[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Proposed Rules]
[Pages 43028-43030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21196]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 162 / Tuesday, August 20, 1996 /
Proposed Rules
[[Page 43028]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 245
[INS No. 1353-91; AG Order No. 2047-96]
RIN 1115-AC70
Adjustment of Status to That of Person Admitted for Permanent
Residence: Conditional Residents and Fiance(e)s
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would clarify that an alien remains
ineligible for adjustment of status after termination of conditional
resident status. It would also modify provisions regulating the
adjustment of status of a nonimmigrant fiance(e) to reflect the current
statute and to allow adjustment of status based on a marriage occurring
more than 90 days after admission. The clarification concerning
adjustment of status after termination of conditional residency is
necessary in view of the determination by the Board of Immigration
Appeals' (the Board) finding that the current regulations do not
prohibit the adjustment of status of an alien whose conditional
resident status has been terminated. Matter of Stockwell, 20 I&N Dec.
309 (BIA 1991). This proposed rule would also ensure compliance with
the existing statute and eliminate hardships to certain persons who
were unable to marry until after the expiration of the alien spouse's
period of admission as a nonimmigrant fiance(e).
DATES: Written comments must be submitted on or before October 21,
1996.
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 the INS number 1353-91 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:
Rita A. Arthur, Senior Immigration Examiner, Adjudications Branch,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION: The Immigration Marriage Fraud Amendments of
1986 (IMFA), Pub. L. 99-639, November 10, 1986, were enacted to combat
fraud perpetrated by aliens who marry only to obtain immigration
benefits. The IMFA amended the Immigration and Nationality Act (the
Act) by adding a new section 216, which imposes an initial 2-year
period of conditional residency on a person who acquired permanent
resident status based on a recent marriage. It also provides a
comprehensive procedure by which a conditional resident may have these
conditions removed following approval of a petition filed jointly with
the citizen or lawful permanent resident spouse, or after approval of a
waiver of the joint petitioning requirement. Section 216 of the Act
further mandates termination of the conditional resident's status if he
or she fails to comply with the requirements for removal of the
conditions at the end of the 2-year period, or if it is found that the
marriage was entered into for the purpose of obtaining immigration
benefits or is otherwise determined to be ``improper,'' as defined in
section 216(b) of the Act. Section 216 of the Act also allows an alien
whose status has been terminated to ask the immigration judge to review
this decision during deportation proceedings.
The IMFA also revised the Act by adding a new section 245(d). This
section bars an alien who was granted permanent residence on a
conditional basis under section 216 of the Act from adjusting status
under section 245 of the Act. This bar prevents a conditional resident
from circumventing the requirements and restrictions of section 216 of
the Act by filing a new application for adjustment of status.
In Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), the Board of
Immigration Appeals (the Board) determined that the bar to adjustment
of status provided in section 245(d) of the Act no longer applies after
an alien's conditional residency has been terminated. The Board based
this decision, which is binding on the Immigration and Naturalization
Service (the Service), on its interpretation of the Service's
implementing regulations.
In its majority decision, the Board state: ``While the statutory
language seems to leave open the question of whether the bar [of
section 245(d) of the Act] extends to an alien whose status as a
conditional permanent resident has been terminated, we agree * * * that
the Service's own implementing regulation clearly applies the bar in
section 245(d) only to aliens currently holding conditional permanent
resident status.'' Stockwell, supra, slip opinion at 4-5.
The Board also issued a dissenting opinion, which concluded that
the section 245(d) bar to adjustment continues after termination of
conditional residency. This opinion, while acknowledging that the
regulation could be read to apply only to those aliens currently in
conditional status, points out that: ``* * * the [language of section
245(d) of the Act] does not restrict its application to aliens who are
admitted on a conditional basis and remain in that status. The language
clearly prohibits the Attorney General from adjusting the status of any
alien who has been admitted on a conditional basis under section 216.''
``The majority does not challenge the clarity of the statute.
Rather, it relies on the regulation promulgated at 8 CFR
Sec. 245.1(b)(12) (1991) [subsequently redesignated as 8 CFR
245.1(c)(5) 1995]. * * *''
``[T]he regulation issued by the Immigration and Naturalization
Service can be read to apply only to those aliens who are currently in
conditional status. However, that is not the only reasonable
construction of the regulation. The regulation does not address the
eligibility for adjustment of status of those aliens whose conditional
status has been terminated. Where the statute prohibits such
adjustment, and the regulation does not address it, the statute should
be applied. In any case the regulation should be construed in a manner
that is consistent with the statute, The regulation can reasonably be
construed as not having addressed
[[Page 43029]]
the situation of a conditional permanent resident whose status has been
terminated. Moreover, it would frustrate the deterrent purpose of the
statute to permit the adjustment of the status of an alien whose status
as a conditional permanent resident has been terminated because of
failure to comply with the requirements of section 216.''
