May an Alien Who Is in Proceedings Before an Immigration Court or
the Board of Immigration Appeals Apply for Adjustment of Status
Before the Service?
Yes, under certain circumstances. An alien who is in exclusion,
deportation, or removal proceedings before the Immigration Court or the
Board may move to have the proceeding administratively closed for the
purpose of filing an application for adjustment under HRIFA. Such
administrative closure requires the consent of the Service, which will
issue field guidance shortly regarding the circumstances under which it
will consent to such a request. If the Service concurs in such motion,
the Immigration Court or the Board, as appropriate, will
administratively close the proceedings. Such closure will permit
recalendaring or reinstating of the closed proceedings if, for example,
the alien fails to file an application for adjustment of status under
HRIFA before April 1, 2000, or the Service denies any application for
adjustment of status filed by the alien under HRIFA. Should the Service
deny the application, or the alien fail to file the application before
April 1, 2000, the Service will move to recalendar or reinstate the
exclusion, deportation, or removal proceedings. The Immigration
[[Page 25762]]
Court or the Board, as appropriate, will then recalendar or reinstate
the proceedings. In the case of a HRIFA adjustment application denied
by the Service, the alien could seek reconsideration of the denied
adjustment application in such recalendared or reinstated proceedings.
What Happens If the Alien's Exclusion, Deportation, or Removal
Proceedings Have Already Been Administratively Closed for Reasons
Unrelated to HRIFA?
Aliens who have had their cases administratively closed or
continued indefinitely with the consent of the Service after December
22, 1997, shall apply for adjustment of status under HRIFA with the
Service. Such aliens may not seek reinstatement of their proceedings
for the purpose of applying for adjustment of status under HRIFA with
EOIR until the Service has adjudicated the adjustment application.
Should the Service deny the application, or the alien fail to file the
application before April 1, 2000, the Service will move to recalendar
or reinstate the proceedings and the proceedings will be recalendared
or reinstated by the Immigration Court or the Board, as appropriate. In
the case of an application denied by the Service, the alien could seek
reconsideration of the denied adjustment application in such
recalendared or reinstated proceedings. This procedure simplifies the
application process by directing all applications to one location and
obviating the need to file motions to recalendar or reinstate
proceedings.
What Happens If an Applicant Is the Subject of a Final Order of
Exclusion, Deportation, or Removal?
An alien who is the subject of a final order of exclusion,
deportation, or removal, and who has never filed an application for
adjustment of status under section 902 of HRIFA with the Immigration
Court, must file such application with the Service. However, if such
alien has a motion to reopen or a motion to reconsider filed on or
before May 12, 1999, pending before an Immigration Court or the Board,
then the application for adjustment must be filed with the Immigration
Court or with the Board, as appropriate. The mere filing of an
application for adjustment of status under section 902 of HRIFA with
the Service or the referral of a denied application to an Immigration
Court does not stay the execution of the final order of removal. To
request that execution of the final order be stayed by the Service, the
alien must file an Application for Stay of Removal (Form I-246),
following the procedures set forth in 8 CFR 241.6. If the application
is referred to the Immigration Court, and the Service does not grant a
stay of execution of the final order, the alien must request that the
Immigration Court or Board specifically grant a stay of execution of
the final order of removal.
When Can an Application Be Filed?
For principal applicants, the application period for HRIFA benefits
begins June 11, 1999, and ends on March 31, 2000.
For dependent applicants, the application period for HRIFA benefits
begins June 11, 1999, and remains open indefinitely. As previously
noted, the requisite familial relationship between the dependent
applicant and the principal applicant must exist at the time the
principal applicant becomes a permanent resident, and must continue at
least until the dependent is granted adjustment of status.
What Forms and Other Documents Should Be Filed?
Each applicant for HRIFA adjustment of status benefits must file a
separate Application to Register Permanent Residence or Adjust Status
(Form I-485), accompanied by the required application fee and
supporting documents described below. HRIFA applicants should complete
Part 2 (Application Type) of that form by checking box ``h--other'' and
writing ``HRIFA--Principal'' or ``HRIFA--Dependent'' next to that
block. Each application must be accompanied by the required initial
evidence, as follows:
(1) A birth certificate or other record of birth;
(2) A completed Biographic Information Sheet (Form G-325A) if the
applicant is between 14 and 79 years of age;
(3) A report of medical examination;
(4) Two photographs as described in the Form I-485 instructions;
(5) 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, if applicable;
(6) If the applicant is at least 14 years of age, a local police
clearance from each jurisdiction where the alien has resided for 6
months or longer since arriving in the United States (although the
regulation does allow this particular requirement to be waived under
certain circumstances);
(7) If the applicant is a principal applicant, one or more of the
documents described in 8 CFR 245.15(f)(9) to establish presence in the
United States on December 31, 1995;
(8) If the applicant is a principal applicant or the unmarried son
or daughter of a principal applicant, one or more of the documents
described in 8 CFR 245.15(f)(10) to establish continuity of physical
presence in the United States since December 31, 1995;
(9) If the applicant is a principal applicant or the unmarried son
or daughter of a principal applicant, a statement showing all
departures from and arrivals in the United States since December 31,
1995;
(10) If the applicant is a principal applicant, evidence that he or
she falls within one of the five groups of persons eligible for HRIFA
adjustment as described in 8 CFR 245.15(f)(12);
(11) If the alien is applying as the spouse, child, or unmarried
son or daughter of another HRIFA beneficiary, evidence of the
relationship (for example, a marriage certificate); and
(12) If the applicant acquired Haitian nationality through
naturalization in that country, a copy of his or her Haitian
naturalization certificate.
Must the Applicant Be Fingerprinted?
Yes, if the applicant is 14 years of age or older. Upon receipt of
the application, the Service will instruct the applicant regarding
procedures for obtaining fingerprints through one of the Service's
Application Support Centers (ASCs) or authorized Designated Law
Enforcement Agencies (DLEAs) chosen specifically for that purpose.
Those instructions will direct the applicant to the ASC or DLEA nearest
the applicant's home and advise the applicant of the date(s) and
time(s) fingerprinting services may be obtained. Applicants should not
submit fingerprint cards as part of the initial filing.
Is There a Fee for Filing This Application?
HRIFA adjustment of status applications must be submitted with the
fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently $220 for
applicants 14 years of age or older, and $160 for applicants under age
14). In addition, if the applicant is 14 years of age or older, he or
she must submit the fee of $25 to cover fingerprinting costs. If the
application is submitted to the Nebraska Service Center, this $25 fee
must accompany the application being submitted to that Center. If the
application is submitted to an Immigration Court or the Board of
Immigration Appeals, the fees must be submitted to the appropriate
local office of the Service in accordance with 8 CFR 3.31. An applicant
who is deserving of the benefits of section 902 of HRIFA and
[[Page 25763]]
is unable to pay the filing fee may request a fee waiver in accordance
with 8 CFR 103.7(c).
How and Where Should the Application Be Filed?
If the applicant is not in exclusion, deportation, or removal
proceedings before an Immigration Court or the Board of Immigration
Appeals, or if the applicant has had his or her case administratively
closed or continued indefinitely, the application and attachments must
be submitted by mail to: USINS Nebraska Service Center, P.O. Box 87245,
Lincoln, NE 68501-7245.
If the applicant is in proceedings pending before an Immigration
Court or the Board of Immigration Appeals, or if the applicant has a
motion to reopen or motion to reconsider filed on or before May 12,
1999, pending before an Immigration Court or the Board, the application
and attachments must be submitted to the Immigration Court with
jurisdiction over the case or to the Board if the Board has
jurisdiction. In cases before the Immigration Court or the Board, the
application fee should be submitted to the Service pursuant to 8 CFR
3.31, as provided above. (If the motion to reopen or motion to
reconsider is filed after May 12, 1999, jurisdiction over the
application for adjustment of status under HRIFA lies with the Service,
not with EOIR.)
Applications for adjustment of status under HRIFA may not be
submitted to any other Service location or to any consular post.
Can Someone Else Sign the Application if the Applicant Is a Child
or a Person Who Is Mentally Incompetent?
In accordance with 8 CFR 103.2(a)(2), an application may be signed
by a parent or legal guardian if the applicant is under 14 years of
age, and by a legal guardian if the applicant is mentally incompetent.
