling 180 days or 
    less in the aggregate);
         Properly file an application for adjustment before 
    April 1, 2000;
         Be admissible to the United States under all provisions 
    of section 212(a) of the Immigration and Nationality Act (the Act), 
    other than those provisions specifically excepted by HRIFA; and
         Fall within one of the five classes of persons 
    described in section 902(b)(1) of HRIFA.
    
        The five classes described in section 902(b)(1) are:
    
        (1) Haitian nationals who filed for asylum before December 31, 
    1995;
        (2) Haitian nationals who were paroled into the United States 
    prior to December 31, 1995, after having been identified as having a 
    credible fear of persecution, or paroled for emergent reasons or 
    reasons deemed strictly in the public interest;
        (3) Haitian national children who arrived in the United States 
    without parents and have remained without parents in the United 
    States since arrival;
        (4) Haitian national children who became orphaned subsequent to 
    arrival in the United States; and
        (5) Haitian children who were abandoned by their parents or 
    guardians prior to April 1, 1998, and have remained abandoned since 
    such abandonment.
    
        For the last three ((3)-(5)) of these classes, the applicant must 
    have been a child at the time of his or her arrival in the United 
    States, and on December 31, 1995, but not necessarily at the time of 
    his or her adjustment of status. In addition, certain family members of 
    HRIFA beneficiaries are also eligible for adjustment of status under 
    HRIFA.
    
    What Are the Benefits of HRIFA?
    
        An alien seeking adjustment of status under HRIFA is not subject to 
    a number of the limitations on adjustment of status that would 
    otherwise be applicable under section 245 of the Act.
        First, a HRIFA applicant is not required to have been inspected and 
    admitted or paroled into the United States.
        Second, a HRIFA applicant is not subject to any of the barriers to 
    adjustment contained in section 245(c) of the Act (e.g., the bars 
    against aliens who have accepted or continued in unauthorized 
    employment, aliens who remained in the United States longer than 
    authorized, and aliens admitted as crewmen, in transit without visa, or 
    under the visa waiver pilot program). Consequently, an alien who would 
    otherwise be ineligible under section 245(c) may apply for adjustment 
    under HRIFA.
        Third, HRIFA applicants are not subject to the immigrant visa 
    preference system requirements contained in sections 201 and 202 of the 
    Act. Hence, neither the worldwide quota restrictions nor the per-
    country quota restrictions apply.
        Fourth, applicants need not demonstrate that they are not 
    inadmissible under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
    section 212(a) of the Act in order to adjust status under section 902 
    of Public Law 105-277. Accordingly, HRIFA allows an otherwise-qualified 
    applicant to adjust status under HRIFA notwithstanding inadmissibility 
    for likelihood of becoming a public charge, for failure to obtain a 
    labor certification, for failure to meet certain requirements 
    applicable to foreign-trained physicians, for failure to meet certain 
    standards for foreign health-care workers, for entering or remaining in 
    the country illegally, for violating documentary requirements relating 
    to entry as an immigrant, or for
    
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    accruing more than 180 days of unlawful presence prior to the alien's 
    last departure or removal.
        Fifth, unlike those seeking to adjust status under other provisions 
    of law, a HRIFA applicant who has been paroled into the United States 
    and is now in exclusion or removal proceedings before an Immigration 
    Court is not barred from filing an application for adjustment of status 
    under the provisions of HRIFA while in such proceedings.
    
    What Are the HRIFA Requirements Regarding Presence in the United 
    States?
    
        Under the terms of HRIFA, an eligible principal applicant must have 
    been present in the United States on December 31, 1995. The physical 
    presence requirement contained in HRIFA differs from the one contained 
    in section 202 of NACARA in two key aspects. First, the date from which 
    presence is required is December 31, 1995, instead of December 1, 1995. 
    Second, HRIFA requires that an alien seeking adjustment as a principal 
    applicant have been physically present in the United States on the 
    specific date of December 31, 1995, while NACARA allowed the applicant 
    to have commenced physical presence at any time on or prior to December 
    1, 1995.
        HRIFA also requires that eligible applicants must have maintained 
    continuous physical presence in the United States since December 31, 
    1995. However, HRIFA provides for an exception to the requirement of 
    continuous physical presence under which an eligible alien who was 
    present in the United States on December 31, 1995, is permitted to have 
    been outside the United States for a total of up to 180 days in the 
    aggregate since that date, and prior to the date of his or her 
    adjustment of status to lawful permanent resident, without risk of 
    interrupting his or her continuous physical presence. Except as 
    otherwise provided, however, if an alien has been outside the United 
    States for more than 180 days since December 31, 1995, the alien is not 
    eligible for adjustment under HRIFA.
        Furthermore, the Department is providing, by regulation, for three 
    additional circumstances under which an alien may be outside the United 
    States without that time affecting his or her eligibility for 
    adjustment of status under HRIFA:
        (1) If the Immigration and Naturalization Service (Service) has 
    granted an alien an Authorization for Parole of an Alien into the 
    United States (Form I-512), then the periods of time during which an 
    alien is absent from the United States pursuant to such an 
    authorization is not counted toward the 180-day cumulative period.
        (2) If the Service has granted parole authorization under the 
    provisions of 8 CFR 245.15(t)(2) to an alien for the purpose of 
    traveling to the United States in order to apply for adjustment of 
    status under HRIFA, then the period of time from the date the alien's 
    request for parole authorization is filed at the Nebraska Service 
    Center until the alien is paroled into the United States pursuant to 
    that authorization in not counted toward the 180-day cumulative period.
        (3) If the Service has granted parole authorization under the 
    provisions of 8 CFR 245.15(t)(2) to an alien for the purpose of 
    traveling to the United States in order to apply for adjustment of 
    status under HRIFA, then the period of time from the date on which 
    HRIFA was enacted (October 21, 1998) until 30 days from the effective 
    date of this regulation is not counted toward the 180-day cumulative 
    period. The Department is making this provision in order to allow an 
    applicant for such parole authorization time to file the application 
    with the Nebraska Service Center.
    
    How Can a HRIFA Applicant Prove Physical Presence in the United 
    States?
    
        Section 902(b)(1) of HRIFA requires that an applicant must prove 
    presence in the United States on December 31, 1995, but the statute is 
    silent as to the methods by which an applicant may demonstrate his or 
    her presence in the United States on that date. In this rule, the 
    Department is providing that a HRIFA applicant may prove such presence 
    in the United States through submission of evidence demonstrating that 
    on or before December 31, 1995, he or she:
    
        (1) was admitted to the United States in an immigrant or 
    nonimmigrant classification;
        (2) was paroled into the United States;
        (3) was placed in exclusion proceedings under section 236 of 
    such Act (as in effect prior to April 1, 1997);
        (4) was placed in deportation proceedings under section 242 or 
    242A of such Act (as in effect prior to April 1, 1997);
        (5) applied for any benefit under the Act by means of an 
    application establishing his or her presence in the United States;
        (6) was issued other documentation by State and local 
    authorities (such as school, hospital, police, and public assistance 
    records), demonstrating the alien's presence in the United States on 
    or prior to December 31, 1995; or
        (7) in the case of an applicant seeking classification as a 
    child under section 902(b)(1)(C) of HRIFA, a transcript from a 
    qualified private or religious school.
    
        Normally, an alien may make such a demonstration by submitting a 
    photocopy of a Government-issued document. If the alien is not in 
    possession of such document, but believes that a copy of the document 
    is already contained in the Service file relating to him or her, he or 
    she may submit a statement as to name and location of the issuing 
    Government agency, the type of document and the date on which it was 
    issued.
        Because the applicant is required to establish presence in the 
    United States on December 31, 1995, if the documentation submitted 
    relates to a date prior to December 31, 1995, the applicant bears the 
    additional burden of establishing either that he or she did not depart 
    after the date on which presence has been established, or that (if he 
    or she did depart) he or she returned to the United States on or prior 
    to December 31, 1995. Doing so is analogous to proving continuity of 
    presence, and if required, the applicant can meet this initial burden 
    by using the methods described below for proving continuity of 
    presence. While there are no particular criteria for establishing 
    ``non-departure,'' or departure and return, the applicant should be 
    prepared to resolve any doubts that may arise in this regard. The 
    Department solicits comments from interested parties on issues related 
    to this matter.
        The Department believes that the evidentiary alternatives for 
    establishing continuity of presence will also provide sufficient 
    opportunities for qualified applicants to establish physical presence 
    in the United States on December 31, 1995, without encouraging 
    fraudulent applications. However, in order to ensure that no group of 
    eligible aliens is precluded from establishing eligibility for HRIFA 
    benefits, the Department is soliciting public comments on the need for 
    any additional methods of establishing commencement of physical 
    presence in the United States and suggestions as to what those 
    additional methods should be. Commenters are encouraged to explain 
    which classes of aliens would benefit from the proposal, and how the 
    proposal could be implemented without severely compromising the 
    integrity of the adjudicative process.
        A HRIFA applicant also must demonstrate that he or she was 
    continuously physically present in the United States since December 31, 
    1995. See HRIFA section 9021(b)(2). As in the case of the physical 
    presence requirement just discussed, however, the HRIFA statute is 
    silent as to the methods by which an applicant can demonstrate that 
    presence. This interim
    
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    rule provides that a HRIFA applicant may demonstrate continuity of 
    physical presence in the United States through the submission of one or 
    more documents issued by any governmental or non-governmental 
    authority. Such documentation must bear the name of the applicant, have 
    been dated at the time it was issued, and bear the seal or signature of 
    the issuing authority (if the documentation is normally signed or 
    sealed), issued on letterhead stationery, or otherwise authenticated. 
    In some cases, a single document may suffice to establish continuity 
    for the entire post-December 31, 1995, period. In other cases, the 
    alien may need to submit a number of documents. For example, a college 
    transcript or an employment record may show that an applicant attended 
    school or worked in the United States throughout the entire post-
    December 31, 1995, period. On the other hand, an applicant would need 
    to submit a number of monthly rent receipts or electric bills to 
    establish the same continuity of presence. While the Department neither 
    requires nor wants the applicant to submit documentation to show 
    presence on every single day since December 31, 1995, there should be 
    no significant chronological gaps in the documentation either. 
    Generally, a gap of 3 months or less in documentation is not considered 
    significant. However, if the adjudicating officer or immigration judge 
    is satisfied as to the continuity of the applicant's presence in the 
    United States, he or she may accept considerably larger gaps in 
    documentation. Conversely, if the adjudicating officer or immigration 
    judge has reason to doubt the applicant's claim, he or she may require 
    additional documentation. Furthermore, if the applicant is aware of 
    documents already contained in his or her Service file that establish 
    physical presence, he or she may merely list those documents, giving 
    the type and date of the documents. Examples of such documents might 
    include a written copy of a sworn statement given to a Service officer, 
    the transcript of a formal hearing, or a Record of Deportable/
    Inadmissible Alien (Form I-213).
    
    How Will the Department Evaluate the Evidence Submitted?
    
        In all cases, any doubts as to the existence, authenticity, 
    veracity, or accuracy of the documentation shall be resolved by the 
    official government record, with Service and EOIR records having 
    precedence over the records of other agencies. Furthermore, 
    determinations as to the weight to be given any particular document or 
    item of evidence shall be solely within the purview of the adjudicating 
    authority (i.e., the Service or EOIR). It shall be the responsibility 
    of the applicant to obtain and submit copies of the records of any 
    other government agency which the applicant desires to be considered in 
    support of his or her application.
    
    How Does an Applicant Establish Eligibility As an Alien Who Applied 
    for Asylum or Was Paroled into the United States Prior to December 
    31, 1995?
    
        Section 902(b)(1)(A) of HRIFA pertains to applicants who filed for 
    asylum before December 31, 1995, and section 902(b)(1)(B) of HRIFA 
    pertains to applicants who were paroled into the United States prior to 
    December 31, 1995, either after having been identified as having a 
    credible fear of persecution, or for emergent reasons or reasons deemed 
    strictly in the public interest. The universe of persons falling into 
    these two categories is both narrowly defined in scope and fully 
    identifiable in Service records. The issue is one of locating the 
    Service record that pertains to the particular applicant. In order to 
    facilitate locating his or her record, an applicant who applied for 
    asylum prior to December 31, 1995, should submit a copy of the first 
    page of the Form I-589, Application for Asylum and Withholding of 
    Deportation, filed at that time, or a copy of the receipt for such 
    filing issued by the Service. In the case of an alien who was included 
    as a dependent in the asylum application filed by a spouse or parent, a 
    copy of the first page of that spouse or parent's application, or a 
    copy of the filing receipt, will be sufficient, even if the 
    relationship has since been altered through death, divorce, or the 
    individual attaining the age of 21 years. If the applicant has lost 
    both the receipt and his or her copy of the application which was 
    filed, he or she may submit a statement giving as much information as 
    possible about the date on which the application was filed and the 
    location of the Service office to which it was submitted.
        Likewise, if the applicant was paroled into the United States prior 
    to December 31, 1995, after having been identified as having a credible 
    fear of persecution, or paroled for emergent reasons or reasons deemed 
    strictly in the public interest, he or she should submit a photocopy of 
    the parole document (Form I-94, Arrival-Departure Record) issued at the 
    time. If the parole document was lost or is otherwise not available, 
    the applicant may submit a statement explaining what happened to the 
    document and giving as much information as possible about the date of 
    parole and location of the Service office which issued the parole.
    
    What Provisions of the Statute Pertain Exclusively to Haitian 
    Children in the United States?
    
