[Federal Register Volume 60, Number 165 (Friday, August 25, 1995)]
[Rules and Regulations]
[Pages 44259-44271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21113]
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[[Page 44260]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299
[INS No. 1683-94; A.G. Order No. 1986-95]
RIN 1115-AD86
Entry of Aliens Needed as Witnesses and Informants; Nonimmigrant
S Classification
agency: Immigration and Naturalization Service, Justice.
action: Interim rule with request for comments.
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summary: This regulation establishes procedures by which federal and
state law enforcement authorities (``LEAs'') may secure from the
Immigration and Naturalization Service (``the Service'') and the
Department of State (``State'') nonimmigrant classification for alien
witnesses and informants who may eventually be granted lawful permanent
resident (``LPR'') status because of their cooperation. The regulation
is necessary to provide uniform standards and responsibilities for the
admission, stay, monitoring, adjustment and, if necessary, departure of
such alien witnesses and informants and to enable the government to
comply with record-keeping and annual reporting requirements imposed by
Congress.
dates: This interim rule is effective August 25, 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. To ensure proper handling, please reference the INS number 1683-
94 on your correspondence. Comments are available for public inspection
at the above address by calling (202) 514-3048 to arrange for an
appointment.
for further information contact: Katharine Auchincloss-Lorr,
Adjudications Officer, Adjudications Division, Immigration and
Naturalization Service, 425 I Street NW., Room 3214, Washington, DC
20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
On September 13, 1994, the President signed the ``Violent Crime
Control and Law Enforcement Act of 1994.'' Section 130003 of this
legislation, Pub. L. 103-322, creates a new nonimmigrant classification
providing for the admission of alien witnesses and informants who may
obtain LPR status upon completion of specified conditions. Section
130003 specifically establishes section 101(a)(15)(S) of the
Immigration and Nationality Act (``the Act'') and authorizes for each
relevant fiscal year: (1) One hundred (100) nonimmigrant visas for
aliens determined by the Attorney General to possess critical reliable
information on a criminal organization or enterprise, willing to
provide that information to federal and/or state authorities, and whose
presence, upon the Attorney General's determination, is essential to
the success of an authorized criminal investigation or the prosecution
of an individual involved in the criminal organization or enterprise,
and; (2) twenty-five (25) nonimmigrant visas for aliens whom the
Secretary of State and the Attorney General jointly determine possess
critical reliable information about a terrorist organization,
enterprise, or operation, are willing to provide or have provided that
information to federal authorities, will be or have been placed in
danger as a result, and are eligible for a reward under 22 U.S.C.
2708(a). Although these new nonimmigrant classifications would be
designated to be S-1 and S-2, respectively, to correspond with the
statutory designations, the prior utilization of those codes requires
that these designations be, respectively, S-5 and S-6. The spouse,
married and unmarried sons and daughters, and parents of witnesses and
informants in the new nonimmigrant classification may also be granted
nonimmigrant status (designated S-7), if the Attorney General (or,
where required, the Secretary of State and the Attorney General
jointly) considers it appropriate.
Prior to the creation of section 101(a)(15)(S) of the Act, there
was no standard procedure for allowing aliens needed to provide
testimony or information into the United States. With the creation of
the S nonimmigrant classification, Congress has authorized the
admission of a limited number of alien witnesses and informants under
specified conditions and provides for adjustment to LPR status after
the satisfaction of certain conditions.
Regulatory Structure
Briefly stated, the enactment of the provisions creating the S
nonimmigrant classification enables the Service to utilize the
nonimmigrant framework to establish a process so that requesting LEAs
can provide immigration benefits to certain key alien witnesses and
informants. Included in the statutory scheme are reporting requirements
by the alien to the Attorney General and the Attorney General to
Congress.
a. Nonimmigrant Classification
By creating a new nonimmigrant category exclusively for alien
witnesses and informants, Congress has authorized a temporary admission
for a specific purpose, and subjected such aliens to the degree of
scrutiny prior to admission that is imposed on all nonimmigrant
classifications. The Act distributes responsibility for implementing
its nonimmigrant provisions between the Attorney General and the
Department of State; generally, nonimmigrants, including those in S
classification, are subject to the jurisdiction and authority of both
agencies. In formulating this regulation, the Service has worked
closely with the Department of State, which is issuing a complementary
regulation at this time.
With the creation of the S nonimmigrant category, alien witnesses
and informants who intend to reside permanently in the United States
may enter only in S classification. Alien witnesses and informants
intending a permanent stay will no longer be authorized entry in B
nonimmigrant classification. That classification remains available for
eligible witnesses and informants seeking temporary admission, who have
a residence in a foreign country which they have no intention of
abandoning, who will not be employed by a United States entity or seek
employment while in the United States, and who will not be seeking any
of the benefits that flow from S classification.
Similarly, current procedures affecting alien witnesses and
informants seeking to be allowed temporarily into the United States
pursuant to parole authorization are unchanged by this regulation,
except for a new provision defined in 8 CFR 212.14 specifically
providing procedures for an LEA who subsequently will apply for S
classification on behalf of a witness or informant.
An essential component of the admission process for nonimmigrants
who are excludable is the waiver authority accorded the Attorney
General under section 212(d) of the Act. In this legislation, Congress
created a new provision, section 212(d)(1), enabling the Attorney
General to waive all grounds of excludability (except Nazi involvement)
for S nonimmigrants, if it is ``in the national interest to do so.''
Section 212(d)(3) waivers will remain available to witnesses and
informants who are eligible for B-1 classification, pursuant to normal
procedures.
[[Page 44261]]
The statute preserves the Attorney General's right to institute
deportation proceedings for conduct committed after the alien's
admission in or change to S classification, or for conduct or a
condition not disclosed to the Attorney General prior to the alien's
admission in or change to S classification.
b. Controls Imposed by Classification
As a condition for admission and maintenance of status in the
United States, an S nonimmigrant is statutorily required to abide by
any conditions, limitations, or restrictions imposed by the Attorney
General; to file quarterly reports detailing his or her whereabouts and
activities ``as the Attorney General may require,'' and to execute a
form waiving the right to contest any action for deportation instituted
before the nonimmigrant obtains lawful permanent resident status (other
than on the basis of an application for withholding of deportation).
The statute renders the alien deportable for conduct committed after
admission or for conduct or a condition that was not disclosed to the
Attorney General prior to admission. Further, in order to maintain
status, the S nonimmigrant may not be convicted of any criminal offense
punishable by a term of imprisonment of 1 year or more after the date
of S classification; change to another nonimmigrant classification; or
be authorized admission for more than 3 years.
The S nonimmigrant may adjust status to that of an LPR exclusively
by means of the new statutory provisions creating the nonimmigrant
classification. These procedures are found in this regulation at 8 CFR
245.11. Finally, the alien may be deported for conviction of a crime of
moral turpitude committed within 10 years after being granted LPR
status under those new provisions. New provisions for the deportation
of alien witnesses and informants have been provided at 8 CFR 242.26.
No alien may be admitted to the United States in S classification more
than 5 years after September 13, 1994, the date of enactment of Pub. L.
103-322.
The numeric limit in the S visa provision indicates a Congressional
determination that the visa benefit be accorded only in extraordinary
circumstances. The legislation is modeled in part after a provision of
the Central Intelligence Agency Act of 1949 (50 U.S.C. 403h)
authorizing LPR status for no more than 100 aliens per year when the
Director of Central Intelligence, the Attorney General, and the
Commissioner of the Immigration and Naturalization Service
(``Commissioner'') determine that the admission of a particular alien
is in the national security interest. The S nonimmigrant provision's
specific numeric limit authorizing issuance of only 125 visas annually
does not include family members. Finally, the Attorney General is
required to report annually to Congress on specific aspects of the S
classification.
c. Classification Process
To facilitate implementation of this legislation and ensure a
thorough awareness of LEA needs, the Service has engaged in a process
of consultation with the principal federal LEAs interested in and
affected by this nonimmigrant classification. With the assistance of
the Department of Justice (``DOJ''), the Criminal Division's Terrorism
and Violent Crimes Section (``TVCS''), the Service solicited and
received written comments on the procedural aspects of how the visa
application, classification, and admission process will work in
practice, and a range of related concerns, from two State Department
components (the Interagency Counterterrorism Rewards Committee and the
Visa Office) and the following DOJ components: the Federal Bureau of
Investigation (``FBI''), the Drug Enforcement Administration (DEA), the
Marshals Service, and the Criminal Division's Organized Crime and
Racketeering Section (``OCRS'') and Office of Enforcement Operations
(``OEO'').