However, a person who is under age 14 is not precluded from signing the
application if he or she is capable of understanding the significance
of the attestation.
Will an Applicant Filing an Application for Adjustment of Status
With the Service Under HRIFA Be Required To Appear Before the
Service for an Interview?
The decision whether to require an interview is solely within the
discretion of the Service, which may elect to waive the interview of
the applicant. The interim regulations provide that the Service may
waive the interview if the application and supporting evidence,
including Service records, verify that the alien is either clearly
eligible or clearly ineligible for adjustment of status. If the
application is adjudicated without interview, a notice of the decision
will be mailed to the applicant. When an interview is required, the
application will be forwarded to the local Service office having
jurisdiction over the applicant's place of residence. The applicant
will be notified of the date and time to appear for the interview. If
an applicant fails to appear for an interview, the application may be
denied in accordance with existing regulations.
Can an Applicant Be Authorized To Work While the Application is
Pending?
If the alien has already received work authorization under any
other provision of the Act, that work authorization will not be
affected by the filing of an application for adjustment of status under
HRIFA or by the administrative closure of the exclusion, deportation,
or removal proceeding to pursue relief pursuant to HRIFA. Furthermore,
an applicant for adjustment under HRIFA is able to apply for, and be
granted, an extension of any such employment authorization for which he
or she remains eligible.
On December 14, 1998, the Service published a notice in the Federal
Register at 63 FR 68799 which provided for an automatic extension until
December 22, 1999, of the validity of certain Employment Authorization
Documents (EADs) issued to Haitian nationals pursuant to the Deferred
Enforced Departure (DED) program. This was done as a transitional
measure to afford Haitian beneficiaries of DED the opportunity to apply
for a HRIFA-based EAD. In accordance with that notice and subsequent
guidance to Service field offices, the EADs covered by the automatic
extension include those bearing an expiration date of December 22,
1998, or later, and either the notation ``274a.12(A)(11)'' under
``provision of law'' or the notation ``A-11'' under ``category.''
Any applicant for adjustment of status under HRIFA who wishes to
obtain initial employment authorization, or continued employment
authorization when his or her prior authorization expires, during the
pendency of the adjustment of status application, may file an
Application for Employment Authorization (Form I-765) with the Service.
For those applicants whose cases are supported by evidence which
can be verified through Service records, this interim rule provides
that employment authorization may be granted upon filing of the
application for adjustment and an application for employment
authorization.
In all other cases, the Service will not grant applications for
work authorization filed by HRIFA applicants until the application for
adjustment is approved or has been pending for 180 days, whichever
comes first. This approach is in keeping with section 902(c)(3) of
HRIFA, which mandates approval of employment authorization if the
adjustment application ``is pending for a period exceeding 180 days,''
and has not been denied, and which authorizes, but does not mandate,
approval of employment authorization if the application has been
pending for fewer than 180 days.
The Service will emphasize the potential benefits of filing for
adjustment of status and employment authorization concurrently during
public information sessions that the Service will hold with local
community groups. The Department believes that limiting employment
authorization to these circumstances and to circumstances in which 180
days have elapsed since the filing of the application will both: (1)
Discourage fraudulent applications filed simply as a way to gain work
authorization, and (2) permit employment more promptly for those whose
applications appear likely to be granted. However, in publishing this
interim rule, the Department solicits the views of interested parties
on this topic.
Can an Alien Submit an Application for Adjustment of Status If He
or She Is Outside the United States?
No. The statute and regulations require that an alien must be
physically present in the United States in order to properly file an
application. However, a special provision at 8 CFR 245.15(t)(2) allows
an otherwise-eligible alien who is outside the United States to submit
a request for parole authorization. This special provision is similar
to the one contained in the implementing regulations for NACARA.
Because of the similarity in the two statutes, the Department has
decided to treat the beneficiaries of NACARA and HRIFA in the same
manner. These provisions, however, cannot and do not create any
additional parole authority, because a parole can only be issued under
the Attorney General's discretionary authority contained in section
212(d)(5) of the Act. The provisions merely specify that the requests
be filed with, and adjudicated by, the director of the designated
service center. For NACARA applications, the designated service center
is the Texas Service Center; for HRIFA applications, it is the Nebraska
[[Page 25764]]
Service Center. The regulatory authority of the Director of the
Nebraska Service Center to adjudicate such requests will expire on
March 31, 2000.
An alien requesting parole under this special provision should
attach photocopies of the documents the alien intends to file in
support of his or her claim for eligibility for adjustment of status
under HRIFA if the parole authorization is granted. Parole
authorization may be granted, as a matter of discretion, if, upon
review of the application for parole authorization and related
documents, it is determined that the application for adjustment of
status is likely to be approved once it has been properly filed. The
alien would be allowed to file the application after being paroled into
the country. Accordingly, an alien who is otherwise inadmissible must
remain outside the United States until the request for parole
authorization is approved. If the alien attempts to enter the United
States without the parole authorization, he or she could be found
inadmissible to, and removed from, the United States.
Can an Applicant Travel Outside the United States While the
Application Is Pending?
Nothing in HRIFA authorizes the Service to allow an applicant to
re-enter the United States without proper documents. If an applicant
plans to leave the United States to go to any other country before a
decision is made on his or her HRIFA adjustment application, he or she
should contact the Service to request advance authorization for parole.
If an applicant leaves the United States without such advance
authorization, action on his or her HRIFA adjustment application may be
terminated and the application may be denied. An applicant may also
experience difficulty when returning to the United States if he or she
does not have such advance authorization. Furthermore, any absence from
the United States without an advance parole authorization issued prior
to the alien's departure counts toward the 180-day aggregate time
period that the applicant is allowed to be outside the United States.
What Is the Status of an Alien Who Is Under a Final Order of
Exclusion, Deportation, or Removal and Who Departs From the United
States?
Such alien would be a ``self-deport'' and would be subject to the
inadmissibility provisions of section 212(a)(9) of the Act. This is
true regardless of whether the alien obtained an Authorization for
Parole of an Alien Into the United States (Form I-512) prior to
departure. While being inadmissible would not preclude the alien from
being paroled into the United States, it would preclude the alien from
being admitted to the United States or being granted an adjustment of
status, unless the alien first applied for and was granted permission
to reapply for admission into the United States.
How Can Such an Alien Apply for Permission to Reapply for Admission
into the United States?
An alien needing such permission may file an Application for
Permission to Reapply for Admission Into the United States After
Deportation or Removal (Form I-212), in accordance with the
instructions on that form. Form I-212 may be filed prior to the alien's
departure. Persons needing such forms may obtain them through the
Service's Forms Center at 1-800-870-3676.
What Documentation Will Be Issued If the Adjustment Application Is
Approved?
After processing is completed, a notice of the decision will be
mailed to the HRIFA applicant. Applicants should keep this notice for
their records. If the application has been approved, a permanent
resident card will be mailed separately to the applicant. To obtain
temporary evidence of lawful permanent resident status, the applicant
may present the original approval notice and his or her passport or
other photo identification at his or her local Service office. The
local Service office will issue temporary evidence of lawful permanent
resident status after verifying the approval of the HRIFA adjustment of
status application. If the applicant is not in possession of a passport
in which such temporary evidence may be endorsed, he or she should also
submit two photographs meeting Alien Documentation, Identification, and
Telecommunication System (ADIT) specifications so that the Service may
prepare and issue temporary evidence of lawful permanent residence
status.
Is There Any Special Action That an Applicant Who Had Been in
Exclusion, Deportation, or Removal Proceedings Must Take Once the
Application Has Been Approved?
No. If the alien previously had been issued a final order of
exclusion, deportation, or removal, such order shall automatically be
deemed canceled as of the date of the approval of the application for
adjustment of status. If the alien had been in exclusion, deportation,
or removal proceedings that were administratively closed, such
proceedings shall automatically be deemed terminated as of the date of
approval of the application for adjustment of status.
What Happens if an Application is Denied by the Service?
If the Service finds that an applicant is ineligible for adjustment
of status under HRIFA, the Service will advise him or her of its
determination and of the applicant's right to seek, and the procedures
for seeking, consideration of the application by an immigration judge.