        Section 902(b)(1)(C) of HRIFA describes three groups of children 
    who may adjust status to that of lawful permanent resident. Membership 
    in all three groups is limited to those persons who were children both 
    at the time of arrival in the United States and on December 31, 1995. 
    Furthermore, all three groups require the occurrence of some qualifying 
    event or events: for subsection (C)(i), the qualifying events are the 
    arrival in the United States without parents and the continuation of 
    such situation since arrival; for subsection (C)(ii), it is becoming an 
    orphan subsequent to arrival; and for subsection (C)(iii), it is the 
    abandonment by parents or guardians prior to April 1, 1998, and the 
    continuation of such abandonment.
    
    What Is Meant by the Terms ``Child'' and ``Parent?''
    
        HRIFA mandates that, as used in HRIFA, the term ``child'' shall 
    have the same meaning as that provided in the text above subparagraph 
    (A) of section 101(b)(1) of the Act. That text defines a child as ``an 
    unmarried person under twenty-one years of age.'' HRIFA, however, does 
    not provide a definition of the term ``parent.'' In determining how 
    this term should be defined for purposes of HRIFA, the Department 
    looked at the statutory definition of that term contained in section 
    101(b)(2) of the Act, which states:
        (2) The term ``parent'', ``father'', or ``mother'' means a parent, 
    father, or mother only where the relationship exists by reason of any 
    of the circumstances set forth in (1) above, except that, for purposes 
    of paragraph (1)(F) (other than the second proviso therein) in the case 
    of a child born out of wedlock described in paragraph (1)(D) (and not 
    described in paragraph (1)(C)), the term ``parent'' does not include 
    the natural father of the child if the father has disappeared or 
    abandoned or deserted the child or if the father has in writing 
    irrevocably released the child for emigration and adoption.
        The circumstances giving rise to a parental relationship set forth 
    in section 101(b)(1) are as follows:
        (A) A child born in wedlock;
        (B) A stepchild, whether or not born out of wedlock, provided the 
    child had not reached the age of eighteen years at the time the 
    marriage creating the status of stepchild occurred;
        (C) A child legitimated under the law of the child's residence or 
    domicile, or under the law of the father's residence
    
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    or domicile, whether in or outside the United States, if such 
    legitimation takes place before the child reaches the age of eighteen 
    years and the child is in the legal custody of the legitimating parent 
    or parents at the time of such legitimation;
        (D) A child born out of wedlock, by, through whom, or on whose 
    behalf a status, privilege, or benefit is sought by virtue of the 
    relationship of the child to its natural mother or to its natural 
    father if the father has or had a bona fide parent-child relationship 
    with the person;
        (E) A child adopted while under the age of sixteen years if the 
    child has been in the legal custody of, and has resided with, the 
    adopting parent or parents for at least two years: Provided, That no 
    natural parent of any such adopted child shall thereafter, by virtue of 
    such parentage, be accorded any right, privilege, or status under this 
    Act; or
        (F) A child, under the age of sixteen at the time a petition is 
    filed in his behalf to accord a classification as an immediate relative 
    under section 201(b), who is an orphan because of the death or 
    disappearance of, abandonment or desertion by, or separation or loss 
    from, both parents, or for whom the sole or surviving parent is 
    incapable of providing the proper care and has in writing irrevocably 
    released the child for emigration and adoption; who has been adopted 
    abroad by a United States citizen and spouse jointly, or by an 
    unmarried United States citizen at least twenty-five years of age, who 
    personally saw and observed the child prior to or during the adoption 
    proceedings; or who is coming to the United States for adoption by a 
    United States citizen and spouse jointly, or by an unmarried United 
    States citizen at least twenty-five years of age, who have or has 
    complied with the preadoption requirements, if any, of the child's 
    proposed residence: Provided, That the Attorney General is satisfied 
    that proper care will be furnished the child if admitted to the United 
    States: Provided further, That no natural parent or prior adoptive 
    parent of any such child shall thereafter, by virtue of such parentage, 
    be accorded any right, privilege, or status under this Act.
        In promulgating these regulations, the Department follows these 
    definitions, with two notable exceptions. The first exception is that 
    the discussion in section 101(b)(1)(F) pertaining to the qualifications 
    of the petitioning United States citizen prospective parents is clearly 
    irrelevant to HRIFA adjustment cases. The second is that the discussion 
    of a child becoming an orphan through abandonment does not pertain to 
    HRIFA adjustment cases because HRIFA mandates a separate standard for 
    consideration as an abandoned child.
        As previously noted, HRIFA provides that the term child is limited 
    to persons who are both under age 21 and unmarried. Individuals who met 
    the definition of child at the time of their arrival in the United 
    States must also have met the definition on December 31, 1995. Any such 
    persons who attained the age of 21 years or married prior to December 
    31, 1995, are not eligible for classification as a child under any of 
    the three subcategories of section 902(b)(1)(C) of HRIFA. However, if 
    otherwise eligible, they may seek classification as an asylum applicant 
    under section 902(b)(1)(A) of HRIFA, as parolee under section 
    902(b)(1)(B) of HRIFA, or as a dependent under section 902(d)(1) of 
    HRIFA.
        An applicant who met the eligibility standard for adjustment of 
    status as a child under section 902(b)(1)(C) of HRIFA would still be 
    eligible for adjustment even if the individual has attained the age of 
    21 years or married after December 31, 1995. Furthermore, if an 
    applicant described in section 902(b)(1)(C) acquired a spouse or 
    stepchild through a marriage occurring after December 31, 1995, such 
    spouse or stepchild may adjust status under section 902(d)(1) of HRIFA, 
    if otherwise eligible, as a dependent of a principal applicant.
        In general, it does not matter whether a principal applicant under 
    section 902(b)(1)(C) was born in or out of wedlock, has been 
    legitimated, or is an adopted child or a stepchild.
        If a stepparent-stepchild relationship was created after the child 
    turned 18, that relationship is not recognized under the Act. 
    Therefore, for purposes of adjustment of status under HRIFA, any 
    ``qualifying event'' involving such stepparent is immaterial. Likewise, 
    if an adoption took place after a child reached the age of 16 years, no 
    parent-child relationship exists under immigration law and any 
    ``qualifying event'' involving such adoptive parent is also immaterial.
        Where an applicant acquired a stepparent through the marriage of 
    his or her parent, the applicant would have to establish a qualifying 
    event relating to each of the parents and stepparents. For example, the 
    deaths of a father and stepmother, while tragic, do not make a child an 
    orphan if his or her mother and stepfather are still alive.
        On the other hand, if a child was adopted prior to age 16, only a 
    qualifying event which involved the adopting parent or parents is 
    relevant. A qualifying event which pertained to a parent whose 
    relationship to the child had been severed by the adoption process is 
    immaterial.
        In Haiti, a child who was born out of wedlock and not acknowledged 
    by the father or otherwise legitimated is illegitimate. Such child is 
    deemed under the Act to have only one parent, the mother. However, 
    under the Civil Code of Haiti, all children born out of wedlock and 
    acknowledged by the father are legitimate. Such children are deemed 
    under the Act to have two parents.
        Finally, it should be noted that the term ``parent'' does not 
    include foster parents or guardians.
    
    How Does an Applicant Establish Eligibility as a Child Without 
    Parents in the United States or As an Orphaned or Abandoned Child?
    
    Children Without Parents in the United States
    
        With regard to the specific subcategories of section 902(b)(1)(C) 
    of HRIFA, the first pertains to children who arrived in the United 
    States without parents and have remained without parents in the United 
    States. Since the term ``without parents in the United States'' is not 
    defined in the Act, the common meaning of the words will prevail. If 
    the applicant had any parents, as discussed above, in the United States 
    at the time of his or her arrival, or at any time since arrival, he or 
    she is not eligible for classification under this subcategory. If even 
    one of the applicant's parents was living in the United States during 
    this period, the applicant is ineligible for classification under this 
    subcategory, regardless of whether the applicant lived with or received 
    any support from such parent.
        In order to establish eligibility under this subcategory, an 
    applicant should establish that his or her parents were either deceased 
    or physically outside the United States both at the time of the 
    applicant's arrival in the United States and at all times since then. 
    If the location of the applicant's parents was unknown at the time of 
    arrival and at all times since, the applicant must establish such facts 
    through court records or other pertinent documents.
    
    Children Who Became Orphans Subsequent to Arrival
    
        Section 902(b)(1)(C)(ii) of HRIFA pertains to persons who became 
    orphaned after their arrival in the United States. We recognize that 
    section 101(b)(1)(F) of the Act describes orphans as children who 
    became orphaned through the death or disappearance of, abandonment or
    
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    desertion by, or separation or loss from, both parents, or the 
    irrevocable release by the sole or surviving parent who is unable to 
    provide support. However, the Department believes that section 
    902(b)(1)(C)(ii) relates to a narrower definition of the term orphan, 
    pertaining only to those children who were orphaned through the death 
    or disappearance of, the separation or loss from, or desertion by, both 
    parents (or, in the case of a child born out of wedlock who has not 
    been legitimated, the sole parent). The Department reached this 
    conclusion based on the fact that Congress chose to include children 
    who arrived in the United States without parents and children who had 
    been abandoned by parents or guardians in the other two subcategories, 
    an action which would have been meaningless had Congress intended to 
    use the broader definition of the term orphan for purposes of section 
    902(b)(1)(C)(ii). In order for an applicant to be classified as an 
    orphaned child under this subcategory, the application must be 
    supported by:
         The death certificates of both of his or her parents, or 
    the death certificate of the sole parent, showing that the death 
    occurred after the date of the applicant's arrival in the United States 
    and prior to his or her 21st birthday, or
         Evidence from a competent authority (such as a court or 
    government agency having jurisdiction and authority to make decisions 
    involving child welfare) establishing the disappearance of, the 
    separation or loss from, or desertion by, both parents (or, in the case 
    of a child born out of wedlock who has not been legitimated, the sole 
    parent) after the applicant's arrival in the United States and prior to 
    his or her 21st birthday.
    
    Children Who Have Been Abandoned
    
        Section 902(b)(1)(C)(iii) of HRIFA pertains to children who were 
    abandoned by their parents or guardians prior to April 1, 1998, and 
    have remained abandoned. The four key elements that an applicant must 
    establish are: that the abandonment occurred prior to April 1, 1998; 
    that the applicant was under 21 years of age and unmarried at the time 
    of such abandonment; that the parents or guardians were the parties who 
    took the action to abandon the applicant; and that the relationship has 
    not been re-established since such abandonment. A child who voluntarily 
    left the home of his or her parents would not fall within this 
    category. An applicant seeking consideration as an abandoned child 
    should submit evidence from court records or child welfare agencies to 
    establish such abandonment.
        The Department assumes that in most cases an abandoned child would 
    be brought to the attention of local child welfare agencies who would 
    then assure that the child is declared a ward of the court. The 
    relating agency and court records would establish such. However, the 
    regulations do not rule out the possibility of the applicant using 
    other documentation in support of his or her claim. The Department 
    solicits comments from interested parties on this assumption.
    
    What Weight is Given to Existing Service Records?
    
        In general, as with all applications and petitions under 
    immigration law, the burden of proof is on the applicant to prove 
    eligibility for adjustment of status under section 902 of HRIFA. In the 
    case of many persons who arrived in the United States as children, 
    evidence pertaining to the applicant's eligibility is already contained 
    in Service records. If Service records show the applicant arrived 
    without parents, as an orphan, or was brought to the Service as a 
    subsequently abandoned child and placed into (and remains in) some sort 
    of custody arrangement, there is a rebuttable presumption that the 
    alien falls within the eligible class. The Department feels that such 
    individuals are entitled to this rebuttable presumption due to the 
    verifiability of the information in Service records.
        Other potential applicants for classification under section 
    902(b)(1)(C) of HRIFA may not have been placed into a custody situation 
    through the Service program. For example, persons who were already over 
    the age of 18 at the time of their arrival in the United States, 
    persons who entered without inspection and were never brought to the 
    attention of the Service, and children who were abandoned subsequent to 
    their arrival without such abandonment being reported to the Service, 
    could all fall within the purview of section 902(b)(1)(C) of HRIFA. 
    Such persons may still be able to qualify for adjustment of status, but 
    must meet the burden of proof without the benefit of any presumption of 
    eligibility. An applicant for benefits under this provision must 
    provide all reasonably available evidence of eligibility, including 
    pertinent death certificates, police reports, child welfare agency 
    reports, etc. Such documents must have been created at the time of the 
    event in question, or within a reasonable time thereafter, and must 
    bear any appropriate signatures, seals, or other authenticating 
    instruments.
    
    How Does Admissibility to the United States Affect Eligibility for 
    Adjustment of Status Under HRIFA?
    
        The grounds of inadmissibility specified in paragraphs (4) (public 
    charge), (5) (lack of labor certification), (6)(A) (illegal entry), 
    (7)(A) (immigrant not in possession of an immigrant visa or other valid 
    entry document), and (9)(B) (unlawful presence) of section 212(a) of 
    the Act do not apply to HRIFA applicants.
        An applicant who is inadmissible under any of the other grounds of 
    inadmissibility listed in section 212 of the Act is ineligible for 
    adjustment of status under HRIFA, unless he or she receives a waiver of 
    that ground of inadmissibility.
        A HRIFA applicant who is eligible for an individual waiver of a 
    ground of inadmissibility not exempted by HRIFA may file an application 
    for the waiver concurrently with his or her application for adjustment 
    of status. Adjustment of status may not be granted unless the waiver 
    has first been approved. For the purpose of adjudicating applications 
    for benefits under HRIFA, the Director of the Nebraska Service Center 
    has been given the authority to adjudicate applications for waivers 
    under sections 212(e), 212(g), 212(h), and 212(i) of the Act, as well 
    as applications for permission to reapply for admission after 
    deportation or removal, including those filed in conjunction with 
    requests for parole from outside the United States.
    
