[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45750-45753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21668]
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LEGAL SERVICES CORPORATION
45 CFR Part 1626
Restrictions on Legal Assistance to Aliens
AGENCY: Legal Services Corporation.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule completely revises the Legal Services
Corporation's (``LSC'' or ``Corporation'') regulation on the provision
of legal assistance to aliens. The revisions are intended to implement
a new restriction contained in the Corporation's FY 1996 appropriations
act prohibiting LSC-funded recipients from providing legal assistance
to ineligible aliens, regardless of the source of funds used to finance
the legal assistance. Although this rule is effective upon publication,
the Corporation solicits public comment on the interim rule in
anticipation of adoption of a final rule at a later date.
DATES: The interim rule is effective on August 29, 1996. Comments must
be submitted on or before October 28, 1996.
ADDRESSES: Comments should be submitted to the Office of the General
Counsel, Legal Services Corporation, 750 First Street, NE., 11th Floor,
Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at
(202) 336-8910.
SUPPLEMENTARY INFORMATION: Section 504(a)(11) of the Legal Services
Corporation's (``LSC'' or ``Corporation'') appropriations act for
Fiscal Year 1996, Pub. L. 104-134, 110 Stat. 1321 (1996), prohibits the
Corporation from providing funds to any person or entity
(``recipient'') that provides legal assistance to ineligible aliens.
The current rule, which expressly allows recipients to use their non-
LSC funds to provide legal assistance to ineligible aliens, is
inconsistent with Sec. 504(a)(11), which effectively restricts a
recipient's non-LSC funds to the same degree it restricts LSC funds.
On May 19, 1996, the Operations and Regulations Committee
(``Committee'') of the Corporation's Board of Directors (``Board'')
requested the LSC staff to prepare an interim rule to implement the new
restriction. The Committee held public hearings on staff proposals on
July 9 and 19, and the Board adopted this interim rule on July 20 for
publication in the Federal Register. The Committee recommended and the
Board agreed to publish this rule as an interim rule. An interim rule
is necessary in order to provide prompt and critically necessary
guidance to LSC recipients on legislation which is already effective
and carries strong penalties for noncompliance. Because of the great
need for guidance on how to comply with substantially revised
legislative requirements, prior notice and public comment are
impracticable, unnecessary, and contrary to the public interest. See 5
U.S.C. 553(b)(3)(B) and 553(d)(3). Accordingly, this rule is effective
upon publication.
However, the Corporation solicits public comment on the interim
rule for review and consideration by the Corporation. After receipt of
written public comment, the Committee intends to hold public hearings
to discuss the written comments and to hear oral comments. It is
anticipated that a final rule will be issued that will supersede this
interim rule.
This rule completely revises the prior rule. In general, the
revisions implement section 504(a)(11) of the Corporation's FY 1996
appropriations act, which prohibits LSC-funded recipients from
providing legal assistance to ineligible aliens.
A section-by-section discussion of this interim rule is provided
below.
Section 1626.1 Purpose
This section is revised to ensure that recipients refrain from
providing legal assistance to ineligible aliens. In addition, language
has been deleted from the prior rule that limited the requirements of
the rule to LSC funds. It continues to be a purpose of this rule to
assist recipients in determining the eligibility of persons seeking
legal assistance. This rule deletes reference to the confidentiality of
client records. Confidentiality issues will be dealt with separately
when the Corporation issues regulations generally dealing with access
to client records.
Section 1626.2 Definitions
The definitions of ``eligible alien'' and ``ineligible alien'' have
been changed but the changes do not alter the substantive meaning of
the terms. They are intended to simplify the definitions and to delete
references to outdated statutory authority.
Section 1626.3 Prohibition
This section sets out the rule's general prohibition against the
provision of legal assistance to ineligible aliens. All references that
limit the prohibition to LSC funds have been deleted. In addition,
since the prior rule's language was confusing, the prohibition has been
restated more directly and simply. Aside from expanding the prohibition
to non-LSC funds, there is no substantive change of meaning intended.
Accordingly, the definition of ``prohibited legal assistance `for' an
ineligible alien'' has been deleted, because it simply means legal
assistance to an ineligible alien and that is now clear in the
prohibition.
The definition of ``prohibited legal assistance `on behalf of' an
ineligible alien'' has not been deleted or revised. This definition
clarifies that recipients may not become involved in the provision of
legal services that would benefit an ineligible alien by naming as the
client an eligible alien whose distinct legal rights or interest are
not affected by the representation.
Finally, the title of the section has been shortened.