Depending on the individual case circumstances, those procedures could
take one of three different routes as follows:
(1) If exclusion, deportation, or removal proceedings had never
been commenced, the Service will issue a Notice to Appear, thereby
initiating removal proceedings during which the applicant may renew his
or her application for adjustment under HRIFA before the Immigration
Court. In such proceedings, an immigration judge shall adjudicate the
renewed application.
(2) If exclusion, deportation, or removal proceedings had been
initiated and later administratively closed, the Service will advise
the alien of the Service's denial of the HRIFA adjustment application
and will move the Immigration Court, or the Board if at the time of
administrative closure the Board had jurisdiction over the case, to
recalendar or reinstate the proceeding. The previously closed removal
proceedings will then be recalendared by the Immigration Court, or
reinstated by the Board, as appropriate.
(3) If a final order of exclusion, deportation, or removal had been
issued, the Service, using Form I-290C, Notice of Certification, will
refer its decision to deny the HRIFA adjustment application to the
Immigration Court, which will adjudicate the application in proceedings
designed solely for the purpose of such adjudication.
What Happens If an Application Is Denied by the Immigration Court?
If the Immigration Court denies the HRIFA adjustment application of
an alien in exclusion, deportation, or removal proceedings before the
Immigration Court, the decision may be appealed to the Board along with
and under the same procedures as all other issues before the
Immigration Court in those proceedings.
If the Immigration Court denies the HRIFA adjustment application of
an alien whose case was remanded to the Immigration Court by the Board,
the Immigration Court shall certify the decision to the Board for
review.
[[Page 25765]]
If the Immigration Court denies the HRIFA adjustment application of
an alien whose case was referred by the Service for a HRIFA-only
inquiry, the alien shall have the right to appeal the decision to the
Board, subject to the requirements in 8 CFR parts 3 and 240 governing
appeals from Immigration Courts to the Board, including the
requirements of filing a Notice of Appeal to the Board of Immigration
Appeals of Decision of Immigration Judge (Form EOIR-26) and paying the
filing fee.
What Happens If an Alien Fails To Appear for a Hearing Before the
Immigration Court on a HRIFA Adjustment Application?
An alien must appear for all scheduled hearings before an
Immigration Court, unless his or her appearance is waived by the
Immigration Court. An alien who is in exclusion, deportation, or
removal proceedings before the Immigration Court, and who fails to
appear for a hearing regarding a HRIFA adjustment application, will be
subject to the applicable statutory and regulatory in absentia
procedures (i.e., section 242B of the Act as it existed prior to the
amendments of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) on September 30, 1996, for
deportation proceedings, and section 240 of the Act as amended by
IIRIRA for removal proceedings).
What Rules of Procedure Apply in HRIFA-Only Hearings Conducted on
Cases Referred by the Service to the Immigration Court?
Although an alien who is placed before the Immigration Court for a
HRIFA-only hearing after referral on a Notice of Certification (Form I-
290) to the Immigration Court by the Service is not specifically
subject to the statutory and regulatory provisions governing exclusion,
deportation, and removal proceedings, the Department has inserted
language in this interim rule reflecting the standards in section 240
of the Act for removal proceedings, including the in absentia
procedures. Absent specific statutory direction in this area, the
procedures of section 240 of the Act were chosen because such
procedures are similar to those from the pre-IIRIRA section 242B of the
Act and indicate Congress' most recent preference to have procedures
dealing with failures to appear for immigration proceedings. Use of the
language from section 240 of the Act also ensures that the in absentia
procedures used for those in HRIFA-only proceedings are consistent with
the in absentia procedures applicable to aliens who file HRIFA
adjustment applications in ongoing removal and deportation proceedings.
As for those aliens who, upon reopening and remand by the Board to
the Immigration Court, fail to file a HRIFA adjustment application with
the Immigration Court, the immigration judge will certify the case back
to the Board for consideration of the previously pending appeal or
motion. If, prior to receiving a final order from the Board, the alien
subsequently requests a remand to file a HRIFA adjustment application,
the Board shall remand the case to the Immigration Court, unless the
alien is clearly ineligible for such relief.
May an Applicant Who Receives a Final Determination by the Service,
the Immigration Court, or the Board Denying His or Her Application
of HRIFA Adjustment Appeal That Decision to a Federal Court?
No. While the regulations provide for various avenues for
administrative review of negative HRIFA determinations, section 902(f)
of HRIFA provides that ``[a] determination by the Attorney General as
to whether the status of any alien should be adjusted under [HRIFA] is
final and shall not be subject to review by any court.''
Good Cause Exception
The Department's implementation of this rule as an interim rule,
with provision for post-promulgation public comment, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Section 902 of
HRIFA became effective immediately upon enactment on October 21, 1998.
Publication of this rule as an interim rule will expedite
implementation of that section and allow Haitian nationals to apply for
and obtain the benefits available to applicants for adjustment of
status under HRIFA as soon as possible in light of the statutory
application deadline of March 31, 2000.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not, if promulgated, have a significant adverse
economic impact on a substantial number of small entities. This rule
allows certain Haitian nationals to apply for adjustment of status; it
has no effect on small entities as that term is defined in 5 U.S.C.
601(6).
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under section 3(f) of Executive Order
12866, Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12988: Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
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 1 year, and 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.
Paperwork Reduction Act
The information collection requirement contained in this rule (Form
I-485, Supplement C) was submitted to the Office of Management and
Budget (OMB) for emergency review and approval under 5 CFR
1320.13(a)(1)(i) and (a)(2)(iii). In a notice published in the Federal
Register on April 2, 1999 at 64 FR 15990, the Immigration and
Naturalization Service notified the public of the proposed
[[Page 25766]]
information collection contained in Form I-485 Supplement C. The
information collection requirement in this application will be used to
determine whether an alien applying for adjustment of status under the
provisions of section 902 of Division A, Title IX of Public Law 105-277
is eligible to become a permanent resident of the United States. The
estimated total number of respondents is 50,000 and the amount of time
estimated for an average respondent to respond is 30 minutes for a
total public burden of 25,000 hours.
This information collection request has been approved by OMB and
has an OMB Number of 1115-0229. The emergency approval is only valid
for 180 days. Comments and suggestions concerning the information
collection are encouraged and will be accepted until June 1, 1999. To
obtain a copy of the collection instrument or to make comments on this
information collection you may contact Mr. Richard A. Sloan, (202) 514-
3291, Director, Policy Directives and Instructions Branch, Immigration
and Naturalization Service, U.S. Department of Justice, Room 5307, 425
I Street, NW, Washington, DC 20536.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 212
Administrative practice and procedure, Aliens, Passports and visas,
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 245
Aliens, Immigration, 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 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3
CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.
2. Section 3.1 is amended by revising paragraph (b)(12) to read as
follows:
Sec. 3.1 General authorities.
* * * * *
(b) * * *
(12) Decisions of Immigration Judges on applications for adjustment
of status referred on a Notice of Certification (Form I-290C) to the
Immigration Court in accordance with Secs. 245.13(n)(2) and
245.15(n)(3) of this chapter or remanded to the Immigration Court in
accordance with Secs. 245.13(d)(2) and 245.15(e)(2) of this chapter.
* * * * *
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
3. 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.
4. Section 212.2 is amended by:
a. Removing the words ``An applicant'' and adding in their place
the words ``Except as provided in paragraph (g)(3) of this section, an
applicant'' in the first sentence in paragraph (d);
b. Removing the words ``If the applicant'' and adding in their
place the words ``Except as provided in paragraph (g)(3) of this
section, if the applicant'' in the second sentence in paragraph (d);
and by
c. Adding a new paragraph (g)(3), to read as follows:
Sec. 212.2 Consent to reapply for admission after deportation,
removal, or departure at Government expense.
* * * * *
(g) * * *
(3) If an alien who is an applicant for parole authorization under
Sec. 245.15(l) of this chapter requires consent to reapply for
admission after deportation, removal, or departure at Government
expense, or a waiver under section 212(g), 212(h), or 212(i) of the
Act, he or she may file the requisite Form I-212 or Form I-601 at the
Nebraska Service Center concurrently with the Form I-131, Application
for Travel Document.
