[Federal Register Volume 60, Number 202 (Thursday, October 19, 1995)]
[Rules and Regulations]
[Pages 54027-54030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25931]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 60, No. 202 / Thursday, October 19, 1995 /
Rules and Regulations
[[Page 54027]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1602-92]
Classification of Certain Scientists of the Commonwealth of
Independent States of the Former Soviet Union and the Baltic States as
Employment-Based Immigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with requests for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service
(``the Service'') regulations by revising the procedures which
establish eligibility of certain scientists and engineers from the
former Soviet Union for permanent residence under the Soviet Scientists
Immigration Act of 1992. This rule is necessary to clearly identify
those scientists who qualify under that law for permanent resident
status, thereby preventing their migration into the employ of hostile
governments seeking to develop weapons that can threaten the world's
security.
DATES: This interim rule is effective October 19, 1995. Written
comments must be submitted on or before December 18, 1995.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536, Attn: Public Comment Clerk. To ensure proper handling, please
reference INS number 1602-92 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT:
Michael Straus, Senior Adjudications Officer, Immigration and
Naturalization Service, Room 3214, 425 I Street NW., Washington, DC
20536, telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION: The Soviet Scientists Immigration Act of
1992 (SSIA), Public Law 102-509, dated October 24, 1992, provides that
up to 750 immigrant visas may be allotted under section 203(b)(2)(A) of
the Immigration and Nationality Act (Act) to eligible scientists of the
independent states of the former Soviet Union and the Baltic states, by
virtue of their expertise in nuclear, chemical, biological or other
high-technology fields or their current work on nuclear, chemical,
biological or other high-technology defense projects. The provisions of
the SSIA will terminate on October 24, 1996, or when the Immigration
and Naturalization Service has approved a total of 750 petitions on
behalf of eligible scientists, whichever date is earlier.
This rule amends Sec. 204.10 which was added by an interim rule,
published in the Federal Register on May 27, 1993, at 58 FR 30699-
30701. This rule establishes petitioning procedures and eligibility
requirements for obtaining SSIA benefits. The Service has concluded
that revisions of the previous interim rule are necessary to improve
the visa petition process, thereby furthering the goal of preventing
hostile governments from employing these scientists with expertise in
weapons of mass destruction. The amendments introduced in this rule
reflect not only the written comments received during the comment
period which ended on June 28, 1993, but also comments offered
afterward by private parties and discussions with government officials
interested or involved in the adjudication of petitions under the
previous interim rule. Because these revisions introduce significant
changes in the previous interim rule, the Service is soliciting public
comments. The revisions developed in response to particular issues as
well as a discussion of the public comments are summarized and
discussed below.
Jurisdiction Over an SSIA Petition
One commenter suggested that scientists who leave the territory of
the former Soviet Union after the SSIA's enactment should be allowed to
apply directly for an SSIA immigrant visa at any U.S. embassy or
consulate abroad, without Service approval of a petition, and also be
granted an automatic waiver of travel document requirements. A U.S.
Embassy or consulate, which is under the authority of the Secretary of
State, has no authority to adjudicate an SSIA petition. Under section 4
of the SSIA, the Attorney General has the exclusive responsibility for
adjudicating SSIA visa petitions; this authority has not been delegated
to the Secretary of State. The decision to waive documentary
requirements is wholly within the discretion of the Embassy or
consulate where the immigrant visa application is pending.
The legislative history indicates that the SSIA was intended ``to
speed the process and remove existing obstacles'' with respect to the
immigration of qualified scientists from the former Soviet Union. See
Statement of Senator Brown in 138 Cong. Rec. S1249 (daily ed. Feb. 6,
1992). The interim rule allowed applicants, who were in the United
States and eligible to apply for adjustment of status under section 245
of the Act, the option of filing Form I-140, Immigrant Petition for
Alien Worker, concurrently with Form I-485, Application to Register for
Permanent Residence or Adjust Status, either at a service center, or at
the local district office having jurisdiction over the alien
applicant's place of residence in the United States.
