[Federal Register: May 21, 1998 (Volume 63, Number 98)]
[Rules and Regulations]
[Page 27823-27834]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my98-3]
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<strong>DEPARTMENT OF JUSTICE</strong>
Immigration and Naturalization Service
8 CFR Parts 3, 240, 245, 274a and 299
[INS NO. 1893-97; AG Order No. 2154-98]
RIN 1115-AF04
<strong>Adjustment of Status for Certain Nationals of Nicaragua and Cuba</strong>
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule implements section 202 of the Nicaragua
Adjustment and Central American Relief Act (NACARA) by establishing
procedures for certain nationals of Nicaragua and Cuba who have been
residing in the United States to become lawful permanent residents of
this country. This rule allows them to obtain lawful permanent resident
status without applying for an immigrant visa at a United States
consulate abroad and waives many of the usual requirements for this
benefit.
DATES: Effective date: This interim rule is effective June 22, 1998.
Comment date: Comments must be submitted on or before July 20,
1998.
ADDRESSES: Please submit written comments, original and two copies,to
the Director, Policy Directives and Instructions Branch, Immigration
and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1893-97 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
For matters relating to the Immigration and Naturalization Service--
Suzy Nguyen, Adjudications Officer, Office of Adjudications,
Immigration and Naturalization Service, 425 I Street NW, Room 3214,
Washington, DC 20536, telephone (202) 514-5014; For matters relating to
the Executive Office for Immigration Review--Margaret M. Philbin,
General Counsel, Executive Office for Immigration Review, 5107 Leesbury
Pike, Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.
<strong>SUPPLEMENTARY INFORMATION:</strong>
How Does Section 202 of NACARA Affect Nicaraguan and Cuban
Nationals?
The Nicaraguan Adjustment and Central American Relief Act (NACARA),
enacted as title II of the District of Columbia Appropriations Act,
1998, Pub. L. 105-100 (111 Stat. 2160, 2193), was signed into law on
November 19, 1997. As amended, section 202 of NACARA allows certain
Nicaragua and Cuban nationals who are physically present in the United
States to adjust status to that of lawful permanent resident. In order
to be eligible for benefits under NACARA, an applicant must be a
national of Nicaragua or Cuba; must be admissible to the United States
under all provisions of section 212(a) of the Immigration and
Nationality Act (the Act), other than those provisions specifically
excepted by NACARA; must have been physically present in the United
States for a continuous period beginning not later than December 1,
1995, and ending not earlier than the date the application for
adjustment is filed (not counting absences totaling 180 days or less);
and must properly file an application before April 1, 2000. In
addition, certain family members of NACARA beneficiaries are also
eligible for adjustment of status under NACARA.
What Are the Benefits of NACARA?
An alien seeking adjustment of status under NACARA is not subject
to a number of the requirements to which aliens seeking adjustment
under section 245 of the Act may be subject.
First, a NACARA applicant is not required to have been inspected
and admitted or paroled into the United States.
Second, a NACARA applicant is not subject to any of the barriers to
adjustment contained in section 245(c) of the Act (e.g., the bars
against aliens who have accepted or continued in unauthorized
employment, aliens who remained in the United States longer than
authorized, and aliens admitted as crewmen, in transmit without visa,
or under the visa waiver pilot program). Consequently, an alien who
would otherwise be ineligible under section 245(c) may apply for
adjustment under NACARA.
Third, NACARA applicants are not subject to the immigrant visa
preference system requirements contained in sections 201 and 202 of the
Act. Hence, neither the worldwide quota restrictions nor the per-
country quota restrictions apply.
Fourth, applicants need not demonstrate that they are not
inadmissible under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of
section 212(a) of the Act in order to adjust status under section 202
of Public Law 105-100. Accordingly, NACARA allows an otherwise
qualified applicant to adjust status under NACARA notwithstanding
inadmissibility for likelihood of becoming a public charge, for failure
to obtain a labor certification, for failure to meet certain
requirements applicable to foreign-trained physicians, for failure to
meet certain standards for foreign health-care workers, for entering or
remaining in the country illegally, for violating documentary
requirements relating to entry as an immigrant, or for accruing more
than 180 days of unlawful presence prior to the alien's last departure
or removal.