* * * * *
5. Section 212.7 is amended by:
a. Adding a new paragraph (a)(1)(iii);
b. Removing the word ``or'' at the end of paragraph (b)(2)(ii);
c. Removing the period at the end of paragraph (b)(2)(iii) and
inserting in its place a ``; or''; and by
d. Adding a new paragraph (b)(2)(iv), to read as follows:
Sec. 212.7 Waiver of certain grounds of excludability.
(a) * * *
(1) * * *
(iii) Parole authorization applicant under Sec. 245.15(l). An
applicant for parole authorization under Sec. 245.15(l) of this chapter
who is inadmissible and seeks a waiver under section 212(h) or (i) of
the Act must file an application on Form I-601 with the Director of the
Nebraska Service Center considering the Form I-131.
* * * * *
(b) * * *
(2) * * *
(iv) The Nebraska Service Center, if the alien is outside the
United States and seeking parole authorization under Sec. 245.15(l)(2)
of this chapter.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
6. The authority citation for part 240 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100, 111
Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR
part 2.
Sec. 240.1 [Amended]
7. In Sec. 240.1, paragraph (a)(1)(ii) is amended in the first
sentence by removing the words ``and section 202 of Pub. L. 105-100''
and adding in their place the words ``, section 202 of Pub. L. 105-100,
and section 902 of Pub. L. 105-277''.
Sec. 240.11 [Amended]
8. In Sec. 240.11, paragraph (a)(1) is amended in the first
sentence by removing the words ``or section 202 of Pub. L. 105-100,''
and adding in their place the words ``section 202 of Pub. L. 105-100,
or section 902 of Pub. L. 105-277,''.
Sec. 240.31 [Amended]
9. Section 240.31 is amended in the first sentence by adding the
phrase ``, or section 902 of Pub. L. 105-277'' immediately after the
phrase ``section 202 of Pub. L. 105-100''.
[[Page 25767]]
Sec. 240.41 [Amended]
10. In Sec. 240.41, paragraph (a) is amended in the first sentence
by removing the words ``and section 202 of Pub. L. 105-100'' and adding
in their place the words ``section 202 of Pub. L. 105-100, and section
902 of Pub. L. 105-277''.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
11. The authority citation for part 245 is revised 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.
12. Section 245.15 is added to read as follows:
Sec. 245.15 Adjustment of Status of Certain Haitian Nationals under
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA).
(a) Definitions. As used in this section, the terms:
Abandoned and abandonment mean that prior to a child's 21st
birthday both parents have willfully forsaken all parental rights,
obligations, and claims to the child, as well as all control over and
possession of the child, without intending to transfer these rights to
any specific person(s).
Guardian means a person lawfully invested (by order of a competent
Federal, State, or local authority) with the power, and charged with
the duty, of taking care of, including managing the property, rights,
and affairs of, a child.
Orphan and orphaned refer to the involuntary detachment or
severance of a child from his or her parents prior to the child's 21st
birthday due to any of the following:
(1) The death of both parents;
(2) The death of one parent and the irrevocable and written release
of all parental rights by the sole surviving parent based upon the
inability of that parent to provide proper care for the child;
(3) The desertion by both parents, as that phrase is defined in
Sec. 204.3(b) of this chapter, or by the sole or surviving parent;
(4) The disappearance of both parents, as that phrase is defined in
Sec. 204.3(b) of this chapter, or of the sole or surviving parent;
(5 The loss from both parents, as that phrase is defined in
Sec. 204.3(b) of this chapter, or from the sole or surviving parent; or
(6) The separation from both parents, as that phrase is defined in
Sec. 204.3(b) of this chapter, or from the sole or surviving parent.
Parent, father, or mother means a parent, father, or mother only
where the relationship exists by reason of any of the circumstances set
forth in paragraphs (A) through (E) of section 101(b)(1) of the Act.
(b) Applicability of provisions of section 902 of HRIFA in general.
Section 902 of Division A of Pub. L. 105-277, the Haitian Refugee
Immigrant Fairness Act of 1998 (HRIFA), provides special rules for
adjustment of status for certain nationals of Haiti, if they meet the
other requirements of HRIFA.
(1) Principal applicants. Section 902(b)(1) of HRIFA defines five
categories of principal applicants who may apply for adjustment of
status, if the alien was physically present in the United States on
December 31, 1995:
(i) An alien who filed for asylum before December 31, 1995;
(ii) An alien who was paroled into the United States prior to
December 31, 1995, after having been identified as having a credible
fear of persecution, or paroled for emergent reasons or reasons deemed
strictly in the public interest; or
(iii) An alien who at the time of arrival in the United States and
on December 31, 1995, was unmarried and under 21 years of age and who:
(A) Arrived in the United States without parents in the United
States and has remained without parents in the United States since his
or her arrival;
(B) Became orphaned subsequent to arrival in the United States; or
(C) Was abandoned by parents or guardians prior to April 1, 1998,
and has remained abandoned since such abandonment.
(2) Dependents. Section 902(d) of HRIFA provides for certain
Haitian nationals to apply for adjustment of status as the spouse,
child, or unmarried son or daughter of a principal HRIFA beneficiary,
even if the individual would not otherwise be eligible for adjustment
under section 902. The eligibility requirements for dependents are
described further in paragraph (d) of this section.
(c) Eligibility of principal HRIFA applicants. A Haitian national
who is described in paragraph (b)(1) of this section is eligible to
apply for adjustment of status under the provisions of section 902 of
HRIFA if the alien meets the following requirements:
(1) Physical presence. The alien is physically present in the
United States at the time the application is filed;
(2) Proper application. The alien properly files an application for
adjustment of status in accordance with this section, including the
evidence described in paragraphs (h), (i), (j) and (k) of this section;
(3) Admissibility. The alien is not inadmissible to the United
States for permanent residence under any provisions of section 212(a)
of the Act, except as provided in paragraph (e) of this section; and
(4) Continuous physical presence. The alien has been physically
present in the United States for a continuous period beginning on
December 31, 1995, and ending on the date the application for
adjustment is granted, except for the following periods of time:
(i) Any period or periods of absence from the United States not
exceeding 180 days in the aggregate; and
(ii) Any periods of absence for which the applicant received an
Advance Authorization for Parole (Form I-512) prior to his or her
departure from the United States, provided the applicant returned to
the United States in accordance with the conditions of such Advance
Authorization for Parole.
(iii) Any periods of absence from the United States occurring after
October 21, 1998, and before July 12, 1999, provided the applicant
departed the United States prior to December 31, 1998.
(d) Eligibility of dependents of a principal HRIFA beneficiary. A
Haitian national who is the spouse, child, or unmarried son or daughter
of a principal beneficiary eligible for adjustment of status under the
provisions of HRIFA is eligible to apply for benefits as a dependent,
if the dependent alien meets the following requirements:
(1) Physical presence. The alien is physically present in the
United States at the time the application is filed;
(2) Proper application. The alien properly files an application for
adjustment of status as a dependent in accordance with this section,
including the evidence described in paragraphs (h) and (l) of this
section;
(3) Admissibility. The alien is not inadmissible to the United
States for permanent residence under any provisions of section 212(a)
of the Act, except as provided in paragraph (e) of this section;
(4) Existence of relationship at time of adjustment. The alien's
qualifying relationship to the principal beneficiary existed at the
time the principal beneficiary was granted adjustment of status and
continues to exist at the time the dependent alien is granted
adjustment of status; and
(5) Continuous physical presence. If the alien is applying as the
unmarried son or unmarried daughter of a principal HRIFA beneficiary,
he or she
[[Page 25768]]
must have been physically present in the United States for a continuous
period beginning not later than December 31, 1995, and ending on the
date the application for adjustment is granted, as provided in
paragraphs (c)(4) and (j) of this section.
(e) Applicability of grounds of inadmissibility contained in
section 212(a). (1) Certain grounds of inadmissibility inapplicable to
HRIFA applicants. Paragraphs (4), (5), (6)(A), (7)(A) and (9)(B) of
section 212(a) of the Act are inapplicable to HRIFA principal
applicants and their dependents. Accordingly, an applicant for
adjustment of status under section 902 of HRIFA need not establish
admissibility under those provisions in order to be able to adjust his
or her status to that of permanent resident.
(2) Availability of individual waivers. If a HRIFA applicant is
inadmissible under any of the other provisions of section 212(a) of the
Act for which an immigrant waiver is available, the applicant may apply
for one or more of the immigrant waivers of inadmissibility under
section 212 of the Act, in accordance with Sec. 212.7 of this chapter.
