Section 245i Regulations

 

Federal Register: March 26, 2001 (Volume 66, Number 58)]
[Rules and Regulations]
[Page 16383-16390]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr01-1]

====================================================================
Rules and Regulations                              Federal Register
____________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.

========================================================================

[[Page 16383]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[INS No. 2078-00; AG Order No. 2411-2001]
RIN 1115-AF91

Adjustment of Status To That Person Admitted for Permanent
Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice (Department) is amending its
regulations governing eligibility for adjustment of status under
section 245(i) of the Immigration and Nationality Act (Act) to conform
the regulations to existing policy and procedures and to remove
language that has been superseded by subsequent legislation.
Specifically, this interim rule conforms the regulations to include the
changes made by the Departments of Commerce, State, Justice and the
Judiciary Appropriations Act of 1998 and the Legal Immigration Family
Equity Act Amendments of 2000. This rule adds the new sunset date of
April 30, 2001, for the filing of qualifying petitions or applications
that enable the applicant to apply to adjust status using section
245(i) of the Act, clarifies the effect of the new sunset date on
eligibility, and discusses motions to reopen. This means that in order
to preserve the ability to apply for adjustment of status under section
245(i), an alien must be the beneficiary of a visa petition for
classification under section 204 of the Act that was filed with the
Attorney General, or an application for labor certification properly
filed with the Secretary of Labor, on or before April 30, 2001, and
determined to have been approvable when filed. This rule also provides
guidance on the standard for review of immigrant visa petitions and
applications for labor certification filed on or before April 30, 2001.

DATES: Effective date. This rule is effective March 26, 2001.
    Comment date. Comments must be submitted on or before May 25, 2001.

ADDRESSES: For matters relating to the Immigration and Naturalization
Service (Service), 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 (202) 305-0143. To ensure proper handling, please
reference INS number 2078-00 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3048 to arrange for an appointment. For matters relating to the
Executive Office for Immigration Review (EOIR), please submit written
comments to Charles Adkins-Blanch, General Counsel, EOIR, 5107 Leesburg
Pike, Suite 2400, Falls Church, VA 22041, or via fax to (703) 305-0443.
To ensure proper handling, please reference INS number 2078-00 on your
correspondence.

FOR FURTHER INFORMATION CONTACT: For questions regarding the Service,
contact Michael Valverde, Residence and Status Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, Telephone (202) 514-4754.
    For questions regarding EOIR, contact Charles Adkins-Blanch,
General Counsel, EOIR, 5107 Leesburg Pike, Suite 2400, Falls Church, VA
22041, Telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Background

What Is Section 245 of the Act?

    Section 245 of the Act (8 U.S.C. 1255) allows the Attorney General,
in his discretion, to adjust the status of an alien who has an
immigrant visa immediately available to that of a lawful permanent
resident (LPR) while the alien remains in the United States in lieu of
applying for an immigrant visa at a U.S. consular office abroad, if
certain conditions are met. An alien must have been inspected and
admitted or paroled, be eligible for an immigrant visa and admissible
for permanent residence and, with some exceptions, have maintained
lawful nonimmigrant status. The alien must not have engaged in
unauthorized employment.

What Is Section 245(i) of the Act?

    Section 245(i) of the Act (8 U.S.C. 1255(i)) allows certain aliens
with an immigrant visa immediately available to them to apply to adjust
status upon payment of a $1,000 surcharge, even though the alien
entered the United States without inspection or does not meet the
maintenance of status and authorized employment requirements of section
245(c) of the Act (8 U.S.C. 1255(c)). Section 245(i) of the Act does
not excuse any grounds of inadmissibility under section 212(a) of the
Act (8 U.S.C. 1182(a)).
    The Departments of Commerce, State, Justice and the Judiciary
Appropriations Act of 1998, Public Law 105-119, section 111 (111 Stat.
at 2458) (1997), significantly revised Section 245(i) and set a January
14, 1998, sunset date. After January 14, 1998, an alien could file an
application for adjustment of status under Section 245(i) of the Act
only if that alien was the beneficiary of either (1) an immigrant visa
petition under Section 204 of the Act (8 U.S.C. 1154) that was filed
with the Attorney General on or before January 14, 1998; or (2) an
application for labor certification that was filed pursuant to the
regulations of the Secretary of Labor by the alien's employer on or
before that date. Such a visa petition or application for labor
certification served to ``grandfather'' the alien beneficiary (that is,
to preserve the alien's ability to file an application for adjustment
of status under Section 245(i)) if the visa petition or application for
labor certification was properly filed on or before the sunset date,
under the appropriate regulations, and was approvable when filed.

What Changes Were Made by the Most Recent Amendments to Section 245(i)?

    The Legal Immigration Family Equity Act Amendments of 2000, Title
XV of Public Law 106-554, section 1502 (114 Stat. at 2764) (enacted
Dec. 21, 2000) (the LIFE Act Amendments) extended the Section 245(i) (8
U.S.C. 1255(i)) sunset date from January 14, 1998, to April 30, 2001.
That Act also requires

[[Page 16384]]

that, if the qualifying visa petition or labor certification
application was filed after January 14, 1998, the alien must have been
physically present in the United States on the date of enactment
(December 21, 2000) to be eligible to apply for adjustment of status
under Section 245(i).

What Does This Rule Do?