Fifth, unlike those seeking to adjust status under other provisions
of law, a NACARA applicant who has been paroled into the United States
and is now in exclusion or removal proceedings before an immigration
judge is not barred from filing an application for adjustment of status
under the provisions of NACARA while in such proceedings.
What Are the NACARA Requirements Regarding Continuous Physical
Presence in the United States
Under the terms of NACARA, eligible applicants must have been
physically present in the United States continuously since December 1,
1995. However, they may have been outside of the United States for
periods not to exceed 180 days in the aggregate between December 1,
1995, and the date of adjustment of status. A NACARA applicant shall
not be considered to
[[Page 27824]]
have failed to maintain continuous physical presence in the United
States by reason of any absences for periods that do not exceed 180
days in the aggregate. Furthermore, the 180-day cumulative period shall
be tolled during an absence authorized pursuant to issuance of an
Authorization for Parole of an alien into the United States (Form I-
512).
How Can a NACARA Applicant Prove Continuous Physical Presence in
the United States?
A NACARA applicant must establish two aspects of physical presence
in the United States: commencement on or prior to December 1, 1995, and
continuity since that date.
Under section 202(b)(2)(A) of Pub. L. 105-100, as amended, an
applicant may prove commencement of continuous physical presence in the
United States by demonstrating that on or before December 1, 1995, he
or she:
(i) Applied to the Attorney General for asylum;
(ii) was issued an order to show cause under section 242 or 242B of
the Immigration and Nationality Act (as in effect prior to April 1,
1997);
(iii) was placed in exclusion proceedings under section 236 of such
Act (as in effect prior to April 1, 1997);
(iv) Applied for adjustment of status under section 245 of such
Act;
(v) Applied to the Attorney General for employment authorization;
(vi) Performed service, or engaged in a trade or business, within
the United States which is evidenced by records maintained by the
Commissioner of Social Security; or
(vii) Applied for any other benefit under the Immigration and
Nationality Act by means of an application establishing the alien's
presence in the United States prior to December 1, 1995.
Normally, such demonstration will be made through submission of a
photocopy of a Government-issued document. In some cases, the alien may
submit other evidence demonstrating one or more of the above actions,
which may be verified through Government records.
Section 202(b)(2)(B) of NACARA also permits, but does not require,
the Attorney General to provide by regulation for additional methods by
which an applicant could prove commencement of continuous physical
presence in the United States. The Department of Justice (Department)
is availing itself of this authority to allow a NACARA applicant to
submit, as evidence of commencement of physical presence in the United
States, other documentation issued by state and local authorities (such
as school, hospital, police, and public assistance records). The
Department believes that these evidentiary options may well provide
sufficient opportunities for qualified applicants to establish
commencement of physical presence in the United States without
encouraging fraudulent applications. However, in order to ensure that
no significant group of eligible aliens is precluded from establishing
eligibility for NACARA benefits, the Department is soliciting public
comments on the need for any additional methods of establishing
commencement of physical presence in the United States and suggestions
as to what those additional methods should be, including whether the
documentary standards listed in 8 CFR 245.13(e)(3) for demonstrating
continuity of physical presence should also be applied to the
requirement for demonstrating commencement of physical presence.
Commenters are encouraged to explain which classes of aliens would
benefit from the proposal, and how the proposal could be implemented
without severely compromising the integrity of the adjudicative
process.