[[Page 45751]]
Section 1626.4 Alien Status and Eligibility
This section sets out the categories of aliens eligible for legal
services. The paragraphs have been redesignated, and a new paragraph
(e) has been added to cross-reference other sections of the rule which
designate other categories or types of aliens eligible for legal
assistance.
Section 1626.5 Verification of Citizenship and Eligible Alien Status
No revisions have been made to this section. However, if necessary,
the Corporation will update this section to reflect the current
documents used by the INS to verify categories of aliens. The
Corporation requests comments on whether the types of documents listed
in this section need revision or updating and whether there are other
documents that should be included in the rule.
Section 1626.6 Change in Circumstances
The prior Sec. 1626.6 has been deleted because it allowed the use
of non-LSC funds for pending cases involving representation of
ineligible aliens. Recipients may no longer use non-LSC funds for
ineligible aliens, and the underlying statutory prohibition provides no
basis for a waiver of the prohibition. The new Sec. 1626.6 is a revised
version of the prior Sec. 1626.7. This new section reflects the new
statutory restriction that recipients may not provide legal assistance
to ineligible aliens with non-LSC funds. It provides that, if a
recipient learns that an eligible alien client becomes ineligible
through a change in circumstances, the recipient must discontinue
representation of the client consistent with the attorney's
professional responsibilities.
Section 1626.7 Special Eligibility Questions
This section was Sec. 1626.10 in the prior rule. Only technical
changes have been made to this section.
Section 1626.8 H-2 Agricultural Workers
This section was numbered Sec. 1626.11 in the prior rule. Only
technical changes have been made to this section.
Section 1626.9 Replenishment Agricultural Workers
This section was numbered Sec. 1626.12 in the prior rule. It is
redesignated as Sec. 1626.9.
Section 1626.10 Recipient Policies, Procedures and Recordkeeping
This new section requires that recipient governing bodies establish
written policies and procedures that will guide recipient staff to
ensure compliance with this rule. It also requires the recipient to
maintain records sufficient to document compliance with this part.
List of Subjects in 45 CFR Part 1626
Aliens, Grant programs--law, Legal services, Migrant labor,
Reporting and record keeping requirements.
For reasons set forth in the preamble, 45 CFR part 1626 is revised
to read as follows:
PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
Sec.
1626.1 Purpose.
1626.2 Definitions.
1626.3 Prohibition.
1626.4 Alien status and eligibility.
1626.5 Verification of citizenship and eligible alien status.
1626.6 Change in circumstances.
1626.7 Special eligibility questions.
1626.8 H-2 agricultural workers.
1626.9 Replenishment agricultural workers.
1626.10 Recipient policies, procedures and recordkeeping.
Authority: Pub. L. 104-134, 110 Stat. 1321.
Sec. 1626.1 Purpose.
This part prohibits recipients from providing legal assistance for
or on behalf of ineligible aliens. It is also designed to assist
recipients in determining the eligibility and immigration status of
persons who seek legal assistance and to provide guidelines for
referral of ineligible persons.
Sec. 1626.2 Definitions.
(a) Eligible alien means a person who is not a U.S. citizen but who
meets the requirements of Sec. 1626.4.
(b) Ineligible alien means a person who is not a U.S. citizen and
who does not meet the requirements of Sec. 1626.4.
(c) Rejected refers to an application for adjustment of status that
has been denied by the Immigration and Naturalization Service (INS) and
is not subject to further administrative appeal.
(d) To provide legal assistance on behalf of an ineligible alien is
to render legal assistance to an eligible client which benefits an
ineligible alien and does not affect a specific legal right or interest
of the eligible client.
Sec. 1626.3 Prohibition.
Recipients may not provide legal services for or on behalf of an
ineligible alien beyond normal intake and referral services.
Sec. 1626.4 Alien status and eligibility.
Subject to all other eligibility requirements and restrictions of
the LSC Act and regulations and other applicable law, a recipient may
provide legal assistance to an alien who is present in the United
States and who is within one of the following categories:
(a) An alien lawfully admitted for permanent residence as an
immigrant as defined by section 1101(a)(20) of the Immigration and
Nationality Act (INA) (8 U.S.C. 1101(a)(20));
(b) An alien who is either married to a United States citizen or is
a parent or an unmarried child under the age of 21 of such a citizen
and who has filed an application for adjustment of status to permanent
resident under the Immigration and Nationality Act, and such
application has not been rejected;
(c) An alien who is lawfully present in the United States pursuant
to an admission under section 207 of the Immigration and Nationality
Act (8 U.S.C. 1157 relating to refugee admissions) or who has been
granted asylum by the Attorney General under section 208 of the
Immigration and Nationality Act (8 U.S.C. 1158), or who is lawfully
present in the United States as a result of being granted conditional
entry pursuant to section 203(a)(7) of the Immigration and Nationality
Act (8 U.S.C. 1153(a)(7)) before April 1, 1980, because of persecution
or fear of persecution on account of race, religion, or political
opinion or because of being uprooted by catastrophic natural calamity;
(d) An alien who is lawfully present in the United States as a
result of the Attorney General's withholding of deportation pursuant to
section 243(h) of the Immigration and Nationality Act (8 U.S.C.