    The previous regulations relating to Section 245(i) of the Act (8
U.S.C. 1255(i)), 8 CFR 245.10, were never amended to conform to the
1997 statutory changes to Section 245(i). The Department had developed
a set of guidelines to implement Section 245(i) for aliens who were
grandfathered (i.e., who were the beneficiaries of qualifying visa
petitions or labor certification applications filed by the sunset
date). In view of the changes made by the LIFE Act Amendments and the
apparent intention of Congress to apply the amended law consistently
with past interpretations, this rule is intended to conform Sec. 245.10
to the existing standards and to implement the new physical presence
requirement. The rule also eliminates provisions from the existing
regulation that have been obsolete since the 1997 amendments to Section
245(i).

How Does an Alien Become Grandfathered for Purposes of Section 245(i)
of the Act?

    To be grandfathered for purposes of Section 245(i) of the Act (8
U.S.C. 1255(i)), the alien must be the beneficiary of an immigrant visa
petition or a labor certification application that (1) is filed on or
before April 30, 2001, and (2) meets the requirements of the Act and
these regulations. A visa petition or labor certification application
that meets all of the applicable requirements so as to grandfather the
alien beneficiary is referred to as a qualifying visa petition or a
qualifying labor certification application. In addition, if the
qualifying petition or qualifying application was filed after January
14, 1998, the alien beneficiary must also have been physically present
in the United States on December 21, 2000, to be eligible to apply for
adjustment under Section 245(i). The physical presence requirement is
discussed later.
    Since Section 245(i) was amended in 1997, the Department has
adopted what has come to be known as an ``alien-based'' reading of
Section 245(i). This means that the alien is grandfathered by the
filing of a qualifying visa petition or qualifying labor certification
application, for purposes of preserving the alien's eligibility to
apply to adjust status under Section 245(i), but the alien is not
limited to that particular petition or application as the only possible
basis for adjustment of status. The qualifying petition or application
that grandfathers the alien serves to preserve the alien's opportunity
to file for adjustment of status under Section 245(i) at a later time,
at which point the grandfathered alien becomes eligible for adjustment
of status on any proper basis.
    For example, if an alien is properly grandfathered as the
beneficiary of a qualifying visa petition or qualifying application
that was filed on or before April 30, 2001, the alien would also be
eligible to adjust status under Section 245(i) if he or she later won a
diversity visa.

Are the Dependent Family Members of a Grandfathered Alien Also
Considered To Be Grandfathered?

    Yes, a dependent spouse or child (if eligible under section 203(d)
of the Act (8 U.S.C. 1153(d))) who is accompanying or following to join
a grandfathered alien is also considered to be grandfathered by the
qualifying petition or qualifying application for labor certification,
if the relationship exists before the principal alien adjusts his or
her status.

What Documents Must Be Filed on or Before April 30, 2001?

    The new sunset date of April 30, 2001, is the deadline for the
filing of a qualifying visa petition or qualifying labor certification
application in order to grandfather the alien beneficiary. To preserve
the alien's ability to apply in the future for adjustment of status
under Section 245(i) (8 U.S.C. 1255(i)), an alien must be the
beneficiary of either (1) a qualifying Section 204 of the Act (8 U.S.C.
1154) immigrant visa petition that is properly filed with the Attorney
General on or before April 30, 2001, and which is determined to have
been approvable when filed; or (2) a qualifying application for labor
certification that is properly filed on or before April 30, 2001,
according to the regulations of the Secretary of Labor, and which is
determined to have been approvable when filed.
    An alien is not required to file his or her application for
adjustment of status under Section 245(i) on or before April 30, 2001.
If an alien is grandfathered (because he or she is the beneficiary of a
qualifying visa petition or qualifying labor certification application
filed on or before April 30, 2001), the alien will be able to submit
the actual application for adjustment of status under Section 245(i) at
any later time when an immigrant visa becomes available to the alien.

What Are the Requirements for a Qualifying Immigrant Visa Petition?

    An alien becomes grandfathered for purposes of Section 245(i) of
the Act (8 U.S.C. 1255(i)) if he or she is the beneficiary of an
immigrant visa petition under Section 204 of the Act (8 U.S.C. 1154) on
his or her behalf that is properly filed with the Service on or before
April 30, 2001. This includes any of the following:
     Form I-130, Petition for Alien Relative, filed on behalf
of the alien beneficiary;
     Form I-140, Immigrant Petition for Alien Worker, filed by
an employer on behalf of the beneficiary;
     Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant, filed on behalf of the beneficiary or submitted as a self-
petition under Section 204(a)(1)(A)(iii) or (a)(1)(A)(iv) filed by an
eligible alien; and
     Form I-526, Immigrant Petition by Alien Entrepreneur.
    In any case, the visa petition must be determined to have been
approvable when filed in order to grandfather the alien for purposes of
Section 245(i), as discussed below.
    A visa petition does not serve to grandfather the alien beneficiary
if that alien has previously obtained lawful permanent resident status
on the basis of that visa petition.
    Other types of applications or petitions for immigration benefits--
including but not limited to asylum applications, diversity visa
applications, and diversity visa lottery-winning letters--do not serve
to grandfather an alien for purposes of Section 245(i), because they do
not satisfy the statutory requirement that the alien must be the
beneficiary of a qualifying immigrant visa petition for classification
under Section 204 of the Act filed with the Attorney General or a
qualifying labor certification application filed with the Secretary of
Labor. Under current law, unless an alien is properly grandfathered as
the beneficiary of a qualifying visa petition or qualifying application
that was properly filed on or before April 30, 2001, the alien will not
be able to take advantage of Section 245(i) even if he or she becomes
eligible for an immigrant visa at some later date.