    How Do the Provisions of HRIFA Affect Dependents of Haitian 
    Nationals?
    
        The provisions of HRIFA at section 902(d) address the eligibility 
    requirements for certain dependents of principal HRIFA beneficiaries. 
    To receive HRIFA benefits as a dependent of a HRIFA beneficiary, an 
    alien must be: a national of Haiti; the spouse, child (i.e., under 21 
    years of age and unmarried), or unmarried son or daughter (i.e., 21 
    years of age or older) of a HRIFA principal beneficiary at the time of 
    the principal beneficiary's adjustment of status to that of permanent 
    resident; and admissible to the United States under section 212(a) of 
    the Act, not including those provisions specifically excepted by HRIFA. 
    The dependent's relationship to the HRIFA beneficiary must continue to 
    exist at least through the time that the dependent is granted 
    adjustment of status.
        HRIFA dependents must be physically present in the United States in 
    order to apply. A spouse or child need not have been present on
    
    [[Page 25761]]
    
    December 31, 1995, or during any particular period since that date. 
    Although an unmarried son or daughter need not have been present in the 
    United States on December 31, 1995, he or she must establish that he or 
    she has been physically present in the United States for a continuous 
    period commencing not later than December 31, 1995, not counting 
    absences aggregating 180 days or fewer. Unlike section 202 of NACARA, 
    section 902 of HRIFA does not specify a deadline by which the 
    dependent's application for adjustment of status must be filed.
        Many qualifying dependents of HRIFA principal applicants may be 
    able to receive HRIFA benefits in their own right. However, some 
    persons who do not meet the HRIFA standards will only be able to 
    qualify as a dependent of a HRIFA beneficiary. Examples of otherwise 
    eligible persons who can only qualify as dependents include: a spouse 
    or child who arrived in the United States after December 31, 1995; a 
    spouse or child who arrived before December 31, 1995, but has been 
    absent for an aggregate of more than 180 days since that date; and an 
    unmarried son or daughter who came to the United States prior to 
    December 31, 1995, but neither entered as a parolee nor filed for 
    asylum before that date.
    
    How Are Dependents Who Do Not Meet HRIFA Requirements Affected?
    
        A family member who is unable to qualify for HRIFA adjustment of 
    status on his or her own, or as a dependent, may eventually become 
    eligible for lawful permanent resident status under other provisions of 
    the Act. Examples of such individuals would include a dependent who is 
    not a national of Haiti, a spouse or child whose relationship to the 
    principal applicant is established after the principal applicant is 
    granted permanent resident status, and an unmarried son or daughter 
    over the age of 21 who entered the United States after December 31, 
    1995. After becoming a permanent resident, a HRIFA beneficiary could 
    file a visa petition to accord such a dependent immigrant 
    classification under section 203(a)(2) of the Act, thereby enabling the 
    dependent who is not eligible for HRIFA benefits to seek immigration to 
    the United States through the normal family-based immigration process.
    
    Can a Haitian Who Is, or Has Been, Covered Under the Deferred 
    Enforced Departure (DED) Program Established by Order of the 
    President on December 23, 1997, Apply for Adjustment of Status 
    Under HRIFA?
    
        Yes, if he or she is otherwise eligible for adjustment of status 
    under section 902 of HRIFA.
    
    What Happens If an Applicant Is Already in Exclusion, Deportation, 
    or Removal Proceedings, or Has a Motion To Reopen or Motion to 
    Reconsider Pending Before the Immigration Court or the Board of 
    Immigration Appeals (Board)?
    
        Persons who have proceedings pending before the Immigration Court 
    or the Board, or persons who have a pending motion to reopen or 
    reconsider filed on or before May 12, 1999, may apply for adjustment of 
    status under section 902 of HRIFA, but these cases shall remain with 
    the court holding jurisdiction over the pending proceedings.
    
    Proceedings Pending Before the Immigration Court
    
        If an alien (other than an arriving alien who has not been paroled 
    into the United States) is in exclusion, deportation, or removal 
    proceedings before the Immigration Court, or if an alien has a motion 
    to reopen or motion to reconsider filed on or before May 12, 1999, 
    pending before the Immigration Court, jurisdiction over an application 
    for adjustment of status under section 902 of HRIFA shall lie with the 
    Immigration Court. The procedure for filing an application for 
    adjustment under HRIFA is described below. If an alien who is not 
    clearly ineligible for adjustment of status under section 902 of HRIFA, 
    and who has a pending motion to reopen or motion to reconsider, files 
    an application for adjustment of status under section 902 of HRIFA, the 
    Immigration Court shall reopen the alien's proceedings for 
    consideration of the adjustment application. Applications shall be 
    subject to the filing requirements of 8 CFR 3.11 and 3.31. A person 
    would be ``clearly ineligible'' if, for example, he was not a national 
    of Haiti or he was not a child on December 31, 1995, and had not filed 
    for asylum or been paroled into the United States prior to that date.
    
    Proceedings Pending Before the Board
    
        In the case of an alien who is not clearly ineligible for 
    adjustment of status under section 902 of HRIFA, and whose case is on 
    appeal with the Board, the Board shall remand the proceedings to the 
    Immigration Court for the sole purpose of adjudicating the application 
    for adjustment. The Board shall so remand the case regardless of 
    whether the alien has already filed an application for adjustment of 
    status under HRIFA. Further, if an alien has a pending motion to reopen 
    or motion to reconsider filed with the Board on or before May 12, 1999, 
    the Board shall reopen and remand the proceedings to the Immigration 
    Court for the sole purpose of adjudicating an application for 
    adjustment of status under section 902 of HRIFA.
        If upon remand the Immigration Court denies the application, or the 
    alien fails to file an application for adjustment under section 902 of 
    HRIFA, the Immigration Court shall return the case to the Board by 
    certification. This will allow the Board to consider the denial of the 
    HRIFA application as well as all other outstanding issues from the 
    previously pending appeal or motion. Neither the alien nor the Service 
    shall be required to file another Notice of Appeal to the Board of 
    Immigration Appeals of Decision of Immigration Judge (Form EOIR-26), or 
    to pay an appeal filing fee, because the Immigration Court's 
    certification of the denial to the Board will automatically transfer 
    the Immigration Court's decision to the Board.
    
    May an Alien Who Is in Proceedings Before an Immigration Court or 
    the Board of Immigration Appeals Apply for Adjustment of Status 
    Before the Service?
    
        Yes, under certain circumstances. An alien who is in exclusion, 
    deportation, or removal proceedings before the Immigration Court or the 
    Board may move to have the proceeding administratively closed for the 
    purpose of filing an application for adjustment under HRIFA. Such 
    administrative closure requires the consent of the Service, which will 
    issue field guidance shortly regarding the circumstances under which it 
    will consent to such a request. If the Service concurs in such motion, 
    the Immigration Court or the Board, as appropriate, will 
    administratively close the proceedings. Such closure will permit 
    recalendaring or reinstating of the closed proceedings if, for example, 
    the alien fails to file an application for adjustment of status under 
    HRIFA before April 1, 2000, or the Service denies any application for 
    adjustment of status filed by the alien under HRIFA. Should the Service 
    deny the application, or the alien fail to file the application before 
    April 1, 2000, the Service will move to recalendar or reinstate the 
    exclusion, deportation, or removal proceedings. The Immigration
    
    [[Page 25762]]
    
    Court or the Board, as appropriate, will then recalendar or reinstate 
    the proceedings. In the case of a HRIFA adjustment application denied 
    by the Service, the alien could seek reconsideration of the denied 
    adjustment application in such recalendared or reinstated proceedings.
    
    What Happens If the Alien's Exclusion, Deportation, or Removal 
    Proceedings Have Already Been Administratively Closed for Reasons 
    Unrelated to HRIFA?
    
        Aliens who have had their cases administratively closed or 
    continued indefinitely with the consent of the Service after December 
    22, 1997, shall apply for adjustment of status under HRIFA with the 
    Service. Such aliens may not seek reinstatement of their proceedings 
    for the purpose of applying for adjustment of status under HRIFA with 
    EOIR until the Service has adjudicated the adjustment application. 
    Should the Service deny the application, or the alien fail to file the 
    application before April 1, 2000, the Service will move to recalendar 
    or reinstate the proceedings and the proceedings will be recalendared 
    or reinstated by the Immigration Court or the Board, as appropriate. In 
    the case of an application denied by the Service, the alien could seek 
    reconsideration of the denied adjustment application in such 
    recalendared or reinstated proceedings. This procedure simplifies the 
    application process by directing all applications to one location and 
    obviating the need to file motions to recalendar or reinstate 
    proceedings.
    
    What Happens If an Applicant Is the Subject of a Final Order of 
    Exclusion, Deportation, or Removal?
    
        An alien who is the subject of a final order of exclusion, 
    deportation, or removal, and who has never filed an application for 
    adjustment of status under section 902 of HRIFA with the Immigration 
    Court, must file such application with the Service. However, if such 
    alien has a motion to reopen or a motion to reconsider filed on or 
    before May 12, 1999, pending before an Immigration Court or the Board, 
    then the application for adjustment must be filed with the Immigration 
    Court or with the Board, as appropriate. The mere filing of an 
    application for adjustment of status under section 902 of HRIFA with 
    the Service or the referral of a denied application to an Immigration 
    Court does not stay the execution of the final order of removal. To 
    request that execution of the final order be stayed by the Service, the 
    alien must file an Application for Stay of Removal (Form I-246), 
    following the procedures set forth in 8 CFR 241.6. If the application 
    is referred to the Immigration Court, and the Service does not grant a 
    stay of execution of the final order, the alien must request that the 
    Immigration Court or Board specifically grant a stay of execution of 
    the final order of removal.
    
    When Can an Application Be Filed?
    
        For principal applicants, the application period for HRIFA benefits 
    begins June 11, 1999, and ends on March 31, 2000.
        For dependent applicants, the application period for HRIFA benefits 
    begins June 11, 1999, and remains open indefinitely. As previously 
    noted, the requisite familial relationship between the dependent 
    applicant and the principal applicant must exist at the time the 
    principal applicant becomes a permanent resident, and must continue at 
    least until the dependent is granted adjustment of status.
    
    What Forms and Other Documents Should Be Filed?
    
        Each applicant for HRIFA adjustment of status benefits must file a 
    separate Application to Register Permanent Residence or Adjust Status 
    (Form I-485), accompanied by the required application fee and 
    supporting documents described below. HRIFA applicants should complete 
    Part 2 (Application Type) of that form by checking box ``h--other'' and 
    writing ``HRIFA--Principal'' or ``HRIFA--Dependent'' next to that 
    block. Each application must be accompanied by the required initial 
    evidence, as follows:
        (1) A birth certificate or other record of birth;
        (2) A completed Biographic Information Sheet (Form G-325A) if the 
    applicant is between 14 and 79 years of age;
        (3) A report of medical examination;
        (4) Two photographs as described in the Form I-485 instructions;
        (5) A copy of the applicant's Arrival-Departure Record (Form I-94) 
    or other evidence of inspection and admission or parole into the United 
    States, if applicable;
        (6) If the applicant is at least 14 years of age, a local police 
    clearance from each jurisdiction where the alien has resided for 6 
    months or longer since arriving in the United States (although the 
    regulation does allow this particular requirement to be waived under 
    certain circumstances);
        (7) If the applicant is a principal applicant, one or more of the 
    documents described in 8 CFR 245.15(f)(9) to establish presence in the 
    United States on December 31, 1995;
        (8) If the applicant is a principal applicant or the unmarried son 
    or daughter of a principal applicant, one or more of the documents 
    described in 8 CFR 245.15(f)(10) to establish continuity of physical 
    presence in the United States since December 31, 1995;
        (9) If the applicant is a principal applicant or the unmarried son 
    or daughter of a principal applicant, a statement showing all 
    departures from and arrivals in the United States since December 31, 
    1995;
        (10) If the applicant is a principal applicant, evidence that he or 
    she falls within one of the five groups of persons eligible for HRIFA 
    adjustment as described in 8 CFR 245.15(f)(12);
        (11) If the alien is applying as the spouse, child, or unmarried 
    son or daughter of another HRIFA beneficiary, evidence of the 
    relationship (for example, a marriage certificate); and
        (12) If the applicant acquired Haitian nationality through 
    naturalization in that country, a copy of his or her Haitian 
    naturalization certificate.
    
    Must the Applicant Be Fingerprinted?
    
        Yes, if the applicant is 14 years of age or older. Upon receipt of 
    the application, the Service will instruct the applicant regarding 
    procedures for obtaining fingerprints through one of the Service's 
    Application Support Centers (ASCs) or authorized Designated Law 
    Enforcement Agencies (DLEAs) chosen specifically for that purpose. 
    Those instructions will direct the applicant to the ASC or DLEA nearest 
    the applicant's home and advise the applicant of the date(s) and 
    time(s) fingerprinting services may be obtained. Applicants should not 
    submit fingerprint cards as part of the initial filing.
    
    Is There a Fee for Filing This Application?
    