1253(h)); or
(e) An alien who meets the requirements of Sec. 1626.7, 1626.8 or
1626.9.
Sec. 1626.5 Verification of citizenship and eligible alien status.
(a) A citizen seeking representation shall attest in writing in a
form approved by the Corporation to the fact of his or her United
States citizenship. Verification of citizenship shall not be required
unless a recipient has reason to doubt that a person is a United States
citizen.
(1) If verification is required, a recipient shall accept the
original or a certified copy of any of the following documents as
evidence of citizenship:
(i) United States passport;
(ii) Birth certificate;
(iii) Naturalization certificate;
(iv) United States Citizenship Identification Card (INS Form 1-
197); and
(v) Baptismal certificate showing place of birth within the United
States
[[Page 45752]]
and date of baptism within two months after birth.
(2) If a person is unable to produce any of the documents in
paragraph (a)(1) of this section, he or she may submit a notarized
statement signed by a third party, who shall not be an employee of the
recipient and who can produce proof of that party's own United States
citizenship, that the person seeking legal assistance is a United
States citizen.
(b) An alien seeking representation shall submit appropriate
documents to verify eligibility. A recipient shall accept originals of
any of the following documents as proof of eligibility:
(1) An alien in the category specified in Sec. 1626.4(a) shall
present an Alien Registration Receipt Card (INS Forms 1-151, or 1-551),
a Temporary Evidence of Lawful Admission for Permanent Residence form
(INS Form 1-181B), or a valid passport and immigration visa.
(2) An alien in the category specified in Sec. 1626.4(b) shall
present the following documents:
(i) The fee receipt issued to the alien by the Immigration and
Naturalization Service (INS) at the time that the Application for
Status as Permanent Resident (INS Form 1-485) was filed; a copy of the
Application for Status as Permanent Resident accompanied by a notarized
statement signed by the alien that such form was filed with INS; a copy
of the Application for Immigrant Visa & Alien Registration (Department
of State Form FS-510) accompanied by a notarized statement signed by
the alien that such form was filed with a consulate office; or a copy
of the Application for Suspension of Deportation (INS Form 1-256A)
accompanied by a notarized statement signed by the alien that such form
was filed with INS; and
(ii) A copy of the alien's marriage certificate accompanied by
proof of the spouse's U.S. citizenship; a copy of the United States
birth certificate, baptismal certificate, adoption decree or other
documents demonstrating that the alien is the parent of a United States
citizen under the age of 21; a copy of the alien's birth certificate,
baptismal certificate, adoption decree, or other documents
demonstrating that the alien is a child under the age of 21,
accompanied by proof that the alien's parent is a United States
citizen; or in lieu of the above, a copy of the Petition to Classify
Status of Alien Relative for Issuance of Immigrant Visa (INS Form 1-
130) containing information that demonstrates that the alien is related
to such a United States citizen spouse, parent, or child, accompanied
by a notarized statement that such form was filed with INS.
(3) An alien in the category specified in Sec. 1626.4(c) shall
present an Arrival-Departure Record (INS Form 1-94) marked ``section
207'' or ``Refugee'' (if claiming refugee status), ``section 208'' or
``Asylum'' (if claiming asylum status), or ``section 203(a)(7)'' or
``conditional entry'' (if claiming conditional entrant status).
(4) An alien in the category specified in Sec. 1626.4(d) shall
present an Arrival-Departure Record (INS Form 1-94) marked ``section
243(h),'' or a court order or letter signed by an immigration judge
stating that the Attorney General is withholding deportation of the
alien.
(5) A recipient may also accept any other authoritative document
issued by INS that provides evidence of alien status for the categories
of aliens listed in paragraph (b) of this section.
(c) A Temporary Resident Card (INS Form 1-688) shall be considered
evidence of eligible alien status in the case of a Special Agricultural
Worker. See Sec. 1626.7(b). This form shall not be considered evidence
of eligible alien status in the case of an alien who has obtained an
adjustment in status under the General Amnesty provisions of
Immigration Reform and Control Act (IRCA), 8 U.S.C. 1255a, unless the
alien can qualify independently under another exception to the general
restriction as stated in Sec. 1624.4(a), (b), (c) or (d).