When Is an Immigrant Visa Petition ``Properly Filed on or Before April
30, 2001''?

    To be considered properly filed, for purposes of grandfathering,
the immigrant visa petition must be physically received by the Service
prior

[[Page 16385]]

to the close of business on or before April 30, 2001, or if mailed, be
postmarked on or before April 30, 2001.
    The Service is applying the exception for grandfathering visa
petitions contained in the regulations at 8 CFR Sec. 103.2(a)(7), which
require that a petition must be physically received and stamped by the
Service in order to be considered properly filed. For the purpose of
grandfathering under section 245(i) of the Act (8 U.S.C. 1255(i)) only,
the Service will accept as properly filed, visa petitions that are
postmarked on or before April 30, 2001. In addition, given the April
30, 2001, sunset date, the Service notes that it will accept visa
petitions that contain at least the minimum amount of information
required by 8 CFR 103.2(a). Petitions that do not contain the names of
the petitioner and the beneficiary, the proper fee, and the signature
of the petitioner will not be accepted for filing.

When Is an Immigrant Visa Application ``Approvable When Filed'' for
Grandfathering Purposes?

    Not all immigrant visa petitions that are properly filed on or
before April 30, 2001, will serve to grandfather the alien beneficiary
for purposes of Section 245(i) of the Act (8 U.S.C. Sec. 1255(i)). In
interpreting the language of Section 245(i) since it was amended in
1997, the Department has also required that the visa petition must have
been ``approvable when filed'' to qualify the alien beneficiary for
grandfathering.
    ``Approvable when filed'' means that, as of the date of filing the
immigrant visa petition, the petition was properly filed, meritorious
in fact, and non-frivolous (``frivolous'' meaning patently without
substance). For example, a visa petition is not approvable when filed
if it is fraudulent or if the named beneficiary did not have, at the
time of filing, the appropriate family relationship or employment
relationship that would support the issuance of an immigrant visa.
    As noted, the Department recognizes that some immigrant visa
petitions may be filed initially without all of the necessary
information for the Service to adjudicate the petition. In that case,
the existing regulations at 8 CFR 103.2(b)(8) provide a process for the
Service to request additional evidence and to allow the petitioner a
period of 12 weeks to submit that additional evidence in support of the
petition.
    It is important to note, though, that all eligibility requirements
must be satisfied before an immigrant visa petition can be approved. A
visa petition will not qualify an alien for grandfathering unless the
Service is able to determine, based on the available information
(including additional evidence submitted by the petitioner after the
filing of the petition) that the petition was approvable when filed.
    If the Deparment has already approved the visa petition at the time
the alien files an application for adjustment of status, it was
approvable when filed, except as discussed below, and thus provides a
basis for grandfathering. However, a visa petition may still serve as
the basis for grandfathering even if it has not been adjudicated by the
Service as of April 30, 2001. As discussed below, the adjudication of
the visa petition on the merits is distinct from the question of
whether the petition qualifies for grandfathering because it was
approvable when filed.

What if an Immigrant Visa Petition Is Properly Filed on or Before April
30, 2001, but Is Later Denied, Withdrawn, or Revoked?

    An immigrant visa petition on behalf of an alien beneficiary that
is properly filed on or before April 30, 2001, but is subsequently
denied or withdrawn, or the approval of which is revoked, may still
serve to grandfather the alien, depending on the reasons for the
disposition of the visa petition. The issue is whether the visa
petition was approvable when filed.
Changed Circumstances Arising After the Time of Filing
    As long as a qualifying visa petition was approvable when filed,
the petition will still grandfather the alien even if the petition was
denied or revoked due to circumstances arising after the filing of the
petition as outlined at 8 CFR Sec. 205.1(a)(3)(i) or (ii). Such changed
circumstances would include but are not limited to a child who has
reached age 21 before the principal alien could adjust status, an
employer going out of business, or a valid, bona fide marriage ending
in divorce before the alien could adjust status.
    These same principles apply where the petitioner withdraws an
immigrant visa petition. For example, an employer that had filed an
immigrant visa petition for an alien may suffer a business reversal 18
months after the date of filing and, as a result, withdraw the
petition. In that case, the alien would still continue to be
grandfathered for purposes of Section 245(i) of the Act, if the
petition was approvable at the time of filing.
    Under the ``alien-based'' reading, a grandfathered alien is not
limited to filing for adjustment of status using the particular visa
petition that provided the basis for grandfathering. Thus, a properly
grandfathered alien with a petition that was denied or revoked due to
circumstances arising after the filing of the petition may apply to
adjust status using any other proper basis for adjustment. Although
grandfathered by the denied or revoked petition, the alien may not use
that petition as an adjustment basis, given that the petition was not
approved.
Immigrant Visa Petitions Denied or Revoked Based on Ineligibility
    When the Service has denied an immigrant visa petition (or has
revoked a prior approval) based on ineligibility at the time of filing,
the petition does not qualify to grandfather the alien beneficiary for
purposes of section 245(i). Such ineligibility may be based on
meritless or fraudulent petitions, such as those in which the claimed
family or employment relationship at the time of the filing cannot
serve as the basis for issuance of an immigrant visa.

When Is a Labor Certification Application ``Properly Filed on or Before
April 30, 2001''?