The NACARA statute is silent as to the methods by which an
applicant may demonstrate the continuity of his or her physical
presence in the United States. By regulation, the Department is hereby
providing that a NACARA applicant may demonstrate continuity of
physical presence in the United States through the submission of one or
more documents issued by any governmental or non-governmental
authority. Such documentation must bear the name of the applicant, have
been dated at the time it was issued, and bear the signature of the
issuing authority. In some cases, a single document may suffice to
establish continuity for the entire post-December 1, 1995, period,
while in other cases the alien may need to submit a number of
documents. For example, a college transcript or an employment record
may show that an applicant attended school or worked in the United
States throughout the entire post-December 1, 1995, period. On the
other hand, an applicant would need to submit a number of monthly rent
receipts or electric bills to establish the same continuity of
presence. While the Department neither requires nor wants the applicant
to submit documentation to show presence on every single day since
December 1, 1995, there should be no significant chronological gaps in
the documentation, either. Generally, a gap of 3 months or less in
documentation is not considered significant. Furthermore, if the
applicant is aware of documents already contained in this or her
Immigration and Naturalization Service (Service) file that establish
physical presence, he or she may merely list those documents, giving
the type and date of the document. Examples of such documents might
include a written copy of a sworn statement given to a Service officer,
the transcript of a formal hearing, and a Record of Deportable/
Inadmissible Alien (Form I-213).
How Does an Applicant Establish Admissibility?
The grounds of inadmissibility specified in paragraphs (4) (public
charge), (5) (lack of labor certification), (6)(A) (illegal entry),
(7)(A) (immigrant not in possession of an immigrant visa or other valid
entry document), and (9)(B) (unlawful presence) of section 212(a) of
the Act do not apply to NACARA applicants. Additionally, a Nicaraguan
or Cuban national present in the United States who has been ordered
excluded, deported, or removed from, or who has agreed to depart
voluntarily from, the United States may apply for adjustment of status
under NACARA.
If a NACARA applicant is inadmissible to the United States under
one of the grounds of inadmissibility contained in section 212(a) of
the Act other than those specifically excepted by NACARA, but is
eligible for an individual waiver of that ground of inadmissibility, he
or she may file an application for the waiver concurrently with his or
her application for adjustment of status. Adjustment of status may not
be granted unless the waiver has first been approved.
How Do the Provisions of NACARA Affect Dependents of Nicaraguan and
Cuban Nationals?
The provisions of NACARA also apply to certain dependents. To
receive NACARA benefits as a dependent of a NACARA beneficiary, an
alien would have to be a national of either Nicaragua or Cuba (but need
not necessarily be of the same nationality as the principal
beneficiary--a Cuban dependent could qualify through a Nicaraguan
principal beneficiary and vice versa); would have to be the spouse,
child (i.e., under 21 years of age and unmarried), or unmarried son or
daughter (i.e., 21 years of age or older) of a NACARA principal
beneficiary at the time of the principal beneficiary's adjustment of
status to that of permanent resident; and would have to be admissible
to the United States under section 212(a) of the Act (other than those
provisions specifically excepted by NACARA). NACARA dependents must be
physically present in the United States in order to apply
[[Page 27825]]
and must properly file an application before April 1, 2000.
Additionaly, an unmarried son or daughter, other than a child as
defined in section 101(b)(1) of the Act, would have to have been
physically present in the United States continuously since December 1,
1995 (not counting absences totaling 180 days or fewer). Although many
qualifying dependents of NACARA principal beneficiaries would be able
to receive NACARA benefits in their own right, some would only be able
to qualify under the dependent provisions. Examples of otherwise
eligible persons who could only qualify as dependents would include a
spouse or child who arrived in the United States between December 1,
1995, and the principal beneficiary's filing date, and a spouse or
child who had been absent for an aggregate of more than 180 days.
How Are Dependents Who Do Not Meet NACARA Requirements Affected?
A family member who is unable to qualify for NACARA adjustment of
status on his or her own, or as a dependent under the provisions of
NACARA, may eventually become eligible for lawful permanent resident
status under other provisions of the Act. Examples of such individuals
would include a dependent who is not a national of Nicaragua or Cuba, a
spouse or child whose relationship to the principal applicant is not
established until after the principal applicant is granted permanent
resident status, and an unmarried son or daughter over the age of 21
who entered the United States after December 1, 1995. Upon becoming a
permanent resident, a NACARA beneficiary could file a visa petition to
accord such a dependent immigrant classification under section
203(a)(2) of the Act, thereby enabling the dependent who is not
eligible for NACARA benefits to seek immigration to the United States
through the normal family-based immigration process.
What Happens if an Applicant Is Already in Exclusion, Deportation,
or Removal Proceedings, or Has a Motion To Reopen or Motion To
Reconsider Pending Before the Immigration Court or the Board of
Immigration Appeals (Board)?