(d) A recipient shall upon request furnish each person seeking
legal assistance with a list of the documents described in this
section. Persons applying for legal assistance are responsible for
producing the appropriate documents to verify eligibility.
(e) In an emergency, legal services may be provided prior to
compliance with all the requirements of Sec. 1626.5(a) through (d) if:
(1) It is not feasible for a citizen or an alien to come to the
recipient's office or otherwise physically transmit documentation to
the recipient before commencement of representation, such required
information as can be obtained orally shall be recorded by the
recipient and written documentation shall be submitted as soon as
possible;
(2) An alien is physically present, but cannot produce required
documentation, he or she shall make a written statement identifying the
category listed in Sec. 1626.4 under which he or she claims eligibility
and the documents that will be produced to verify that status; this
documentation shall be submitted as soon as possible;
(3) The recipient adheres strictly to the same criteria for
emergency assistance used in their general determination of priorities
and uses the procedures of Sec. 1626.5(e) only in cases meeting these
criteria; and
(4) The recipient informs clients accepted under these procedures
that only limited emergency legal assistance may be provided them
without satisfactory documentation and that failure or inability to
produce satisfactory documentation will compel the recipient to
discontinue representation consistent with the recipient's professional
responsibilities as soon as the emergency no longer exists.
(f) No written verification is required when the only service
provided for an eligible alien or citizen is brief advice and
consultation by telephone. The term ``brief advice'' is limited to
advice provided by telephone and does not include a continuous
representation of a client.
Sec. 1626.6 Change in circumstances.
If, to the knowledge of the recipient, a client who was an eligible
alien becomes ineligible through a change in circumstances, a recipient
must discontinue representation of the client consistent with the
applicable rules of professional responsibility.
Sec. 1626.7 Special eligibility questions.
(a) The alien restriction in Sec. 1626.3 is not applicable to the
following:
(1) Citizens of the following Pacific Island entities:
(i) Commonwealth of the Northern Marinas;
(ii) Republic of Palau;
(iii) Federated States of Micronesia;
(iv) Republic of the Marshall Islands;
(2) All Canadian-born American Indians at least 50% Indian by
blood;
(3) Members of the Texas Band of Kickapoo.
(b) An alien who qualified as a special agricultural worker and
whose status is adjusted to that of temporary resident alien under the
provisions of IRCA is considered a permanent resident alien for all
purposes except immigration under the provisions of section 302 of Pub.
L. 99-603, 100 Stat. 3422, 8 U.S.C. 1160(g). Since the status of these
aliens is that of permanent resident alien under section 1101(a)(20) of
Title 8, these workers may be provided legal assistance. These workers
are ineligible for legal assistance in order to obtain the adjustment
of status of temporary resident under IRCA, but are eligible for legal
assistance after the application for adjustment of status to that of
temporary resident has been filed, as long as such application has not
been rejected and the applicant is eligible for services under
Sec. 1626.4(b).
[[Page 45753]]
Sec. 1626.8 H-2 Agricultural workers.
(a) Nonimmigrant agricultural workers admitted under the provisions
of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called H-2 workers, are
considered to be aliens described in 8 U.S.C. 1101(a)(20) and thus, if
otherwise eligible, may be provided legal assistance regarding the
matters specified in section 305 of the Immigration Reform and Control
Act of 1986, Pub. L. 99-603, Stat. 3434, 8 U.S.C. 1101 note.
(b) The following matters which arise under the provisions of the
worker's specific employment contract may be the subject of legal
assistance by an LSC-funded program:
(1) Wages;
(2) Housing;
(3) Transportation; and
(4) Other employment rights as provided in the worker's specific
contract under which the nonimmigrant worker was admitted.
Sec. 1626.9 Replenishment agricultural workers.
Aliens who acquire the status of aliens lawfully admitted for
temporary residence as replenishment agricultural workers under section
210A(c) of the Immigration and Nationality Act, such status not having
changed, are considered to be aliens described in 8 U.S.C. 1101(a)(20)
and thus may receive legal assistance, if otherwise eligible.
Sec. 1626.10 Recipient policies, procedures and recordkeeping.
Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part and shall maintain records
sufficient to document the recipient's compliance with this part.
Dated: August 20, 1996.
Suzanne B. Glasow,
Senior Counsel for Operations & Regulations.
[FR Doc. 96-21668 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P
