01-12432. Adjustment of Status for Certain Syrian Nationals Granted Asylum in the United States

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

On October 27, 2000, the President signed into law Public Law 106-378, providing for the adjustment of status to that of lawful permanent resident for certain nationals of Syria. This interim rule discusses the eligibility requirements and sets forth application procedures for persons wishing to adjust status on the basis of Public Law 106-378. This provision does not affect an alien's eligibility for adjustment of status under section 209 of the Immigration and Nationality Act (Act) based on a grant of asylum.

DATES:

Effective date. This rule is effective May 17, 2001.

Comment date. Comments must be submitted on or before July 16, 2001.

ADDRESSES:

Please submit written comments to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I street NW., Room 4034, Washington, DC 20536, or via fax to [phone]. To ensure proper handling, please reference INS number 2122-01 on your correspondence. Comments are available for public inspection at this location by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Michael Valverde, Residence and Status Services Branch, Adjudications, Immigration and Naturalization Service, Room 3040, 425 I Street, NW., Washington, DC 20536, telephone [phone].

SUPPLEMENTARY INFORMATION:

What Is Public Law 106-378?

On October 27, 2000, former President Clinton signed Public Law 106-378, providing the Attorney General with the authority to adjust status to that of lawful permanent resident for an estimated 2,000 eligible Syrian nationals who were granted asylum in the United States. The stated objective for this law is to provide relief for a group of Jewish Syrian nationals who were allowed to depart Syria and enter the United States after December 31, 1991, and who were subsequently granted asylum in the United States.

Under section 209 of the Immigration and Nationality Act (Act), all aliens granted asylum are eligible to apply for adjustment of status 1 year after being granted asylum. Section 209 of the Act also limits the number of asylee-based adjustments to 10,000 per year. Since in recent years the Immigration and Naturalization Service (Service) has granted asylum to more than 10,000 aliens each year, asylees face a substantial wait until they can adjust status. Public Law 106-378 is an adjustment provision independent of section 209 of the Act, and therefore provides eligible Syrian nationals relief from the wait caused by the annual limit on the number of aslyees who can adjust status.

Who Is Eligible To Adjust Status to That of Lawful Permanent Resident Under Public Law 106-378?

(1) In order to be eligible for adjustment of status under this law, the principal alien must:

• Be a Jewish national of Syria;
• Have arrived in the United States after December 31, 1991, after being permitted by the Syrian government to depart from Syria; and,
• Be physically present in the United States at the time of filing the application to adjust status.

(2) In addition, the alien must:

• Apply for adjustment of status under Public Law 106-378 no later than October 26, 2001, or have applied for adjustment of status under another provision of the Act and request that the basis of that application be changed to Public Law 106-378;
• Have been physically present in the United States for at least 1 year after being granted asylum;
• Not be firmly resettled in any foreign country; and
• Be admissible as an immigrant under the Act at the time of examination for adjustment of status.

The spouse, child, or unmarried son or daughter of an eligible Syrian national may also adjust status under Public Law 106-378 provided he or she meets the requirements listed under section (2) above.

What Ground of Inadmissibility Does Not Apply When Adjusting Status Under Public Law 106-378?

While Public Law 106-378 requires that aliens applying to adjust status under this provision must be admissible as an immigrant, the Service will not apply the ground of inadmissibility found at section 212(a)(4) of the Act relating to public charge to applicants for adjustment of status under Public Law 106-378.

Public Law 106-378 affords its beneficiaries the opportunity to adjust their status from asylee to lawful permanent resident without regard to the normal numerical limits on such adjustments.

Pre-existing law provides that the ground of inadmissibility found at section 212(a)(4) of the Act relating to public charge is inapplicable to an alien seeking adjustment of status from that of a refugee or asylee. Accordingly, the Service has determined that it would be inconsistent with the purpose of this law to enforce this ground of inadmissibility against this small (2,000) groups of aliens where, given the short application period, Congress has directed that “the Attorney General should act without further delay to grant [them] lawful permanent resident status.”