        HRIFA adjustment of status applications must be submitted with the 
    fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently $220 for 
    applicants 14 years of age or older, and $160 for applicants under age 
    14). In addition, if the applicant is 14 years of age or older, he or 
    she must submit the fee of $25 to cover fingerprinting costs. If the 
    application is submitted to the Nebraska Service Center, this $25 fee 
    must accompany the application being submitted to that Center. If the 
    application is submitted to an Immigration Court or the Board of 
    Immigration Appeals, the fees must be submitted to the appropriate 
    local office of the Service in accordance with 8 CFR 3.31. An applicant 
    who is deserving of the benefits of section 902 of HRIFA and
    
    [[Page 25763]]
    
    is unable to pay the filing fee may request a fee waiver in accordance 
    with 8 CFR 103.7(c).
    
    How and Where Should the Application Be Filed?
    
        If the applicant is not in exclusion, deportation, or removal 
    proceedings before an Immigration Court or the Board of Immigration 
    Appeals, or if the applicant has had his or her case administratively 
    closed or continued indefinitely, the application and attachments must 
    be submitted by mail to: USINS Nebraska Service Center, P.O. Box 87245, 
    Lincoln, NE 68501-7245.
        If the applicant is in proceedings pending before an Immigration 
    Court or the Board of Immigration Appeals, or if the applicant has a 
    motion to reopen or motion to reconsider filed on or before May 12, 
    1999, pending before an Immigration Court or the Board, the application 
    and attachments must be submitted to the Immigration Court with 
    jurisdiction over the case or to the Board if the Board has 
    jurisdiction. In cases before the Immigration Court or the Board, the 
    application fee should be submitted to the Service pursuant to 8 CFR 
    3.31, as provided above. (If the motion to reopen or motion to 
    reconsider is filed after May 12, 1999, jurisdiction over the 
    application for adjustment of status under HRIFA lies with the Service, 
    not with EOIR.)
        Applications for adjustment of status under HRIFA may not be 
    submitted to any other Service location or to any consular post.
    
    Can Someone Else Sign the Application if the Applicant Is a Child 
    or a Person Who Is Mentally Incompetent?
    
        In accordance with 8 CFR 103.2(a)(2), an application may be signed 
    by a parent or legal guardian if the applicant is under 14 years of 
    age, and by a legal guardian if the applicant is mentally incompetent. 
    However, a person who is under age 14 is not precluded from signing the 
    application if he or she is capable of understanding the significance 
    of the attestation.
    
    Will an Applicant Filing an Application for Adjustment of Status 
    With the Service Under HRIFA Be Required To Appear Before the 
    Service for an Interview?
    
        The decision whether to require an interview is solely within the 
    discretion of the Service, which may elect to waive the interview of 
    the applicant. The interim regulations provide that the Service may 
    waive the interview if the application and supporting evidence, 
    including Service records, verify that the alien is either clearly 
    eligible or clearly ineligible for adjustment of status. If the 
    application is adjudicated without interview, a notice of the decision 
    will be mailed to the applicant. When an interview is required, the 
    application will be forwarded to the local Service office having 
    jurisdiction over the applicant's place of residence. The applicant 
    will be notified of the date and time to appear for the interview. If 
    an applicant fails to appear for an interview, the application may be 
    denied in accordance with existing regulations.
    
    Can an Applicant Be Authorized To Work While the Application is 
    Pending?
    
        If the alien has already received work authorization under any 
    other provision of the Act, that work authorization will not be 
    affected by the filing of an application for adjustment of status under 
    HRIFA or by the administrative closure of the exclusion, deportation, 
    or removal proceeding to pursue relief pursuant to HRIFA. Furthermore, 
    an applicant for adjustment under HRIFA is able to apply for, and be 
    granted, an extension of any such employment authorization for which he 
    or she remains eligible.
        On December 14, 1998, the Service published a notice in the Federal 
    Register at 63 FR 68799 which provided for an automatic extension until 
    December 22, 1999, of the validity of certain Employment Authorization 
    Documents (EADs) issued to Haitian nationals pursuant to the Deferred 
    Enforced Departure (DED) program. This was done as a transitional 
    measure to afford Haitian beneficiaries of DED the opportunity to apply 
    for a HRIFA-based EAD. In accordance with that notice and subsequent 
    guidance to Service field offices, the EADs covered by the automatic 
    extension include those bearing an expiration date of December 22, 
    1998, or later, and either the notation ``274a.12(A)(11)'' under 
    ``provision of law'' or the notation ``A-11'' under ``category.''
        Any applicant for adjustment of status under HRIFA who wishes to 
    obtain initial employment authorization, or continued employment 
    authorization when his or her prior authorization expires, during the 
    pendency of the adjustment of status application, may file an 
    Application for Employment Authorization (Form I-765) with the Service.
        For those applicants whose cases are supported by evidence which 
    can be verified through Service records, this interim rule provides 
    that employment authorization may be granted upon filing of the 
    application for adjustment and an application for employment 
    authorization.
        In all other cases, the Service will not grant applications for 
    work authorization filed by HRIFA applicants until the application for 
    adjustment is approved or has been pending for 180 days, whichever 
    comes first. This approach is in keeping with section 902(c)(3) of 
    HRIFA, which mandates approval of employment authorization if the 
    adjustment application ``is pending for a period exceeding 180 days,'' 
    and has not been denied, and which authorizes, but does not mandate, 
    approval of employment authorization if the application has been 
    pending for fewer than 180 days.
        The Service will emphasize the potential benefits of filing for 
    adjustment of status and employment authorization concurrently during 
    public information sessions that the Service will hold with local 
    community groups. The Department believes that limiting employment 
    authorization to these circumstances and to circumstances in which 180 
    days have elapsed since the filing of the application will both: (1) 
    Discourage fraudulent applications filed simply as a way to gain work 
    authorization, and (2) permit employment more promptly for those whose 
    applications appear likely to be granted. However, in publishing this 
    interim rule, the Department solicits the views of interested parties 
    on this topic.
    
    Can an Alien Submit an Application for Adjustment of Status If He 
    or She Is Outside the United States?
    
        No. The statute and regulations require that an alien must be 
    physically present in the United States in order to properly file an 
    application. However, a special provision at 8 CFR 245.15(t)(2) allows 
    an otherwise-eligible alien who is outside the United States to submit 
    a request for parole authorization. This special provision is similar 
    to the one contained in the implementing regulations for NACARA. 
    Because of the similarity in the two statutes, the Department has 
    decided to treat the beneficiaries of NACARA and HRIFA in the same 
    manner. These provisions, however, cannot and do not create any 
    additional parole authority, because a parole can only be issued under 
    the Attorney General's discretionary authority contained in section 
    212(d)(5) of the Act. The provisions merely specify that the requests 
    be filed with, and adjudicated by, the director of the designated 
    service center. For NACARA applications, the designated service center 
    is the Texas Service Center; for HRIFA applications, it is the Nebraska
    
    [[Page 25764]]
    
    Service Center. The regulatory authority of the Director of the 
    Nebraska Service Center to adjudicate such requests will expire on 
    March 31, 2000.
        An alien requesting parole under this special provision should 
    attach photocopies of the documents the alien intends to file in 
    support of his or her claim for eligibility for adjustment of status 
    under HRIFA if the parole authorization is granted. Parole 
    authorization may be granted, as a matter of discretion, if, upon 
    review of the application for parole authorization and related 
    documents, it is determined that the application for adjustment of 
    status is likely to be approved once it has been properly filed. The 
    alien would be allowed to file the application after being paroled into 
    the country. Accordingly, an alien who is otherwise inadmissible must 
    remain outside the United States until the request for parole 
    authorization is approved. If the alien attempts to enter the United 
    States without the parole authorization, he or she could be found 
    inadmissible to, and removed from, the United States.
    
    Can an Applicant Travel Outside the United States While the 
    Application Is Pending?
    
        Nothing in HRIFA authorizes the Service to allow an applicant to 
    re-enter the United States without proper documents. If an applicant 
    plans to leave the United States to go to any other country before a 
    decision is made on his or her HRIFA adjustment application, he or she 
    should contact the Service to request advance authorization for parole. 
    If an applicant leaves the United States without such advance 
    authorization, action on his or her HRIFA adjustment application may be 
    terminated and the application may be denied. An applicant may also 
    experience difficulty when returning to the United States if he or she 
    does not have such advance authorization. Furthermore, any absence from 
    the United States without an advance parole authorization issued prior 
    to the alien's departure counts toward the 180-day aggregate time 
    period that the applicant is allowed to be outside the United States.
    
    What Is the Status of an Alien Who Is Under a Final Order of 
    Exclusion, Deportation, or Removal and Who Departs From the United 
    States?
    
        Such alien would be a ``self-deport'' and would be subject to the 
    inadmissibility provisions of section 212(a)(9) of the Act. This is 
    true regardless of whether the alien obtained an Authorization for 
    Parole of an Alien Into the United States (Form I-512) prior to 
    departure. While being inadmissible would not preclude the alien from 
    being paroled into the United States, it would preclude the alien from 
    being admitted to the United States or being granted an adjustment of 
    status, unless the alien first applied for and was granted permission 
    to reapply for admission into the United States.
    
    How Can Such an Alien Apply for Permission to Reapply for Admission 
    into the United States?
    
        An alien needing such permission may file an Application for 
    Permission to Reapply for Admission Into the United States After 
    Deportation or Removal (Form I-212), in accordance with the 
    instructions on that form. Form I-212 may be filed prior to the alien's 
    departure. Persons needing such forms may obtain them through the 
    Service's Forms Center at 1-800-870-3676.
    
    What Documentation Will Be Issued If the Adjustment Application Is 
    Approved?
    
        After processing is completed, a notice of the decision will be 
    mailed to the HRIFA applicant. Applicants should keep this notice for 
    their records. If the application has been approved, a permanent 
    resident card will be mailed separately to the applicant. To obtain 
    temporary evidence of lawful permanent resident status, the applicant 
    may present the original approval notice and his or her passport or 
    other photo identification at his or her local Service office. The 
    local Service office will issue temporary evidence of lawful permanent 
    resident status after verifying the approval of the HRIFA adjustment of 
    status application. If the applicant is not in possession of a passport 
    in which such temporary evidence may be endorsed, he or she should also 
    submit two photographs meeting Alien Documentation, Identification, and 
    Telecommunication System (ADIT) specifications so that the Service may 
    prepare and issue temporary evidence of lawful permanent residence 
    status.
    
    Is There Any Special Action That an Applicant Who Had Been in 
    Exclusion, Deportation, or Removal Proceedings Must Take Once the 
    Application Has Been Approved?
    
        No. If the alien previously had been issued a final order of 
    exclusion, deportation, or removal, such order shall automatically be 
    deemed canceled as of the date of the approval of the application for 
    adjustment of status. If the alien had been in exclusion, deportation, 
    or removal proceedings that were administratively closed, such 
    proceedings shall automatically be deemed terminated as of the date of 
    approval of the application for adjustment of status.
    
    What Happens if an Application is Denied by the Service?
    
        If the Service finds that an applicant is ineligible for adjustment 
    of status under HRIFA, the Service will advise him or her of its 
    determination and of the applicant's right to seek, and the procedures 
    for seeking, consideration of the application by an immigration judge. 
    Depending on the individual case circumstances, those procedures could 
    take one of three different routes as follows:
        (1) If exclusion, deportation, or removal proceedings had never 
    been commenced, the Service will issue a Notice to Appear, thereby 
    initiating removal proceedings during which the applicant may renew his 
    or her application for adjustment under HRIFA before the Immigration 
    Court. In such proceedings, an immigration judge shall adjudicate the 
    renewed application.
        (2) If exclusion, deportation, or removal proceedings had been 
    initiated and later administratively closed, the Service will advise 
    the alien of the Service's denial of the HRIFA adjustment application 
    and will move the Immigration Court, or the Board if at the time of 
    administrative closure the Board had jurisdiction over the case, to 
    recalendar or reinstate the proceeding. The previously closed removal 
    proceedings will then be recalendared by the Immigration Court, or 
    reinstated by the Board, as appropriate.
        (3) If a final order of exclusion, deportation, or removal had been 
    issued, the Service, using Form I-290C, Notice of Certification, will 
    refer its decision to deny the HRIFA adjustment application to the 
    Immigration Court, which will adjudicate the application in proceedings 
    designed solely for the purpose of such adjudication.
    
    What Happens If an Application Is Denied by the Immigration Court?
    
        If the Immigration Court denies the HRIFA adjustment application of 
    an alien in exclusion, deportation, or removal proceedings before the 
    Immigration Court, the decision may be appealed to the Board along with 
    and under the same procedures as all other issues before the 
    Immigration Court in those proceedings.
        If the Immigration Court denies the HRIFA adjustment application of 
    an alien whose case was remanded to the Immigration Court by the Board, 
    the Immigration Court shall certify the decision to the Board for 
    review.
    
    [[Page 25765]]
    
        If the Immigration Court denies the HRIFA adjustment application of 
    an alien whose case was referred by the Service for a HRIFA-only 
    inquiry, the alien shall have the right to appeal the decision to the 
    Board, subject to the requirements in 8 CFR parts 3 and 240 governing 
    appeals from Immigration Courts to the Board, including the 
    requirements of filing a Notice of Appeal to the Board of Immigration 
    Appeals of Decision of Immigration Judge (Form EOIR-26) and paying the 
    filing fee.
    
    What Happens If an Alien Fails To Appear for a Hearing Before the 
    Immigration Court on a HRIFA Adjustment Application?
    