After considering the comments of the principal federal LEAs, the
Service has devised a process for authorizing S nonimmigrant
classification. This process provides federal and state LEAs access to
informants and witnesses, and the benefits of S nonimmigrant
classification, to the extent permitted by the statute while ensuring S
nonimmigrants are appropriately controlled. The Service will develop
procedures to protect the identity of the alien while ensuring
maintenance of adequate control.
The process provides for the use of a new Form I-854, Inter-Agency
Alien Witness and Informant Record, to record the basis of the
nonimmigrant classification, related and prerequisite commitments and
responsibilities, and seat-of-government certification of the need for
the requested alien. The procedures for use of this new Form will bring
uniformity and consistency to the process for authorizing S
nonimmigrant classification for eligible criminal aliens with
information needed by LEAs and provide a basis for control and tracking
of the alien. A fee for the processing of Form I-854 will be proposed
under a separate rulemaking. There will be no initial fee for
processing of Form I-854, although the fee will go into effect as soon
as the Service has responded to comments and a final fee rule has been
issued.
Pursuant to Form I-854, S nonimmigrant classification is predicated
on a relationship between a witness or informant and the LEA that
requests classification. For purposes of this regulation, the term
``LEAs'' refers to the entities authorized to request S nonimmigrant
classification for an alien witness or informant in a given case,
namely state and federal law enforcement authorities, which include the
United States Attorneys' Offices and state and federal courts. Only a
federal LEA may request S-6 nonimmigrant classification, although
either a state or federal LEA may request S-5 nonimmigrant
classification.
Form I-854 request an LEA seeking S nonimmigrant classification for
an alien witness or informant to articulate the reasons why the
presence of the alien is needed and to assume responsibility for the
alien's admission, stay, and departure. In addition to the seat-of-
government certification required for LEAs on Form I-854, where
nonimmigrant classification is for purposes of providing testimony, the
United States Attorney in whose district a case is being prosecuted
must also certify the request on Form I-854.
To provide the Service with information to evaluate the needs,
accomplishments, failures, and effectiveness of the S visa process, the
Service is requiring that all LEA requests related to S nonimmigrant
classification be processed on Form I-854, including requests for
change of nonimmigrant classification to the S category or adjustment
to LPR status. An LEA seeking S nonimmigrant classification for an
alien who is out of status or otherwise in the United States illegally
may file Form I-854 as a means of initiating procedures with the
Service, subsequent to the Criminal Division's certification, in an
effort to have the alien admitted to the United States in lawful
status.
d. Criminal Division Certifications
A central concern of the comments offered by interested LEAs during
the Service's drafting process was, given the limited number of
available S nonimmigrant visas specified under the statute, how
requests for this classification will be evaluated. The regulation
provides that the Criminal Division of the Justice Department will
establish appropriate procedures for receiving and reviewing Form I-854
and determining which applications will be
[[Page 44262]]
forwarded to the Commissioner with a recommendation for approval. The
Criminal Division will be responsible to the Attorney General for
ensuring that the cases forwarded to the Service fall within the annual
numerical limitation.
No Form I-854 request for S nonimmigrant classification for an
alien witness or informant may come to the Service without the Criminal
Division's certification. Before being forwarded by the Criminal
Division to the Service, an application for S-6 nonimmigrant
classification certified by the Criminal Division will be forwarded by
the Criminal Division to the Department of State for the appropriate
certification.
e. Reporting Requirements
To implement the statutory framework, the regulation imposes two
categories of information and reporting requirements on the government.
The first involves behavior by the alien that could lead to loss of
nonimmigrant status or deportability. The Service must be informed
immediately by the responsible LEA of any behavior that renders the
alien deportable. This information includes certain criminal conduct,
failure to report quarterly, or failure to comply with the authorized
terms of the particular S nonimmigrant classification or the adjustment
provisions. The requesting LEA is responsible for supervising,
monitoring, and otherwise accounting for the admitted alien's
compliance with the statutory and regulatory requirements, for
quarterly reporting on ``whereabouts and activities'' and ``other
conditions, limitations, or restrictions imposed.''
Secondly, the statute requires an annual report to the Committee on
the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate. The regulation provides that the Justice
Department's Criminal Division, in cooperation with the Service, will
prepare this report evaluating the program's effectiveness.
f. Period of Authorized Stay
The statute explicitly provides that the period of admission on an
alien in S nonimmigrant classification ``may not exceed 3 years'' and
that such period ``may not be extended by the Attorney General.'' For
this reason, the Attorney General has determined that the S
nonimmigrant classification must be limited to situations where an
alien is reasonably expected to provide the desired assistance within
the authorized 3-year period. The Service, therefore, has amended 8 CFR
214.1 accordingly and will require the alien to depart the United
States after the 3-year period. The LEA will be responsible for
ensuring departure. Parole may not be used to extend a period of stay
or to authorize a reentry. However, an S nonimmigrant who departs prior
to adjustment may subsequently be readmitted in the same classification
consistent with the process set forth herein.
g. Change of Status
The regulation at 8 CFR 214.2(t)(12) implements the prohibition in
section 101(a)(15)(S) concerning change of status. Aliens cannot be
admitted in S-5 nonimmigrant classification and change status to S-6
nonimmigrant classification, nor can they change to any other
nonimmigrant classification. Pursuant to new procedures set forth at 8
CFR 248.3(h), aliens in nonimmigrant categories other than S may apply
to and, if eligible, change their status to S nonimmigrant
classification, unless specifically prohibited from so doing by section
248 of the Act.
h. Deportation and Exclusion
Aliens in S nonimmigrant classification will be required as a
condition for admission and stay in lawful nonimmigrant status to
certify Form I-854, waiving their entitlement to a deportation hearing
pursuant to the statute. This rule amends the deportation regulations
at 8 CFR part 242 to include aliens in S nonimmigrant classification.
The exclusion regulations have similarly been amended at 8 CFR 236.10.
Due to the limited nature of this nonimmigrant classification and its
significance to the law enforcement community, deportation and other
procedures that would effectively terminate an alien's S nonimmigrant
classification will not be initiated without the concurrence of the
Assistant Attorney General, Criminal Division.
i. Employment Authorization
An employment authorization document (``EAD'') for S nonimmigrants
will be issued through normal procedures. The regulation specifies
that, pursuant to the terms of 8 CFR part 274a, S nonimmigrants are
authorized to work in the United States and that the LEA may assist the
alien in applying for employment authorization.
j. Criminal Conduct
Section 212(d)(1) of the Act provides that the Service can
institute deportation proceedings against an S nonimmigrant for conduct
committed after the alien's admission into the United States or for
conduct or a condition that was not disclosed to the Attorney General
prior to the alien's classification as a nonimmigrant under section
101(a)(15)(S) of the Act. Accordingly, the Service will take
appropriate steps to remove such an alien.
In addition, section 214(j)(4)(B) of the Act requires, as a
condition for the admission, and continued lawful status, the S
nonimmigrant ``may not be convicted of any criminal offense punishable
by a term of imprisonment of 1 year or more after the date of such
admission.''
The revised parole provisions at 8 CFR 212.14 enable an alien to be
paroled into the United States so that an LEA can secure a guilty plea
and conviction. In such a case, upon the recommendation of an LEA and
the approval of a certified request on Form I-854, the Service may
terminate the parole authorized to such an alien, waive the
nonimmigrant visa requirement as provided under section 212(d)(4) of
the Act, exercise the discretionary waiver authority provided under
section 212(d)(1) of the Act, and authorize the alien's admission into
the United States in S nonimmigrant classification.