Indeed, granting lawful permanent resident status sooner, rather than later, to an asylee who might otherwise be found to be a public charge helps the country as a whole by granting them an immigration status that expands their employment potential. Such considerations have been taken into account previously when interpreting the impact of section 212(a)(4) of the Act on an alien's eligibility for other special adjustment programs. See Matter of Mesa 12 I&N Dec. 432 (BIA 1967).

What Grounds of Inadmissibility May Be Waived When Adjusting Status Under Public Law 106-378?

Applicants may apply for the waivers of other grounds of inadmissibility found at section 212(h), (i), and (k) of the Act, to the extent they are eligible.

How Do Eligibility Syrian Nationals File for Adjustment of Status Under Public Law 106-378?

Aliens With Applications for Adjustment of Status Already Pending

Filed Before October 27, 200

Some eligible Syrian nationals may have already filed a Form I-485, Application to Register Permanent Residence or Adjust Status, prior to October 27, 2000, when Public Law 106-378 was enacted. If that application remains pending, such an eligible Syrian national has the option of (1) requesting that the basis for that pending Form I-485 be changed to Public Law 106-378, at any time or (2) submitting a new Form I-485 based on Public Law 106-378 prior to October 26, 2001, that would be processed independently of the other Form I-485 on file.

Any new application for adjustment based on Public Law 106-378 is subject to the statutory deadline of October 2, 2001. However, according to the language of § 2(a)(1) of Public Law 106-378, as interpreted by the Services, the statutory deadline does not apply if the alien had applied for adjustment of status, before the date of enactment of Public Law 106-378, under any other provision of the INA.

Filed On or After October 27, 2000

If an eligible Syrian national filed Form I+485 under another provision of law on or after October 27, 2000, he or she has the same 2 options of requesting that the basis for that pending Form I-485 be changed to Public Law 106-378, or submitting a new Form I-485 based on Public Law 106-378. However, to remain eligible for adjustment of status under Public Law 106-378, the alien must make the request or file the new application on or before October 26, 2001.

Requesting That the Basis of the Pending Form I-485 Be Changed to Public Law 106-378

An eligible Syrian national requesting that the basis of his or her pending Form I-485 be changed to Public Law 106-378 must submit this request in writing to the Nebraska Service Center at the address listed below. The request must state that the applicant wants to change the basis of his or her Form I-485 that is currently pending with a Service office to Public Law 106-378. The request must state at which Service office that adjustment application is pending. In addition, the request must be signed by the applicant and mailed to: U.S. Immigration and Naturalization Service, Nebraska Service Center, P.O. Box 87485, Lincoln NE 68501-7485.

The applicant should clearly annotate “SYRIAN ASYLEE P.L. 106-378” on the envelope to identify the correspondence. It is important to note that if an applicant makes this request and is found to be ineligible under Public Law 106-378, but appears eligible for adjustment under another section of the Act, the Service will provide the applicant with notice of this fact and also that the Form I-485 will resume pending for adjustment under the original provision of the Act.

New Applications for Adjustment of Status

(1) Syrian nationals eligible to apply for adjustment of status under Public Law 106-378 should file Form I-485 with the: U.S. Immigration and Naturalization Service, Nebraska Service Center, P.O. Box 87485, Lincoln NE 68501-7485.

(2) Applicants should clearly mark “SYRIAN ASYLEE P.L. 106-378” on the outside of their envelope.

(3) All applicants must submit all additional documents required by Service regulations and the instructions on Form I-485. On Form I-485, Part 2, question “h”, applicants must write “SYRIAN ASYLEE—P.L. 106-378” to indicate that they are applying based on this provision.

(4) Applicants younger than 14 years old must submit the required filing fee, currently $160, or request that the fee be waived.

(5) Applicants 14 years and older must submit the associated filing fee, currently $220, or request that the fee be waived pursuant to 8 CFR 103.7(c). In addition, applicants 14 years and older must submit a $25 fingerprinting fee.

(6) The application must be physically received by the Service Center prior to close-of-business on October 26, 2001. Mailing or having the application post-marked prior to October 26, 2001, is not sufficient proof of filing.