(f) Time for filing of applications. (1) Applications for HRIFA
benefits by a principal HRIFA applicant. The application period begins
on June 11, 1999. To benefit from the provisions of section 902 of
HRIFA, an alien who is applying for adjustment as a principal applicant
must properly file an application for adjustment of status before April
1, 2000.
(2) Applications by dependent aliens. The spouse, minor child, or
unmarried son or daughter of an alien who is eligible for adjustment of
status as a principal beneficiary under HRIFA may file an application
for adjustment of status under this section concurrently with or
subsequent to the filing of the application of the principal HRIFA
beneficiary. An application filed by a dependent may not be approved
prior to approval of the principal's application.
(g) Jurisdiction for filing of applications. (1) Filing of
applications with the Service. The Service has jurisdiction over all
applications for the benefits of section 902 of HRIFA as a principal
applicant or as a dependent under this section, except for applications
filed by aliens who are in pending immigration proceedings as provided
in paragraph (g)(2) of this section. All applications filed with the
Service for the benefits of section 902 of HRIFA must be submitted by
mail to: USINS Nebraska Service Center, PO Box 87245, Lincoln, NE
68501-7245. After proper filing of the application, the Service will
instruct the applicant to appear for fingerprinting as prescribed in
Sec. 103.2(e) of this chapter. The Director of the Nebraska Service
Center shall have jurisdiction over all applications filed with the
Service for adjustment of status under section 902 of HRIFA, unless the
Director refers the applicant for a personal interview at a local
Service office as provided in paragraph (o)(1) of this section.
(2) Filing of applications by aliens in pending exclusion,
deportation, or removal proceedings. An alien who is in exclusion,
deportation, or removal proceedings pending before the Immigration
Court or the Board, or who has a pending motion to reopen or motion to
reconsider filed with the Immigration Court or the Board on or before
May 12, 1999, must apply for HRIFA benefits to the Immigration Court or
the Board, as provided in paragraph (p)(1) of this section, rather than
to the Service. However, an alien whose proceeding has been
administratively closed (see paragraph (p)(4) of this section) may only
apply for HRIFA benefits with the Service as provided in paragraph
(g)(1) of this section.
(3) Filing of applications with the Service by aliens who are
subject to a final order of exclusion, deportation, or removal. An
alien who is subject to a final order of exclusion, deportation, or
removal, and who has not been denied adjustment of status under section
902 of HRIFA by the Immigration Court or the Board, may only apply for
HRIFA benefits with the Service as provided in paragraph (g)(1) of this
section. This includes applications for HRIFA benefits filed by aliens
who have filed a motion to reopen or motion to reconsider a final order
after May 12, 1999.
(i) Stay of final order of exclusion, deportation, or removal. The
filing of an application for adjustment under section 902 of HRIFA with
the Service shall not stay the execution of such final order unless the
applicant has requested and been granted a stay in connection with the
HRIFA application. An alien who has filed a HRIFA application with the
Service may file an Application for Stay of Removal (Form I-246) in
accordance with section 241(c)(2) of the Act and Sec. 241.6 of this
chapter.
(ii) Grant of stay. Absent evidence of the applicant's statutory
ineligibility for adjustment of status under section 902 of HRIFA or
significant negative discretionary factors, a Form I-246 filed by a
bona fide applicant for adjustment under section 902 of HRIFA shall be
approved and the removal of the applicant shall be stayed until such
time as the Service has adjudicated the application for adjustment in
accordance with this section.
(h) Application and supporting documents. Each applicant for
adjustment of status must file an Application to Register Permanent
Residence or Adjust Status (Form I-485). An applicant should complete
Part 2 of Form I-485 by checking box ``h--other'' and writing ``HRIFA--
Principal'' or ``HRIFA--Dependent'' next to that block. Each
application must be accompanied by:
(1) Application fee. The fee for Form I-485 prescribed in
Sec. 103.7(b)(1) of this chapter;
(2) Fingerprinting fee. If the applicant is 14 years of age or
older, the fee for fingerprinting prescribed in Sec. 103.7(b)(1) of
this chapter;
(3) Identifying information.
(i) A copy of the applicant's birth certificate or other record of
birth as provided in paragraph (m) of this section;
(ii) A completed Biographic Information Sheet (Form G-325A), if the
applicant is between 14 and 79 years of age;
(iii) A report of medical examination, as specified in Sec. 245.5
of this chapter; and
(iv) Two photographs, as described in the instructions to Form I-
485;
(4) Arrival-Departure Record. A copy of the Form I-94, Arrival-
Departure Record, issued at the time of the applicant's arrival in the
United States, if the alien was inspected and admitted or paroled;
(5) Police clearances. If the applicant is 14 years of age or
older, a police clearance from each municipality where the alien has
resided for 6 months or longer since arriving in the United States. If
there are multiple local law enforcement agencies (e.g., city police
and county sheriff) with jurisdiction over the alien's residence, the
applicant may obtain a clearance from either agency. If the applicant
resides or resided in a State where the State police maintain a
compilation of all local arrests and convictions, a statewide clearance
is sufficient. If the applicant presents a letter from the local police
agencies involved, or other evidence, to the effect that the applicant
attempted to obtain such clearance but was unable to do so because of
local or State policy, the director or immigration judge having
jurisdiction over the application may waive the local police clearance;
(6) Proof of Haitian nationality. If the applicant acquired Haitian
nationality other than through birth in Haiti, a copy of the
certificate of naturalization or
[[Page 25769]]
certificate of citizenship issued by the Haitian government; and
(7) Additional supporting evidence. Additional supporting evidence
pertaining to the applicant as provided in paragraphs (i) through (l)
of this section.
(i) Evidence of presence in the United States on December 31, 1995.
An alien seeking HRIFA benefits as a principal applicant must provide
with the application evidence establishing the alien's presence in the
United States on December 31, 1995. Such evidence may consist of one of
the following kinds of documentation:
(1) Form I-94. A photocopy of the Form I-94, Arrival-Departure
Record, issued upon the alien's arrival in the United States;
(2) Form I-122. A photocopy of the Form I-122, Notice to Applicant
for Admission Detained for Hearing before Immigration Judge, issued by
the Service on or prior to December 31, 1995, placing the applicant in
exclusion proceedings under section 236 of such Act (as in effect prior
to April 1, 1997);
(3) Form I-221. A photocopy of the Form I-221, Order to Show Cause,
issued by the Service on or prior to December 31, 1995, placing the
applicant in deportation proceedings under section 242 or 242A of such
Act (as in effect prior to April 1, 1997);
(4) Other Service document. A photocopy of any application or
petition for a benefit under the Immigration and Nationality Act filed
by or on behalf of the applicant on or prior to December 31, 1995,
which establishes his or her presence in the United States, or a fee
receipt issue by the Service for such application or petition;
(5) Other government documentation. Other documentation issued by a
Federal, State, or local authority provided such other documentation
bears the signature, seal, or other authenticating instrument of such
authority (if the document normally bears such instrument), was dated
at the time of issuance, and bears a date of issuance not later than
December 31, 1995. For this purpose, the term Federal, State, or local
authority includes any governmental, educational, or administrative
function operated by Federal, State, county, or municipal officials.
Examples of such other documentation include, but are not limited to:
(i) A State driver's license;
(ii) A State identification card issued in lieu of a driver's
license to a non-driver;
(iii) A county or municipal hospital record;
(iv) A public college or public school transcript;
(v) Income tax records;
(vi) A copy of a petition on behalf of the applicant which was
submitted to the Service on or before December 31, 1995, and which
lists the applicant as being physically present in the United States;
(vii) A certified copy of a Federal, State, or local governmental
record which was created on or prior to December 31, 1995, shows that
the applicant was present in the United States at the time, and
establishes that the applicant sought in his or her own behalf, or some
other party sought in the applicant's behalf, a benefit from the
Federal, State, or local governmental agency keeping such record; and
(viii) A certified copy of a Federal, State, or local governmental
record which was created on or prior to December 31, 1995, shows that
the applicant was present in the United States at the time, and
establishes that the applicant submitted an income tax return, property
tax payment, or similar submission or payment to the Federal, State, or
local governmental agency keeping such record; or
(6) Private or religious school transcripts. In the case of an
applicant seeking classification as a child under section 902(b)(1)(C)
of HRIFA, a transcript from a private or religious school which:
(i) Is registered with, or approved or licensed by, appropriate
State or local authorities;
(ii) Is accredited by the State or regional accrediting body, or by
the appropriate private school association; or
(iii) Maintains enrollment records in accordance with State or
local requirements or standards.