    To be considered properly filed, for purposes of grandfathering
under Section 245(i) of the Act (8 U.S.C. 1255(i)), a labor
certification application must be filed on or before April 30, 2001,
according to the regulations established by the Department of Labor, 20
CFR 656.21. The sponsoring employer must properly complete and sign ETA
Form 750, Parts A and B. The Labor Department considers an application
for labor certification that is filed and accepted at a State
Employment Security Agency (SESA) to be properly filed.

What Happens if an Employer Substitutes a New Beneficiary on a Labor
Certification Application After April 30, 2001?

    Only the alien who was the beneficiary of an application for labor
certification on or before April 30, 2001, will be considered to be
grandfathered for purposes of Section 245(i) of the Act (8 U.S.C.
1255(i)).

When Is an Application for Labor Certification ``Approvable When
Filed'' for Grandfathering Purposes?

    Not all applications for labor certification that are properly
filed on or before April 30, 2001, will serve to grandfather the alien
beneficiary for purposes of Section 245(i) of the Act (8 U.S.C.
1255(i)). In interpreting the language of Section 245(i) since it was
amended in 1997, the Department has also required that the application
for

[[Page 16386]]

labor certification must have been ``approvable when filed'' to qualify
the alien beneficiary for grandfathering.
    ``Approvable when filed'' means that, as of the date of filing of
the application for labor certification, the application was properly
filed, meritorious in fact, and non-frivolous (``frivolous'' meaning
patently without substance).

What Happens if an Alien Is Already in Immigration Proceedings?

    If an alien is already in immigration proceedings and believes that
he or she may be eligible to apply to adjust status under Section
245(i) of the Act (8 U.S.C. 1255(i)), he or she should raise the matter
with the Immigration Judge or the Board of Immigration Appeals
according to the established procedures. Certain aliens in exclusion
proceedings and certain arriving aliens, however, cannot apply for
Section 245(i) adjustment.

If an Alien Already Is the Subject of a Final Order of Removal,
Deportation or Exclusion, What is the Procedure for Moving To Reopen
Based on Section 245(i)?

    The LIFE Act Amendments contain no special provisions for reopening
cases under Section 245(i) of the Act (8 U.S.C. 1255(i)) where an alien
already is the subject of a final order of removal, deportation or
exclusion. Accordingly, motions to reopen based on Section 245(i) will
be governed by the Department's current rules regarding motions to
reopen, 8 CFR 3.23 (before the Immigration Judge) and 3.2 (before the
Board of Immigration Appeals), which contain time and numerical
limitations on the filing of such motions. See 8 CFR 3.23(b)(1) and
3.2(c)(2). The rules, however, do provide for limited exceptions to
these time and numerical limitations, among which is a motion to reopen
filed jointly by the alien and the Service counsel in the case.
Therefore, an alien who is the subject of a final order who alleges
eligibility for adjustment of status under Section 245(i) may contact
the Service counsel to request the filing of a joint motion to reopen.
The Service will exercise its discretion in reviewing these cases.
However, there are provisions in the Immigration and Nationality Act
which limit the Attorney General's ability to grant certain forms of
discretionary relief, including adjustment of status, for a period of
time, to particular categories of aliens with final orders, including
but not limited to aliens whose orders were entered in absentia for
failure to appear, and aliens who failed to voluntarily depart the
United States within the time period specified.

How is an Alien's Nonimmigrant Status in the United States Affected if
he or she is Grandfathered?

    An alien's nonimmigrant status in the United States is not affected
by the fact that he or she is grandfathered. The petition that serves
to grandfather the alien neither extends an alien's nonimmigrant status
nor authorizes employment in the United States. The immigrant visa
petition or application for labor certification that serves to
grandfather the alien does not serve to stay any order of removal,
deportation, or exclusion.

What Effect Does a Grandfathering Petition Have on an Alien's Unlawful
Presence in the United States if he or she Has Entered Without
Inspection or Remained Beyond the Authorized Period of Admission?

    The mere filing of a visa petition or application for a labor
certification that has the effect of grandfathering the alien has no
effect on an alien's unlawful presence in the United States and does
not place the alien in a ``period of stay authorized by the Attorney
General'' for purposes of section 212(a)(9)(B) of the Act (8 U.S.C.
1182(a)(9)(B)). Absent some other factor placing the alien in such a
period of authorized stay, the alien continues to accrue periods of
unlawful presence until he or she properly files an application for
adjustment of status. A properly filed application for adjustment of
status under Section 245(i) of the Act (8 U.S.C. 1255(i)) places the
alien in a ``period of stay authorized by the Attorney General'' for
purposes of section 212(a)(9)(B) and (C) of the Act (8 U.S.C.
1182(a)(9)(B) and (C)).
    Filing an application for adjustment of status stops the accrual of
unlawful presence, but does not eliminate periods of unlawful presence
accrued before such filing.

When Is an Alien Applying for Adjustment of Status Under Section 245(i)
Required to Demonstrate Physical Presence in the United States?

    If an alien is the beneficiary of a qualifying immigrant visa
petition, or qualifying application for labor certification, that was
filed after January 14, 1998, then the alien must have been physically
present in the United States on December 21, 2000, to be eligible to
use Section 245(i) of the Act (8 U.S.C. 1255(i)). The physical presence
requirement does not apply if the qualifying petition or application
was filed on or before January 14, 1998, regardless of when the Section
245(i) application for adjustment of status itself is filed.
    Proof of a grandfathered alien's physical presence is not required
to be presented when a visa petition or labor certification application
is filed; such proof must be presented when the alien files the Section
245(i) application for adjustment of status itself.