Proceedings Pending Before the Executive Office for Immigration Review
(EOIR)
Persons who have proceedings pending before an Immigration Court or
the Board, or persons who have a pending motion to reopen or reconsider
filed on or before May 21, 1998, shall remain within the jurisdiction
of EOIR for the purpose of consideration of applications for adjustment
of status under section 202 of NACARA.
Proceedings Pending Before an Immigration Judge
If an alien (other than an arriving alien who has not been paroled
into the United States) is in exclusion, deportation, or removal
proceedings before an immigration judge, or if an alien has a motion to
reopen or motion to reconsider filed on or before May 21, 1998 pending
before an immigration judge, jurisdiction over an application for
adjustment of status under section 202 of NACARA shall lie with the
Immigration Court. The procedure for filing an application for
adjustment under NACARA is described below. If an alien who is not
clearly ineligible for adjustment of status under section 202 of NACARA
and who has a pending motion to reopen or motion to reconsider files an
application for adjustment of status under section 202 of NACARA, the
immigration judge shall reopen the alien's proceedings for
consideration of the adjustment application. Applications shall be
subject to the filing requirements of 8 CFR 3.11 and 3.31.
Proceedings Pending Before the Board
If an alien who is not clearly ineligible for adjustment of status
under section 202 of NACARA has a pending appeal with the Board, the
Board shall remand the proceedings to the immigration judge for the
sole purpose of adjudicating the application for adjustment. The Board
shall so remand the case regardless of whether the alien has already
filed an application for adjustment of status under NACARA. Further, if
an alien has a pending motion to reopen or motion to reconsider filed
with the Board on or before May 21, 1998, the Board shall reopen and
remand the proceedings to the immigration judge for the sole purpose of
adjudicating an application for adjustment of status under section 202
of NACARA.
If upon remand the immigration judge denies the application, or the
alien fails to file an application for adjustment under section 202 of
NACARA, the immigration judge shall return the case to the Board by
certification. This will allow the Board to consider the denial of the
NACARA application as well as all other outstanding issues from the
previously pending appeal or motion. The alien shall not be required to
file another Notice of Appeal to the Board of Immigration Appeals of
Decision of Immigration Judge (Form EOIR-26), or to pay an appeal
filing fee because the immigration judge's certification of the denial
to the Board will automatically transfer the immigration judge's
decision to the Board.
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 an Immigration Court or the
Board may move to have the proceeding administratively closed for the
purpose of filing an application for adjustment under NACARA. If the
Service concurs in such motion, the Immigration Court or the Board, as
appropriate, will administratively close the proceedings. Such closure
would permit recalendaring of the closed proceedings if, for example,
the alien fails to file an application for adjustment of status under
NACARA before April 1, 2000, or the Service denies any application for
adjustment of status filed by the alien under NACARA. Should the
Service deny the application of status filed by the alien under NACARA.
Should the Service deny the application, or the alien fail to file the
application before April 1, 2000, the Service will move to recalendar
the proceedings and the proceedings will be recalendared 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 proceedings.
What Happens if an Applicant Is the Subject of a Final Order of
Removal?
An alien who is the subject of a final order of removal, and who
has never filed an application for adjustment of status under section
202 of NACARA 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 2, 1998 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 202 of NACARA with the Service or the referral of a
denied application to an immigration judge 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
[[Page 27826]]
forth in 8 CFR 241.6. If the application is referred to the immigration
judge, and the Service does not grant a stay of execution of the final
order, the alien must request that the immigration judge or Board
specifically grant a stay of execution of the final order of removal
pursuant to 8 CFR 245.13(d)(5)(ii).
When Can an Application Be Filed?
The application period for NACARA benefits begins June 22, 1998 and
ends on March 31, 2000.
What Forms and Other Documents Should Be Filed?