(j) Evidence of continuity of presence in the United States since
December 31, 1995. An alien seeking HRIFA benefits as a principal
applicant, or as the unmarried son or daughter of a principal
applicant, must provide with the application evidence establishing
continuity of the alien's physical presence in the United States since
December 31, 1995. (This requirement does not apply to a dependent
seeking HRIFA benefits as the spouse or minor child of a principal
applicant.)
(1) Evidence establishing presence. Evidence establishing the
continuity of the alien's physical presence in the United States since
December 31, 1995, may consist of any documentation issued by any
governmental or non-governmental authority, provided such evidence
bears the name of the applicant, was dated at the time it was issued,
and bears the signature, seal, or other authenticating instrument of
the authorized representative of the issuing authority, if the document
would normally contain such authenticating instrument. In general,
there should be no chronological gaps in such documentation exceeding
90 days in length, excluding periods when the applicant states that he
or she was not physically present in the United States. Such
documentation need not bear the seal of the issuing authority.
(2) Examples. Documentation establishing continuity of physical
presence may include, but is not limited to:
(i) School records;
(ii) Rental receipts;
(iii) Utility bill receipts;
(iv) Any other dated receipts;
(v) Personal checks written by the applicant bearing a dated bank
cancellation stamp;
(vi) Employment records, including pay stubs;
(vii) Credit card statements showing the dates of purchase,
payment, or other transaction;
(viii) Certified copies of records maintained by organizations
chartered by the Federal or State government, such as public utilities,
accredited private and religious schools, and banks;
(ix) If the applicant establishes that a family unit was in
existence and cohabiting in the United States, documents evidencing
presence of another member of that same family unit; and
(x) For applicants who have had ongoing correspondence or other
interaction with the Service, a list of the types and dates of such
correspondence or other contact that the applicant knows to be
contained or reflected in Service records.
(3) Evidence relating to absences from the United States since
December 31, 1995. If the alien is applying as a principal applicant,
or as the unmarried son or daughter of a principal applicant, and has
departed from and returned to the United States since December 31,
1995, the alien must provide with the application an attachment on a
plain piece of paper showing:
(i) The date of the applicant's last arrival in the United States
before December 31, 1995;
(ii) The date of each departure (if any) from the United States
since that arrival;
(iii) The reason for each departure; and
(iv) The date, manner, and place of each return to the United
States.
(k) Evidence establishing the alien's eligibility under section
902(b) of
[[Page 25770]]
HRIFA. An alien seeking HRIFA benefits as a principal applicant must
provide with the application evidence establishing that the alien
satisfies one of the eligibility standards described in paragraph
(b)(1) of this section.
(1) Applicant for asylum. If the alien is a principal applicant who
filed for asylum before December 31, 1995, the applicant must provide
with the application either:
(i) A photocopy of the first page of the Application for Asylum and
Withholding of Removal (Form I-589); or
(ii) If the alien is not in possession of a photocopy of the first
page of the Form I-589, a statement to that effect giving the date of
filing and the location of the Service office or Immigration Court at
which it was filed;
(2) Parolee. If the alien is a principal applicant who was paroled
into the United States prior to December 31, 1995, after having been
identified as having a credible fear of persecution, or paroled for
emergent reasons or reasons deemed strictly in the public interest, the
applicant must provide with the application either:
(i) A photocopy of the Arrival-Departure Record (Form I-94) issued
when he or she was granted parole; or
(ii) If the alien is not in possession of the original Form I-94, a
statement to that effect giving the date of parole and the location of
the Service port-of-entry at which parole was authorized.
(3) Child without parents. If the alien is a principal applicant
who arrived in the United States as a child without parents in the
United States, the applicant must provide with the application:
(i) Evidence, such as Form I-94, showing the date, location, and
manner of his or her arrival in the United States; and
(ii) Evidence establishing the absence of the child's parents,
which may include either:
(A) Evidence showing the deaths of, or disappearance or desertion
by, the applicant's parents; or
(B) Evidence showing that the applicant's parents did not arrive in
the United States with or before the applicant and that neither of the
applicant's parents subsequently arrived in the United States. Such
evidence may include, but is not limited to, documentation showing that
the applicant's parents have been continuously employed outside the
United States, are deceased, disappeared or abandoned the applicant
prior to the applicant's arrival, or were otherwise engaged in
activities showing that they were not in the United States.
(4) Orphaned child. If the alien is a principal applicant who is or
was a child who became orphaned subsequent to arrival in the United
States, the applicant must provide with the application:
(i) Evidence, such as Form I-94, showing the date, location, and
manner of his or her arrival in the United States; and
(ii) Either:
(A) The death certificates of both parents (or in the case of a
child having only one parent, the death certificate of the sole parent)
showing that the death or deaths occurred after the date of the
applicant's arrival in the United States, or
(B) Evidence from a State, local, or other court or governmental
authority having jurisdiction and authority to make decisions in
matters of child welfare establishing the disappearance of, the
separation or loss from, or desertion by, both parents (or, in the case
of a child born out of wedlock who has not been legitimated, the sole
parent).
(5) Abandoned child. If the alien is a principal applicant who was
abandoned by parents or guardians prior to April 1, 1998, and has
remained abandoned since such abandonment, the applicant must provide
with the application:
(i) Evidence, such as Form I-94, showing the date, location, and
manner of his or her arrival in the United States; and
(ii) Evidence from a State, local, or other court or governmental
authority having jurisdiction and authority to make decisions in
matters of child welfare establishing such abandonment.
(l) Evidence relating to applications by dependents under section
902(d) of HRIFA. (1) Evidence of spousal relationship. If the alien is
applying as the spouse of a principal HRIFA beneficiary, the applicant
must provide with the application a copy of their certificate of
marriage and copies of documents showing the legal termination of all
other marriages by the applicant or the other beneficiary.
(2) Evidence of parent-child relationship. If the applicant is
applying as the child, unmarried son, or unmarried daughter of a
principal HRIFA beneficiary, and the principal beneficiary is not the
applicant's biological mother, the applicant must provide with the
application evidence to demonstrate the parent-child relationship
between the principal beneficiary and the applicant. Such evidence may
include copies of the applicant's parent's marriage certificate and
documents showing the legal termination of all other marriages, an
adoption decree, or other relevant evidence.
(m) Secondary evidence. If the primary evidence required in
paragraph (h)(3)(i), (l)(1) or (l)(2) of this section is unavailable,
church or school records, or other secondary evidence pertinent to the
facts in issue, may be submitted. If such documents are unavailable,
affidavits may be submitted. The applicant may submit as many types of
secondary evidence as necessary to establish birth, marriage, or other
relevant event. Documentary evidence establishing that primary evidence
is unavailable must accompany secondary evidence of birth or marriage
in the home country. In adjudicating the application for adjustment of
status under section 902 of HRIFA, the Service or immigration judge
shall determine the weight to be given such secondary evidence.
Secondary evidence may not be submitted in lieu of the documentation
specified in paragraphs (i) and (j) of this section. However, subject
to verification by the Service, if the documentation specified in
paragraphs (i) and (j) is already contained in the Service's file
relating to the applicant, the applicant may submit an affidavit to
that effect in lieu of the actual documentation.
(n) Authorization to be employed in the United States while the
application is pending. (1) Application for employment authorization.
An applicant for adjustment of status under section 902 of HRIFA who
wishes to obtain initial or continued employment authorization during
the pendency of the adjustment application must file an Application for
Employment Authorization (Form I-765) with the Service, including the
fee as set forth in Sec. 103.7(b)(1) of this chapter. The applicant may
submit Form I-765 either concurrently with or subsequent to the filing
of the application for HRIFA benefits on Form I-485.
