[Federal Register Volume 62, Number 205 (Thursday, October 23, 1997)]
[Rules and Regulations]
[Pages 55152-55154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28147]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 245
[EOIR No. 119 I; A.G. ORDER No. 2120-97]
RIN 1125-AA20
Executive Office for Immigration Review; Adjustment of Status to
That of Person Admitted for Permanent Residence
AGENCY: Executive Office for Immigration Review, Immigration and
Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the date by which aliens must file
and pay for their applications for adjustment of status pursuant to
section 245(i) of the Immigration and Nationality act. Such
applications are adjudicated by the Executive Office for Immigration
Review, including the Board of Immigration Appeals and the Immigration
Courts, or the Immigration and Naturalization Service. This rule also
clarifies the procedure for paying for such adjustment applications
when filed in conjunction with motions to reopen or reconsider.
DATES: Effective Date: This rule is effective October 23, 1997.
Comment Date: Written comments must be received on or before
December 22, 1997.
ADDRESSES: Please submit written comments to Margaret M. Philbin,
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2400, Falls Church, Virginia, 22041.
FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2400,
[[Page 55153]]
Falls Church, Virginia, 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION: On August 26, 1994, Congress enacted the
Department of Commerce, Justice, State, and the Judiciary and Related
agencies Appropriations Act of 1995, Pub. L. 103-317. Section 506(b) of
this law added a new section 245(i) to the Immigration and Nationality
Act (the Act) which allows certain persons already in the United States
to adjust status, despite the provisions of section 245 (a) and (c) of
the Act, upon payment of a fee in addition to the base filing fee for
an adjustment of status application.
On July 23, 1997, the Immigration and Naturalization Service
(Service) published an interim rule with request for comments (62 FR
39417) concerning adjustment of status applications filed pursuant to
section 245(i) of the Act. The supplementary information to the interim
rule reiterated that the provisions of section 245(i) apply only to
applications filed on or after October 1, 1994, and before October 1,
1997. See section 506(c) of Pub. L. 103-317. However, timely filed
applications may still be adjudicated after September 30, 1997. On
September 30, 1997, the Executive Office for Immigration Review
published a similar rule (62 FR 50999) that enabled the Executive
Office for Immigration Review to complete adjudication of timely filed
section 245(i) adjustment applications after September 30, 1997.
This program was due to terminate on October 1, 1997. However, on
September 30, 1997, Congress extended the program until October 23,
1997. This interim rule reflects that applications filed subsequent to
October 1, 1994, and prior to October 23, 1997 or any other such date
as Congress may determine in an extension of section 245(i) of the Act,
will be adjudicated to completion by an officer of the service or EOIR.
This interim rule makes it clear that the Service and EOIR may
consider a motion to reopen or reconsider an application for adjustment
of status on the basis of section 245(i) of the Act if the applicant
submitted a copy of the application for adjustment of status, a copy of
Supplement A to Form I-485, and any other required documentation on or
after October 1, 1994, and before October 23, 1997, or any other such
date as Congress may determine in an extension of section 245(i) of the
Act. However, in order to receive the benefit of a motion to reopen or
reconsider that has been granted, the applicant must have remitted to
the Immigration and Naturalization Service any additional sum required
by section 245(i) (the additional sum is currently $1,000) before
October 23, 1997, or any other such date as Congress may determine in
an extension of this provision. This procedure is different from the
procedures previously in effect for filing motions to reopen or
reconsider with EOIR and which continue to apply to all other motions
filed with EOIR. Those individuals who have properly filed motions to
reopen or reconsider in order to apply for adjustment of status under
section 245(i) but who have not yet paid the required fee, or those
individuals whose motions have been granted in the past but who have
not yet paid the required fee, must now pay that fee with the
Immigration and Naturalization Service before October 23, 1997 or any
other such date as Congress may determine in an extension of this
provision.
The implementation of this rule as an interim rule, with immediate
effect, and with provisions for post-promulgation public comment, is
based upon the ``good cause'' exceptions found at 5 U.S.C. 553b (B) and
(d)(3). Immediate implementation of this rule will ensure that all
applicants for adjustment of status under section 245(i) are aware of
the extended application period and the revised procedures for paying
the application fee when submitting a motion to reopen or reconsider.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule affects only those aliens who are applying to adjust
their status under section 245(i) of the Immigration and Nationality
Act. Therefore, this rule does not have a significant economic impact
on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
The Attorney General has determined that this rule is not a
significant regulatory action under Executive Order No. 12866 and,
accordingly, this rule has not been reviewed by the Office of
Management and Budget.