Since the interim rule has been in effect, service centers have
been able to promptly adjudicate SSIA petitions. By handling greater
numbers of these specialized cases than district offices, the service
centers have developed expertise in adjudicating these petitions. This
expertise has enabled them to promptly determine whether the alien has
a bonafide claim to SSIA benefits. The service centers are also better
equipped to capture and report required data concerning the number of
approved SSIA petitions. By centralizing the adjudication of SSIA
petitions at service centers, the Service can achieve enhanced
coordination with other government agencies which may have pertinent
information related to a petition. Accordingly, this interim rule
provides that the service centers will adjudicate all SSIA petitions,
unless specifically designated for local filing by
[[Page 54028]]
the Associate Commissioner for Examinations.
Definition of Eligible Scientist
One commenter objected to the requirement in the interim rule that
the alien establish exceptional ability in the field, contending that
the SSIA does not require a showing of exceptional ability. Section
4(a) of the SSIA provides that ``the Attorney General shall designate a
class of * * * scientists, based on their level of expertise, as aliens
who possess `exceptional ability' in the sciences for purposes of
section 203(b)(2)(A) of the Act.'' Although, as noted by the commenter,
section 4(a) of the SSIA allows allocation of visa numbers from the
employment-based second category, it also refers to the ``level of
expertise'' relating to exceptional ability. The language of section
4(a) of the SSIA plainly requires exceptional ability in the sciences,
as determined by the alien's field of expertise. As noted in the
previous interim rule, because these scientists constitute a
specialized group, the criteria to establish exceptional ability is
limited. If an SSIA applicant satisfies the evidentiary criteria in 8
CFR 204.10(e)(2), he or she meets the exceptional ability requirement.
Two commenters asserted that the interim rule should be expanded to
include aliens involved in non-defense projects and that eligibility
should not be limited to scientists with expertise related to a defense
project. Section 2(3)(B) of the SSIA defines eligible scientists as
those who have expertise either in nuclear, chemical, biological, or
other high technology fields, or who are working on nuclear, chemical,
biological, or other high-technology defense projects. The previous
interim rule provided that the petitioner present evidence that the
alien has expertise in the specific field as it relates to a defense
project. The Service agrees that the rule should be clarified to
reflect that the expertise need not be related to a specific defense
project, as long as the expertise is in nuclear, chemical, biological,
or other high-technology defense fields having clear application to
weapons of mass destruction. However, as mentioned in the preamble to
the previous interim rule, the SSIA and the legislative history clearly
indicate that not every scientist from the former Soviet Union is meant
to benefit from this provision. Senator Brown stated that the SSIA
covers those scientists who ``have specialized in weapons of mass
destruction.'' See 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992). The
phrase ``expertise in other high technology fields'' in the previous
interim rule may have been misin- terpreted. Congress intended to limit
eligibility under the SSIA to scientists or engineers having expertise
clearly applicable to the development or use of weapons of mass
destruction. For example, a scientist who, in the course of conducting
medical research, has developed a bio-chemical agent which can be used
in biological warfare may, under center circumstances, be able to
establish eligibility for classification under the SSIA. On the other
hand, a nuclear power plant engineer who cannot clearly demonstrate the
requisite statutory expertise would be ineligible for SSIA
classification. This interim rule will, therefore, be amended to
clarify these matters. This rule amends the definition of eligible
independent states and Baltic scientists to include scientists or
engineers who have expertise in a high-technology field which is
clearly applicable to the design, development, and production of
ballistic missiles, nuclear, biological, chemical, or other high-
technology weapons of mass destruction, or who are working on, the
design, development, and production of ballistic missiles, nuclear,
biological, chemical, or other high-technology weapons of mass
destruction.