        An alien must appear for all scheduled hearings before an 
    Immigration Court, unless his or her appearance is waived by the 
    Immigration Court. An alien who is in exclusion, deportation, or 
    removal proceedings before the Immigration Court, and who fails to 
    appear for a hearing regarding a HRIFA adjustment application, will be 
    subject to the applicable statutory and regulatory in absentia 
    procedures (i.e., section 242B of the Act as it existed prior to the 
    amendments of the Illegal Immigration Reform and Immigrant 
    Responsibility Act of 1996 (IIRIRA) on September 30, 1996, for 
    deportation proceedings, and section 240 of the Act as amended by 
    IIRIRA for removal proceedings).
    
    What Rules of Procedure Apply in HRIFA-Only Hearings Conducted on 
    Cases Referred by the Service to the Immigration Court?
    
        Although an alien who is placed before the Immigration Court for a 
    HRIFA-only hearing after referral on a Notice of Certification (Form I-
    290) to the Immigration Court by the Service is not specifically 
    subject to the statutory and regulatory provisions governing exclusion, 
    deportation, and removal proceedings, the Department has inserted 
    language in this interim rule reflecting the standards in section 240 
    of the Act for removal proceedings, including the in absentia 
    procedures. Absent specific statutory direction in this area, the 
    procedures of section 240 of the Act were chosen because such 
    procedures are similar to those from the pre-IIRIRA section 242B of the 
    Act and indicate Congress' most recent preference to have procedures 
    dealing with failures to appear for immigration proceedings. Use of the 
    language from section 240 of the Act also ensures that the in absentia 
    procedures used for those in HRIFA-only proceedings are consistent with 
    the in absentia procedures applicable to aliens who file HRIFA 
    adjustment applications in ongoing removal and deportation proceedings.
        As for those aliens who, upon reopening and remand by the Board to 
    the Immigration Court, fail to file a HRIFA adjustment application with 
    the Immigration Court, the immigration judge will certify the case back 
    to the Board for consideration of the previously pending appeal or 
    motion. If, prior to receiving a final order from the Board, the alien 
    subsequently requests a remand to file a HRIFA adjustment application, 
    the Board shall remand the case to the Immigration Court, unless the 
    alien is clearly ineligible for such relief.
    
    May an Applicant Who Receives a Final Determination by the Service, 
    the Immigration Court, or the Board Denying His or Her Application 
    of HRIFA Adjustment Appeal That Decision to a Federal Court?
    
        No. While the regulations provide for various avenues for 
    administrative review of negative HRIFA determinations, section 902(f) 
    of HRIFA provides that ``[a] determination by the Attorney General as 
    to whether the status of any alien should be adjusted under [HRIFA] is 
    final and shall not be subject to review by any court.''
    
    Good Cause Exception
    
        The Department's implementation of this rule as an interim rule, 
    with provision for post-promulgation public comment, is based upon the 
    ``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Section 902 of 
    HRIFA became effective immediately upon enactment on October 21, 1998. 
    Publication of this rule as an interim rule will expedite 
    implementation of that section and allow Haitian nationals to apply for 
    and obtain the benefits available to applicants for adjustment of 
    status under HRIFA as soon as possible in light of the statutory 
    application deadline of March 31, 2000.
    
    Regulatory Flexibility Act
    
        In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
    that this rule will not, if promulgated, have a significant adverse 
    economic impact on a substantial number of small entities. This rule 
    allows certain Haitian nationals to apply for adjustment of status; it 
    has no effect on small entities as that term is defined in 5 U.S.C. 
    601(6).
    
    Executive Order 12866
    
        This rule is considered by the Department of Justice to be a 
    ``significant regulatory action'' under section 3(f) of Executive Order 
    12866, Regulatory Planning and Review. Accordingly, this regulation has 
    been submitted to the Office of Management and Budget for review.
    
    Executive Order 12612
    
        The regulation 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.
    
    Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined by section 251 of the 
    Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 12988: Civil Justice Reform
    
        This interim rule meets the applicable standards set forth in 
    sections 3(a) and 3(b)(2) of Executive Order 12988.
    
    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 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.
    
    Paperwork Reduction Act
    
        The information collection requirement contained in this rule (Form 
    I-485, Supplement C) was submitted to the Office of Management and 
    Budget (OMB) for emergency review and approval under 5 CFR 
    1320.13(a)(1)(i) and (a)(2)(iii). In a notice published in the Federal 
    Register on April 2, 1999 at 64 FR 15990, the Immigration and 
    Naturalization Service notified the public of the proposed
    
    [[Page 25766]]
    
    information collection contained in Form I-485 Supplement C. The 
    information collection requirement in this application will be used to 
    determine whether an alien applying for adjustment of status under the 
    provisions of section 902 of Division A, Title IX of Public Law 105-277 
    is eligible to become a permanent resident of the United States. The 
    estimated total number of respondents is 50,000 and the amount of time 
    estimated for an average respondent to respond is 30 minutes for a 
    total public burden of 25,000 hours.
        This information collection request has been approved by OMB and 
    has an OMB Number of 1115-0229. The emergency approval is only valid 
    for 180 days. Comments and suggestions concerning the information 
    collection are encouraged and will be accepted until June 1, 1999. To 
    obtain a copy of the collection instrument or to make comments on this 
    information collection you may contact Mr. Richard A. Sloan, (202) 514-
    3291, Director, Policy Directives and Instructions Branch, Immigration 
    and Naturalization Service, U.S. Department of Justice, Room 5307, 425 
    I Street, NW, Washington, DC 20536.
    
    List of Subjects
    
    8 CFR Part 3
    
        Administrative practice and procedure, Immigration, Organization 
    and functions (Government agencies).
    
    8 CFR Part 212
    
        Administrative practice and procedure, Aliens, Passports and visas, 
    Immigration, Reporting and recordkeeping requirements.
    
    8 CFR Part 240
    
        Administrative practice and procedure, Aliens, Immigration.
    
    8 CFR Part 245
    
        Aliens, Immigration, Reporting and recordkeeping requirements.
    
    8 CFR Part 274a
    
        Administrative practice and procedure, Aliens, Employment, 
    Penalties, Reporting and recordkeeping requirements.
    
    8 CFR Part 299
    
        Immigration, Reporting and recordkeeping requirements.
    
        Accordingly, chapter I of title 8 of the Code of Federal 
    Regulations is amended as follows:
    
    PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    
        1. The authority citation for part 3 continues to read as follows:
    
        Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
    1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3 
    CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.
    
        2. Section 3.1 is amended by revising paragraph (b)(12) to read as 
    follows:
    
    
    Sec. 3.1  General authorities.
    
    * * * * *
        (b) * * *
        (12) Decisions of Immigration Judges on applications for adjustment 
    of status referred on a Notice of Certification (Form I-290C) to the 
    Immigration Court in accordance with Secs. 245.13(n)(2) and 
    245.15(n)(3) of this chapter or remanded to the Immigration Court in 
    accordance with Secs. 245.13(d)(2) and 245.15(e)(2) of this chapter.
    * * * * *
    
    PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
    ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
    
        3. The authority citation for part 212 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
    1226, 1227, 1228, 1252; 8 CFR part 2.
    
        4. Section 212.2 is amended by:
        a. Removing the words ``An applicant'' and adding in their place 
    the words ``Except as provided in paragraph (g)(3) of this section, an 
    applicant'' in the first sentence in paragraph (d);
        b. Removing the words ``If the applicant'' and adding in their 
    place the words ``Except as provided in paragraph (g)(3) of this 
    section, if the applicant'' in the second sentence in paragraph (d); 
    and by
        c. Adding a new paragraph (g)(3), to read as follows:
    
    
    Sec. 212.2  Consent to reapply for admission after deportation, 
    removal, or departure at Government expense.
    
    * * * * *
        (g) * * *
        (3) If an alien who is an applicant for parole authorization under 
    Sec. 245.15(l) of this chapter requires consent to reapply for 
    admission after deportation, removal, or departure at Government 
    expense, or a waiver under section 212(g), 212(h), or 212(i) of the 
    Act, he or she may file the requisite Form I-212 or Form I-601 at the 
    Nebraska Service Center concurrently with the Form I-131, Application 
    for Travel Document.
    * * * * *
        5. Section 212.7 is amended by:
        a. Adding a new paragraph (a)(1)(iii);
        b. Removing the word ``or'' at the end of paragraph (b)(2)(ii);
        c. Removing the period at the end of paragraph (b)(2)(iii) and 
    inserting in its place a ``; or''; and by
        d. Adding a new paragraph (b)(2)(iv), to read as follows:
    
    
    Sec. 212.7  Waiver of certain grounds of excludability.
    
        (a) * * *
        (1) * * *
        (iii) Parole authorization applicant under Sec. 245.15(l). An 
    applicant for parole authorization under Sec. 245.15(l) of this chapter 
    who is inadmissible and seeks a waiver under section 212(h) or (i) of 
    the Act must file an application on Form I-601 with the Director of the 
    Nebraska Service Center considering the Form I-131.
    * * * * *
        (b) * * *
        (2) * * *
        (iv) The Nebraska Service Center, if the alien is outside the 
    United States and seeking parole authorization under Sec. 245.15(l)(2) 
    of this chapter.
    * * * * *
    
    PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
    UNITED STATES
    
        6. The authority citation for part 240 is revised to read as 
    follows:
    
        Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
    1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100, 111 
    Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR 
    part 2.
    
    
    Sec. 240.1  [Amended]
    
        7. In Sec. 240.1, paragraph (a)(1)(ii) is amended in the first 
    sentence by removing the words ``and section 202 of Pub. L. 105-100'' 
    and adding in their place the words ``, section 202 of Pub. L. 105-100, 
    and section 902 of Pub. L. 105-277''.
    
    
    Sec. 240.11  [Amended]
    
        8. In Sec. 240.11, paragraph (a)(1) is amended in the first 
    sentence by removing the words ``or section 202 of Pub. L. 105-100,'' 
    and adding in their place the words ``section 202 of Pub. L. 105-100, 
    or section 902 of Pub. L. 105-277,''.
    
    
    Sec. 240.31  [Amended]
    
        9. Section 240.31 is amended in the first sentence by adding the 
    phrase ``, or section 902 of Pub. L. 105-277'' immediately after the 
    phrase ``section 202 of Pub. L. 105-100''.
    
    [[Page 25767]]
    
    Sec. 240.41  [Amended]
    
        10. In Sec. 240.41, paragraph (a) is amended in the first sentence 
    by removing the words ``and section 202 of Pub. L. 105-100'' and adding 
    in their place the words ``section 202 of Pub. L. 105-100, and section 
    902 of Pub. L. 105-277''.
    
    PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
    PERMANENT RESIDENCE
    
        11. The authority citation for part 245 is revised to read as 
    follows:
    
        Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
    105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
    2681; 8 CFR part 2.
    
        12. Section 245.15 is added to read as follows:
    
    
    Sec. 245.15  Adjustment of Status of Certain Haitian Nationals under 
    the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
    
        (a) Definitions. As used in this section, the terms:
        Abandoned and abandonment mean that prior to a child's 21st 
    birthday both parents have willfully forsaken all parental rights, 
    obligations, and claims to the child, as well as all control over and 
    possession of the child, without intending to transfer these rights to 
    any specific person(s).
        Guardian means a person lawfully invested (by order of a competent 
    Federal, State, or local authority) with the power, and charged with 
    the duty, of taking care of, including managing the property, rights, 
    and affairs of, a child.
        Orphan and orphaned refer to the involuntary detachment or 
    severance of a child from his or her parents prior to the child's 21st 
    birthday due to any of the following:
        (1) The death of both parents;
        (2) The death of one parent and the irrevocable and written release 
    of all parental rights by the sole surviving parent based upon the 
    inability of that parent to provide proper care for the child;
        (3) The desertion by both parents, as that phrase is defined in 
    Sec. 204.3(b) of this chapter, or by the sole or surviving parent;
        (4) The disappearance of both parents, as that phrase is defined in 
    Sec. 204.3(b) of this chapter, or of the sole or surviving parent;
        (5 The loss from both parents, as that phrase is defined in 
    Sec. 204.3(b) of this chapter, or from the sole or surviving parent; or
        (6) The separation from both parents, as that phrase is defined in 
    Sec. 204.3(b) of this chapter, or from the sole or surviving parent.
        Parent, father, or mother means a parent, father, or mother only 
    where the relationship exists by reason of any of the circumstances set 
    forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.
        (b) Applicability of provisions of section 902 of HRIFA in general. 
    Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee 
    Immigrant Fairness Act of 1998 (HRIFA), provides special rules for 
    adjustment of status for certain nationals of Haiti, if they meet the 
    other requirements of HRIFA.
        (1) Principal applicants. Section 902(b)(1) of HRIFA defines five 
    categories of principal applicants who may apply for adjustment of 
    status, if the alien was physically present in the United States on 
    December 31, 1995:
        (i) An alien who filed for asylum before December 31, 1995;
        (ii) An alien who was paroled into the United States prior to 
    December 31, 1995, after having been identified as having a credible 
    fear of persecution, or paroled for emergent reasons or reasons deemed 
    strictly in the public interest; or
        (iii) An alien who at the time of arrival in the United States and 
    on December 31, 1995, was unmarried and under 21 years of age and who:
        (A) Arrived in the United States without parents in the United 
    States and has remained without parents in the United States since his 
    or her arrival;
        (B) Became orphaned subsequent to arrival in the United States; or
        (C) Was abandoned by parents or guardians prior to April 1, 1998, 
    and has remained abandoned since such abandonment.
        (2) Dependents. Section 902(d) of HRIFA provides for certain 
    Haitian nationals to apply for adjustment of status as the spouse, 
    child, or unmarried son or daughter of a principal HRIFA beneficiary, 
    even if the individual would not otherwise be eligible for adjustment 
    under section 902. The eligibility requirements for dependents are 
    described further in paragraph (d) of this section.
        (c) Eligibility of principal HRIFA applicants. A Haitian national 
    who is described in paragraph (b)(1) of this section is eligible to 
    apply for adjustment of status under the provisions of section 902 of 
    HRIFA if the alien meets the following requirements:
        (1) Physical presence. The alien is physically present in the 
    United States at the time the application is filed;
        (2) Proper application. The alien properly files an application for 
    adjustment of status in accordance with this section, including the 
    evidence described in paragraphs (h), (i), (j) and (k) of this section;
        (3) Admissibility. The alien is not inadmissible to the United 
    States for permanent residence under any provisions of section 212(a) 
    of the Act, except as provided in paragraph (e) of this section; and
        (4) Continuous physical presence. The alien has been physically 
    present in the United States for a continuous period beginning on 
    December 31, 1995, and ending on the date the application for 
    adjustment is granted, except for the following periods of time:
        (i) Any period or periods of absence from the United States not 
    exceeding 180 days in the aggregate; and
        (ii) Any periods of absence for which the applicant received an 
    Advance Authorization for Parole (Form I-512) prior to his or her 
    departure from the United States, provided the applicant returned to 
    the United States in accordance with the conditions of such Advance 
    Authorization for Parole.
        (iii) Any periods of absence from the United States occurring after 
    October 21, 1998, and before July 12, 1999, provided the applicant 
    departed the United States prior to December 31, 1998.
        (d) Eligibility of dependents of a principal HRIFA beneficiary. A 
    Haitian national who is the spouse, child, or unmarried son or daughter 
    of a principal beneficiary eligible for adjustment of status under the 
    provisions of HRIFA is eligible to apply for benefits as a dependent, 
    if the dependent alien meets the following requirements:
        (1) Physical presence. The alien is physically present in the 
    United States at the time the application is filed;
        (2) Proper application. The alien properly files an application for 
    adjustment of status as a dependent in accordance with this section, 
    including the evidence described in paragraphs (h) and (l) of this 
    section;
        (3) Admissibility. The alien is not inadmissible to the United 
    States for permanent residence under any provisions of section 212(a) 
    of the Act, except as provided in paragraph (e) of this section;
        (4) Existence of relationship at time of adjustment. The alien's 
    qualifying relationship to the principal beneficiary existed at the 
    time the principal beneficiary was granted adjustment of status and 
    continues to exist at the time the dependent alien is granted 
    adjustment of status; and
        (5) Continuous physical presence. If the alien is applying as the 
    unmarried son or unmarried daughter of a principal HRIFA beneficiary, 
    he or she
    