Each applicant for NACARA 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. NACARA applicants should complete
Part 2 (Application Type) of that form by checking box ``h--other'' and
writing ``NACARA--Principal'' or ``NACARA--Dependent'' next to that
block. Each application filed must be accompanied by the required
initial evidence: (1) a birth certificate or other record of birth; (2)
two photographs as described in the Form I-485 instructions; (3) a
completed Biographic Information Sheet (Form G-325A) if the applicant
is between 14 and 79 years of age; (4) a report of medical examination;
(5) if the applicant is at least 14 years of age, a local police
clearance from each jurisdiction where the alien has resided for six
months or longer since arriving in the United States; (6) 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; (7) one or more of the documents described in section
202(b)(2) of NACARA and 8 CFR 245.13(e)(2) to establish commencement of
physical presence in the United States; and (8) one or more of the
documents described in 8 CFR 245.13(e)(3) to establish continuity of
physical presence in the United States. In addition, the applicant must
submit a statement showing all departures from and arrivals in the
United States since December 1, 1995. Finally, if the alien is applying
as the spouse, child, or unmarried son or daughter of another NACARA
beneficiary, the applicant must submit evidence of the relationship
(for example, a marriage certificate).
Must the Applicant Be Fingerprinted?
Yes. 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 advice 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?
NACARA adjustment of status applications must be submitted with the
fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently 0 for
applicants 14 years of age or older, and 0 for applicants under age
14). If the application is submitted to the INS Texas Service Center,
the fee must also be submitted to that center. If the application is
submitted to an Immigration Court or the Board of Immigration Appeals,
the fee 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 202 of NACARA and 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, the application and attachments must be submitted by mail to:
USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804.
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 21, 1998
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 such cases, the fee should be submitted to the Service
pursuant to 8 CFR 3.31, as provided above. It should be noted that if
the motion to reopen or motion to reconsider is filed after May 21,
1998, jurisdiction over any application for adjustment of status under
NACARA lies with the Service, not with EOIR.
Applications for adjustment of status under NACARA may not be
submitted to any other Service locations or to any consular posts.
Will an Applicant Filing an Application for Adjustment of Status
Under NACARA With the Service 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. The Service may elect to waive the interview
of the applicant. If the application is adjudicated without interview,
a notice of the decision will be mailed to the applicant. If 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?
An unexpired authorization to accept employment under another
provision of the Act will not be invalidated by the filing of an
application for adjustment of status under NACARA or by the
administrative closure of the exclusion, deportation, or removal
proceeding to pursue relief pursuant to NACARA. Furthermore, an
applicant for adjustment under NACARA is not precluded from applying
for, and being granted, an extension of any such employment
authorization for which he or she remains eligible. Any applicant for
adjustment of status under NACARA 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), in accordance with the instructions on the
form. With limited exceptions, the interim rule provides that
employment authorization will not be granted until the application for
adjustment has been pending for 180 days. This approach is in keeping
with section 202(c)(3) of NACARA, 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. Under the interim
rule, the Department will authorize employment for applicants whose
cases have been pending for fewer than 180 days only if the
[[Page 27827]]
applicant applies for work authorization and adjustment at the same
time. In addition, the Service record must contain evidence that the
applicant is a national of Nicaragua or Cuba who had applied to the
Service for an immigration benefit, or had been placed in deportation
or exclusion proceedings, not later than December 1, 1995, as provided
in paragraphs (1)(A)(i) through (v) and (vii) of section 202(b) of
NACARA, unless the record also shows that the applicant is clearly
ineligible for adjustment of status under NACARA (e.g., the applicant
has been convicted of an aggravated felony). The potential benefits of
filing for adjustment of status and employment authorization
concurrently will be emphasized during public information sessions that
the Service will hold with local community groups. The Department
believes that limited 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 Application for Adjustment of Status Be Submitted if the
Alien Is Outside the United States?
No. The statute and regulations require that an alien be physically
present in the United States in order to properly file an application.
However, the regulation does contain a special provision allowing an
otherwise eligible alien who is outside the United States to submit a
request for parole authorization. Such request would have to be
accompanied by photocopies of the documents the alien intends to file
in support of his or her claim for eligibility for adjustment of status
under NACARA 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, the alien must remain outside the United States until the
request for parole authorization is approved. Any attempt to enter the
United States without the parole authorization could result in the
alien's being found inadmissible to, and removed from, the United
States.