One commenter suggested that the definition under Sec. 204.10(d)
should include scientists involved in research related to the design,
development, and production of ballistic missiles. The commenter was of
the opinion that the inclusion of the word ``research'' would help to
prevent Service adjudicators from interpreting the qualifying
activities as being exclusive. The original interim rule cites ``the
design, development, and production of ballistic missiles'' as an
example of the expertise possessed by the intended beneficiaries of
this legislation; namely, ``scientists who have specialized in
developing weapons of mass destruction.'' That example, however, is not
an exclusive test for eligibility. Neither the May 27, 1993, interim
rule nor this interim rule would deny SSIA benefits to a scientist
whose work has clear applicability to the development of such weapons,
whether that work is characterized as ``research,'' ``design,'' or any
other appropriate term.
Another commenter was of the opinion that requiring supporting
testimony from recognized experts is impractical because the defense
industry in the former Soviet Union remains shrouded in secrecy and
persons may face sanctions for revealing information on defense-related
projects. According to several commenters and representatives of
interested government agencies, some scientists who are most qualified
for the benefits of the SSIA currently live under constraints of
censorship which hinder them from submitting full documentation of
their qualifications, or from procuring testimonials from qualified
authorities in their countries.
In order to provide additional opportunities for qualified
scientists who may be unable to obtain the necessary written testimony
from experts, this rule allows for consultation with other government
agencies having expertise in defense matters. The applicant must submit
a statement as to how he or she qualifies under the SSIA. In evaluating
the claimed qualifications of beneficiaries in such circumstances, the
Service may consult other United States Government agencies having
expertise in defense matters including, but not limited to, the
Department of Defense, the Department of State, and the Central
Intelligence Agency. In these cases the Service may, in the exercise of
administrative discretion, accept a favorable report in lieu of the
documentation prescribed in Sec. 204.10(e)(2) (ii) or (iii).
The previous interim rule at Sec. 204.10(e)(2) prescribed certain
documentation to establish a beneficiary's qualifications for
classification under the SSIA. The required documentation included
written testimony regarding the alien's qualifications from either two
recognized national or international experts in the same field or from
an official of an agency of the United States Government. Two
commenters found this documentary requirement to be excessively
restrictive. One commenter suggested that the rule be revised to allow
an applicant to submit an opinion from any credible, competent witness,
such as a university professor or an individual from private industry
who is an expert in the field, or other documentary evidence, such as a
true copy of the alien's university diploma, evidence of secret
clearance from the former Soviet Government, or a detailed declaration
by the alien. The Service does not agree with the recommendation that
the documentary requirements should be relaxed. In adjudicating SSIA
visa petitions, the service has identified certain problems which need
to be addressed to ensure that only qualified scientists are approved
under the SSIA. Among other things, the current economic difficulties
confronting weapons systems scientists of the former Soviet Union also
affect much larger numbers of aliens who are not qualified under the
SSIA. The Service has received written statements submitted on behalf
of unqualified
[[Page 54029]]
individuals which, on their face, indicate that the alien has expertise
in nuclear, biological, chemical, or other fields involving weapons of
mass destruction. Therefore, additional evidence is required. One
commenter suggested that the ``Trudavaya Knizhka,'' an official work
document from the former Soviet Union which summarizes one's work
experience, be considered acceptable evidence. The Service agrees that
the ``Trudavaya Knizhka'' is an important and relevant document. In
addition, the applicant should present other relevant documentation,
such as evidence of significant awards or publications. This interim
rule requires the alien to submit the ``Trudavaya Knizhka,'' evidence
of significant awards or publications, and other comparable evidence.
If the alien lacks any of these documents, he or she must explain why
they are not available.
This rule also regularizes the processing of requests made to
United States Government agencies for written testimonials and enhances
the reliability of endorsements issued by government agencies. This
rule provides that the authority of a United States Government agency
to issue endorsements regarding a Soviet scientist's qualifications is
vested in the agency's ``head or duly appointed designee.'' The
authority to make certifications under this provision is presumed to be
vested exclusively in the agency head, unless that agency notifies the
Commissioner of the Immigration and Naturalization Service in writing
of other officials to whom that authority has been delegated. Each
agency that chooses to participate in this program retains the right to
determine its own review procedures.
