[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6707-6708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3589]
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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: 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 October 19, 1995, that allows certain
scientists and engineers from the former Soviet Union to apply for
permanent residence under the Soviet Scientist Act of 1992. This is
necessary to clearly identify those scientists who qualify for
permanent resident status under the Soviet Scientists Immigration Act
of 1992.
EFFECTIVE DATE: February 13, 1997.
FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Adjudications Officer, Immigration and
Naturalization Service, Room 3214, 425 I Street NW., Washington, DC
20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
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 terminated
on October 24, 1996.
On October 19, 1995, at 60 FR 54027-30, the Service published an
interim rule with request for comments in the Federal Register. The
October 19, 1995, interim rule revised a previous interim rule
published on May 27, 1993, at 58 FR 30699-701, on the ground that
revisions in the previous interim rule were necessary to improve the
visa petition process, and responded to written comments submitted in
response to the May 27, 1993, interim rule. Interested persons were
invited to submit written comments on or before December 18, 1995 to
the October 19, 1995, interim rule. The Service received one comment.
Comments
The following discussion summarizes the issues which have been
raised relating to the interim rule and provides the Service's position
on the issues.
Termination
The interim rule provides that the Service must approve an SSIA
petition on or before October 24, 1996, or when the Service has
approved a total of 750 petitions on behalf of eligible scientists,
whichever date is earlier. See 8 CFR 204.10(a). The commenter contended
that the Service's requirement that a visa petition filed under the
SSIA be approved on or before October 24, 1996, would result in
inequities due to the difference in processing times among the service
centers. The SSIA, however, states that the Attorney General's
authority to designate a class of eligible scientists from the former
Soviet Union for purposes of section 203(b)(2)(A) of the Act terminates
4 years after the enactment date of the SSIA. The Service, therefore,
has no authority to approve an SSIA petition after October 24, 1996.
Jurisdiction
The 1995 interim rule states that SSIA applicants must file the
petition at a service center. The commenter objected, arguing that such
a procedure could delay the petitioner's ability to obtain employment
authorization and adjustment of status. The commenter suggested that,
after a combined filing of an I-40 petition (for SSIA classification)
and an I-485 application for adjustment of status at a local office,
the I-140 petition could be forwarded to a service center for
adjudication. The commenter contended that this would allow SSIA
applicants to apply immediately for employment authorization and, thus,
attract more qualified scientists from the former Soviet Union.
As noted in the interim rule, the Service has determined that
centralizing the adjudication of SSIA petitions at service centers
would enhance coordination with other government agencies in
adjudicating these petitions. In addition, centralized adjudication
makes sense in light of the expertise developed by the service centers
in adjudicating these types of petitions. The Service believes that the
SSIA has already created a sufficiently powerful inducement for
qualified scientists to immigrate to the United States by waiving the
job offer, labor certification, and minimum eligibility requirements
under section 203(b)(2) of the Act. The fact that, under the interim
rule, SSIA applicants who are present in the United States must have an
approved SSIA petition before becoming eligible to apply for adjustment
of status, and thus, for employment authorization under 8 CFR
274.a.12(c)(9), has little, if any, impact on the basic attractiveness
of the SSIA to qualified scientists. Moreover, the provision requiring
adjudication of SSIA petitions at service centers would have no effect
on SSIA petitioners who are not present in the United States.
Accordingly, no change will be made in the final rule.
Definition of Eligible Scientist
The interim rule amended the definition of eligible scientists and
engineers to include those 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. See 8
CFR 204.10(d). The previous rule defined eligible scientist or
engineers as those who have expertise in nuclear, chemical, biological,
or other high technology fields. The commenter argued that the
[[Page 6708]]
insertion of the term ``weapons of mass destruction'' in place of the
term ``defense projects'' used in the statute limits the SSIA
applicant's work experience to a specific type of weaponry not
enumerated in the statute and is, therefore, ultra vires. The commenter
further contended that the statute states that either expertise or
experience with military-related projects in the former Soviet Union
qualify a scientist or engineer for SSIA benefits.
Section 2(3)(B) of the SSIA, in part, defines eligible scientists
as scientists or engineers who have expertise in nuclear, chemical,
biological, or other high technology fields or who are working on
nuclear, chemical, biological, or other high-technology defense
projects, or are working on nuclear, chemical, biological, or other
high-technology defense projects, as defined by the Attorney General.
In the interim rule, the Service, employing the Attorney General's
express authority to define eligible scientists, modified the
definition to reflect that the expertise need not be related to a
specific defense project if the expertise was in a field which could be
applied to the development of weapons of mass destruction. As discussed
in the preamble to the interim rule, this modification was necessary to
clarify Congress' intent to include in the SSIA those scientists who
``have specialized in weapons of mass destruction.'' See 60 FR 54028,
citing 138 Cong. Rec. S1249 (daily ed. Feb. 6, 1992). Accordingly, the
Service will not change the definition of eligible scientists.
The commenter also criticized the Service from requiring any
letters from United States Government agencies be from the head of the
agency or a duly appointed designee. See 8 CFR 204.10(e)(2)(ii). The
commenter argued that this provision narrows the pool of experts
available to an applicant and makes it more difficult to obtain a
letter from a Government agency. As noted in the interim rule, this
provision was necessary to enhance the reliability of endorsements
issued by Government agencies. See 60 FR 54029. This provision,
however, still allows SSIA petitioners, as an alternative to obtaining
a letter from a U.S. Government agency, to submit two letters from
nationally or internationally recognized experts to satisfy this
evidentiary requirement.
The interim rule requires a SSIA petitioner to submit corroborative
evidence of claimed expertise including the official labor book, any
significant awards or publications and other comparable evidence or an
explanation of why such evidence cannot be obtained. See 8 CFR
204.10(e)(2)(iii). The commenter contended that the requirement that
the petitioner submit proof of any significant awards or publications
is superfluous, since the petitioner must submit his or her official
labor book or Trudavaya Knizhka, which records most such awards. The
purpose of this regulatory provision is merely to make it clear that,
if an applicant has awards noted in his or her official labor book and
wishes to have the Service consider such awards as evidence of the
alien's qualifications, the applicant should provide separate proof of
receipt of such an award unless it is unavailable. Accordingly, no
changes have been made in response to this comment.
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 adopts interim
regulations concerning the immigration of up to 750 scientists from the
former Soviet Union as final. 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 waived its review process under section 6(a)(3)(A).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined in section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 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 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 Federalism
Assessment.
Accordingly, the interim rule amending 8 CFR part 204, which was
published in the Federal Register at 60 FR 54027-54030 on October 19,
1995, is adopted as a final rule without change.
Dated: February 4, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-3589 Filed 2-12-97; 8:45 am]
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