96-29971. Adjustment of Status to That of Person Admitted for Permanent Residence: Interview  

  • [Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
    [Rules and Regulations]
    [Pages 59825-59827]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-29971]
    
    
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    DEPARTMENT OF JUSTICE
    8 CFR Part 245
    
    [INS No. 1373-95]
    RIN 1115-AD12
    
    
    Adjustment of Status to That of Person Admitted for Permanent 
    Residence: Interview
    
    AGENCY: Immigration and Naturalization Service, Justice.
    
    ACTION: Final rule.
    
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    SUMMARY: This final rule adopts without change an interim rule 
    published in the Federal Register by the Immigration and Naturalization 
    Service (the Service) on November 2, 1992, which allows the Service to 
    determine when interviews are needed to adjudicate applications for 
    adjustment of status to that of a lawful permanent resident alien. This 
    action is considered necessary to promote more efficient adjudications 
    and convenience to the public.
    
    EFFECTIVE DATE: December 26, 1996.
    
    FOR FURTHER INFORMATION CONTACT:
    Gerard Casale, Senior Adjudications Officer, Immigration and 
    Naturalization Service, Room 3214, 425 I Street, NW., Washington, DC 
    20536, telephone (202) 514-5014.
    
    SUPPLEMENTARY INFORMATION: 
    
    Background
    
        Section 245 of the Immigration and Nationality Act (the Act) 
    provides that the status of certain aliens in the United States may be 
    adjusted to that of lawful permanent residents at the discretion of the 
    Attorney General under such regulations as she may prescribe. This 
    process, known as adjustment of status, is governed by section 245 of 
    the Act and 8 CFR part 245. Pursuant to 8 CFR 245.6, an applicant over 
    the age of 14 is generally required to be interviewed by an officer of 
    the Service.
        On November 2, 1992, the Service published an interim rule with 
    request for public comments in the Federal Register, at 57 FR 49374-
    49375. The rule revised 8 CFR 245.6 to allow the Service to conduct 
    interviews only in cases where it determines that an interview is 
    necessary. The rule also eliminated a provision allowing interviews to 
    be waived for persons who had applied before November 20, 1990, for 
    adjustment of status under the Cuban Adjustment Act of November 2, 
    1996, since that specific provision was no longer needed.
        The interim rule became effective on November 2, 1992. Interested 
    persons were invited to submit written comments regarding the interim 
    rule on or before December 2, 1992. The Service received five written 
    comments regarding the rule. Since the closing of the period for public 
    comment, no new factors have affected the stated basis for the interim 
    rule. Meanwhile, significant increases in total application receipts 
    have underscored the need for promoting efficient use of adjudications 
    resources. The following discussion summarizes the issues involved in 
    the interview determination rule, including those raised by the 
    commenters, and the conclusions reached by the Service.
    
    Fraud
    
        Traditionally, the interview of applicants for adjustment of status 
    has been seen as an important element in the Service's ability to 
    detect and deter fraud. On that account, one commenter opposed the 
    change to selective interviewing. Citing reports indicating a 
    significant number of fraudulent marriages connected with petitions for 
    immigration benefits, he concluded that the prospect of an interview 
    deters additional persons from fraudulently claiming eligibility for 
    lawful permanent resident status. The Service shares this interest in 
    avoiding the creation of opportunities for fraud. However, the 
    conversion to select interviewing does not assure any particular 
    applicants that they will not be interviewed and does not limit the 
    Service's ability to interview a particular applicant for permanent 
    resident status. Interviews of a significant number of applicants, 
    particularly those claiming eligibility based on a recent marriage, 
    will continue. In fact, the Service intends to conduct interviews in 
    all cases in which
    
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    it is likely that the interview would disclose a basis for 
    ineligibility.
        The possibility that fraudulent claims would be increased by the 
    combination of selective interviewing and the direct mailing of 
    adjustment applications to the four service centers was another 
    consideration. A commenter suggested that service center adjudicators, 
    who do not conduct interviews, lack the experience of working on 
    suspect cases and the knowledge of fraud patterns prevalent in 
    particular localities, and therefore would be unable to identify those 
    applications for which an interview is needed. The Service's view is 
    that adjudicators at the service centers have sufficient experience and 
    training in the detection of fraudulent claims to eligibility for 
    immigration benefits and that they will continue to apply this 
    knowledge in determining when interviews are not necessary. For 
    example, when processing petitions to remove the conditions imposed on 
    persons who obtained permanent residency based on a recent marriage 
    during the past several years, the responsibility for assessing the 
    risk of fraud has been assigned to service center adjudicators, who 
    refer suspect cases to local offices for interview. Service center 
    adjudicators also recently handled a large number of applications for 
    adjustment of status under the Chinese Student Protection Act of 1992 
    in a similar manner.
    
    Impact of the Interview Determination Program on the Adjustment 
    Application Filing Fee
    
        Another issue raised by the interview determination program is 
    whether its efficiencies should result in a reduction in the current 
    fee for adjustment of status applications. One commenter reasoned that 
    a decrease in the number of interviews would result in the Service 
    spending less to process applications for adjustment of status, 
    yielding savings that should be passed to the public in the form of a 
    lower filing fee. However, the Service does not intend that the 
    elimination of some interviews will lessen the total resources devoted 
    to adjudication of applications for adjustment of status; rather, the 
    change will shift some workloads and costs from the district offices to 
    the service centers. Officer time and other resources formerly devoted 
    to interviewing clearly eligible applicants will be dedicated to 
    uncovering fraud in high-risk adjustment of status cases. Also, a 
    previously discussed, a significant number of applicants will continue 
    to be interviewed. Therefore, while the decrease in the percentage of 
    cases interviewed will benefit many applicants, the Service does not 
    expect it to change significantly the overall cost of adjudicating 
    adjustment applications.
    