Can an Applicant Travel Outside the United States While the
Application Is Pending?
Nothing in NACARA 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, including
Canada or Mexico, before a decision is made on his or her NACARA
adjustment application, the applicant 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
NACARA 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 departure counts toward
the 180-day aggregate time period that the applicant is allowed to be
outside the United States.
If an Alien Who Is Under a Final Order of Exclusion, Deportation,
or Removal Departs From the United States, Will the Alien Be
Effecting His or Her own Exclusion, Deportation, or Removal?
Yes. Such alien would be a ``self-deport'' and would be subject to
the inadmissibility provisions of section 212(a)(9) of the Act,
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 an Alien Apply for Such Permission?
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.
Can an Alien Who Has Not Filed the Application for Adjustment
Obtain a Form I-512?
Once this regulation becomes effective on June 22, 1998, and except
as discussed above, only the NACARA-eligible aliens who have filed an
application for adjustment of status will be able to obtain a Form I-
512. However, because some individuals may need to travel prior to that
date, on December 24, 1997, the Service issued instructions to all
local Service offices allowing district directors to issue Form I-512
to aliens who appear to be eligible for adjustment of status under
NACARA and need to travel. The interim rules provides that for aliens
who departed the United States with a Form I-512 issued pursuant to
those December 24, 1997, instructions, the 180-day cumulative period
during which an alien may be absent without breaking continuous
physical presence in the United States in tolled while the alien is
outside the United States in accordance with the conditions of the
advance parole authorization. In this fashion, the Department precludes
undue hardships for the affected individuals.
Furthermore, for those aliens who were not issued a Form I-512
because they departed before the Service could implement the December
24, 1997, instructions, the interim rule provides for the tolling of
the 180-day cumulative period from November 19, 1997, until July 20,
1998, provided the alien departed from the United States prior to
December 31, 1997. This provision extends until July 20, 1998, in order
to provide interested aliens 30 days from the effective date of the
interim regulation to file the application for parole authorization
with the Texas Service Center. As discussed above, once the application
for parole authorization has been filed the 180-day cumulative period
during which an alien is not required to be physically present in the
United States is tolled, provided the application for parole
authorization is granted. Such tolling would remain in effect until the
alien arrives in the United States with the Form I-512 issued by the
director of the Texas Service Center.
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 NACARA applicant. Applicants should keep this notice for
their records. If the application has been approved, an alien
registration receipt card will be
[[Page 27828]]
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 NACARA 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. If the alien previously had been issued a final order of
exclusion, deportation, or removal, such order shall 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
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 NACARA, 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 NACARA before an Immigration
Court. In such proceedings, the immigration judge shall adjudicate the
renewed application.
(2) If exclusion, deportation, or removal proceedings had been
initiated and administratively closed under the procedure set forth in
8 CFR 245.13(d)(3), the Service will advise the alien of the Service's
denial of the NACARA 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 the
proceeding. The previously closed removal proceedings will then be
recalendared by the Immigration Court or 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 NACARA adjustment application to an
immigration judge, who 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 Immigrant Court denies the NACARA adjustment application of
an alien in exclusion, deporting, or removing proceedings before the
Immigration Court, the decision to 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 NACARA
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. If the Immigration Court denies the
NACARA adjustment application of an alien whose case was referred by
the Service for a NACARA-only inquiry, the alien shall have the right
to appeal the decision of the Board, subject to the requests for 8 CFR
parts 3 and 240 governing appeals from immigration judges 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 Judge on a NACARA Adjustment as Applicable?
An alien must appear for all scheduled hearings before an
immigration judge, unless his or her appearance is waived by the
immigration judge. An alien who is in exclusion, deportation, or
removal proceedings before the immigration judge and who fails to
appear for a hearing regarding a NACARA 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 IIRIRA
for removal proceedings).
What Rules of Procedure Apply in NACARA-only Hearings Conducted on
Cases Referred by the Service to the Immigration Court?