    [[Page 25768]]
    
    must have been physically present in the United States for a continuous 
    period beginning not later than December 31, 1995, and ending on the 
    date the application for adjustment is granted, as provided in 
    paragraphs (c)(4) and (j) of this section.
        (e) Applicability of grounds of inadmissibility contained in 
    section 212(a). (1) Certain grounds of inadmissibility inapplicable to 
    HRIFA applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of 
    section 212(a) of the Act are inapplicable to HRIFA principal 
    applicants and their dependents. Accordingly, an applicant for 
    adjustment of status under section 902 of HRIFA need not establish 
    admissibility under those provisions in order to be able to adjust his 
    or her status to that of permanent resident.
        (2) Availability of individual waivers. If a HRIFA applicant is 
    inadmissible under any of the other provisions of section 212(a) of the 
    Act for which an immigrant waiver is available, the applicant may apply 
    for one or more of the immigrant waivers of inadmissibility under 
    section 212 of the Act, in accordance with Sec. 212.7 of this chapter.
        (f) Time for filing of applications. (1) Applications for HRIFA 
    benefits by a principal HRIFA applicant. The application period begins 
    on June 11, 1999. To benefit from the provisions of section 902 of 
    HRIFA, an alien who is applying for adjustment as a principal applicant 
    must properly file an application for adjustment of status before April 
    1, 2000.
        (2) Applications by dependent aliens. The spouse, minor child, or 
    unmarried son or daughter of an alien who is eligible for adjustment of 
    status as a principal beneficiary under HRIFA may file an application 
    for adjustment of status under this section concurrently with or 
    subsequent to the filing of the application of the principal HRIFA 
    beneficiary. An application filed by a dependent may not be approved 
    prior to approval of the principal's application.
        (g) Jurisdiction for filing of applications. (1) Filing of 
    applications with the Service. The Service has jurisdiction over all 
    applications for the benefits of section 902 of HRIFA as a principal 
    applicant or as a dependent under this section, except for applications 
    filed by aliens who are in pending immigration proceedings as provided 
    in paragraph (g)(2) of this section. All applications filed with the 
    Service for the benefits of section 902 of HRIFA must be submitted by 
    mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE 
    68501-7245. After proper filing of the application, the Service will 
    instruct the applicant to appear for fingerprinting as prescribed in 
    Sec. 103.2(e) of this chapter. The Director of the Nebraska Service 
    Center shall have jurisdiction over all applications filed with the 
    Service for adjustment of status under section 902 of HRIFA, unless the 
    Director refers the applicant for a personal interview at a local 
    Service office as provided in paragraph (o)(1) of this section.
        (2) Filing of applications by aliens in pending exclusion, 
    deportation, or removal proceedings. An alien who is in exclusion, 
    deportation, or removal proceedings pending before the Immigration 
    Court or the Board, or who has a pending motion to reopen or motion to 
    reconsider filed with the Immigration Court or the Board on or before 
    May 12, 1999, must apply for HRIFA benefits to the Immigration Court or 
    the Board, as provided in paragraph (p)(1) of this section, rather than 
    to the Service. However, an alien whose proceeding has been 
    administratively closed (see paragraph (p)(4) of this section) may only 
    apply for HRIFA benefits with the Service as provided in paragraph 
    (g)(1) of this section.
        (3) Filing of applications with the Service by aliens who are 
    subject to a final order of exclusion, deportation, or removal. An 
    alien who is subject to a final order of exclusion, deportation, or 
    removal, and who has not been denied adjustment of status under section 
    902 of HRIFA by the Immigration Court or the Board, may only apply for 
    HRIFA benefits with the Service as provided in paragraph (g)(1) of this 
    section. This includes applications for HRIFA benefits filed by aliens 
    who have filed a motion to reopen or motion to reconsider a final order 
    after May 12, 1999.
        (i) Stay of final order of exclusion, deportation, or removal. The 
    filing of an application for adjustment under section 902 of HRIFA with 
    the Service shall not stay the execution of such final order unless the 
    applicant has requested and been granted a stay in connection with the 
    HRIFA application. An alien who has filed a HRIFA application with the 
    Service may file an Application for Stay of Removal (Form I-246) in 
    accordance with section 241(c)(2) of the Act and Sec. 241.6 of this 
    chapter.
        (ii) Grant of stay. Absent evidence of the applicant's statutory 
    ineligibility for adjustment of status under section 902 of HRIFA or 
    significant negative discretionary factors, a Form I-246 filed by a 
    bona fide applicant for adjustment under section 902 of HRIFA shall be 
    approved and the removal of the applicant shall be stayed until such 
    time as the Service has adjudicated the application for adjustment in 
    accordance with this section.
        (h) Application and supporting documents. Each applicant for 
    adjustment of status must file an Application to Register Permanent 
    Residence or Adjust Status (Form I-485). An applicant should complete 
    Part 2 of Form I-485 by checking box ``h--other'' and writing ``HRIFA--
    Principal'' or ``HRIFA--Dependent'' next to that block. Each 
    application must be accompanied by:
        (1) Application fee. The fee for Form I-485 prescribed in 
    Sec. 103.7(b)(1) of this chapter;
        (2) Fingerprinting fee. If the applicant is 14 years of age or 
    older, the fee for fingerprinting prescribed in Sec. 103.7(b)(1) of 
    this chapter;
        (3) Identifying information.
        (i) A copy of the applicant's birth certificate or other record of 
    birth as provided in paragraph (m) of this section;
        (ii) A completed Biographic Information Sheet (Form G-325A), if the 
    applicant is between 14 and 79 years of age;
        (iii) A report of medical examination, as specified in Sec. 245.5 
    of this chapter; and
        (iv) Two photographs, as described in the instructions to Form I-
    485;
        (4) Arrival-Departure Record. A copy of the Form I-94, Arrival-
    Departure Record, issued at the time of the applicant's arrival in the 
    United States, if the alien was inspected and admitted or paroled;
        (5) Police clearances. If the applicant is 14 years of age or 
    older, a police clearance from each municipality where the alien has 
    resided for 6 months or longer since arriving in the United States. If 
    there are multiple local law enforcement agencies (e.g., city police 
    and county sheriff) with jurisdiction over the alien's residence, the 
    applicant may obtain a clearance from either agency. If the applicant 
    resides or resided in a State where the State police maintain a 
    compilation of all local arrests and convictions, a statewide clearance 
    is sufficient. If the applicant presents a letter from the local police 
    agencies involved, or other evidence, to the effect that the applicant 
    attempted to obtain such clearance but was unable to do so because of 
    local or State policy, the director or immigration judge having 
    jurisdiction over the application may waive the local police clearance;
        (6) Proof of Haitian nationality. If the applicant acquired Haitian 
    nationality other than through birth in Haiti, a copy of the 
    certificate of naturalization or
    
    [[Page 25769]]
    
    certificate of citizenship issued by the Haitian government; and
        (7) Additional supporting evidence. Additional supporting evidence 
    pertaining to the applicant as provided in paragraphs (i) through (l) 
    of this section.
        (i) Evidence of presence in the United States on December 31, 1995. 
    An alien seeking HRIFA benefits as a principal applicant must provide 
    with the application evidence establishing the alien's presence in the 
    United States on December 31, 1995. Such evidence may consist of one of 
    the following kinds of documentation:
        (1) Form I-94. A photocopy of the Form I-94, Arrival-Departure 
    Record, issued upon the alien's arrival in the United States;
        (2) Form I-122. A photocopy of the Form I-122, Notice to Applicant 
    for Admission Detained for Hearing before Immigration Judge, issued by 
    the Service on or prior to December 31, 1995, placing the applicant in 
    exclusion proceedings under section 236 of such Act (as in effect prior 
    to April 1, 1997);
        (3) Form I-221. A photocopy of the Form I-221, Order to Show Cause, 
    issued by the Service on or prior to December 31, 1995, placing the 
    applicant in deportation proceedings under section 242 or 242A of such 
    Act (as in effect prior to April 1, 1997);
        (4) Other Service document. A photocopy of any application or 
    petition for a benefit under the Immigration and Nationality Act filed 
    by or on behalf of the applicant on or prior to December 31, 1995, 
    which establishes his or her presence in the United States, or a fee 
    receipt issue by the Service for such application or petition;
        (5) Other government documentation. Other documentation issued by a 
    Federal, State, or local authority provided such other documentation 
    bears the signature, seal, or other authenticating instrument of such 
    authority (if the document normally bears such instrument), was dated 
    at the time of issuance, and bears a date of issuance not later than 
    December 31, 1995. For this purpose, the term Federal, State, or local 
    authority includes any governmental, educational, or administrative 
    function operated by Federal, State, county, or municipal officials. 
    Examples of such other documentation include, but are not limited to:
        (i) A State driver's license;
        (ii) A State identification card issued in lieu of a driver's 
    license to a non-driver;
        (iii) A county or municipal hospital record;
        (iv) A public college or public school transcript;
        (v) Income tax records;
        (vi) A copy of a petition on behalf of the applicant which was 
    submitted to the Service on or before December 31, 1995, and which 
    lists the applicant as being physically present in the United States;
        (vii) A certified copy of a Federal, State, or local governmental 
    record which was created on or prior to December 31, 1995, shows that 
    the applicant was present in the United States at the time, and 
    establishes that the applicant sought in his or her own behalf, or some 
    other party sought in the applicant's behalf, a benefit from the 
    Federal, State, or local governmental agency keeping such record; and
        (viii) A certified copy of a Federal, State, or local governmental 
    record which was created on or prior to December 31, 1995, shows that 
    the applicant was present in the United States at the time, and 
    establishes that the applicant submitted an income tax return, property 
    tax payment, or similar submission or payment to the Federal, State, or 
    local governmental agency keeping such record; or
        (6) Private or religious school transcripts. In the case of an 
    applicant seeking classification as a child under section 902(b)(1)(C) 
    of HRIFA, a transcript from a private or religious school which:
        (i) Is registered with, or approved or licensed by, appropriate 
    State or local authorities;
        (ii) Is accredited by the State or regional accrediting body, or by 
    the appropriate private school association; or
        (iii) Maintains enrollment records in accordance with State or 
    local requirements or standards.
        (j) Evidence of continuity of presence in the United States since 
    December 31, 1995. An alien seeking HRIFA benefits as a principal 
    applicant, or as the unmarried son or daughter of a principal 
    applicant, must provide with the application evidence establishing 
    continuity of the alien's physical presence in the United States since 
    December 31, 1995. (This requirement does not apply to a dependent 
    seeking HRIFA benefits as the spouse or minor child of a principal 
    applicant.)
        (1) Evidence establishing presence. Evidence establishing the 
    continuity of the alien's physical presence in the United States since 
    December 31, 1995, may consist of any documentation issued by any 
    governmental or non-governmental authority, provided such evidence 
    bears the name of the applicant, was dated at the time it was issued, 
    and bears the signature, seal, or other authenticating instrument of 
    the authorized representative of the issuing authority, if the document 
    would normally contain such authenticating instrument. In general, 
    there should be no chronological gaps in such documentation exceeding 
    90 days in length, excluding periods when the applicant states that he 
    or she was not physically present in the United States. Such 
    documentation need not bear the seal of the issuing authority.
        (2) Examples. Documentation establishing continuity of physical 
    presence may include, but is not limited to:
        (i) School records;
        (ii) Rental receipts;
        (iii) Utility bill receipts;
        (iv) Any other dated receipts;
        (v) Personal checks written by the applicant bearing a dated bank 
    cancellation stamp;
        (vi) Employment records, including pay stubs;
        (vii) Credit card statements showing the dates of purchase, 
    payment, or other transaction;
        (viii) Certified copies of records maintained by organizations 
    chartered by the Federal or State government, such as public utilities, 
    accredited private and religious schools, and banks;
        (ix) If the applicant establishes that a family unit was in 
    existence and cohabiting in the United States, documents evidencing 
    presence of another member of that same family unit; and
        (x) For applicants who have had ongoing correspondence or other 
    interaction with the Service, a list of the types and dates of such 
    correspondence or other contact that the applicant knows to be 
    contained or reflected in Service records.
        (3) Evidence relating to absences from the United States since 
    December 31, 1995. If the alien is applying as a principal applicant, 
    or as the unmarried son or daughter of a principal applicant, and has 
    departed from and returned to the United States since December 31, 
    1995, the alien must provide with the application an attachment on a 
    plain piece of paper showing:
        (i) The date of the applicant's last arrival in the United States 
    before December 31, 1995;
        (ii) The date of each departure (if any) from the United States 
    since that arrival;
        (iii) The reason for each departure; and
        (iv) The date, manner, and place of each return to the United 
    States.
        (k) Evidence establishing the alien's eligibility under section 
    902(b) of
    