The precise meaning of parole in an immigration context is quite
different from the parole with which LEAs are normally familiar. Under
the parole authority provided in section 212(d)(5) of the Act, the
Attorney General has the discretion to permit an otherwise inadmissible
alien to proceed into the United States temporarily and under specific
safeguards. Parole is granted on a case-by-case basis and, if granted,
does not constitute admission into the United States. The paroled alien
does not make an entry as defined by section 101(a)(13) of the Act and,
as a result, is subject to exclusion proceedings (not deportation
proceedings) if the terms and conditions of the parole are violated.
The due process rights of aliens subject to exclusion proceedings are
more limited than those of aliens subject to deportation proceedings.
Parole may be authorized only for emergent reasons or reasons
deemed strictly in the public interest and is available only if the
Service has custody of the alien. It should not be used as a means of
circumventing a waiver of inadmissibility. In an immigration context,
parole is considered, in itself, a form of constructive custody, and is
available only to an alien ``applying for admission to the United
States.'' A request for parole of an alien in exclusion proceedings and
in Service custody must be made pursuant to the terms of 8 CFR 212.5
or, in the case of an alien for which S classification is being sought,
8 CFR 212.14. Due to the
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requirement that the alien be ``applying for admission,'' parole is not
available to aliens who have effected an entry. Aliens who have been
``paroled'' (in the criminal sense) from prison or who are in prison,
and who are deemed to be arriving aliens may not be granted parole
unless the Service has custody.
k. Monitoring and Control
The regulation and the certifications on Form I-854 require that,
as a prerequisite to S nonimmigrant classification, the requesting LEA
assume responsibility, during the period of the S nonimmigrant's
presence in the United States, for the safety of the public and for
keeping the Service appropriately informed of matters that might impact
on the alien's immigration status. Once an alien achieves immigrant
status through adjustment from S nonimmigrant classification to LPR
status, the LEAs responsibility for monitoring and reporting will
cease. In addition, if the Marshals Service assumes responsibility for
the alien, LEA monitoring will be minimal. Further, an alien will
become deportable upon the commission of conduct that violates either
the regulatory requirements or the specified terms and limitations of
the authorized status. In such a case, the LEA should immediately
advise the Service, request that the Service proceed to remove the
alien, and assist with, and verify, the alien's departure. Consistent
with this monitoring responsibility, an LEA is responsible for ensuring
departure, if necessary, and verifying departure in a manner acceptable
to the Service, so that monitoring is formally concluded.
l. Adjustment
Section 245(i) of the Act provides for the ``Exclusive Means of
Adjustment'' of aliens admitted as S nonimmigrants. The Service has
interpreted this to mean that S nonimmigrants may not adjust to
permanent resident status pursuant to section 506(b) of the Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies
1995 Appropriations Act, Public Law 103-317, which allows most
otherwise ineligible persons to adjust status upon payment of an
additional sum. The provisions for ``Exclusive Means of Adjustment''
for S nonimmigrants provide clearly that these statutory terms and
conditions are to be the exclusive means of adjustment for S
nonimmigrants described in section 101(a)(15)(S) of the Act. Adjustment
of status pursuant to terms other than those specified therein are not
available to aliens in S classification.
In the statute, Congress appears inadvertently to have created a
new, second subsection 245(i) of the Act, which the Service interprets
as an error. There is no indication that Congress intended to repeal or
superseded the provisions of section 506(b) of Public Law 103-317,
enacted one month earlier. The Service regards the establishment of the
second subsection 245(i) of the Act as a numbering error and will
recommend that Congress enact a technical amendment to redesignate the
Crime Bill's provision as subsection 245(j) of the Act.
The regulations, at 8 CFR 212.14(a)(1)(vi) and 214.2(t)(4)(i),
place certain restrictions on the promises LEAs can make to alien
witnesses and informants for whom they seek parole or S nonimmigrant
classification.
Changes to Current Regulations
This interim rule implements section 130003 of Public Law 103-322,
which establishes section 101(a)(15)(S) of the Act. It amends 8 CFR at
parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299 to provide
uniform and consistent application, admission, reporting, control,
deportation, and adjustment criteria for the entry, parole, and stay of
alien witnesses and informants who intend to remain in the United
States.
Other than the changes to 8 CFR 214.2(t) previously discussed, the
following specific changes to Title 8 of the Code of Federal
Regulations are necessary to fully implement this regulation:
8 CFR 208.2 and 208.16 are amended to enable asylum officers to
determine whether an alien classified pursuant to section 101(a0(15)(S)
of the Act is entitled to withholding of deportation.
8 CFR 212.1(m) is added to require that aliens seeking admission in
S nonimmigrant classification must be in possession of appropriate
documents issued by an American consular officer.
8 CFR 212.4(i) is added to enable the Attorney General to determine
pursuant to section 101(a)(15)(S) of the Act whether to exercise the
discretion to waive a ground of excludability, other than under section
212(a)(3)(E) of the Act, if it is in the national interest to do so.
The Service may remove an alien classified as a nonimmigrant under
section 101(a)(15)(S) of the Act for conduct committed after the
alien's admission to the United States or for conduct or a condition
undisclosed to the Attorney General prior to the alien's admission in,
or change to, S nonimmigrant classification.
8 CFR 212.14 is added to specify the process by which LEAs may
obtain parole status for alien witnesses and informants who intend to
apply for S nonimmigrant classification.
8 CFR 214.1(a)(2) is amended to add nonimmigrant classifications
for S-5, S-6, and S-7.
8 CFR 214.1(c)(3) is amended to add a reference to nonimmigrants
defined in section 101(a)(15)(S) of the Act, so that such aliens are
ineligible for an extension of stay beyond a total of 3 years.
8 CFR 236.10 is added to provide exclusion procedures for aliens
requesting admission in S nonimmigrant classification.
8 CFR 242.26 is added to provide deportation procedures for aliens
in S nonimmigrant classification who, as a condition of their admission
and stay in lawful status in the United States, must waive their right
to a deportation hearing and to contest, other than on the basis of an
application for withholding of deportation, any action for deportation
instituted before lawful permanent resident status is obtained.
8 CFR 245.11 is added to set forth the exclusive terms of
adjustment of status to that of lawful permanent resident for an S
nonimmigrant.
8 CFR 248.2(b) is amended by removing the reference to ``or (K)''
to read ``(K), or (S)'' in order to prohibit change of status from S
classification.
8 CFR 248.3(h) is added to set forth procedures for change of
nonimmigrant classification to S classification pursuant to the request
of a law enforcement agency.
8 CFR 274a.12(c) is amended to authorize aliens in S classification
to apply for employment authorization. Pursuant to 8 CFR
274a.12(c)(21), an alien granted S nonimmigrant classification may
apply for employment authorization by filing Form I-765, Application
for Employment Authorization, with the applicable fee.
8 CFR 299.1 is amended to add Form I-854 to the list of prescribed
Service forms.
8 CFR 299.5 is amended to add Form I-854 to the listing of Service
forms approved by the Office of Management and Budget.
Good Cause Exception
The Attorney General has determined that there is good cause for
publishing this as an interim rule. Law enforcement authorities need
access to the benefits provided in this legislation, which cannot be
conferred without these regulatory provisions and the guidance,
controls, and structure they afford. Since prior notice and public
comment with respect to this interim rule are impracticable and
contrary to the public
[[Page 44264]]
interest under these circumstances, there is good cause under 5 U.S.C.
553 to make it effective upon publication. We will consider comments
received within 60 days of publication of this interim rule in the
Federal Register.
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 will not have a significant economic impact
on a substantial number of small entities for purposes of that Act.
Executive Order 12866
This rule is not considered by the Attorney General to be a
``significant regulatory action'' under Executive Order 12866, section
3(f) Regulatory Planning and Review, and accordingly, this rule has not
been reviewed by the Office of Management and Budget.
Executive Order 12612
The regulation herein will not have substantial direct effects on
the states, on the relationship between the federal 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 significant
federalism implications to warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
The information collection requirements contained in this rule have
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
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION
1. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.
9701; 8 CFR part 2.
Sec. 208.2 [Amended]
2. In Sec. 208.2, paragraph (a) is amended in the third sentence by
adding the phrase ``and aliens classified pursuant to section
101(a)(15)(S) of the Act,'' immediately after the phrase
``Sec. 253.1(f) of this chapter,''.