Because the SSIA waives the job offer requirement in section
203(b)(2)(A) of the Act, the Service determined that the labor
certification requirement is also waived in the case of an eligible
scientist. To properly identify eligible scientists, the Service
requires an orderly statement of their qualifications. The information
contained in Part B of the Department of Labor Form ETA 750,
Application for Alien Employment Certification, which lists the alien's
qualifications and experience, will clarify and expedite the
adjudication of an SSIA petition. The petition shall also include a
supplementary statement of the beneficiary's relevant experience within
the past 10 years. The Form ETA 750 Part B can be prepared either by
the alien or by the petitioner.
Numerical Ceiling
Section 4(c) of the SSIA provides that no more than 750 petitions
may be approved on behalf of eligible scientists. The Service may not,
therefore, accept additional petitions under the SSIA if the ceiling of
750 principal beneficiaries has been reached prior to October 25, 1996.
Accordingly, the language of Sec. 204.10(a) is amended to clarify this
matter.
All of the visa numbers issued to the scientists and to their
spouses and children under the SSIA are being deducted from the
employment-based immigrant visa quota under section 203(b)(2) of the
Act. A number of commenters and Service field offices have expressed
concern as to the method by which the numbers of immigrant visas issued
under this provision will be counted for recordation. In order to
enable the Service to count the number of visas allotted to the
principal scientist beneficiaries under this law, a new immigrant visa
code has been developed for them: ES1 in the case of a scientist
admitted from abroad, and ES6 in the case of a scientist who adjusted
status in the United States. Spouses and unmarried children of SSIA
beneficiaries will be classified as accompanying or following to join
under the employment-based second preference.
Termination Date
Section 4(d) of the SSIA states that the authority of subsection
(a), under which the Attorney General designates a class of scientists
from the former Soviet Union for purposes of section 203(b)(2)(A) of
the Act, terminates 4 years after enactment of the SSIA. The authority
to designate the class, therefore, expires on October 24, 1996. Under
the language of section 4(d) of the SSIA, the authority to classify a
qualified Soviet scientist terminates on that date. The Service may
grant an applicant SSIA classification only upon approval of the I-140
petition.
The original interim rule provided that an SSIA applicant meets the
statutory deadline by filing a petition on or before October 24, 1996.
As noted above, the statute requires the applicant to receive SSIA
classification before that date. Accordingly, this interim rule
requires that the applicant must have an SSIA petition approved on his
or her behalf on or before October 24, 1996.
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based upon the
``good cause'' exception found at 5 U.S.C. 553(d)(3). The reasons and
the necessity for the immediate implementation of this interim rule are
as follows: The national security considerations which were discussed
in the May 27, 1993, interim rule at 58 FR 30700, apply equally to this
rule. This grave economic and military situation in the former Soviet
Union continues to raise concerns that some of the leading scientists
of the former Soviet Union may be driven ``to market their skills to
unscrupulous nations bent on developing weapons that can threaten the
world's security.'' See 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992).
The changes established in this rule, based on the Service's experience
in adjudicating SSIA petitions, are necessary to ensure that the goals
of the SSIA will be accomplished. In addition, the approaching
termination date for benefits under the SSIA increases the urgency of
implementing this rule to expedite the timely filing and adjudication
of such cases before the statute expires.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not, if promulgated, have a significant adverse economic impact on a
substantial number of small entities. This rule merely modifies
existing regulations concerning the immigration of up to 750 scientists
from the former Soviet Union. It will not significantly change the
number of persons who immigrate to the United States. Any impact on
small business entities will be, at most, indirect and attenuated.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waive its review process under section 6(a)(3)(A).
Executive Order 12612
This 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 Federal
Assessment.
Executive Order 12606
The Commissioner of Immigration and Naturalization Services
certifies that she has assessed this rule in light of the criteria in
Executive Order 12606
[[Page 54030]]
and has determined that it will have no effect on family well-being.
This rule contains information collection requirements which have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5, display of control
numbers.