Although an alien who is placed before the immigration judge for a
NACARA-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's most recent preference for procedures
dealing with failures to appear for immigration proceedings. Use of the
language from section 240 of the Act also assures that the in absentia
procedures used for those in NACARA-only proceedings are consistent
with the in absentia procedures applicable to aliens who file NACARA
adjustment applications in ongoing removal and deportation proceedings.
As for those aliens who, upon reopening and remanding by the Board
to the Immigration Court, fail to file a NACARA 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 as remand to file a NACARA adjustment
application, the Board shall remand the case to the Immigration Court,
unless the alien is clearly ineligible for such relief.
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 202 of
NACARA became effective immediately upon enactment on November 19,
1997. Publication of this rule as an interim rule will expedite
implementation of that section and allow Nicaraguan and Cuban nationals
and their spouses and children to apply for and obtain the benefits
available to applicants for adjustment of status under NACARA as soon
as possible before the statutory application deadline of April 1, 2000.
[[Page 27829]]
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 Nicaraguan and Cuban 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 Executive Order 12866, section
3(f), 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, 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 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of 0 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
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 0
million or more in any one year, and will not significantly or uniquely
affect small government. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved for use by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act. The OMB control number for this
collection is contained in 8 CFR 299.5, Display of control numbers.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 245
Alien, 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.
2. Section 3.1 is amended by adding 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 Judge in accordance with Sec. 245.13(n)(2) of this chapter
or remanded to the Immigration Court in accordance with
Sec. 245.13(d)(2) of this chapter.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
3. 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); 8 CFR part 2.
Sec. 240.1 [Amended]
4. In Sec. 240.1, paragraph (a) is amended in the first sentence by
adding the phrase ``and section 202 of Pub. L. 105-100'' immediately
after the phrase ``and 249 of the Act''.
Sec. 240.11 [Amended]
5. In Sec. 240.11, paragraph (a)(1) is amended in the first
sentence by revising the phrase ``adjustment of status under section 1
of the Act of November 2, 1966 (as modified by section 606 of Pub. L.
104-132) or under section 101 or 104 of the Act of October 28, 1977,''
to read ``adjustment of status under section 1 of the Act of November
2, 1966 (as modified by section 606 of Pub. L. 104-208), section 101 or
104 of the Act of October 28, 1977, or section 202 of Pub. L. 105-
100,''.
Sec. 240.31 [Amended]
6. Section 240.31 is amended in the first sentence by adding the
phrase ``, including the adjudication of applications for adjustment of
status pursuant to section 202 of Pub. L. 105-100'' immediately after
the phrase ``and this chapter''.
Sec. 240.41 [Amended]
7. In Sec. 240.41, paragraph (a) is amended in the first sentence
by adding the phrase ``and section 202 of Pub. L. 100'' after ``and 249
of the Act''.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
8. 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); 8 CFR part 2.
9. Section 245.13 is added to read as follows:
Sec. 245.13 Adjustment of Status of Certain Nationals of Nicaragua and
Cuba under Public Law 105-100.
(a) Aliens eligible to apply for adjustment. An alien is eligible
to apply for adjustment of status under the provisions of section 202
of Pub. L. 105-100, if the alien:
(1) Is a national of Nicaragua or Cuba;
(2) Except as provided in paragraph (o) of this section, has been
physically present in the United States for a continuous period
beginning not later than December 1, 1995, and ending not earlier that
the date the application for adjustment is granted, excluding:
[[Page 27830]]
(i) Any 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;
(3) Is not inadmissible to the United States for permanent
residence under any provisions of section 212(a) of the Act, with the
exception of paragraphs (4), (5), (6)(A), (7)(A) and (9)(B). If
available, an applicant may apply for an individual waiver as provided
in paragraph (c) of this section;
(4) Is physically present in the United States at the time the
application is filed; and
(5) Properly files an application for adjustment of status in
accordance with this section.
(b) Qualified family members. (1) Existence of relationship at time
of adjustment. The spouse, child, or unmarried son or daughter of an
alien eligible for adjustment of status under the provisions of Pub. L.
105-100 is eligible to apply for benefits as a dependent provided the
qualifying relationship existed when the principal beneficiary was
granted adjustment of status and the dependent meets all applicable
requirements of sections 202(a) and (d) of Pub. L. 105-100.