Sec. 208.16 [Amended]
3. In Sec. 208.16, paragraph (a) is amended in the first sentence
by adding the phase ``and aliens classified pursuant to section
101(a)(15)(S) of the Act,'' immediately after the phrase
``Sec. 253.1(f) of this chapter,''.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
4. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
5. In Sec. 212.1, paragraph (m) is added to read as follows:
Sec. 212.1 Documentary requirements for nonimmigrants.
* * * * *
(m) Aliens in S classification. Notwithstanding any of the
provisions of this part, an alien seeking admission pursuant to section
101(a)(15)(S) of the Act must be in possession of appropriate documents
issued by a United States consular officer classifying the alien under
that section.
6. In Sec. 212.4, the section heading is revised, and paragraph (i)
is added to read as follows:
Sec. 212.4 Applications for the exercise of discretion under section
212(d)(1) and 212(d)(3).
* * * * *
(i) Alien witnesses and informants.--(1) Waivers under section
212(d)(1) of the Act. Upon the application of a federal or state law
enforcement authority (``LEA''), which shall include a state or federal
court or United States Attorney's Office, pursuant to the filing of
Form I-854, Inter-Agency Alien Witness and Informant Record, for
nonimmigrant classification described in section 101(a)(15)(S) of the
Act, the Commissioner shall determine whether a ground of exclusion
exists with respect to the alien for whom classification is sought and,
if so, whether it is in the national interest to exercise the
discretion to waive the ground of excludability, other than section
212(a)(3)(E) of the Act. The Commissioner may at any time revoke a
waiver previously authorized under section 212(d)(1) of the Act. In the
event the Commissioner decides to revoke a previously authorized waiver
for an S nonimmigrant, the Assistant Attorney General, Criminal
Division, and the relevant LEA shall be notified in writing to that
effect. The Assistant Attorney General, Criminal Division, shall concur
in or object to the decision. Unless the Assistant Attorney General,
Criminal Division, objects within 7 days, he or she shall be deemed to
have concurred in the decision. In the event of an objection by the
Assistant Attorney General, Criminal Division, the matter will be
expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant LEA
have a right of appeal from any decision to revoke.
(2) Grounds of removal. Nothing shall prohibit the Service from
removing from the United States and alien classified pursuant to
section 101(a)(15)(S) of the Act for conduct committed after the alien
has been admitted to the United States as an S nonimmigrant, or after
the alien's change to S classification, or for conduct or a condition
undisclosed to
[[Page 44265]]
the Attorney General prior to the alien's admission in, or change to, S
classification, unless such conduct or condition is waived prior to
admission and classification. In the event the Commissioner decides to
remove an S nonimmigrant from the United States, the Assistant Attorney
General, Criminal Division, and the relevant LEA shall be notified in
writing to that effect. The Assistant Attorney General, Criminal
Division, shall concur in or object to that decision. Unless the
Assistant Attorney General, Criminal Division, objects within 7 days,
he or she shall be deemed to have concurred in the decision. In the
event of an objection by the Assistant Attorney General, Criminal
Division, the matter will be expeditiously referred to the Deputy
Attorney General for a final resolution. In no circumstances shall the
alien or the relevant LEA have a right of appeal from any decision to
remove.
7. Section 212.14 is added to read as follows:
Sec. 212.14 Parole determinations for alien witnesses and informants
for whom a law enforcement authority (``LEA'') will request S
classification.
(a) Parole authority. Parole authorization under section 212(d)(5)
of the Act for aliens whom LEAs seek to bring to the United States as
witnesses or informants in criminal/counter terrorism matters and to
apply for S classification shall be exercised as follows:
(1) Grounds of eligibility. The Commissioner may, in the exercise
of discretion, grant parole to an alien (and the alien's family
members) needed for law enforcement purposes provided that a state or
federal LEA:
(i) Establishes its intention to file, within 30 days after the
alien's arrival in the United States, a completed Form I-854, Inter-
Agency Alien Witness and Informant Record, with the Assistant Attorney
General, Criminal Division, Department of Justice, in accordance with
the instructions on or attached to the form, which will include the
names of qualified family members for whom parole is sought;
(ii) Specifies the particular operational reasons and basis for the
request, and agrees to assume responsibility for the alien during the
period of the alien's temporary stay in the United States, including
maintaining control and supervision of the alien and the alien's
whereabouts and activities, and further specifies any other terms and
conditions specified by the Service during the period for which the
parole is authorized;
(iii) Agrees to advise the Service of the alien's failure to report
quarterly any criminal conduct by the alien, or any other activity or
behavior on the alien's part that may constitute a ground of
excludability or deportability;
(iv) Assumes responsibility for ensuring the alien's departure on
the date of termination of the authorized parole (unless the alien has
been admitted in S nonimmigrant classification pursuant to the terms of
paragraph (a)(2) of this section), provides any and all assistance
needed by the Service, if necessary, to ensure departure, and verifies
departure in a manner acceptable to the Service;
(v) Provide LEA seat-of-government certification that parole of the
alien is essential to an investigation or prosecution, is in the
national interest, and is requested pursuant to the terms and authority
of section 212(d)(5) of the Act;
(vi) Agrees that no promises may be, have been, or will be made by
the LEA to the alien that the alien will or may:
(A) Remain in the United States in parole status or any other
nonimmigrant classification;
(B) Adjust status to that of lawful permanent resident; or
(C) Otherwise attempt to remain beyond the authorized parole. The
alien (and any family member of the alien who is 18 years of age or
older) shall sign a statement acknowledging an awareness that parole
only authorizes a temporary stay in the United States and does not
convey the benefits of S nonimmigrant classification, any other
nonimmigrant classification, or any entitlement to further benefits
under the Act; and
(vii) Provides, in the case of a request for the release of an
alien from Service custody, certification that the alien is eligible
for parole pursuant to Sec. 235.3 of this chapter.
(2) Authorization. (i) Upon approval of the request for parole, the
Commissioner shall notify the Assistant Attorney General, Criminal
Division, of the approval.
(ii) Upon notification of approval of a request for parole, the LEA
will advise the Commissioner of the date, time, and place of the
arrival of the alien. The Commissioner will coordinate the arrival of
the alien in parole status with the port director prior to the time of
arrival.
(iii) Parole will be authorized for a period of thirty (30) days to
commence upon the alien's arrival in the United States in order for the
LEA to submit a completed Form I-854 to the Assistant Attorney General,
Criminal Division. Upon the submission to the Assistant Attorney
General of the Form I-854 requesting S classification, the period of
parole will be automatically extended while the request is being
reviewed. The Assistant Attorney General, Criminal Division, will
notify the Commissioner of the submission of a Form I-854.
(b) Termination of parole--(1) General. The Commissioner may
terminate parole for any alien (including a member of the alien's
family) in parole status under this section where termination is in the
public interest. A district director may also terminate parole when, in
the district director's opinion, termination is in the public interest
and circumstances do not reasonably permit referral of the case to the
Commissioner. In such a case, the Commissioner shall be notified
immediately. In the event the Commissioner, or in the appropriate case,
a district director, decides to terminate the parole of a alien witness
or informant authorized under the terms of this paragraph, the
Assistant Attorney General, Criminal Division, and the relevant LEA
shall be notified in writing to that effect. The Assistant Attorney
General, Criminal Division, shall concur in or object to that decision.
Unless the Assistant Attorney General, Criminal Division, objects
within 7 days, he or she shall be deemed to have concurred in the
decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred
to the Deputy Attorney General for a final resolution. In no
circumstances shall the alien or the relevant LEA have a right of
appeal from any decision to terminate parole.
(2) Termination of parole and admission in S classification. When
an LEA has filed a request for an alien in authorized parole status to
be admitted in S nonimmigrant classification and that request has been
approved by the Commissioner pursuant to the procedures outlines in 8
CFR 214.2(t), the Commissioner may, in the exercise of discretion:
(i) Terminate the alien's parole status;
(ii) Determine eligibility for waivers; and
(iii) Admit the alien in S nonimmigrant classification pursuant to
the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR
214.2(t).