Executive Order 12612
This rule has no federalism implications warranting the preparation
of a Federalism Assessment in accordance with Executive Order No.
12612.
Executive Order 12988, Civil Justice Reform
The rule meets the applicable standards provided in sections 3(a)
and 3(b)(2) of Executive Order No. 12988.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, part 245 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
1. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1255; 8 CFR part 2.
2. In Sec. 245.10, paragraphs (c), (d), and (f) are revised to read
as set forth below:
3. In Sec. 245.10, paragraph (e) is amended in the last sentence by
removing the reference to ``October 1, 1997'' and replacing it with
``October 23, 1997 or any other such date as Congress may determine in
an extension of section 245(i)''.
Sec. 245.10 Adjustment of status upon payment of additional sum under
Public Law 103-317.
* * * * *
(c) Application period. The Service or the Executive Office for
Immigration Review may approve an application for adjustment of status
pursuant to section 245(i) of the Act if such application was filed
either on or after October 1, 1994, and before October 23, 1997 or any
other such date as Congress may determine in an extension of section
245(i). If an alien attempts to file an adjustment of status
application under the provisions of section 245(i) outside
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of this time period, the Service will accept the application and base
filing fee, as set forth in Sec. 103.7(b)(1) of this chapter, return
the additional sum of $1,000 to the alien, and either the Service or
the Executive Office for Immigration Review will adjudicate the
application pursuant to section 245(a) of the Act. If the alien, in
such a case, is not eligible for adjustment of status, either the
Service will issue a written notice advising the alien of the denial of
the application for adjustment of status, or the Executive Office for
Immigration Review will deny the application for adjustment of status.
(d) Adjustment application filed on or after October 1, 1994, dated
before October 23, 1997 or any other such date as Congress may
determine in an extension of this provision, without Supplement A to
Form I-485 and additional sum. An adjustment of status applicant will
be allowed the opportunity to amend an adjustment of status application
filed in accordance with Sec. 103.2 of this chapter on or after October
1, 1994, and before October 23, 1997 or any other such date as Congress
may determine in an extension of section 245(i) of the Act, in order to
request consideration under the provisions of section 245(i), if it
appears that the alien is not otherwise ineligible for adjustment of
status. If the application for adjustment of status is pending before
the Service, the Service shall notify the applicant in writing of the
Service's intent to deny the adjustment of status application, and any
other requests for benefits that derive from the adjustment
application, unless Supplement A to Form I-485 and any required
additional sum is filed within 30 days of the date of the notice. If
the application for adjustment of status is pending before the
Executive Office for Immigration Review, the Executive Office for
Immigration Review will deny the application and permit the applicant
to file a motion to reopen in accordance with Secs. 3.2(c) and 3.23 of
this chapter along with proof of payment to the Immigration and
Naturalization Service of the additional sum within 30 days of the
denial.
* * * * *
(f) Completion of processing of pending applications. (1) An
application for adjustment of status filed on or after October 1, 1994,
and before October 23, 1997 or any other such date as Congress may
determine in an extension of section 245(i) of the Act, shall be
adjudicated to completion by an officer of the Service or by the
Executive Office for Immigration Review, regardless of whether the
final decision is made after the termination of this program. The
provisions of paragraph (d) of this section regarding amended
applications shall apply to all such applications. The Service or the
Executive Office for Immigration Review may consider a motion to open
or reconsider an application for adjustment of status on the basis of
section 245(i) if the applicant submitted a copy of the application for
adjustment of status, a copy of Supplement A to Form I-485, and any
other required documentation on or after October 1, 1994, and before
October 23, 1997 or any other such date as Congress may determine in an
extension of section 245(i). However, in order to receive the benefit
of a motion to reopen or reconsider that has been granted, the
applicant must have remitted to the Immigration and Naturalization
Service before October 23, 1997 or any other such date as Congress may
determine in an extension of section 245(i), any additional sum
required by section 245(i). Even if a motion to reopen or reconsider is
granted, failure to pay the additional sum to the Immigration and
Naturalization Service before October 23, 1997 or any other such date
as Congress may determine in an extension of 245(i) will result in the
ultimate denial of the application for adjustment of status.
(2) Any application for adjustment of status submitted pursuant to
section 245(i) and considered in deportation or removal proceedings
must be filed between October 1, 1994, and October 23, 1997 or any
other such date as Congress may determine in an extension of section
245(i).
* * * * *
Dated: October 18, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-28147 Filed 10-20-97; 4:16 pm]
BILLING CODE 4410-10-M