How Can an Applicant Demonstrate That he or she Was Physically Present
in the United States on December 21, 2000?

    Applicants for adjustment under Section 245(i) of the Act (8 U.S.C.
1255(i)) who are covered by the physical presence requirement must
submit, at the time they file the Section 245(i) application for
adjustment of status, evidence that they were physically present in the
United States on December 21, 2000.
    The Act is silent as to the methods by which an applicant may
demonstrate his or her physical presence in the United States on that
date. This rule provides guidance as to what evidence an applicant may
submit to prove physical presence in the United States on December 21,
2000. This guidance largely corresponds to the existing regulations at
8 CFR 245.15(i) for aliens who must demonstrate physical presence on a
specific date for purposes of the Haitian Refugee Immigrant Fairness
Act of 1998 (HRIFA). The rule will incorporate, in part, the forms of
documentation accepted in HRIFA regarding physical presence (8 CFR
245.15(i) and (j)(2)) and adopt them as examples of possible proof of
physical presence for section 245(i). The Department is also soliciting
comments on what type of evidence can be best utilized to demonstrate
physical presence on December 21, 2000.
    In some cases, a single document may suffice to establish the
applicant's physical presence on December 21, 2000. In most cases,
however, the alien may need to submit several documents, because most
applicants may not possess documentation that contains the exact date
of December 21, 2000. In such instances, the applicant should submit
sufficient documentation establishing the applicant's physical presence
in the United States prior to and after December 21, 2000.
    An alien may make the demonstration of physical presence by
submitting a photocopy of a Federal, state, or local government-issued
document(s) that demonstrates the alien's physical presence in the
United States on December 21, 2000 (or before and after that date). If
the alien is not in

[[Page 16387]]

possession of such a document or documents, but believes that a copy is
already contained in the Service file relating to him or her, he or she
may submit a statement as to the name and location of the issuing
Federal, state, or local government agency, the type of document and
the date on which it was issued. Examples of such Service issued
documents include, but are not limited to, Form I-94, Arrival-Departure
Record, Form I-862, Notice to Appear, Form I-122, Notice to Applicant
for Admission Detained for Hearing before Immigration Judge, or Form I-
221, Order to Show Cause. Examples of such Federal, state, or local
government issued documents include, but are not limited to, a state
driver's license or identification card, a county or municipal hospital
record, a public college or public school transcript, income tax
records, a Federal, State, or local governmental record which was
created on or prior to December 21, 2000, shows that the applicant was
present in the United States at the time, or a transcript from a
private or religious school that is registered with, or approved or
licensed by, appropriate State or local authorities.
    If there are no government-issued documents that demonstrate an
alien's physical presence on December 21, 2000, the Service will accept
and evaluate non-government issued documents. Such documentation must
bear the name of the applicant, have been dated at the time it was
issued, and bear the seal or signature of the issuing authority (if the
documentation is normally signed or sealed), be issued on letterhead
stationery, or be otherwise authenticated. A personal affidavit
attesting to physical presence on December 21, 2000, will not be
accepted without additional evidence to validate the affidavit.
Examples of such non-government issued documents include, but are not
limited to, school records, rental receipts, utility bills, cancelled
personal checks, employment records, or credit card statements.
    In all cases, any doubts as to the existence, authenticity,
veracity, or accuracy of the documentation shall be resolved by the
official government record, with records of the Service and the
Executive Office for Immigration Review (EOIR) having precedence over
the records of other agencies. Furthermore, determinations as to the
weight to be given any particular document or item of evidence shall be
solely within the discretion of the adjudicating authority (i.e., the
Service or EOIR). It shall be the responsibility of the applicant to
obtain and submit copies of the records of any other government agency
that the applicant desires to be considered in support of his or her
application.

Do the Dependent Family Members of a Grandfathered Alien Need to Meet
the December 21, 2000, Physical Presence Requirement?

    No, the dependent spouse or children of a grandfathered alien are
not required to meet the physical presence requirement. Only the
principal beneficiary of an immigrant visa petition or application for
labor certification filed after January 14, 1998, and on or before
April 30, 2001, needs to demonstrate his or her physical presence in
the United States on December 21, 2000.

What Outdated Information Is Being Removed From the Regulations?

    The Department amends 8 CFR 245.10 to remove language made obsolete
by Public Law 105-119 and Public Law 106-554, specifically: language
that refers to fee amounts for applications filed before December 29,
1996; and language that ends the application period for adjustment
applications on October 23, 1997. The new language conforms the
regulations to the existing law and established procedures.

Congressional Review Act

    Although this rule falls under the category of major rule as that
term is defined in 5 U.S.C. 804(2)(A), the Department finds that under
5 U.S.C. 808(2) good cause exists for immediate implementation of this
regulation upon publication in the Federal Register. The reason and
necessity for immediate implementation are as follows: Under the
statutory (LIFE Act) changes that went into effect on December 21,
2000, individuals who want preserve their ability to adjust their
immigration status under section 245(i) of the Act must do so by April
30, 2001. Accordingly, because there is a very short window of
opportunity for these individuals to apply, the Department finds that
delaying the effective date of this rule is impracticable, unnecessary,
and contrary to the public interest.