(c) Departure. If the alien's parole has been terminated and the
alien has been ordered excluded from the United States, the LEA shall
ensure departure from the United States and so inform the district
director in whose jurisdiction the alien has last resided. The district
director, if necessary, shall
[[Page 44266]]
oversee the alien's departure from the United States and, in any event,
shall notify the Commissioner of the alien's departure. The
Commissioner shall be notified in writing of the failure of any alien
authorized parole under this paragraph to depart in accordance with an
order of exclusion and deportation entered after parole authorized
under this paragraph has been terminated.
(d) Failure to comply with procedures. Any failure to adhere to the
parole procedures contained in this section shall immediately be
brought to the attention of the Commissioner, who will notify the
Attorney General.
PART 214--NONIMMIGRANT CLASSES
8. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
9. In Sec. 214.1, paragraph (a)(2) is amended by adding the
following nonimmigrant classification entries to the listing of
designations, in proper sequence, to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(2) * * *
------------------------------------------------------------------------
Section Designation
------------------------------------------------------------------------
* * * * *
101(a)(15)(S)(i)........................................ S-5
101(a)(15)(S)(ii)....................................... S-6
101(a)(15)(S) qualified family members. S-7
------------------------------------------------------------------------
* * * * *
10. Section 214.1 is amended by:
a. Removing the ``or'' at the end of paragraph (c)(3)(iv);
b. Removing the ``.'' at the end of paragraph (c)(3)(v), and
replacing it with a ``; or''; and by
c. Adding a new paragraph (c)(3)(iv), to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(c) * * *
(3) * * *
(vi) Any nonimmigrant who is classified pursuant to section
101(a)(15)(S) of the Act beyond a total of 3 years.
* * * * *
11. Section 214.2 is amended by adding a new paragraph (t) to read
as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(t) Alien witnesses and informants--(1) Alien witness or informant
in criminal matter. An alien may be classified as an S-5 alien witness
or informant under the provisions of section 101(a)(15)(S)(i) of the
Act if, in the exercise of discretion pursuant to an application on
Form I-854 by an interested federal or state law enforcement authority
(``LEA''), it is determined by the Commissioner that the alien:
(i) Possesses critical reliable information concerning a criminal
organization or enterprise;
(ii) Is willing to supply, or has supplied, such information to
federal or state LEA; and
(iii) Is essential to the success of an authorized criminal
investigation or the successful prosecution of an individual involved
in the criminal organization or enterprise.
(2) Alien witness or informant in counterterrorism matter. An alien
may be classified as an S-6 alien counterterrorism witness or informant
under the provisions of section 101(a)(15)(S)(ii) of the Act if it is
determined by the Secretary of State and the Commissioner acting
jointly, in the exercise of their discretion, pursuant to an
application on Form I-854 by an interested federal LEA, that the alien:
(i) Possesses critical reliable information concerning a terrorist
organization, enterprise, or operation;
(ii) Is willing to supply or has supplied such information to a
federal LEA;
(iii) Is in danger or has been placed in danger as a result of
providing such information; and
(iv) Is eligible to receive a reward under section 36(a) of the
State Department Basic Authorities Act of 1956, 22 U.S.C. 2708(a).
(3) Spouse, married and unmarried sons and daughters, and parents
of alien witness or informant in criminal or counterterrorism matter.
An alien spouse, married or unmarried son or daughter, or parent of an
alien witness or informant may be granted derivative S classification
(S-7) when accompanying, or following to join, the alien witness or
informant if, in the exercise of discretion by, with respect to
paragraph (t)(1) of this section, the Commissioner, or, with respect to
paragraph (t)(2) of this section, the Secretary of State and the
Commissioner acting jointly, consider it to be appropriate. A
nonimmigrant in such derivative S-7 classification shall be subject to
the same period of admission, limitations, and restrictions as the
alien witness or informant and must be identified by the requesting LEA
on the application Form I-854 in order to qualify for S nonimmigrant
classification. Family members not identified on the Form I-854
application will not be eligible for S nonimmigrant classification.
(4) Request for S nonimmigrant classification. An application on
Form I-854, requesting S nonimmigrant classification for a witness or
informant, may only be filed by a federal or state LEA (which shall
include a federal or state court or a United States Attorney's Office)
directly in need of the information to be provided by the alien witness
or informant. The completed application is filed with the Assistant
Attorney General, Criminal Division, Department of Justice, who will
forward only properly certified applications that fall within the
numerical limitation to the Commissioner, Immigration and
Naturalization Service, for approval, pursuant to the following
process.
(i) Filing request. For an alien to qualify for status as an S
nonimmigrant, S nonimmigrant classification must be requested by an
LEA. The LEA shall recommend an alien for S nonimmigrant classification
by: Completing Form I-854, with all necessary endorsements and
attachments, in accordance with the instructions on, or attached to,
that form, and agreeing, as a condition of status, that no promises may
be, have been, or will be made by the LEA that the alien will or may
remain in the United States in S or any other nonimmigrant
classification or parole, adjust status to that of lawful permanent
resident, or otherwise attempt to remain beyond a 3-year period other
than by the means authorized by section 101(a)(15)(S) of the Act. The
alien, including any derivative beneficiary who is 18 years or older,
shall sign a statement, that is part of or affixed to Form I-854,
acknowledging awareness that he or she is restricted by the terms of S
nonimmigrant classification to the specific terms of section
101(a)(15)(S) of the Act as the exclusive means by which he or she may
remain permanently in the United States.
(A) District director referral. Any district director or Service
officer who receives a request by an alien, an eligible LEA, or other
entity seeking S nonimmigrant classification shall advise the requestor
of the process and the requirements for applying for S nonimmigrant
classification. Eligible LEAs seeking S nonimmigrant classification
shall be referred to the Commissioner.
(B) United States Attorney certification. The United States
Attorney with jurisdiction over a prosecution or investigation that
forms the basis for a
[[Page 44267]]
request for S nonimmigrant classification must certify and endorse the
application on Form I-854 and agree that no promises may be, have been,
or will be made that the alien will or may remain in the United States
in S or any other nonimmigrant classification or parole, adjust status
to lawful permanent resident, or attempt to remain beyond the
authorized period of admission.
(C) LEA certification. LEA certifications on Form I-854 must be
made at the seat-of-government level, if federal, or the highest level
of the state LEA involved in the matter. With respect to the alien for
whom S nonimmigrant classification is sought, the LEA shall provide
evidence in the form of attachments establishing the nature of the
alien's cooperation with the government, the need for the alien's
presence in the United States, all conduct or conditions which may
constitute a ground or grounds or excludability, and all factors and
considerations warranting a favorable exercise of discretionary waiver
authority by the Attorney General on the alien's behalf. The
attachments submitted with a request for S nonimmigrant classification
may be in the form of affidavits, statements, memoranda, or similar
documentation. The LEA shall review Form I-854 for accuracy and ensure
the alien understands the certifications made on Form I-854.
(D) Filing procedure. Upon completion of Form I-854, the LEA shall
forward the form and all required attachments to the Assistant Attorney
General, Criminal Division, United States Department of Justice, at the
address listed on the form.
(ii) Assistant Attorney General, Criminal Division review.--(A)
Review of information. Upon receipt of a complete application for S
nonimmigrant classification on Form I-854, with all required
attachments, the Assistant Attorney General, Criminal Division, shall
ensure that all information relating to the basis of the application,
the need for the witness or informant, and grounds of excludability
under section 212 of the Act has been provided to the Service on Form
I-854, and shall consider the negative and favorable factors warranting
an exercise of discretion on the alien's behalf. No application may be
acted on by the Assistant Attorney General unless the eligible LEA
making the request has proceeded in accordance with the instructions
on, or attached to, Form I-854 and agreed to all provisions therein.
(B) Advisory panel. Where necessary according to procedures
established by the Assistant Attorney General, Criminal Division, an
advisory panel, composed of representatives of the Service, Marshals
Service, Federal Bureau of Investigation, Drug Enforcement
Administration, Criminal Division, and the Department of State, and
those representatives of other LEAs, including state and federal courts
designated by the Attorney General, will review the completed
application and submit a recommendation to the Assistant Attorney
General, Criminal Division, regarding requests for S nonimmigrant
classification. The function of this advisory panel is to prioritize
cases in light of the numerical limitation in order to determine which
cases will be forwarded to the Commissioner.