    Processing Time
    
        As far as maintenance of adjudications standards allows, the 
    Service has an abiding interest in minimizing the time required to 
    complete action on adjustment of status applications. One commenter saw 
    the interim rule as an example of Service efforts to alleviate 
    adjudications backlogs and make the most of existing resources, while 
    another recommended that the Service issue a decision within 90 days of 
    receipt of the application.
        Timely adjudication of requests for benefits is a Service goal, and 
    selective waiving of interviews will allow decisions to be issued more 
    quickly in routine and non-suspect adjustment of status cases. The 
    Service has recently introduced Customer Service Standards which aim at 
    completing action on adjustment applications within a shorter time. 
    However, since some Service offices currently have heavier caseloads in 
    relation to available personnel, they may incur backlogs longer than 
    those of other offices. Caseloads are also subject to unanticipated 
    surges in the number or type of applications received. Final processing 
    may be delayed in individual cases for other reasons outside the 
    adjudicator's control, as when additional time is required to await an 
    immigrant visa priority date, the receipt of supplementary information 
    from the applicant, or the completion of an investigation regarding a 
    questionable claim.
    
    Applicant Request for Waiver of Interview
    
        A question whether there would be a procedure allowing an applicant 
    to request a waiver of the interview has been considered. The 
    determination whether an interview is necessary involves evaluation of 
    all relevant factors concerning the application, including any special 
    circumstances. However, the decision will be made on the basis of the 
    evidence of eligibility and not an applicant's desire to avoid an 
    interview. The Service cannot assure an applicant in advance that no 
    interview will be required, since information may be received which 
    discloses the need for interview of an application who initially did 
    not appear to require it. Consequently, the INS will not adopt a 
    procedure to entertain advance requests to waive the interview.
    
    The Selection of Cases
    
        Each adjustment of status application will be reviewed on a case-
    by-case basis to determine whether an interview is needed. The Service 
    will monitor fraud trends and the use of the interview determination 
    provision to provide guidelines for adjudicators.
        Concern was expressed as to how the interview determination 
    decision would be reached, particularly if it would result in 
    interviews being called merely to address minor documentary 
    deficiencies. A minor deficiency is not, in itself, an indicator of 
    fraud. The Service does not plan to interview an applicant solely 
    because he or she neglected to submit a document which can be more 
    easily requested and submitted by mail.
        A commenter suggested that the Service adopt a nationwide list of 
    specified adjustment application categories which, in her opinion, 
    presented a low risk of fraud and yet were consuming nearly half of the 
    staff time devoted to adjustment interviews in a large district office; 
    the time freed by waiving interviews of such cases could then be re-
    directed to fraud deterrence and reduction of the waiting time for 
    processing applications. The Service recognizes that at any point in 
    time there are categories of applications which pose a generally lower 
    risk of fraud than others. However, it does not follow that the rule 
    must be altered on that account. A regulation prescribing fixed 
    categories of applications for which interviews must be waived would 
    hamper the Service's flexibility in adjusting to changes in fraud 
    profiles and caseloads. The existing rule, which neither specifies nor 
    limits the types of adjustment cases on which the interview 
    determination may be made, affords the Service and its adjudicating 
    offices the widest freedom of action to balance local needs and 
    priorities.
    
    Regulatory Flexibility Act
    
        The Commissioner of the Immigration and Naturalization Service, in 
    accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
    reviewed this regulation and, by approving it, certifies that the rule 
    will not have a significant economic impact on a substantial number of 
    small entities because of the following factors: This rule merely 
    adopts as final an interim rule which has been in effect since November 
    2, 1992. By removing the interview requirement, the rule has eliminated 
    an inconvenience to a number of individual applicants for adjustment of 
    status who otherwise would have been required to appear in
    
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    person at a Service office to be interviewed by an immigration 
    examiner. This rule does not have impact on small entities.
    
    Executive Order 12866
    
        This rule is not considered by the Department of Justice, 
    Immigration and Naturalization Service, to be a ``significant 
    regulatory action'' under Executive Order 12866, section 3(f), 
    Regulatory Planning and Review, and the Office of Management and Budget 
    has waived its review process under section 6(a)(3)(A).
    
    Executive Order 12612
    
        The regulations adopted herein will not have substantial direct 
    effects on the States, on the relationship between the National 
    Government and the States, or on the distribution of power and 
    responsibilities among the various levels of government. Therefore, in 
    accordance with Executive Order 12612, it is determined that this rule 
    does not have sufficient federalism implications to warrant the 
    preparation of a Federalism Assessment.
    
    List of Subjects in 8 CFR Part 245
    
        Aliens, Immigration, Reporting and recordkeeping requirements.
    
        Accordingly, the interim rule amending 8 CFR part 245 which was 
    published at 57 FR 49374-49375 on November 2, 1992, is adopted as a 
    final rule without change.
    
        Dated: October 28, 1996.
    Doris Meissner,
    Commissioner, Immigration and Naturalization Service.
    [FR Doc. 96-29971 Filed 11-22-96; 8:45 am]
    BILLING CODE 4410-10-M
    
    
    

Document Information

Effective Date:
12/26/1996
Published:
11/25/1996
Department:
Justice Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
96-29971
Dates:
December 26, 1996.
Pages:
59825-59827 (3 pages)
Docket Numbers:
INS No. 1373-95
RINs:
1115-AD12: Adjustment of Status to That of Person Admitted for Permanent Residence: Interview
RIN Links:
https://www.federalregister.gov/regulations/1115-AD12/adjustment-of-status-to-that-of-person-admitted-for-permanent-residence-interview
PDF File:
96-29971.pdf
CFR: (1)
8 CFR 245