(2) Adjudication and issuance. Employment authorization may not be
issued to an applicant for adjustment of status under section 902 of
HRIFA until the adjustment application has been pending for 180 days,
unless the Director of the Nebraska Service Center verifies that
Service records contain evidence that the applicant meets the criteria
set forth in section 902(b) or 902(d) of HRIFA, and determines that
there is no indication that the applicant is clearly ineligible for
adjustment of status under section 902 of HRIFA, in which case the
Director may approve the application for employment authorization, and
issue the resulting document, immediately upon such verification. If
the Service fails to
[[Page 25771]]
adjudicate the application for employment authorization upon expiration
of the 180-day waiting period, or within 90 days of the filing of
application for employment authorization, whichever comes later, the
alien shall be eligible for interim employment authorization in
accordance with Sec. 274a.13(d) of this chapter. Nothing in this
section shall preclude an applicant for adjustment of status under
HRIFA from being granted an initial employment authorization or an
extension of employment authorization under any other provision of law
or regulation for which the alien may be eligible.
(o) Adjudication of HRIFA applications filed with the Service. (1)
Referral for interview. Except as provided in paragraphs (o)(2) and
(o)(3) of this section, all aliens filing applications for adjustment
of status with the Service under this section must be personally
interviewed by an immigration officer at a local office of the Service.
If the Director of the Nebraska Service Center determines that an
interview of the applicant is necessary, the Director shall forward the
case to the appropriate local Service office for interview and
adjudication.
(2) Approval without interview. Upon examination of the
application, including all other evidence submitted in support of the
application, all relevant Service records and all other relevant law
enforcement indices, the Director may approve the application without
an interview if the Director determines that:
(i) The alien's claim to eligibility for adjustment of status under
section 902 of HRIFA is verified through existing Service records; and
(ii) The alien is clearly eligible for adjustment of status.
(3) Denial without interview. If, upon examination of the
application, all supporting documentation, all relevant Service
records, and all other relevant law enforcement indices, the Director
determines that the alien is clearly ineligible for adjustment of
status under HRIFA and that an interview of the applicant is not
necessary, the Director may deny the application.
(p) Adjudication of HRIFA applications filed in pending exclusion,
deportation, or removal proceedings. (1) Proceedings pending before an
Immigration Court. Except as provided in paragraph (p)(4) of this
section, the Immigration Court shall have sole jurisdiction over an
application for adjustment of status under this section filed by an
alien who is in exclusion, deportation, or removal proceedings pending
before an immigration judge or the Board, or who has a pending motion
to reopen or motion to reconsider filed with an immigration judge or
the Board on or before May 12, 1999. The immigration judge having
jurisdiction over the exclusion, deportation, or removal proceedings
shall have jurisdiction to accept and adjudicate any application for
adjustment of status under section 902 of HRIFA during the course of
such proceedings. All applications for adjustment of status under
section 902 of HRIFA filed with an Immigration Court shall be subject
to the requirements of Secs. 3.11 and 3.31 of this chapter.
(2) Motion to reopen or motion to reconsider. If an alien who has a
pending motion to reopen or motion to reconsider timely filed with an
immigration judge on or before May 12, 1999, files an application for
adjustment of status under section 902 of HRIFA, the immigration judge
shall reopen the alien's proceedings for consideration of the
adjustment application, unless the alien is clearly ineligible for
adjustment of status under section 902 of HRIFA.
(3) Proceedings pending before the Board. Except as provided in
paragraph (d)(4) of this section, in the case of an alien who either
has a pending appeal with the Board or has a pending motion to reopen
or motion to reconsider timely filed with the Board on or before May
12, 1999, the Board shall remand, or reopen and remand, the proceedings
to the Immigration Court for the sole purpose of adjudicating an
application for adjustment of status under section 902 of HRIFA, unless
the alien is clearly ineligible for adjustment of status under section
902 of HRIFA. If the immigration judge denies, or the alien fails to
file, the application for adjustment of status under section 902 of
HRIFA, the immigration judge shall certify the decision to the Board
for consideration in conjunction with the applicant's previously
pending appeal or motion.
(4) Administrative closure of exclusion, deportation, or removal
proceedings. (i) An alien who is in exclusion, deportation, or removal
proceedings, or who has a pending motion to reopen or a motion to
reconsider such proceedings filed on or before May 12, 1999, may
request that the proceedings be administratively closed, or that the
motion be indefinitely continued, in order to allow the alien to file
such application with the Service as prescribed in paragraph (g) of
this section. If the alien appears to be eligible to file an
application for adjustment of status under this section, the
Immigration Court or the Board (whichever has jurisdiction) shall, with
the concurrence of the Service, administratively close the proceedings
or continue indefinitely the motion.
(ii) In the case of an otherwise-eligible alien whose exclusion,
deportation, or removal proceedings have been administratively closed
for reasons not specified in this section, the alien may only apply
before the Service for adjustment of status under this section.
(q) Approval of HRIFA applications. (1) Applications approved by
the Service. If the Service approves the application for adjustment of
status under the provisions of section 902 of HRIFA, the director shall
record the alien's lawful admission for permanent residence as of the
date of such approval and notify the applicant accordingly. The
director shall also advise the alien regarding the delivery of his or
her Permanent Resident Card and of the process for obtaining temporary
evidence of alien registration. If the alien had previously been issued
a final order of exclusion, deportation, or removal, such order shall
be deemed canceled as of the date of the director's approval of the
application for adjustment of status. If the alien had been in
exclusion, deportation, or removal proceedings that were
administratively closed, such proceedings shall be deemed terminated as
of the date of approval of the application for adjustment of status by
the director.
(2) Applications approved by an immigration judge or the Board. If
an immigration judge or (upon appeal) the Board grants an application
for adjustment under the provisions of section 902 of HRIFA, the date
of the alien's lawful admission for permanent residence shall be the
date of such grant.
(r) Review of decisions by the Service denying HRIFA applications.
(1) Denial notification. If the Service denies the application for
adjustment of status under the provisions of section 902 of HRIFA, the
director shall notify the applicant of the decision and of any right to
renew the application in proceedings before the Immigration Court.
(2) Renewal of application for HRIFA benefits in removal,
deportation, or exclusion proceedings. An alien who is not the subject
of a final order of removal, deportation, or exclusion may renew his or
her application for adjustment under section 902 of HRIFA during the
course of such removal, deportation, or exclusion proceedings.
(i) Initiation of removal proceedings. In the case of an alien who
is not maintaining valid nonimmigrant status and who had not previously
been placed in exclusion, deportation, or
[[Page 25772]]
removal proceedings, the director shall initiate removal proceedings in
accordance with Sec. 239.1 of this chapter.
(ii) Recalendaring or reinstatement of prior proceedings. In the
case of an alien whose previously initiated exclusion, deportation, or
removal proceeding had been administratively closed or continued
indefinitely under paragraph (p)(4) of this section, the director shall
make a request for recalendaring or reinstatement to the Immigration
Court that had administratively closed the proceeding, or the Board, as
appropriate, when the application has been denied. The Immigration
Court or the Board will then recalendar or reinstate the prior
exclusion, deportation, or removal proceeding.
(iii) Filing of renewed application. A principal alien may file a
renewed application for HRIFA benefits with the Immigration Court
either before or after March 31, 2000, if he or she had filed his or
her initial application for such benefits with the Service on or before
March 31, 2000. A dependent of a principal applicant may file such
renewed application with the Immigration Court either before or after
March 31, 2000, regardless of when he or she filed his or her initial
application for HRIFA benefits with the Service.
(3) Aliens with final orders. In the case of an alien who is the
subject of an outstanding final order of exclusion, deportation, or
removal, the Service shall refer the decision to deny the application
by filing a Notice of Certification (Form I-290C) with the Immigration
Court that issued the final order for consideration in accordance with
paragraph (s) of this section.
(s) Action on decisions referred to the Immigration Court by a
Notice of Certification (Form I-290C). (1) General. Upon the referral
by a Notice of Certification (Form I-290C) of a decision to deny the
application, in accordance with paragraph (r)(3) of this section, the
immigration judge shall conduct a hearing, under the authority
contained in Sec. 3.10 of this chapter, to determine whether the alien
is eligible for adjustment of status under section 902 of HRIFA. Such
hearing shall be conducted under the same rules of procedure as
proceedings conducted under part 240 of this chapter, except the scope
of review shall be limited to a determination of the alien's
eligibility for adjustment of status under section 902 of HRIFA. During
such proceedings, all parties are prohibited from raising or
considering any unrelated issues, including, but not limited to, issues
of admissibility, deportability, removability, and eligibility for any
remedy other than adjustment of status under section 902 of HRIFA.