(C) Assistant Attorney General certification. The certification of
the Assistant Attorney General, Criminal Division, to the Commissioner
recommending approval of the application for S nonimmigrant
classification shall contain the following:
(1) All information and attachments that may constitute, or relate
to, a ground or grounds of excludability under section 212(a) of the
Act;
(2) Each section of law under which the alien appears to be
inadmissible;
(3) The reasons that waiver(s) of inadmissibility are considered to
be justifiable and in the national interest;
(4) A detailed statement that the alien is eligible for S
nonimmigrant classification, explaining the nature of the alien's
cooperation with the government and the government's need for the
alien's presence in the United States;
(5) The intended date of arrival;
(6) The length of the proposed stay in the United States;
(7) The purpose of the proposed stay; and
(8) A statement that the application falls within the statutorily
specified numerical limitation.
(D) Submission of certified requests for S nonimmigrant
classification to Service. (1) The Assistant Attorney General, Criminal
Division, shall forward to the Commissioner only qualified applications
for S-5 nonimmigrant classification that have been certified in
accordance with the provisions of this paragraph and that fall within
the annual numerical limitation.
(2) The Assistant Attorney General Criminal Division, shall forward
to the Commissioner applications for S-6 nonimmigrant classification
that have been certified in accordance with the provisions of this
paragraph, certified by the Secretary of State or eligibility for S-6
classification, and that fall within the annual numerical limitation.
(5) Decision on application. (i) The Attorney General's authority
to waive grounds of excludability pursuant to section 212 of the Act is
delegated to the Commissioner and shall be exercised with regard to S
nonimmigrant classification only upon the certification of the
Assistant Attorney General, Criminal Division. Such certification is
nonreviewable as to the matter's significance, importance, and/or
worthwhileness to law enforcement. The Commissioner shall make the
final decision to approve or deny a request for S nonimmigrant
classification certified by the Assistant Attorney General, Criminal
Division.
(ii) Decision to approve application. Upon approval of the
application on Form I-854, the Commissioner shall notify the Assistant
Attorney General, Criminal Division, the Secretary of State, and
Service officers as appropriate. Admission shall be authorized for a
period not to exceed 3 years.
(iii) Decision to deny application. In the event the Commissioner
decides to deny an application for S nonimmigrant classification on
Form I-854, the Assistant Attorney General, Criminal Division, and the
relevant LEA shall be notified in writing to that effect. The Assistant
Attorney General, Criminal Division, shall concur in or object to that
decision. Unless the Assistant Attorney General, Criminal Division,
objects within 7 days, he or she shall be deemed to have concurred in
the decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred
to the Deputy Attorney General for a final resolution. In no
circumstances shall the alien or the relevant LEA have a right of
appeal from any decision to deny.
(6) Submission of requests for S nonimmigrant visa classification
to Secretary of State. No request for S nonimmigrant visa
classification may be presented to the Secretary of State unless it is
approved and forwarded by the Commissioner.
(7) Conditions of status. An alien witness or informant is
responsible for certifying and fulfilling the terms and conditions
specified on Form I-854 as a condition of status. The LEA that assumes
responsibility for the S nonimmigrant must:
(i) Ensure that the alien:
(A) Reports quarterly to the LEA on his or her whereabouts and
activities, and as otherwise specified on Form I-
[[Page 44268]]
854 or pursuant to the terms of his or her S nonimmigrant
classification;
(B) Notifies the LEA of any change of home or work address and
phone numbers or any travel plans;
(C) Abides by the law and all specified terms, limitations, or
restrictions on the visa, Form I-854, or any waivers pursuant to
classification; and
(D) Cooperates with the responsible LEA in accordance with the
terms of his or her classification and any restrictions on Form I-854;
(ii) Provide the Assistant Attorney General, Criminal Division,
with the name of the control agent on an ongoing basis and provide a
quarterly report indicating the whereabouts, activities, and any other
control information required on Form I-854 or by the Assistant Attorney
General;
(iii) Report immediately to the Service any failure on the alien's
part to:
(A) Report quarterly;
(B) Cooperate with the LEA;
(C) Comply with the terms and conditions of the specific S
nonimmigrant classification; or
(D) Refrain from criminal activity that may render the alien
deportable, which information shall also be forwarded to the Assistant
Attorney General, Criminal Division; and
(iv) Report annually to the Assistant Attorney General, Criminal
Division, on whether the alien's S nonimmigrant classification and
cooperation resulted in either:
(A) A successful criminal prosecution or investigation or the
failure to produce a successful resolution of the matter; or
(B) The prevention or frustration of terrorist acts or the failure
to prevent such acts.
(v) Assist the alien in his or her application to the Service for
employment authorization.
(8) Annual report. The Assistant Attorney General, Criminal
Division, in consultation with the Commissioner, shall compile the
statutorily mandated annual report to the Committee on the Judiciary of
the House of Representatives and the Committee on the Judiciary of the
Senate.
(9) Admission. The responsible LEA will coordinate the admission of
an alien in S nonimmigrant classification with the Commissioner as to
the date, time, place, and manner of the alien's arrival.
(10) Employment. An alien classified under section 101(a)(15)(S) of
the Act may apply for employment authorization by filing Form I-765,
Application for Employment Authorization, with fee, in accordance with
the instructions on, or attached to, that form pursuant to
Sec. 274a.12(c)(21) of this chapter.
(11) Failure to maintain status. An alien classified under section
101(a)(15)(S) of the Act shall abide by all the terms and conditions of
his or her S nonimmigrant classification imposed by the Attorney
General. If the terms and conditions of S nonimmigrant classification
will not be or have not been met, or have been violated, the alien is
convicted of any criminal offense punishable by a term of imprisonment
of 1 year or more, is otherwise rendered deportable, or it is otherwise
appropriate or in the public interest to do so, the Commissioner shall
proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In
the event the Commissioner decides to deport an alien witness or
informant in S nonimmigrant classification, the Assistant Attorney
General, Criminal Division, and the relevant LEA shall be notified in
writing to that effect. The Assistant Attorney General, Criminal
Division, shall concur in or object to that decision. Unless the
Assistant Attorney General, Criminal Division, objects within 7 days,
he or she shall be deemed to have concurred in the decision. In the
event of an objection by the Assistant Attorney General, Criminal
Division, the matter will be expeditiously referred to the Deputy
Attorney General for a final resolution. In no circumstances shall the
alien or the relevant LEA have a right of appeal from any decision to
deport.
(12) Change of classification. (i) An alien in S nonimmigrant
classification is prohibited from changing to any other nonimmigrant
classification.
(ii) An LEA may request that any alien lawfully admitted to the
United States and maintaining status in accordance with the provisions
of Sec. 248.1 of this chapter, except for those aliens enumerated in 8
CFR 248.2, have his or her nonimmigrant classification changed to that
of an alien classified pursuant to section 101(a)(15)(S) of the Act as
set forth in 8 CFR 248.3(h).
PART 236--EXCLUSION OF ALIENS
12. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
13. A new Sec. 236.10 is added to read as follows:
Sec. 236.10 Exclusion of alien seeking admission under section
101(a)(15)(S) of the Act.
An alien who applies for admission under the provisions of section
101(a)(15)(S) of the Act who is determined by an immigration officer
not to be eligible for admission under that section or to be excludable
from the United States under one or more of the grounds of
excludability listed in section 212 of the Act, which have not been
previously waived by the Commissioner, will be taken into custody and
will be subject to the exclusion procedures contained in 8 CFR part
236.
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING AND APPEAL
14. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252b, 1252 note,
1252b, 1254, 1362; 8 CFR part 2.
15. A new Sec. 242.26 is added to read as follows:
Sec. 242.26 Deportation of S-5, S-6, and S-7 nonimmigrant.
(a) Condition of classification. As a condition of classification
and continued stay in classification pursuant to section 101(a)(15)(S)
of the Act, nonimmigrants in S classification must have executed Form
I-854, Part B, certifying that they have knowingly waived their right
to a deportation hearing and right to contest, other than on the basis
of an application for withholding of deportation, any deportation
action, including detention pending deportation, instituted before
lawful permanent resident status is obtained.