Good Cause Exception

    The Department's implementation of this rule as an interim rule
with provisions for post-promulgation comment, and with an immediate
effective date, is based on the ``good cause'' exceptions found at 5
U.S.C. 553(b)(3)(B) and (d)(3). The implementation of this rule without
prior notice and comment, and without a delayed effective date, is
necessary to implement recently enacted statutory changes that took
effect upon enactment on December 21, 2000. There is a very short
window of opportunity (ending on April 30, 2001) provided by the new
law for the filing of immigrant visa petitions and applications for
labor certification, in order to preserve the ability of eligible
aliens to adjust their status under Section 245(i) of the Act (8 U.S.C.
1255(i)).
    This rule implements a portion of the LIFE Act Amendments by
setting forth the procedural instructions on the proper filing of
immigrant visa petitions, applications for labor certification, and
applications for adjustment of status under Section 245(i). Certain
individuals, if they miss the opportunity to use Section 245(i) to
adjust their status while in the United States, may be subject to the 3
or 10 year bars to admission under Section 212(a)(9) (8 U.S.C.
1182(a)(9)) if they leave the United States to apply for an immigrant
visa at a U.S. consular office abroad. It would be impractical and
contrary to the public interest to publish a proposed rule or to delay
the effective date of these procedural instructions, because the public
comment period and a delayed effective date would consume most of the
very limited time statutorily available for qualified applicants to
take advantage of the new law. The Department will fully consider all
comments about this interim rule that are submitted during the comment
period.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule affects
individuals by temporarily removing certain restrictions on eligibility
for adjustment of status in accordance with Public Law 110-119. This
rule is intended to eliminate inconvenience to a number of individuals
currently in the United States who otherwise would be required to incur
significant monetary expenses by traveling abroad to apply for an
immigrant visa at a United States consulate or embassy. This interim
rule will have no 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 1 year, and it will not significantly or uniquely
affect small governments.

[[Page 16388]]

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 a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996. This rule will result in an effect
on the economy of approximately:
    $178,300,000 for 2001,
    $99,200,000 for 2002, and
    $91,900,000 for 2003.
    This increase in cost is directly associated with the expected
increase in the number of applications for adjustment of status
submitted under section 245(i) of the Act (8 U.S.C. 1255(i)) with the
required $1,000 penalty fee and other associated applications. Section
1502 of the LIFE Amendments, Public Law 106-554, reinstates section
245(i) until April 30, 2001. The reinstatement of section 245(i)
provides some previously ineligible individuals with the opportunity to
file the proper forms to preserve their ability to use section 245(i).
The Service projects that in fiscal year 2001, a total 946,000
applications will be submitted because of the reinstatement of section
245(i) of the Act as follows:
    500,000 Forms I-130;
    50,000 Forms I-140;
    148,500 Forms I-765;
    82,500 Forms I-131; and
    165,000 Forms I-485.
    In addition, the Department of Labor projects that at least 40,000
Forms ETA 750 will be submitted. The Service projects that in fiscal
year 2002, a total of 324,000 total applications will be submitted as
follows:
    121,500 Forms I-765;
    67,500 Forms I-131; and
    135,000 Forms I-485.
    The Service projects that in fiscal year 2003, a total of 300,000
applications will be submitted as follows:
    112,500 Forms I-765;
    62,500 Forms I-131; and
    125,000 Forms I-485.

Executive Order 12866

    This rule is considered by the Department of Justice to be an
``economically significant regulatory action'' under Executive Order
12866, Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.

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 interim 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
pertaining to 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 8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, 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 245.10 is amended by:
    a. Revising the section heading;
    b. Removing paragraph (c);
    c. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c)
respectively;
    d. Adding a new paragraph (a);
    e. Revising newly redesignated paragraph (b) introductory text;
    f. Revising newly redesignated paragraphs (b)(4), (b)(5), and
(b)(7);
    g. Revising newly redesignated paragraph (c) introductory text;
    h. Revising the phrase ``receipt of approval'' to read ``receipt or
approval'' in the first sentence of newly redesignated paragraph
(c)(3);
    i. Revising paragraph (d);
    j. Revising paragraph (e);
    k. Revising paragraph (f); and
    l. Adding new paragraphs (h), (i), (j), (k), (l), (m), and (n).
    The additions and revisions to read as follows:

Sec. 245.10  Adjustment of status upon payment of additional sum under
section 245(i).

    (a) Definitions. As used in this section the term:
    (1)(i) Grandfathered alien means an alien who is the beneficiary
(including a spouse or child of the alien beneficiary if eligible to
receive a visa under section 203(d) of the Act) of:
    (A) A petition for classification under section 204 of the Act
which was properly filed with the Attorney General on or before April
30, 2001, and which was approvable when filed; or
    (B) An application for labor certification under section
212(a)(5)(A) of the Act that was properly filed pursuant to the
regulations of the Secretary of Labor on or before April 30, 2001, and
which was approvable when filed.
    (ii) If the qualifying visa petition or application for labor
certification was filed after January 14, 1998, the alien must have
been physically present in the United States on December 21, 2000. This
requirement does not apply with respect to a spouse or child
accompanying or following to join a principal alien who is a
grandfathered alien as described in this section.
    (2) Properly filed means:
    (i) With respect to a qualifying immigrant visa petition, that the
application was physically received by the Service on or before April
30, 2001, or if mailed, was postmarked on or before April 30, 2001, and
accepted for filing as provided in Sec. 103.2(a)(1) and (a)(2) of this
chapter; and
    (ii) With respect to a qualifying application for labor
certification, that the application was properly filed and accepted
pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.
    (3) Approvable when filed means that, as of the date of the filing
of the qualifying immigrant visa petition under section 204 of the Act
or qualifying application for labor certification, the qualifying
petition or application was properly filed, meritorious in fact, and
non-frivolous (``frivolous'' being defined herein as patently without
substance). This determination will be made based on the circumstances
that existed at the time the qualifying petition or application was
filed. A visa petition that was properly filed on or before April 30,
2001, and was approvable when filed, but was later withdrawn, denied,
or revoked due to circumstances that have arisen after the time of
filing, will preserve the alien beneficiary's grandfathered status if
the alien is otherwise eligible to file an application