``It may be argued that, in promulgating the regulation, the
Service interpreted the statute to apply only to aliens currently in a
conditional status. Since the specific question of the applicability of
the statute to aliens whose status has been terminated was not
addressed, such an argument is purely speculative.'' Stockwell, supra,
slip opinion at 8-9 (Morris, dissenting).
In promulgating this regulatory provision, the Service did not
intend to limit applicability of the bar in section 245(d) of the Act
to aliens currently holding conditional permanent resident status. Such
a stance, by allowing a conditional resident to circumvent the
requirements and restrictions of section 216 of the Act by filing a new
request for adjustment of status after the Service terminated
conditional residency, would have been contrary to the purpose of IMFA.
It would also have discounted the clear language of section 245(d) of
the Act, and would have ignored the fact that Congress has provided a
comprehensive procedure that permits a conditional resident to seek
removal of the conditions imposed by section 216 of the Act.
However, 8 CFR 245.1(c)(5) does not explicitly state that the bar
continues after termination of conditional residency. The proposed
revision of 8 CFR 245.1(c)(5) would resolve the misunderstanding
concerning this matter. It would supersede the Board's interpretation
in Matter of Stockwell by amending 8 CFR 245.1(c)(5) to clarify that an
alien admitted for permanent residence on a conditional basis under
section 216 of the Act remains ineligible for adjustment of status
under section 245 of the Act even after termination of status under
section 216 of the Act. Since the regulation would be promulgated by
the Attorney General under authority granted by section 103 of the Act,
it would provide binding rules of decision for the Executive Office for
Immigration Review, including the Board and the Immigration Courts, as
well as the Service.
The proposed rule would also address the effect of termination of
conditional status under section 216A of the Act on the bar to
adjustment provided in section 245(f) of the Act. Sections 216A and
245(f) of the Act, added by the Immigration Act of 1990 (IMMACT), Pub.
L. 101-649, November 29, 1990, relate to conditional status for certain
alien entrepreneurs and contains language similar to that of sections
216 and 245(d) of the Act. To avert possible future misunderstandings,
the Service proposes to amend 8 CFR 245.1(c)(5) to also clarify that
section 245(f) of the Act continues to prohibit the adjustment of
status under section 245 of the Act of an alien entrepreneur who has
been granted permanent residence on a conditional basis after his or
her status has been terminated under section 216A of the Act.
In addition to prohibiting the adjustment of status of a
conditional resident under section 245(a), IMFA also amended provisions
of the Act relating to the acquisition of permanent residence by
persons who entered the United States as nonimmigrant fiance(e)s of
United States citizens. A review of the IMFA legislative history shows
that Congress intended for these aliens, after they marry, to seek
permanent resident status under the adjustment of status provision of
section 245 of the Act. H. Rep. No. 906, 99th Cong. 2d Sess. at 11
(1986). Despite this intent, the actual text of section 3(c) of IMFA
made these aliens ineligible for adjustment. Congress corrected this
anomaly by enacting the Immigration Technical Corrections Act of 1988
(the Technical Corrections Act), Pub. L. 100-525, October 24, 1988. The
amendments made by section 7(b) of the Technical Corrections Act allow
an alien fiance(e) and his or her minor children to obtain permanent
residence, but only as a result of the marriage of the fiance(e) to the
citizen petitioner, and only as a conditional permanent resident under
section 216 of the Act.
The Service published a final rule implementing IMFA on August 10,
1988, in the Federal Register at 53 FR 30011-30023. A few months later,
Congress enacted the Technical Corrections Act. The Service proposes in
this rule to amend 8 CFR 245.1(c)(6) to align its wording more closely
with the language of the statute as amended by the Technical
Corrections Act. The proposed revision would explicitly state that
these aliens are subject to the conditions imposed by section 216 of
the Act and clarify the applicability of paragraph (c)(6) to the
alien's minor children as well as to the principal alien.
The proposal would also bar adjustment of an alien who was admitted
under section 101(a)(15)(K) of the Act unless the alien would become a
conditional permanent resident within 24 months of the date of the
marriage. This restriction is necessary because section 245(d) of the
Act prohibits the adjustment of status of an alien fiance(e) or child
of a fiance(e) admitted under section 101(a)(15)(K) of the Act except
to that of an alien lawfully admitted to the United States for
permanent residence on a conditional basis under section 216 of the
Act. Section 216 of the Act provides permanent residence on a
conditional basis only for an alien who becomes a permanent resident
within 24 months of the date of the qualifying marriage.