(b) Determination of deportability. A determination to deport an
alien classified pursuant to section 101(a)(15)(S) of the Act shall be
made by the district director having jurisdiction over the place where
the alien is located.
(1) A determination to deport such an alien shall be based on one
or more of the deportation grounds listed in section 241 of the Act
based on conduct committed after, or conduct or a condition not
disclosed to the Service prior to, the alien's classification as an S
nonimmigrant under section 101(a)(15)(S) of the Act, or for a violation
of, or failure to adhere to, the particular terms and conditions of
status in S nonimmigrant classification.
(c) Deportation procedures. (1) A district director who determines
to deport an alien witness or informant in S nonimmigrant
classification shall notify the Commissioner, the Assistant Attorney
General, Criminal Division, and the relevant LEA in writing to that
[[Page 44269]]
effect. The Assistant Attorney General, Criminal Division, shall concur
in or object to that decision. Unless the Assistant Attorney General,
Criminal Division, objects within 7 days, he or she shall be deemed to
have concurred in the decision. In the event of an objection by the
Assistant Attorney General, Criminal Division, the matter will be
expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant LEA
have a right of appeal from any decision to deport.
(2) A district director, who has provided notice as set forth in
paragraph (c)(1) of this section and who has been advised by the
Commissioner that the Assistant Attorney General, Criminal Division,
has not objected, shall issue a warrant of deportation. The alien shall
immediately be arrested and taken into custody by the district director
initiating the deportation. An alien classified under the provisions of
section 101(a)(15)(S) of the Act who is determined, pursuant to a
warrant issued by a district director, to be deportable from the United
States shall be deported from the United States to his or her country
of nationality or last residence. The LEA who requested the alien's
presence in the United States shall ensure departure from the United
States and so inform the district director in whose jurisdiction the
alien has last resided. The district director, if necessary, shall
oversee the alien's departure from the Untied States and, in any event,
shall notify the Commissioner of the alien's departure.
(d) Withholding of deportation. An alien classified pursuant to
section 101(a)(15)(S) of the Act who applies for withholding of
deportation shall have 10 days from the date the warrant of deportation
is served upon the alien to file an application for such relief with
the district director initiating the deportation order. The procedures
contained in 8 CFR 208.2 and 208.16 shall apply to such an alien who
applies for withholding of deportation.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
16. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255, and 8 CFR part 2.
17. In Sec. 245.1, paragraph (c)(7) is redesignated as paragraph
(c)(8), and a new paragraph (c)(7) is added to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(c) * * *
(7) A nonimmigrant classified pursuant to section 101(a)(15)(S) of
the Act, unless the nonimmigrant is applying for adjustment of status
pursuant to the request of a law enforcement authority, the provisions
of section 101(a)(15)(S) of the Act, and 8 CFR 245.11.
* * * * *
18. A new Sec. 245.11 is added to read as follows:
Sec. 245.11 Adjustment of aliens in S nonimmigrant classification.
(a) Eligibility. An application on Form I-854, requesting that an
alien witness or informant in S nonimmigrant classification be allowed
to adjust status to that of lawful permanent resident, may only be
filed by the federal or state law enforcement authority (``LEA'')
(which shall include a federal or state court or a United States
Attorney's Office) that originally requested S classification for the
alien. The completed application shall be filed with the Assistant
Attorney General, Criminal Division, Department of Justice, who will
forward only properly certified applications to the Commissioner,
Immigration and Naturalization Service, for approval. Upon receipt of
an approved Form I-854 allowing the S nonimmigrant to adjust status to
that of lawful permanent resident, the alien may proceed to file with
that Form, Form I-485, Application to Register Permanent Residence or
Adjust Status, pursuant to the following process.
(1) Request to allow S nonimmigrant to apply for adjustment of
status to that of lawful permanent resident. The LEA that requested S
nonimmigrant classification for an S nonimmigrant witness or informant
pursuant to section 101(a)(15)(S) of the Act may request that the
principal S nonimmigrant be allowed to apply for adjustment of status
by filing Form I-854 with the Assistant Attorney General, Criminal
Division, in accordance with the instructions on, or attached to, that
form and certifying that the alien has fulfilled the terms of his or
her admission and classification. The same Form I-854 may be used by
the LEA to request that the principals nonimmigrant's spouse, married
and unmarried sons and daughters, regardless of age, and parents who
are in derivative S nonimmigrant classification and who are qualified
family members as described in paragraph (b) of this section similarly
be allowed to apply for adjustment of status pursuant to section
101(a)(15)(S) of the Act.
(2) Certification. Upon receipt of an LEA's request for the
adjustment of an alien in S nonimmigrant classification on Form I-854,
the Assistant Attorney General, Criminal Division, shall review the
information and determine whether to certify the request to the
Commissioner in accordance with the instructions on the form.
(3) Submission of requests for adjustment of status to the
Commissioner. No application by an LEA on Form I-854 requesting the
adjustment to lawful permanent resident status of an S nonimmigrant
shall be forwarded to the Commissioner unless first certified by the
Assistant Attorney General, Criminal Division.
(4) Decision on request to allow adjustment of S nonimmigrant. The
Commissioner shall make the final decision on a request to allow an S
nonimmigrant to apply for adjustment of status to lawful permanent
resident.
(i) In the event the Commissioner decides to deny an application on
Form I-854 to allow an S nonimmigrant to apply for adjustment of
status, the Assistant Attorney General, Criminal Division, and the
relevant LEA shall be notified in writing to that effect. The Assistant
Attorney General, Criminal Division, shall concur in or object to that
decision. Unless the Assistant Attorney General, Criminal Division,
objects within 7 days, he or she shall be deemed to have concurred in
the decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred
to the Deputy Attorney General for a final resolution. In no
circumstances shall be alien or the relevant LEA have a right of appeal
from any decision to deny.
(ii) Upon approval of the request on Form I-854, the Commissioner
shall forward a copy of the approved form to the Assistant Attorney
General and the S nonimmigrant, notifying them that the S nonimmigrant
may proceed to file Form I-485 and request adjustment of status to that
of lawful permanent resident, and that, to be eligible for adjustment
of status, the nonimmigrant must otherwise:
(A) Meet the requirements of paragraph (b) of this section, if
requesting adjustment as a qualified family member of the certified
principal S nonimmigrant witness or informant;
(B) Be admissible to the United States as an immigrant, unless the
ground of excludability has been waived;
(C) Establish eligibility for adjustment of status under all
provisions of section 245 of the Act, unless the basis for
ineligibility has been waived; and
[[Page 44270]]
(D) Properly file with his or her Form I-485, Application to
Register Permanent Residence or Adjust Status, the approved Form I-854.
(b) Family members--(1) Qualified family members. A qualified
family member of an S nonimmigrant includes the spouse, married or
unmarried son or daughter, or parent of a principal S nonimmigrant who
meets the requirements of paragraph (a) of this section, provided that:
(i) The family member qualified as the spouse, married or unmarried
son or daughter, or parent (as defined in section 101(b) of the Act) of
the principal S nonimmigrant when the family member was admitted as or
granted a change of status to that of a nonimmigrant under section
101(a)(15)(S) of the Act;
(ii) The family member was admitted in S nonimmigrant
classification to accompany, or follow to join, the principal S-5 or S-
6 alien pursuant to the LEA's request;
(iii) The family member is not excludable from the United States as
a participant in Nazi persecution or genocide as described in section
212(a)(3)(E) of the Act;
(iv) The qualifying relationship continues to exist; and
(v) The principal alien has adjusted status, has a pending
application for adjustment of status or is concurrently filing an
application for adjustment of status under section 101(a)(15)(S) of the
Act.
(vi) Paragraphs (b)(1)(iv) and (v) of this section do not apply if
the alien witness or informant has died and, in the opinion of the
Attorney General, was in compliance with the terms of his or her S
classification under section 245(i) (1) and (2) of the Act.
(2) Other family member. The adjustment provisions in this section
do not apply to a family member who has not been classified as an S
nonimmigrant pursuant to a request on Form I-854 or who does not
otherwise meet the requirements of paragraph (b) of this section.