Is There a Limit to the Number of Adjustments That May Be Granted Under Public Law 106-378?

Yes, the Service may only grant adjustment of status under Public Law 106-378 to 2,000 aliens. Adjustments of both principals and dependents count towards this total. The Service has no discretion in increasing this number. Although the Service does not anticipate that there are more than 2,000 aliens eligible, applicants should apply early.

What Is the Benefit of Changing a Pending Asylee-Based Form I-485 to Public Law 106-378?

An alien who changes the basis of his or her Form I-485 from section 209 of the Act (asylee-based only) to Public Law 106-378 is no longer subject to the 10,000 annual limit requirement of section 209(b) of the Act on the adjustment of status of aliens granted asylum. An alien adjustment status under Public Law 106-378 may have his or her status adjustment immediately, as long as the 2,000 numerical limitation has not been met.

Since generally, asylum is granted to more than 10,000 aliens annually, a queue develops and aliens must wait until a space in a future year's annual limit is available. The queue is chronologically based on the date of the asylum grant. (For example, in FY 2001, the Service was processing asylum-related adjusted applications filed prior to January 6, 1998.)

When Is the Deadline for Submitting an Application for Adjustment Under Public Law 106-378?

All new Forms I-485 based upon Public Law 106-378 must be received by the Nebraska Service Center by close-of-business on October 26, 2001. New applications received by the Service Center after that day will be rejected. Mailing or having the application post-marked prior to October 26, 2001, is not sufficient proof of filing.

There is no deadline for requests to change the basis of a pending Form I-485 that was filed before Public Law 106-378 was enacted on October 27, 2000. Such requests to change may be submitted until such time as the 2,000 statutory limit on adjustments has been reached. However, requests to change the basis of a pending Form I-485 that was filed on or after October 27, 2000, are subject to the statutory deadline and must be received no later than October 27, 2001.

What Evidence Will Demonstrate That the Applicant Is Eligible for Public Law 106-378?

Since an alien applying for adjustment of status under Public Law 106-378 must have been granted asylum, Service records will contain information relating to the alien's nationality, religion, date of arrival in the United States, and date asylum was granted. Unless requested by the Service, an alien applying for adjustment of status under Public Law 106-378 does not need to submit evidence to satisfy these requirements.

An alien must demonstrate that the he or she meets the other requirements of Public Law 106-378, specifically that the alien was permitted to depart from Syria by the Syrian Government (principal beneficiaries only), has been physically present in the United States for 1 year after the grant of asylum, and has not firmly resettled in any foreign country. To do so, aliens must submit a copy of the alien's passport, a copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence of inspection and admission or parole into the United States after December 31, 1991.

With respect to evidence of physical presence, the Service is incorporating by reference the existing provision of a different rule, § 245.15(j)(2) of this part. Although the latter section pertains to a different category of aliens, paragraph (j)(2) of that rule sets forth a common approach for demonstrating physical presence in the United States, and provides examples of the kinds of documentation that applicants can submit. Aliens applying for adjustment of status under Public Law 106-378 must submit sufficient documentation to establish that they were physically present in the United States for at least a 1-year period after being granted asylum. It is not necessary that the period of physical presence be a single, unbroken period.

What Date Will Be Recorded as the “Record of Permanent Residence” for Aliens Granted Lawful Permanent Resident Status Under Public Law 106-378?

Upon the approval of an application for adjustment of status under Public Law 106-378, the Service in accordance with section 2(d) of Public Law 106-378 will establish a record of the alien's admission for lawful permanent residence as of the date 1 year before the date of the approval of the application.

Can Applicants for Adjustment of Status Obtain Employment Authorization?

Yes, aliens who have filed Form I-485 based on Public Law 106-378 may apply for employment authorization with the Service. Aliens must file Form I-765, Application for Employment Authorization, with the required application fee, currently $100, or a request for a fee waiver in accordance with 8 CFR 103.7(c). Applications for employment authorization based on a pending Form I-485 filed under Public Law 106-378 must be filed with the Nebraska Service Center.