List of Subjects in 8 CFR Part 204
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, part 204 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
2.Section 204.10 is amended by:
a. Removing the last two sentences in paragraph (a) and adding a
new sentence in their place;
b. Revising paragraph (b);
c. Revising paragraph (d);
d. Revising paragraph (e)(2);
e. Redesignating paragraph (g) as paragraph (h);
f. Adding a new paragraph (g); and by
g. Revising newly redesignated paragraph (h) to read as follows:
Sec. 204.10 Petitions by, or for, certain scientists of the
Commonwealth of Independent States or the Baltic states.
(a) General. * * * The Service must approve a petition filed on
behalf of the alien on or before October 24, 1996, or until 750
petitions have been approved on behalf of eligible scientists,
whichever is earliest.
(b) Jurisdiction. Form I-140 must be filed with the service center
having jurisdiction over the alien's place of intended residence in the
United States, unless specifically designated for local filing by the
Associate Commissioner for Examinations. To clarify that the petition
is for a Soviet scientist, the petitioner should check the block in
part 2 of Form I-140 which indicates that the petition is for ``a
member of the professions holding an advanced degree or an alien of
exceptional ability'' and clearly print the words ``SOVIET SCIENTIST''
in an available space in Part 2.
* * * * *
(d) Definitions. As used in this section:
Baltic states means the sovereign nations of Latvia, Lithuania, and
Estonia.
Eligible independent states and Baltic scientists means aliens:
(i) Who are nationals of any of the independent states of the
former Soviet Union or the Baltic states; and
(ii) Who are scientists or engineers who have expertise in a high-
technology field which is clearly applicable to the design,
development, or production of ballistic missiles, nuclear, biological,
chemical, or other high-technology weapons of mass destruction, or who
are working on the design, development, and production of ballistic
missiles, nuclear, biological, chemical, or other high-technology
weapons of mass destruction.
Independent states of the former Soviet Union means the sovereign
nations of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and
Uzbekistan.
(e) * * *
(2) Evidence that the alien possesses exceptional ability in the
field. Such evidence shall include:
(i) Form ETA 750B, Statement of Qualifications of Alien and a
supplementary statement of relevant experience within the past ten
years; and
(ii) Written testimony that the alien has expertise in a field
described in paragraph (d) of this section, or that the alien is or has
been working on a high-technology defense project or projects in a
field described in paragraph (d) of this section, from either two
recognized national or international experts in the same field or from
the head or duly appointed designee of an agency of the Federal
Government of the United States; and
(iii) Corroborative evidence of the claimed expertise, including
the beneficiary's official Labor Record Book (Trudavaya Knizhka), any
significant awards and publications, and other comparable evidence, or
an explanation why the foregoing items cannot be submitted; or
(iv) In the case of a qualified scientist who establishes that he
or she is unable to submit the initial evidence prescribed by
paragraphs (e)(2) (ii) or (iii) of this section, a full explanation and
statement of the facts concerning his or her eligibility. This
statement must be sufficiently detailed so as to enable the Service to
meaningfully consult with other government agencies as provided in
paragraph (g) of this section.
* * * * *
(g) Consultation with other United States Government agencies. In
evaluating the claimed qualifications of applicants under this
provision, the Service may consult with other United States Government
agencies having expertise in defense matters including, but not limited
to, the Department of Defense, the Department of State, and the Central
Intelligence Agency. The Service may, in the exercise of discretion,
accept a favorable report from such agency as evidence in lieu of the
documentation prescribed in paragraphs (e)(2) (ii) and (iii) of this
section.
(h) Decision on and disposition of petition. If the beneficiary is
outside of the United States, or is in the United States but seeks to
apply for an immigrant visa abroad, the approved petition will be
forwarded by the service center to the Department of State's National
Visa Center. If the beneficiary is in the United States and seeks to
apply for adjustment of status, the approved petition will be retained
at the service center for consideration with the application for
adjustment of status. If the petition is denied, the petitioner will be
notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR part 103.
Dated: August 24, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-25931 Filed 10-18-95; 8:45 am]
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