    [[Page 25770]]
    
    HRIFA. An alien seeking HRIFA benefits as a principal applicant must 
    provide with the application evidence establishing that the alien 
    satisfies one of the eligibility standards described in paragraph 
    (b)(1) of this section.
        (1) Applicant for asylum. If the alien is a principal applicant who 
    filed for asylum before December 31, 1995, the applicant must provide 
    with the application either:
        (i) A photocopy of the first page of the Application for Asylum and 
    Withholding of Removal (Form I-589); or
        (ii) If the alien is not in possession of a photocopy of the first 
    page of the Form I-589, a statement to that effect giving the date of 
    filing and the location of the Service office or Immigration Court at 
    which it was filed;
        (2) Parolee. If the alien is a principal applicant who was paroled 
    into the United States prior to December 31, 1995, after having been 
    identified as having a credible fear of persecution, or paroled for 
    emergent reasons or reasons deemed strictly in the public interest, the 
    applicant must provide with the application either:
        (i) A photocopy of the Arrival-Departure Record (Form I-94) issued 
    when he or she was granted parole; or
        (ii) If the alien is not in possession of the original Form I-94, a 
    statement to that effect giving the date of parole and the location of 
    the Service port-of-entry at which parole was authorized.
        (3) Child without parents. If the alien is a principal applicant 
    who arrived in the United States as a child without parents in the 
    United States, the applicant must provide with the application:
        (i) Evidence, such as Form I-94, showing the date, location, and 
    manner of his or her arrival in the United States; and
        (ii) Evidence establishing the absence of the child's parents, 
    which may include either:
        (A) Evidence showing the deaths of, or disappearance or desertion 
    by, the applicant's parents; or
        (B) Evidence showing that the applicant's parents did not arrive in 
    the United States with or before the applicant and that neither of the 
    applicant's parents subsequently arrived in the United States. Such 
    evidence may include, but is not limited to, documentation showing that 
    the applicant's parents have been continuously employed outside the 
    United States, are deceased, disappeared or abandoned the applicant 
    prior to the applicant's arrival, or were otherwise engaged in 
    activities showing that they were not in the United States.
        (4) Orphaned child. If the alien is a principal applicant who is or 
    was a child who became orphaned subsequent to arrival in the United 
    States, the applicant must provide with the application:
        (i) Evidence, such as Form I-94, showing the date, location, and 
    manner of his or her arrival in the United States; and
        (ii) Either:
        (A) The death certificates of both parents (or in the case of a 
    child having only one parent, the death certificate of the sole parent) 
    showing that the death or deaths occurred after the date of the 
    applicant's arrival in the United States, or
        (B) Evidence from a State, local, or other court or governmental 
    authority having jurisdiction and authority to make decisions in 
    matters of child welfare establishing the disappearance of, the 
    separation or loss from, or desertion by, both parents (or, in the case 
    of a child born out of wedlock who has not been legitimated, the sole 
    parent).
        (5) Abandoned child. If the alien is a principal applicant who was 
    abandoned by parents or guardians prior to April 1, 1998, and has 
    remained abandoned since such abandonment, the applicant must provide 
    with the application:
        (i) Evidence, such as Form I-94, showing the date, location, and 
    manner of his or her arrival in the United States; and
        (ii) Evidence from a State, local, or other court or governmental 
    authority having jurisdiction and authority to make decisions in 
    matters of child welfare establishing such abandonment.
        (l) Evidence relating to applications by dependents under section 
    902(d) of HRIFA. (1) Evidence of spousal relationship. If the alien is 
    applying as the spouse of a principal HRIFA beneficiary, the applicant 
    must provide with the application a copy of their certificate of 
    marriage and copies of documents showing the legal termination of all 
    other marriages by the applicant or the other beneficiary.
        (2) Evidence of parent-child relationship. If the applicant is 
    applying as the child, unmarried son, or unmarried daughter of a 
    principal HRIFA beneficiary, and the principal beneficiary is not the 
    applicant's biological mother, the applicant must provide with the 
    application evidence to demonstrate the parent-child relationship 
    between the principal beneficiary and the applicant. Such evidence may 
    include copies of the applicant's parent's marriage certificate and 
    documents showing the legal termination of all other marriages, an 
    adoption decree, or other relevant evidence.
        (m) Secondary evidence. If the primary evidence required in 
    paragraph (h)(3)(i), (l)(1) or (l)(2) of this section is unavailable, 
    church or school records, or other secondary evidence pertinent to the 
    facts in issue, may be submitted. If such documents are unavailable, 
    affidavits may be submitted. The applicant may submit as many types of 
    secondary evidence as necessary to establish birth, marriage, or other 
    relevant event. Documentary evidence establishing that primary evidence 
    is unavailable must accompany secondary evidence of birth or marriage 
    in the home country. In adjudicating the application for adjustment of 
    status under section 902 of HRIFA, the Service or immigration judge 
    shall determine the weight to be given such secondary evidence. 
    Secondary evidence may not be submitted in lieu of the documentation 
    specified in paragraphs (i) and (j) of this section. However, subject 
    to verification by the Service, if the documentation specified in 
    paragraphs (i) and (j) is already contained in the Service's file 
    relating to the applicant, the applicant may submit an affidavit to 
    that effect in lieu of the actual documentation.
        (n) Authorization to be employed in the United States while the 
    application is pending. (1) Application for employment authorization. 
    An applicant for adjustment of status under section 902 of HRIFA who 
    wishes to obtain initial or continued employment authorization during 
    the pendency of the adjustment application must file an Application for 
    Employment Authorization (Form I-765) with the Service, including the 
    fee as set forth in Sec. 103.7(b)(1) of this chapter. The applicant may 
    submit Form I-765 either concurrently with or subsequent to the filing 
    of the application for HRIFA benefits on Form I-485.
        (2) Adjudication and issuance. Employment authorization may not be 
    issued to an applicant for adjustment of status under section 902 of 
    HRIFA until the adjustment application has been pending for 180 days, 
    unless the Director of the Nebraska Service Center verifies that 
    Service records contain evidence that the applicant meets the criteria 
    set forth in section 902(b) or 902(d) of HRIFA, and determines that 
    there is no indication that the applicant is clearly ineligible for 
    adjustment of status under section 902 of HRIFA, in which case the 
    Director may approve the application for employment authorization, and 
    issue the resulting document, immediately upon such verification. If 
    the Service fails to
    
    [[Page 25771]]
    
    adjudicate the application for employment authorization upon expiration 
    of the 180-day waiting period, or within 90 days of the filing of 
    application for employment authorization, whichever comes later, the 
    alien shall be eligible for interim employment authorization in 
    accordance with Sec. 274a.13(d) of this chapter. Nothing in this 
    section shall preclude an applicant for adjustment of status under 
    HRIFA from being granted an initial employment authorization or an 
    extension of employment authorization under any other provision of law 
    or regulation for which the alien may be eligible.
        (o) Adjudication of HRIFA applications filed with the Service. (1) 
    Referral for interview. Except as provided in paragraphs (o)(2) and 
    (o)(3) of this section, all aliens filing applications for adjustment 
    of status with the Service under this section must be personally 
    interviewed by an immigration officer at a local office of the Service. 
    If the Director of the Nebraska Service Center determines that an 
    interview of the applicant is necessary, the Director shall forward the 
    case to the appropriate local Service office for interview and 
    adjudication.
        (2) Approval without interview. Upon examination of the 
    application, including all other evidence submitted in support of the 
    application, all relevant Service records and all other relevant law 
    enforcement indices, the Director may approve the application without 
    an interview if the Director determines that:
        (i) The alien's claim to eligibility for adjustment of status under 
    section 902 of HRIFA is verified through existing Service records; and
        (ii) The alien is clearly eligible for adjustment of status.
        (3) Denial without interview. If, upon examination of the 
    application, all supporting documentation, all relevant Service 
    records, and all other relevant law enforcement indices, the Director 
    determines that the alien is clearly ineligible for adjustment of 
    status under HRIFA and that an interview of the applicant is not 
    necessary, the Director may deny the application.
        (p) Adjudication of HRIFA applications filed in pending exclusion, 
    deportation, or removal proceedings. (1) Proceedings pending before an 
    Immigration Court. Except as provided in paragraph (p)(4) of this 
    section, the Immigration Court shall have sole jurisdiction over an 
    application for adjustment of status under this section filed by an 
    alien who is in exclusion, deportation, or removal proceedings pending 
    before an immigration judge or the Board, or who has a pending motion 
    to reopen or motion to reconsider filed with an immigration judge or 
    the Board on or before May 12, 1999. The immigration judge having 
    jurisdiction over the exclusion, deportation, or removal proceedings 
    shall have jurisdiction to accept and adjudicate any application for 
    adjustment of status under section 902 of HRIFA during the course of 
    such proceedings. All applications for adjustment of status under 
    section 902 of HRIFA filed with an Immigration Court shall be subject 
    to the requirements of Secs. 3.11 and 3.31 of this chapter.
        (2) Motion to reopen or motion to reconsider. If an alien who has a 
    pending motion to reopen or motion to reconsider timely filed with an 
    immigration judge on or before May 12, 1999, files an application for 
    adjustment of status under section 902 of HRIFA, the immigration judge 
    shall reopen the alien's proceedings for consideration of the 
    adjustment application, unless the alien is clearly ineligible for 
    adjustment of status under section 902 of HRIFA.
        (3) Proceedings pending before the Board. Except as provided in 
    paragraph (d)(4) of this section, in the case of an alien who either 
    has a pending appeal with the Board or has a pending motion to reopen 
    or motion to reconsider timely filed with the Board on or before May 
    12, 1999, the Board shall remand, or reopen and remand, the proceedings 
    to the Immigration Court for the sole purpose of adjudicating an 
    application for adjustment of status under section 902 of HRIFA, unless 
    the alien is clearly ineligible for adjustment of status under section 
    902 of HRIFA. If the immigration judge denies, or the alien fails to 
    file, the application for adjustment of status under section 902 of 
    HRIFA, the immigration judge shall certify the decision to the Board 
    for consideration in conjunction with the applicant's previously 
    pending appeal or motion.
        (4) Administrative closure of exclusion, deportation, or removal 
    proceedings. (i) An alien who is in exclusion, deportation, or removal 
    proceedings, or who has a pending motion to reopen or a motion to 
    reconsider such proceedings filed on or before May 12, 1999, may 
    request that the proceedings be administratively closed, or that the 
    motion be indefinitely continued, in order to allow the alien to file 
    such application with the Service as prescribed in paragraph (g) of 
    this section. If the alien appears to be eligible to file an 
    application for adjustment of status under this section, the 
    Immigration Court or the Board (whichever has jurisdiction) shall, with 
    the concurrence of the Service, administratively close the proceedings 
    or continue indefinitely the motion.
        (ii) In the case of an otherwise-eligible alien whose exclusion, 
    deportation, or removal proceedings have been administratively closed 
    for reasons not specified in this section, the alien may only apply 
    before the Service for adjustment of status under this section.
        (q) Approval of HRIFA applications. (1) Applications approved by 
    the Service. If the Service approves the application for adjustment of 
    status under the provisions of section 902 of HRIFA, the director shall 
    record the alien's lawful admission for permanent residence as of the 
    date of such approval and notify the applicant accordingly. The 
    director shall also advise the alien regarding the delivery of his or 
    her Permanent Resident Card and of the process for obtaining temporary 
    evidence of alien registration. If the alien had previously been issued 
    a final order of exclusion, deportation, or removal, such order shall 
    be deemed canceled as of the date of the director's approval of the 
    application for adjustment of status. If the alien had been in 
    exclusion, deportation, or removal proceedings that were 
    administratively closed, such proceedings shall be deemed terminated as 
    of the date of approval of the application for adjustment of status by 
    the director.
        (2) Applications approved by an immigration judge or the Board. If 
    an immigration judge or (upon appeal) the Board grants an application 
    for adjustment under the provisions of section 902 of HRIFA, the date 
    of the alien's lawful admission for permanent residence shall be the 
    date of such grant.
        (r) Review of decisions by the Service denying HRIFA applications. 
    (1) Denial notification. If the Service denies the application for 
    adjustment of status under the provisions of section 902 of HRIFA, the 
    director shall notify the applicant of the decision and of any right to 
    renew the application in proceedings before the Immigration Court.
        (2) Renewal of application for HRIFA benefits in removal, 
    deportation, or exclusion proceedings. An alien who is not the subject 
    of a final order of removal, deportation, or exclusion may renew his or 
    her application for adjustment under section 902 of HRIFA during the 
    course of such removal, deportation, or exclusion proceedings.
        (i) Initiation of removal proceedings. In the case of an alien who 
    is not maintaining valid nonimmigrant status and who had not previously 
    been placed in exclusion, deportation, or
    