What Happens if I Submit an Application for Adjustment of Status Under Public Law 106-378 After the Service Has Approved 2,000 Applications?

Although the Service does not anticipate that there are more than 2,000 aliens eligible under Public Law 106-378, if an eligible alien submits his or her application, or request for a change in the basis of an already pending application, after the 2,000 limit for adjustments under Public Law 106-378 has been reached, that application or request and any associated fees or evidence submitted will be returned to the alien. In the case of an alien making a request to change the basis of a currently pending application, his or her application will continue to remain pending with the Service and will be adjudicated based on the law upon which it was filed. If the alien is an asylee who does not yet have an adjustment of status application pending, he or she may be eligible to file for adjustment under section 209 of the Act. Such an alien should follow the procedures at 8 CFR 209.2 to file under section 209 of the Act.

Good Cause Exception

The Service's implementation of this rule as an interim rule with provisions for post-promulgation public comment is based on the “good cause” exceptions found at 5 U.S.C. 533(b)(B), and (d)(3). The immediate implementation of this rule without prior notice and comment is necessary because Public Law 106-378 provided for a 1-year application period which will end on October 26, 2001. Consequently, implementing this regulation upon date of publication is necessary to provide as much time as possible to allow eligible aliens to apply for benefits under Public Law 106-378. Since prior notice and public comments with respect to this rule is impractical and contrary to public interest, there is good cause under 5 U.S.C. 553 to make this rule effective upon publication in the Federal Register.

Regulatory Flexibility Act

The Acting Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects certain individual Syrian nationals who were granted asylum in the United States. It does not have an effect on small entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section (6)(a)(3)(A).

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

This interim rule does not impose any new reporting or recordkeeping requirements. The information collection requirements contained in this rule were previously approved for use by the Office of Management and Budget (OMB). The OMB control numbers for these collections are contained in 8 CFR 299.5, Display of control numbers.

List of Subjects in CFR Part 245

• Aliens
• Immigration
• Reporting and recordkeeping requirements

Accordingly, part 245 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

1. The authority citation for part 245 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2.

2. Section 245.20 is added to read as follows:

§ 245.20

Adjustment of status of Syrian asylees under Public Law 106-378.

(a) Eligibility. An alien is eligible to apply to adjust status under Public Law 106-378 if the alien is:

(1) A Jewish national of Syria;

(2) Arrived in the United States after December 31, 1991, after being permitted by the Syrian Government to depart from Syria;

(3) Is physically present in the United States at the time of filing the application to adjust status;

(4) Applies for adjustment of status no later than October 26, 2001, or has a pending application for adjustment of status under the Act that was filed with the Service before October 27, 2000;

(5) Has been physically present in the United States for at least 1 year after being granted asylum;

(6) Has not firmly resettled in any foreign country; and

(7) Is admissible as an immigrant under the Act at the time of examination for adjustment.

(b) Qualified family members. The spouse, child, or unmarried son or daughter of an alien eligible for adjustment under Public Law 106-378 is eligible to apply for adjustment of status under this section if the alien meets the criteria set forth in paragraphs (a)(4) through (a)(7) of this section.

(c) Grounds not to be applied and waivers. The grounds of inadmissibility found at section 212(a)(4) of the Act, relating to public charge, and at section 212(a)(7)(A) of the Act, relating to documentation, do not apply to applicants for adjustment of status under Public Law 106-378. Applicants may also request the waivers found at sections 212(h), (i), and (k) of the Act, to the extent they are eligible.

(d) Application.—(1) New applications. An applicant must submit From I-485, Application to Register Permanent Residence or Adjust Status, along with the appropriate application fee as stated in § 103.7(b)(1) of this chapter, to the Nebraska Service Center. The application must physically be received by the Nebraska Service Center no later than close of business on October 26, 2001. Applicants 14 years of age or older must also submit the fingerprinting service fee provided for in § 103.7(b)(1) of this chapter. Each application filed must be accompanied by two photographs as described in the Form I-485 instructions; a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; and a report of medical examination (Form I-693 and vaccination supplement) as specified in 8 CFR 245.5. On Form I-485, Part 2, question “h”, applicants must write “SYRIAN ASYLEE—P.L. 106-378” to indicate that they are applying based on this provision.