[[Page 16389]]

for adjustment of status under section 245(i) of the Act.
    (4) Circumstances that have arisen after the time of filing means
circumstances similar to those outlined in Sec. 205.1(a)(3)(i) or
(a)(3)(ii) of this chapter.
    (b) Eligibility. An alien who is included in the categories of
restricted aliens under Sec. 245.1(b) and meets the definition of a
``grandfathered alien'' may apply for adjustment of status under
section 245 of the Act if the alien meets the requirements of
paragraphs (b)(1) through (b)(7) of this section:
* * * * *
    (4) Properly files Form I-485, Application to Register Permanent
Residence or Adjust Status on or after October 1, 1994, with the
required fee for that application;
    (5) Properly files Supplement A to Form I-485 on or after October
1, 1994;
* * * * *
    (7) Will adjust status under section 245 of the Act to that of
lawful permanent resident of the United States on or after October 1,
1994.
    (c) Payment of additional sum. An adjustment applicant filing under
the provisions of section 245(i) of the Act must pay the standard
adjustment application filing fee as specified in Sec. 103.7(b)(1) of
this chapter. Each application submitted under the provisions of
section 245(i) of the Act must be submitted with an additional sum of
$1,000. An applicant must submit the additional sum of $1,000 only once
per application for adjustment of status submitted under the provisions
of section 245(i) of the Act. However, an applicant filing under the
provisions of section 245(i) of the Act is not required to pay the
additional sum if, at the time the application for adjustment of status
is filed, the alien is:
* * * * *
    (d) Pending adjustment application with the Service or Executive
Office for Immigration Review filed without Supplement A to Form I-485
and additional sum. An alien who filed an adjustment of status
application with the Service in accordance with Sec. 103.2 of this
chapter will be allowed the opportunity to amend such an application to
request consideration under the provisions of section 245(i) of the
Act, if it appears that the alien is not otherwise ineligible for
adjustment of status. The Service shall notify the applicant in writing
of the Service's intent to deny the adjustment of status application,
and any other requests for benefits that derive from the adjustment
application, unless Supplement A to Form I-485 and any required
additional sum is filed within 30 days of the date of the notice. If
the application for adjustment of status is pending before the
Executive Office for Immigration Review (EOIR), EOIR will allow the
respondent an opportunity to amend an adjustment of status application
filed in accordance with Sec. 103.2 of this chapter (to include
Supplement A to Form I-485 and proof of remittance to the INS of the
required additional sum) in order to request consideration under the
provisions of section 245(i) of the Act.
    (e) Applications for Adjustment of Status filed before October 1,
1994. The provisions of section 245(i) of the Act shall not apply to an
application for adjustment of status that was filed before October 1,
1994. The provisions of section 245(i) of the Act also shall not apply
to a motion to reopen or reconsider an application for adjustment of
status if the application for adjustment of status was filed before
October 1, 1994. An applicant whose pre-October 1, 1994, application
for adjustment of status has been denied may file a new application for
adjustment of status pursuant to section 245(i) of the Act on or after
October 1, 1994, provided that such new application is accompanied by:
the required fee; Supplement A to Form I-485; the additional sum
required by section 245(i) of the Act; and all other required initial
and additional evidence.
    (f) Effect of section 245(i) on completed adjustment applications
before the Service. (1) Any motion to reopen or reconsider before the
Service alleging availability of section 245(i) of the Act must be
filed in accordance with Sec. 103.5 of this chapter. If said motion to
reopen with the Service is granted, the alien must remit to the Service
Supplement A to Form I-485 and the additional sum required by section
245(i) of the Act. If the alien had previously remitted Supplement A to
Form I-485 and the additional sum with the application which is the
subject of the motion to reopen, then no additional sum need be
remitted upon such reopening.
    (2) An alien whose adjustment application was adjudicated and
denied by the Service because of ineligibility under section 245(a) or
(c) of the Act and now alleges eligibility due to the availability of
section 245(i) of the Act may file a new application for adjustment of
status pursuant to section 245(i) of the Act, provided that such new
application is accompanied by the required fee for the application,
Supplement A to Form I-485, additional sum required by section 245(i)
of the Act and all other required and additional evidence.
* * * * *
    (h) Asylum or diversity immigrant visa applications. An asylum
application, diversity visa lottery application, or diversity visa
lottery-winning letter does not serve to grandfather the alien for
purposes of section 245(i) of the Act. However, an otherwise
grandfathered alien may use winning a diversity visa as a basis for
adjustment.
    (i) Denial, withdrawal, or revocation of the approval of a visa
petition or application for labor certification. The denial,
withdrawal, or revocation of the approval of a qualifying immigrant
visa petition, or application for labor certification, that was
properly filed on or before April 30, 2001, and that was approvable
when filed, will not preclude its grandfathered alien (including the
grandfathered alien's family members) from seeking adjustment of status
under section 245(i) of the Act on the basis of another approved visa
petition, a diversity visa, or any other ground for adjustment of
status under the Act, as appropriate.
    (j) Substitution of a beneficiary on an application for a labor
certification. Only the alien who was the beneficiary of the
application for the labor certification on or before April 30, 2001,
will be considered to have been grandfathered for purposes of filing an
application for adjustment of status under section 245(i) of the Act.
An alien who was previously the beneficiary of the application for the
labor certification but was subsequently replaced by another alien on
or before April 30, 2001, will not be considered to be a grandfathered
alien. An alien who was substituted for the previous beneficiary of the
application for the labor certification after April 30, 2001, will not
be considered to be a grandfathered alien.
    (k) Changes in employment. An applicant for adjustment under
section 245(i) of the Act who is adjusting status through an
employment-based category is not required to work for the petitioner
who filed the petition that grandfathered the alien, unless he or she
is seeking adjustment based on employment for that same petitioner.
    (l) Effects of grandfathering on an alien's nonimmigrant status .
An alien's nonimmigrant status is not affected by the fact that he or
she is a grandfathered alien. Lawful immigration status for a
nonimmigrant is defined in Sec. 245.1(d)(1)(ii).
    (m) Effect of grandfathering on unlawful presence under section