The proposed rule would also modify the provisions of 8 CFR
245.1(c)(6) relating to a marriage taking place more than 90 days after
the alien fiance(e)'s admission to the United States. As currently
written, paragraph (c)(6) appears to bar adjustment if the alien
fiance(e) and the citizen petitioner do not marry within 90 days of the
alien's entry. The provisions of paragraph (c)(6) were based on those
of section 101(a)(15)(K) of the Act, which require the alien and the
citizen petitioner to intend to marry within 90 days of entry in order
to qualify the alien for entry as a nonimmigrant fiance(e). Also,
section 214(d) of the Act renders the alien deportable if the couple
does not marry within 3 months of entry. Section 245(d) of the Act does
not, however, impose a time frame during which the marriage must take
place.
The proposed rule would continue to bar adjustment if the couple
fails to marry. However, prospective spouses are sometimes forced by
circumstances outside their control to delay marriage until after
expiration of the 90-day period of admission as a fiance(e). To prevent
hardship to these individuals, the proposal would allow an alien who
was admitted under section 101(a)(15)(K) of the Act as a fiance(e) or a
child of a fiance(e) to seek adjustment of status based on the delayed
marriage between the citizen petitioner and the fiance(e).
The nonimmigrant fiance(e) or child of a fiance(e) would be allowed
to apply for adjustment of status as an immediate relative of a citizen
on the basis of an approved Form I-130, Petition for Alien Relative,
filed by the citizen petitioner who had originally filed the fiance(e)
visa petition. A nonimmigrant fiance(e) seeking adjustment based on a
delayed marriage, like a nonimmigrant fiance(e) seeking adjustment
based on a timely marriage, would become ineligible for adjustment of
status if more than 24 months elapsed between the date of the marriage
and the approval of the application for adjustment of status.
[[Page 43030]]
Regulatory Flexibility Act
The Attorney General, 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 would not have a significant economic
impact on a substantial number of small entities because of the
following factors: The rule would address the grant of immigration
benefits to certain individuals based on a marriage. It would also
clarify restrictions placed on future acquisition of certain
immigration benefits by individuals whose conditional permanent
resident status has been terminated. It would not have a significant
economic effect, nor would it affect small entities.
Executive Order 12866
This rule is not considered by the Department of Justice 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 proposed herein would 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.
Paperwork Reduction Act
The information collection requirement contained in this rule has
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. The clearance number for
this collection is contained in 8 CFR 299.5, Display of control
numbers.
List of Subjects in 8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, part 145 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
1. The authority citation for part 145 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255, and 8 CFR part 2.
Sec. 245.1 [Amended]
2. In Sec. 245.1 paragraph (c)(3) is amended by removing the word
``and'' at the end of the paragraph.
3. In Sec. 245.1, paragraph (c)(4) is amended by removing the ``.''
at the end of the paragraph and replacing it with a ``;''.
4. In Sec. 245.1, paragraph (c)(7) is amended by removing the ``.''
at the end of the paragraph, and replacing it with a ``; and''.
5. In Sec. 245.1, paragraphs (c)(5) and (c)(6) are revised to read
as follows:
Sec. 245.1 Eligibility.
* * * * *
(c) * * *
(5) Any alien who has been lawfully admitted for permanent
residence on a conditional basis under section 216 or 216A of the Act,
regardless of any other quota or nonquota immigrant visa classification
for which the alien may otherwise be eligible, and regardless of
whether the alien's conditional status has been terminated pursuant to
sections 216 or 216A of the Act;
(6) Any alien admitted to the United States as a nonimmigrant alien
fiance(e) under section 101(a)(15)(K) of the act, unless:
(i) The alien is seeking to adjust status under section 245(a) of
the Act to that of an alien lawfully admitted to the United states for
permanent residence on a conditional basis under section 216 of the
Act;
(ii) The alien is seeking adjustment based on the marriage (or, in
the case of a minor child, the marriage of the alien parent) to the
United States citizen whose approved petition pursuant to Sec. 214.2(k)
of this chapter was the basis for issuance of the alien's nonimmigrant
visa under section 101(a)(15)(K) of the Act;
(iii) The alien is seeking to adjust status within 24 months of the
date of the marriage; and
(iv) The marriage was solemnized:
(A) Within 90 days of the entry of the alien fiance1(e) into the
United States; or
(B) More than 90 days after the entry of the alien fiance(e) into
the United States if the alien spouse or child applies for and is
otherwise eligible for adjustment of status as an immediate relative on
the basis of an approved Form I-130, Petition for Alien Relative, filed
by the citizen whose approved petition pursuant to Sec. 214.2(k) of
this chapter was the basis for issuance of the alien's nonimmigrant
visa under section 101(a)(15)(K) of the Act;
* * * * *
Dated: August 13, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-21196 Filed 8-19-96; 8:45 am]
BILLING CODE 4410-10-M