(2) Filing of requests to change the basis of a pending Form I-485.—(i) Request. An eligible Syrian national with a Form I-485 that is currently pending with the Service may request that the basis of his or her Form I-485 be changed to Public Law 106-378. The alien must submit this request in writing to the Nebraska Service Center. The request may only be granted if the 2,000 adjustment limit specified in paragraph (i) of this section has not yet been reached. The 2,000 adjustment limit includes both new and pending Form I-485 petitions. The applicant should clearly annotate “SYRIAN ASYLEE P.L. 106-378” on the envelope to identify the correspondence.

(ii) Time limit. If the Form I-485 was filed before October 27, 2000, there is no time limit for requesting a change of basis for adjustment of status. However, if the Form I-485 was filed on or after October 27, 2001, then the Service must receive the request for change of basis no later than October 27, 2001.

(e) Evidence. Applicants must submit evidence that demonstrates they are eligible for adjustment of status under Public Law 106-378. Required evidence includes the following:

(1) A copy of the alien's passport;

(2) A copy of the applicant's Arrival-Departure Record (Form I-94) or other evidence of inspection and admission or parole into the United States after December 31, 1991;

(3) Documentation including, but not limited to, those listed at § 245.15(j)(2) to establish physical presence in the United States for at least 1 year after being granted asylum;

(4) If the applicant is the spouse of a principal alien applying for adjustment, he or she must submit a marriage certificate, if available, or other evidence to demonstrate the marriage; and

(5) If the applicant is the child of a principal alien applying for adjustment of status, he or she must submit a birth certificate, if available, or other evidence to demonstrate the relationship.

(f) Employment authorization. Applicants who want to obtain employment authorization based on a pending application for adjustment of status under Public Law 106-378 may submit Form I-765, Application for Employment Authorization, along with the application fee listed in § 103.7(b)(1) of this chapter. If the Service approves the application for employment authorization, the applicant will be issued an employment authorization document.

(g) Travel while an application to adjust status is pending. Applicants who wish to travel abroad and re-enter the United States while an application for adjustment of status is pending without being considered to have abandoned that application must obtain advance parole prior to departing the United States. To obtain advance parole, applicants must file Form I-131, Application for a Travel Document, along with the application fee listed in § 103.7(b)(1) of this chapter. If the Service approves Form I-131, the alien will be issued Form I-512, Authorization for the Parole of an Alien into the United States.

(h) Approval and date of admission as a lawful permanent resident. When the Service approves an application to adjust status to that of lawful permanent resident based on Public Law 106-378, the applicant will be notified in writing of the Service's decision. In addition, the record of the alien's admission as a lawful permanent resident will be recorded as of the date 1 year before the approval of the application.

(i) Number of adjustments under Public Law 106-378. No more than 2,000 aliens may have their status adjusted to that of lawful permanent resident under Public Law 106-378.

(j) Notice of Denial.—(1) General. When the Service denies an application to adjust status to that of lawful permanent resident based on Public Law 106-378, the applicant will be notified of the decision and the reason for the denial in writing.

(2) Cases involving requests to change the basis of a pending Form I-485. If an applicant who requested that a pending Form I-485, be considered under Public Law 106-378, is found to be ineligible under Public Law 106-378, but he or she appears eligible for adjustment under the original section of the Act under which the Form I-485 was filed, the Service will provide the applicant with notice of this fact. Processing the Form I-485 under the original provision of law will resume as appropriate.

(k) Administrative review. An alien whose application for adjustment of status under Public Law 106-378 is denied by the Service may not appeal the decision. However, the denial will be without prejudice to the alien's right to renew the application in proceedings under 8 CFR part 240 provided that the 2,000 statutory limit on such adjustments has not yet been reached.

Dated: May 11, 2001.

Kevin D. Rooney,

Acting Commissioner, Immigration and Naturalization Service.