[[Page 16390]]

212(a)(9)(B) and (c) of the Act. If the alien is not in a period of
stay authorized by the Attorney General, the fact that he or she is a
grandfathered alien does not prevent the alien from accruing unlawful
presence under section 212(a)(9)(B) and (C) of the Act.
    (n) Evidentiary requirement to demonstrate physical presence on
December 21, 2000. (1) Unless the qualifying immigrant visa petition or
application for labor certification was filed on or before January 14,
1998, a principal grandfathered alien must establish that he or she was
physically present in the United States on December 21, 2000, to be
eligible to apply to adjust status under section 245(i) of the Act. If
no one document establishes the alien's physical presence on December
21, 2000, he or she may submit several documents establishing his or
her physical presence in the United States prior to, and after December
21, 2000.
    (2) To demonstrate physical presence on December 21, 2000, the
alien may submit Service documentation. Examples of acceptable Service
documentation include, but are not limited to:
    (i) A photocopy of the Form I-94, Arrival-Departure Record, issued
upon the alien's arrival in the United States;
    (ii) A photocopy of the Form I-862, Notice to Appear;
    (iii) 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 21, 2000, placing the applicant in
exclusion proceedings under section 236 of the Act (as in effect prior
to April 1, 1997);
    (iv) A photocopy of the Form I-221, Order to Show Cause, issued by
the Service on or prior to December 21, 2000, placing the applicant in
deportation proceedings under section 242 or 242A of the Act (as in
effect prior to April 1, 1997);
    (v) A photocopy of any application or petition for a benefit under
the Act filed by or on behalf of the applicant on or prior to December
21, 2000, which establishes his or her presence in the United States,
or a fee receipt issued by the Service for such application or
petition.
    (3) To demonstrate physical presence on December 21, 2000, the
alien may submit other government documentation. Other government
documentation issued by a Federal, state, or local authority must bear
the signature, seal, or other authenticating instrument of such
authority (if the document normally bears such instrument), be dated at
the time of issuance, and bear a date of issuance not later than
December 21, 2000. 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;
    (iii) A county or municipal hospital record;
    (iv) A public college or public school transcript;
    (v) Income tax records;
    (vi) A certified copy of a Federal, state, or local governmental
record which was created on or prior to December 21, 2000, shows that
the applicant was present in the United States at the time, and
establishes that the applicant sought on his or her own behalf, or some
other party sought on the applicant's behalf, a benefit from the
Federal, state, or local governmental agency keeping such record;
    (vii) A certified copy of a Federal, state, or local governmental
record which was created on or prior to December 21, 2000, that 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;
    (viii) A transcript from a private or religious school that is
registered with, or approved or licensed by, appropriate State or local
authorities, accredited by the State or regional accrediting body, or
by the appropriate private school association, or maintains enrollment
records in accordance with State or local requirements or standards.
    (4) To demonstrate physical presence on December 21, 2000, the
alien may submit non-government documentation. Examples of
documentation establishing physical presence on December 21, 2000, may
include, but are 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 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 established that a family unit was in
existence and cohabiting in the United States, documents evidencing the
presence of another member of the same family unit; and
    (x) For applicants who have 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.
    (5)(i) The adjudicator will evaluate all evidence on a case-by-case
basis and will not accept a personal affidavit attesting to physical
presence on December 21, 2000, without requiring an interview or
additional evidence to validate the affidavit.
    (ii) In all cases, any doubts as to the existence, authenticity,
veracity, or accuracy of the documentation shall be resolved by the
official government record, with records of the Service and the
Executive Office for Immigration Review (EOIR) having precedence over
the records of other agencies. Furthermore, determinations as to the
weight to be given any particular document or item of evidence shall be
solely within the discretion of the adjudicating authority (i.e., the
Service or EOIR). It shall be the responsibility of the applicant to
obtain and submit copies of the records of any other government agency
that the applicant desires to be considered in support of his or her
application.

    Dated: March 20, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-7373 Filed 3-21-01; 3:32 pm]
BILLING CODE 4410-10-P

---

---