    [[Page 25772]]
    
    removal proceedings, the director shall initiate removal proceedings in 
    accordance with Sec. 239.1 of this chapter.
        (ii) Recalendaring or reinstatement of prior proceedings. In the 
    case of an alien whose previously initiated exclusion, deportation, or 
    removal proceeding had been administratively closed or continued 
    indefinitely under paragraph (p)(4) of this section, the director shall 
    make a request for recalendaring or reinstatement to the Immigration 
    Court that had administratively closed the proceeding, or the Board, as 
    appropriate, when the application has been denied. The Immigration 
    Court or the Board will then recalendar or reinstate the prior 
    exclusion, deportation, or removal proceeding.
        (iii) Filing of renewed application. A principal alien may file a 
    renewed application for HRIFA benefits with the Immigration Court 
    either before or after March 31, 2000, if he or she had filed his or 
    her initial application for such benefits with the Service on or before 
    March 31, 2000. A dependent of a principal applicant may file such 
    renewed application with the Immigration Court either before or after 
    March 31, 2000, regardless of when he or she filed his or her initial 
    application for HRIFA benefits with the Service.
        (3) Aliens with final orders. In the case of an alien who is the 
    subject of an outstanding final order of exclusion, deportation, or 
    removal, the Service shall refer the decision to deny the application 
    by filing a Notice of Certification (Form I-290C) with the Immigration 
    Court that issued the final order for consideration in accordance with 
    paragraph (s) of this section.
        (s) Action on decisions referred to the Immigration Court by a 
    Notice of Certification (Form I-290C). (1) General. Upon the referral 
    by a Notice of Certification (Form I-290C) of a decision to deny the 
    application, in accordance with paragraph (r)(3) of this section, the 
    immigration judge shall conduct a hearing, under the authority 
    contained in Sec. 3.10 of this chapter, to determine whether the alien 
    is eligible for adjustment of status under section 902 of HRIFA. Such 
    hearing shall be conducted under the same rules of procedure as 
    proceedings conducted under part 240 of this chapter, except the scope 
    of review shall be limited to a determination of the alien's 
    eligibility for adjustment of status under section 902 of HRIFA. During 
    such proceedings, all parties are prohibited from raising or 
    considering any unrelated issues, including, but not limited to, issues 
    of admissibility, deportability, removability, and eligibility for any 
    remedy other than adjustment of status under section 902 of HRIFA. 
    Should the alien fail to appear for such hearing, the immigration judge 
    shall deny the application for adjustment under section 902 of HRIFA.
        (2) Stay pending review. When the Service refers a decision to the 
    Immigration Court on a Notice of Certification (Form I-290C) in 
    accordance with paragraph (r)(3) of this section, the referral shall 
    not stay the execution of the final order. Execution of such final 
    order shall proceed unless a stay of execution is specifically granted 
    by the immigration judge, the Board, or an authorized Service officer.
        (3) Appeal of Immigration Court decision. Once the immigration 
    judge issues his or her decision on the application, either the alien 
    or the Service may appeal the decision to the Board. Such appeal must 
    be filed pursuant to the requirements for appeals to the Board from an 
    Immigration Court decision set forth in Secs. 3.3 and 3.8 of this 
    chapter.
        (4) Rescission or reopening of the decision of an Immigration 
    Court. The decision of an Immigration Court under paragraph (s)(1) of 
    this section denying an application for adjustment under section 902 of 
    HRIFA for failure to appear may be rescinded or reopened only:
        (i) Upon a motion to reopen filed within 180 days after the date of 
    the denial if the alien demonstrates that the failure to appear was 
    because of exceptional circumstances as defined in section 240(e)(1) of 
    the Act; or
        (ii) Upon a motion to reopen filed at any time if the alien 
    demonstrates that he or she did not receive notice of the hearing in 
    person (or, if personal service was not practicable, through service by 
    mail to the alien or to the alien's counsel of record, if any) or the 
    alien demonstrates that he or she was in Federal or State custody and 
    the failure to appear was through no fault of the alien.
        (t) Parole authorization for purposes of travel. (1) Travel from 
    and return to the United States while the application for adjustment of 
    status is pending. If an applicant for benefits under section 902 of 
    HRIFA desires to travel outside, and return to, the United States while 
    the application for adjustment of status is pending, he or she must 
    file a request for advance parole authorization on an Application for 
    Travel Document (Form I-131), with fee as set forth in Sec. 103.7(b)(1) 
    of this chapter and in accordance with the instructions on the form. If 
    the alien is either in deportation or removal proceedings, or subject 
    to a final order of deportation or removal, the Form I-131 must be 
    submitted to the Director, Office of International Affairs; otherwise 
    the Form I-131 must be submitted to the Director of the Nebraska 
    Service Center, who shall have jurisdiction over such applications. 
    Unless the applicant files an advance parole request prior to departing 
    from the United States, and the Service approves such request, his or 
    her application for adjustment of status under section 902 of HRIFA is 
    deemed to be abandoned as of the moment of his or her departure. Parole 
    may only be authorized pursuant to the authority contained in, and the 
    standards prescribed in, section 212(d)(5) of the Act.
        (2) Parole authorization for the purpose of filing an application 
    for adjustment of status under section 902 of HRIFA. 
        (i) An otherwise eligible applicant who is outside the United 
    States and wishes to come to the United States in order to apply for 
    benefits under section 902 of HRIFA may request parole authorization 
    for such purpose by filing an Application for Travel Document (Form I-
    131) with the Nebraska Service Center, at P.O. Box 87245, Lincoln, NE 
    68501-7245. Such application must be supported by a photocopy of the 
    Form I-485 that the alien will file once he or she has been paroled 
    into the United States. The applicant must include photocopies of all 
    the supporting documentation listed in paragraph (f) of this section, 
    except the filing fee, the medical report, the fingerprint card, and 
    the local police clearances.
        (ii) If the Director of the Nebraska Service Center is satisfied 
    that the alien will be eligible for adjustment of status once the alien 
    has been paroled into the United States and files the application, he 
    or she may issue an Authorization for Parole of an Alien into the 
    United States (Form I-512) to allow the alien to travel to, and be 
    paroled into, the United States for a period of 60 days.
    
    [[Page 25773]]
    
        (iii) The applicant shall have 60 days from the date of parole to 
    file the application for adjustment of status. If the alien files the 
    application for adjustment of status within that 60-day period, the 
    Service may re-parole the alien for such time as is necessary for 
    adjudication of the application. Failure to file such application for 
    adjustment of status within 60 days shall result in the alien being 
    returned to the custody of the Service and being examined as an 
    arriving alien applying for admission. Such examination will be 
    conducted in accordance with the provisions of section 235(b)(1) of the 
    Act if the alien is inadmissible under section 212(a)(6)(C) or 
    212(a)(7) of the Act, or section 240 of the Act if the alien is 
    inadmissible under any other grounds.
        (iv) Parole may only be authorized pursuant to the authority 
    contained in, and the standards prescribed in, section 212(d)(5) of the 
    Act. The authority of the Director of the Nebraska Service Center to 
    authorize parole from outside the United States under this provision 
    shall expire on March 31, 2000.
        (3) Effect of departure on an outstanding warrant of exclusion, 
    deportation, or removal. If an alien who is the subject of an 
    outstanding final order of exclusion, deportation, or removal departs 
    from the United States, with or without an advance parole 
    authorization, such final order shall be executed by the alien's 
    departure. The execution of such final order shall not preclude the 
    applicant from filing an Application for Permission to Reapply for 
    Admission Into the United States After Deportation or Removal (Form I-
    212) in accordance with Sec. 212.2 of this chapter.
        (u) Tolling the physical presence in the United States provision 
    for certain individuals. (1) Departure with advance authorization for 
    parole. In the case of an alien who departed the United States after 
    having been issued an Authorization for Parole of an Alien into the 
    United States (Form I-512), and who returns to the United States in 
    accordance with the conditions of that document, the physical presence 
    in the United States requirement of section 902(b)(1) of HRIFA is 
    tolled while the alien is outside the United States pursuant to the 
    issuance of the Form I-512.
        (2) Request for parole authorization from outside the United 
    States. In the case of an alien who is outside the United States and 
    submits an application for parole authorization in accordance with 
    paragraph (l)(2) of this section, and such application for parole 
    authorization is granted by the Service, the physical presence 
    requirement contained in section 902(b)(1) of HRIFA is tolled from the 
    date the application is received at the Nebraska Service Center until 
    the alien is paroled into the United States pursuant to the issuance of 
    the Form I-512.
        (3) Departure without advance authorization for parole. In the case 
    of an otherwise-eligible applicant who departed the United States on or 
    before December 31, 1998, the physical presence in the United States 
    provision of section 902(b)(1) of HRIFA is tolled as of October 21, 
    1998, and until July 12, 1999.
        (v) Judicial review of HRIFA adjustment of status determinations. 
    Pursuant to the provisions of section 902(f) of HRIFA, there shall be 
    no judicial appeal or review of any administrative determination as to 
    whether the status of an alien should be adjusted under the provisions 
    of section 902 of HRIFA.
    
    PART 274A--CONTROL OF EMPLOYMENT OF ALIENS
    
        13. The authority citation for part 274a continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
    
    
    Sec. 274a.12  [Amended]
    
        14. In Sec. 274a.12, paragraph (c)(9) is amended in the second 
    sentence by removing the words ``Sec. 245.13(j) of this chapter'' and 
    adding in their place the words ``Secs. 245.13(j) and 245.15(k) of this 
    chapter''.
    
    
    Sec. 274a.13  [Amended]
    
        15. In Sec. 274a.13, paragraph (d) is amended in the first sentence 
    by removing the words ``in so far as it is governed by Sec. 245.13(j) 
    of this chapter'' and adding in their place the words ``insofar as it 
    is governed by Secs. 245.13(j) and 245.15(k) of this chapter''.
    
    PART 299--IMMIGRATION FORMS
    
        16. The authority citation for part 299 continues to read as 
    follows:
    
        Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
    
        17. Section 299.1 is amended in the table by:
        a. Revising the entry for Form ``I-290C'', and by
        b. Adding the entry for Form ``I-485 Supplement C'' in proper 
    numerical sequence, to read as follows:
    
    
    Sec. 299.1  Prescribed forms.
    
    * * * * *
    
    ----------------------------------------------------------------------------------------------------------------
                      Form No.                      Edition date                          Title
    ----------------------------------------------------------------------------------------------------------------
     
          *                   *                   *                   *                   *                   *
                                                      *
    I-290C......................................          02-01-99  Notice of Certification.
     
          *                   *                   *                   *                   *                   *
                                                      *
    I-485 Supplement C..........................          04-01-99  HRIFA Supplement to Supplement C Form I-485
                                                                     Instructions.
     
          *                   *                   *                   *                   *                   *
                                                      *
    ----------------------------------------------------------------------------------------------------------------
    
        18. Section 299.5 is amended in the table by adding the entry for 
    Form ``I-485 Supplement C'' in proper numerical sequence, to read as 
    follows:
    
    [[Page 25774]]
    
    Sec. 299.5  Display of control numbers.
    
    * * * * * * *
    
    ------------------------------------------------------------------------
                                                                Currently
              INS form No.               INS form title        assigned OBM
                                                               Control No.
    ------------------------------------------------------------------------
     
          *                   *                   *                   *
              *                   *                   *
    I-485 Supplement C.............  HRIFA Supplement to           1115-0229
                                      Form I-485
                                      Instructions.
     
          *                   *                   *                   *
              *                   *                   *
    ------------------------------------------------------------------------
    
        Dated: May 6, 1999.
    Janet Reno,
    Attorney General.
    [FR Doc. 99-11954 Filed 5-11-99; 8:45 am]
    BILLING CODE 4410-10-U
    
    
    

Document Information

Published:
05/12/1999
Department:
Immigration and Naturalization Service
Entry Type:
Rule
Action:
Interim rule with request for comments.
Document Number:
99-11954
Pages:
25756-25774 (19 pages)
Docket Numbers:
INS No. 1963-98, AG Order No. 2221-99
RINs:
1115-AF33: Adjustment of Status for Certain Nationals of Haiti
RIN Links:
https://www.federalregister.gov/regulations/1115-AF33/adjustment-of-status-for-certain-nationals-of-haiti
PDF File:
99-11954.pdf
CFR: (16)
8 CFR 103.7(b)(1)
8 CFR 204.3(b)
8 CFR 103.2(e)
8 CFR 245.15(l)
8 CFR 240.1
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