However, a spouse or an unmarried child who is less than 21 years old,
and whose relationship to the principal S nonimmigrant or qualified
family member was established prior to the approval of the principal S
nonimmigrant's adjustment of status application, may be accorded the
priority date and preference category of the principal S nonimmigrant
or qualified family member, in accordance with the provisions of
section 203(d) of the Act. Such a spouse or child:
(i) May use the principal S nonimmigrant or qualified member's
priority date and category when it becomes current, in accordance with
the limitations set forth in sections 201 and 202 of the Act;
(ii) May seek immigrant visa issuance abroad or adjustment of
status to that of a lawful permanent resident of the United States when
the priority date becomes current for the spouse's or child's country
of chargeability under the fourth employment-based preference
classification;
(iii) Must meet all the requirements for immigrant visa issuance or
adjustment of status, unless those requirements have been waived;
(iv) Is not applying for adjustment of status under 101(a)(15)(S)
of the Act, is not required to file Form I-854, and is not required to
obtain LEA certification; and
(v) Will lose eligibility for benefits if the child marries or has
his or her twenty-first birthday before being admitted with an
immigrant visa or granted adjustment of status.
(c) Waivers of excludability. An alien seeking to adjust status
pursuant to the provisions of section 101(a)(15)(S) of the Act may not
be denied adjustment of status for conduct or a condition which:
(1) Was disclosed to the Attorney General prior to admission; and
(2) Was specifically waived pursuant to the waiver provisions set
forth at section 212(d)(1) and 212(d)(3) of the Act.
(d) Application. Each S nonimmigrant requesting adjustment of
status under section 101(a)(15)(S) of the Act must:
(1) File Form I-485, with the prescribed fee, accompanied by the
approved Form I-854, and the supporting documents specified in the
instructions to Form I-485 and described in 8 CFR 245.2. Secondary
evidence may be submitted if the nonimmigrant is unable to obtain the
required primary evidence as provided in 8 CFR 103.2(b)(2). The S
nonimmigrant applying to adjust must complete Part 2 of Form I-485 by
checking box ``h-other'' and writing ``S'' or ``S-Qualified Family
Member.'' Qualified family members must submit documentary evidence of
the relationship to the principal S nonimmigrant witness or informant.
(2) Submit detailed and inclusive evidence of eligibility for the
adjustment of status benefits of S classification, which shall include:
(i) A photocopy of all pages of the alien's most recent passport or
an explanation of why the alien does not have a passport; or
(ii) An attachment on a plain piece of paper showing the dates of
all arrivals and departures from the United States in S nonimmigrant
classification and the reason for each departure; and
(iii) Primary evidence of a qualifying relationship to the
principal S nonimmigrant, such as birth or marriage certificate. If any
required primary evidence is unavailable, church or school records, or
other secondary evidence may be submitted. If such documents are
unavailable, affidavits may be submitted as provided in 8 CFR
103.2(b)(2).
(e) Priority date. The S nonimmigrant's priority date shall be the
date his or her application for adjustment of status as an S
nonimmigrant is properly filed with the Service.
(f) Visa number limitation. An adjustment of status application
under section 101(a)(15)(S) of the Act may be filed regardless of the
availability of immigrant visa numbers. The adjustment of status
application may not, however, be approved and the alien's adjustment of
status to that of lawful permanent resident of the United States may
not be granted until a visa number becomes available for the alien
under the worldwide allocation for employment-based immigrants under
section 201(d) and section 203(b)(4) of the Act. The alien may request
initial or continued employment authorization while the adjustment
application is pending by filing Form I-765, Application for Employment
Authorization. If the alien needs to travel outside the United States
during this period, he or she may file a request for advance parole on
Form I-131, Application for Travel Document.
(g) Filing and decision. An application for adjustment of status
filed by an S nonimmigrant under section 101(a)(15)(S) of the Act shall
be filed with the district director having jurisdiction over the
alien's place of residence. Upon approval of adjustment of status under
this section, the district director shall record the alien's lawful
admission for permanent residence as of the date of such approval. The
district director shall notify the Commissioner and the Assistant
Attorney General, Criminal Division, of the adjustment.
(h) Deportation under section 241 of the Act. Nothing in this
section shall prevent an alien adjusted pursuant to the terms of these
provisions from being deported for conviction of a crime of moral
turpitude committed within 10 years after being provided lawful
permanent residence under this section or for any other ground under
section 241 of the Act.
(i) Denial of application. In the event the district director
decides to deny an application on Form I-485 and an
[[Page 44271]]
approved Form I-854 to allow an S nonimmigrant to adjust status, the
Assistant Attorney General, Criminal Division, and the relevant LEA
shall be notified in writing to that effect. The Assistant Attorney
General, Criminal Division, shall concur in or object to that decision.
Unless the Assistant Attorney General, Criminal Division, objects
within 7 days, he or she shall be deemed to have concurred in the
decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred
to the Deputy Attorney General for a final resolution. In no
circumstances shall the alien or the relevant LEA have a right of
appeal from any decision to deny. A denial of an adjustment application
under this paragraph may not be renewed in subsequent deportation
proceedings.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
19. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.
Sec. 248.2 [Amended]
20. In Sec. 248.2, paragraph (b) is amended by removing the term
``or (K)'' and adding in lieu thereof the term ``(K), or (S)''.
21. Section 248.3 is amended by adding a new paragraph (h) to read
as follows:
Sec. 248.3 Application.
* * * * *
(h) Change to S nonimmigrant classification. An eligible state or
federal law enforcement agency (``LEA''), which shall include a state
or federal court or a United States Attorney's Office, may seek to
change the nonimmigrant classification of a nonimmigrant lawfully
admitted to the United States, except those enumerated in Sec. 248.2 of
this chapter, to that of an alien witness or informant pursuant to
section 101(a)(15)(S) of the Act by filing with the Assistant Attorney
General, Criminal Division, Form I-539, Application to Extend/Change
Nonimmigrant Status, with the appropriate fee, and Form I-854, Inter-
Agency Alien Witness and Informant Record, with attachments
establishing eligibility for the change of nonimmigrant classification.
(1) If the Assistant Attorney General, Criminal Division, certifies
the request for S nonimmigrant classification in accordance with the
procedures set forth in 8 CFR 214.2(t), the Assistant Attorney General
shall forward the LEA's request on Form I-854 with Form I-539 to the
Commissioner. No request for change of nonimmigrant classification to S
classification may proceed to the Commissioner unless it has first been
certified by the Assistant Attorney General, Criminal Division.
(2) In the event the Commissioner decides to deny an application to
change nonimmigrant classification to S nonimmigrant classification,
the Assistant Attorney General, Criminal Division, and the relevant LEA
shall be notified in writing to that effect. The Assistant Attorney
General, Criminal Division, shall concur in or object to that decision.
Unless the Assistant Attorney General, Criminal Division, objects
within 7 days, he or she shall be deemed to have concurred in the
decision. In the event of an objection by the Assistant Attorney
General, Criminal Division, the matter will be expeditiously referred
to the Deputy Attorney General for a final resolution. In no
circumstances shall the alien or the relevant LEA have a right of
appeal from any decision to deny.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
22. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
23. Section 274a.12 is amended by adding a new paragraph (c)(21) to
read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(c) * * *
(21) A principal nonimmigrant witness or informant in S
classification, and qualified dependent family members.
* * * * *
PART 299--IMMIGRATION FORMS
24. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
25. Section 299.1 is amended by adding the entry for ``Form I-854''
to the listing of forms, in proper numerical sequence, to read as
follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * * *
I-854....... June 20, Inter-Agency Alien Witness and Informant
1995. Record.
------------------------------------------------------------------------
* * * * *
26. Section 299.5 is amended by adding the entry for ``Form I-
854'', to the listing of forms, in proper numerical sequence, to read
as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form No. INS form title OMB control
No.
------------------------------------------------------------------------
* * * * *
I-854....... Inter-Agency Alien Witness and Informant 1115-0196
Record.
* * * * *
------------------------------------------------------------------------
Dated: August 18, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-21113 Filed 8-24-95; 8:45 am]
BILLING CODE 4410-10-M