Should the alien fail to appear for such hearing, the immigration judge
shall deny the application for adjustment under section 902 of HRIFA.
(2) Stay pending review. When the Service refers a decision to the
Immigration Court on a Notice of Certification (Form I-290C) in
accordance with paragraph (r)(3) of this section, the referral shall
not stay the execution of the final order. Execution of such final
order shall proceed unless a stay of execution is specifically granted
by the immigration judge, the Board, or an authorized Service officer.
(3) Appeal of Immigration Court decision. Once the immigration
judge issues his or her decision on the application, either the alien
or the Service may appeal the decision to the Board. Such appeal must
be filed pursuant to the requirements for appeals to the Board from an
Immigration Court decision set forth in Secs. 3.3 and 3.8 of this
chapter.
(4) Rescission or reopening of the decision of an Immigration
Court. The decision of an Immigration Court under paragraph (s)(1) of
this section denying an application for adjustment under section 902 of
HRIFA for failure to appear may be rescinded or reopened only:
(i) Upon a motion to reopen filed within 180 days after the date of
the denial if the alien demonstrates that the failure to appear was
because of exceptional circumstances as defined in section 240(e)(1) of
the Act; or
(ii) Upon a motion to reopen filed at any time if the alien
demonstrates that he or she did not receive notice of the hearing in
person (or, if personal service was not practicable, through service by
mail to the alien or to the alien's counsel of record, if any) or the
alien demonstrates that he or she was in Federal or State custody and
the failure to appear was through no fault of the alien.
(t) Parole authorization for purposes of travel. (1) Travel from
and return to the United States while the application for adjustment of
status is pending. If an applicant for benefits under section 902 of
HRIFA desires to travel outside, and return to, the United States while
the application for adjustment of status is pending, he or she must
file a request for advance parole authorization on an Application for
Travel Document (Form I-131), with fee as set forth in Sec. 103.7(b)(1)
of this chapter and in accordance with the instructions on the form. If
the alien is either in deportation or removal proceedings, or subject
to a final order of deportation or removal, the Form I-131 must be
submitted to the Director, Office of International Affairs; otherwise
the Form I-131 must be submitted to the Director of the Nebraska
Service Center, who shall have jurisdiction over such applications.
Unless the applicant files an advance parole request prior to departing
from the United States, and the Service approves such request, his or
her application for adjustment of status under section 902 of HRIFA is
deemed to be abandoned as of the moment of his or her departure. Parole
may only be authorized pursuant to the authority contained in, and the
standards prescribed in, section 212(d)(5) of the Act.
(2) Parole authorization for the purpose of filing an application
for adjustment of status under section 902 of HRIFA.
(i) An otherwise eligible applicant who is outside the United
States and wishes to come to the United States in order to apply for
benefits under section 902 of HRIFA may request parole authorization
for such purpose by filing an Application for Travel Document (Form I-
131) with the Nebraska Service Center, at P.O. Box 87245, Lincoln, NE
68501-7245. Such application must be supported by a photocopy of the
Form I-485 that the alien will file once he or she has been paroled
into the United States. The applicant must include photocopies of all
the supporting documentation listed in paragraph (f) of this section,
except the filing fee, the medical report, the fingerprint card, and
the local police clearances.
(ii) If the Director of the Nebraska Service Center is satisfied
that the alien will be eligible for adjustment of status once the alien
has been paroled into the United States and files the application, he
or she may issue an Authorization for Parole of an Alien into the
United States (Form I-512) to allow the alien to travel to, and be
paroled into, the United States for a period of 60 days.
[[Page 25773]]
(iii) The applicant shall have 60 days from the date of parole to
file the application for adjustment of status. If the alien files the
application for adjustment of status within that 60-day period, the
Service may re-parole the alien for such time as is necessary for
adjudication of the application. Failure to file such application for
adjustment of status within 60 days shall result in the alien being
returned to the custody of the Service and being examined as an
arriving alien applying for admission. Such examination will be
conducted in accordance with the provisions of section 235(b)(1) of the
Act if the alien is inadmissible under section 212(a)(6)(C) or
212(a)(7) of the Act, or section 240 of the Act if the alien is
inadmissible under any other grounds.
(iv) Parole may only be authorized pursuant to the authority
contained in, and the standards prescribed in, section 212(d)(5) of the
Act. The authority of the Director of the Nebraska Service Center to
authorize parole from outside the United States under this provision
shall expire on March 31, 2000.
(3) Effect of departure on an outstanding warrant of exclusion,
deportation, or removal. If an alien who is the subject of an
outstanding final order of exclusion, deportation, or removal departs
from the United States, with or without an advance parole
authorization, such final order shall be executed by the alien's
departure. The execution of such final order shall not preclude the
applicant from filing an Application for Permission to Reapply for
Admission Into the United States After Deportation or Removal (Form I-
212) in accordance with Sec. 212.2 of this chapter.
(u) Tolling the physical presence in the United States provision
for certain individuals. (1) Departure with advance authorization for
parole. In the case of an alien who departed the United States after
having been issued an Authorization for Parole of an Alien into the
United States (Form I-512), and who returns to the United States in
accordance with the conditions of that document, the physical presence
in the United States requirement of section 902(b)(1) of HRIFA is
tolled while the alien is outside the United States pursuant to the
issuance of the Form I-512.
(2) Request for parole authorization from outside the United
States. In the case of an alien who is outside the United States and
submits an application for parole authorization in accordance with
paragraph (l)(2) of this section, and such application for parole
authorization is granted by the Service, the physical presence
requirement contained in section 902(b)(1) of HRIFA is tolled from the
date the application is received at the Nebraska Service Center until
the alien is paroled into the United States pursuant to the issuance of
the Form I-512.
(3) Departure without advance authorization for parole. In the case
of an otherwise-eligible applicant who departed the United States on or
before December 31, 1998, the physical presence in the United States
provision of section 902(b)(1) of HRIFA is tolled as of October 21,
1998, and until July 12, 1999.
(v) Judicial review of HRIFA adjustment of status determinations.
Pursuant to the provisions of section 902(f) of HRIFA, there shall be
no judicial appeal or review of any administrative determination as to
whether the status of an alien should be adjusted under the provisions
of section 902 of HRIFA.
PART 274A--CONTROL OF EMPLOYMENT OF ALIENS
13. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
Sec. 274a.12 [Amended]
14. In Sec. 274a.12, paragraph (c)(9) is amended in the second
sentence by removing the words ``Sec. 245.13(j) of this chapter'' and
adding in their place the words ``Secs. 245.13(j) and 245.15(k) of this
chapter''.
Sec. 274a.13 [Amended]
15. In Sec. 274a.13, paragraph (d) is amended in the first sentence
by removing the words ``in so far as it is governed by Sec. 245.13(j)
of this chapter'' and adding in their place the words ``insofar as it
is governed by Secs. 245.13(j) and 245.15(k) of this chapter''.
PART 299--IMMIGRATION FORMS
16. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
17. Section 299.1 is amended in the table by:
a. Revising the entry for Form ``I-290C'', and by
b. Adding the entry for Form ``I-485 Supplement C'' in proper
numerical sequence, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
----------------------------------------------------------------------------------------------------------------
Form No. Edition date Title
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
I-290C...................................... 02-01-99 Notice of Certification.
* * * * * *
*
I-485 Supplement C.......................... 04-01-99 HRIFA Supplement to Supplement C Form I-485
Instructions.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
18. Section 299.5 is amended in the table by adding the entry for
Form ``I-485 Supplement C'' in proper numerical sequence, to read as
follows:
[[Page 25774]]
Sec. 299.5 Display of control numbers.
* * * * * * *
------------------------------------------------------------------------
Currently
INS form No. INS form title assigned OBM
Control No.
------------------------------------------------------------------------
* * * *
* * *
I-485 Supplement C............. HRIFA Supplement to 1115-0229
Form I-485
Instructions.
* * * *
* * *
------------------------------------------------------------------------
Dated: May 6, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-11954 Filed 5-11-99; 8:45 am]