(2) Spouse and minor children. If physically present in the United
States, the spouse or minor child of an alien who is eligible for
permanent residence under the provisions of Pub. L. 105-100 may also
apply for and receive adjustment of status under this section, provided
such spouse or child meets the criteria established in paragraph (a) of
this section, except for the requirement of continuous physical
presence in the United States since December 1, 1995. Such application
may be filed concurrently with or subsequent to the filing of the
principal's application but may not be approved prior to approval of
the principal's application.
(3) Unmarried adult sons and daughters. An unmarried son or
daughter of an alien who is eligible for permanent residence under the
provisions of Pub. L. 105-100 may apply for and receive adjustment
under this section, provided such son or daughter meets the criteria
established in paragraph (a) of this section.
(c) Applicability of inadmissibility grounds contained in section
212(a). An applicant for the benefits of the adjustment of status
provisions of section 202 of Pub. L. 105-100 need not establish
admissibility under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of
section 212(a) of the Act in order to be able to adjust his or her
status to that of permanent resident. An applicant under section 202 of
Pub. L. 105-100 may also apply for one or more of the immigrant waivers
of inadmissibility under section 212 of the Act, if applicable, in
accordance with Sec. 212.7 of this chapter.
(d) Aliens in exclusion, deportation, or removal proceedings, and
aliens subject to a final order of exclusion, deportation, or removal.
(1) Proceedings pending before an Immigration Court. Except as provided
in paragraph (d)(3) of this section, while an alien is in exclusion,
deportation, or removal proceedings pending before an immigration
judge, or has a pending motion to reopen or motion to reconsider filed
with an immigration judge on or before May 21, 1998, sole jurisdiction
over an application for adjustment of status under section 202 of
Public Law 105-100 shall lie with the immigration judge. If an alien
who has a pending motion to reopen or motion to reconsider filed with
an immigration judge on or before May 21, 1998 files an application for
adjustment of status under section 202 of Pub. L. 105-100, 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 202 of Pub.
L. 105-100. All applications for adjustment of status under section 202
of Pub. L. 105-100 filed with an Immigration Court shall be subject to
the requirements of Secs. 3.11 and 3.31 of this chapter.
(2) Proceedings pending before the Board of Immigration Appeals.
Except as provided in paragraph (d)(3) 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 filed with the Board
on or before May 21, 1998, 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
202 of Pub. L. 105-100, unless the alien is clearly ineligible for
adjustment of status under section 202 of Pub. L. 105-100. If the
immigration judge denies, or the alien fails to file, the application
for adjustment of status under section 202 of Pub. L. 105-100, the
immigration judge shall certify the decision to the Board for
consideration in conjunction with the applicant's previously pending
appeal or motion.
(3) Administrative closure of pending exclusion, deportation, or
removal proceedings. (i) In the case of an alien who is in exclusion,
deportation, or removal proceedings, or has a pending motion to reopen
or a motion to reconsider such proceedings filed on or before May 21,
1998, and who appears to be eligible to file an application for
adjustment of status under section 202 of Pub. L. 105-100, the
Immigration Court having jurisdiction over such proceedings or motion,
or if the matter is before the Board on appeal or by motion, the Board,
shall, upon request of the alien and with the concurrence of the
Service, administratively close the proceedings, or continue
indefinitely the motion, to allow the alien to file such application
with the Service as prescribed in paragraph (g) of this section.
(ii) In any case not administratively closed in accordance with
paragraph (d)(3)(i) of this section, 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 202 of Pub. L. 105-100 during the
course of such proceedings.
(4) Aliens with final orders 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
202 of Public Law 105-100 by the immigration judge or the Board of
Immigration Appeals, may apply to the Service for adjustment of status
under section 202 of Pub. L. 105-100.
(5) Stay of final order of exclusion, deportation, or removal. (i)
With the Service. The filing of an application for adjustment under
section 202 of Public Law 105-100 with the Service shall not stay the
execution of such final order unless the applicant has filed, and the
Service has approved 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) With EOIR. When the Service refers a decision to an
immigration judge on a Notice of Certification (Form I-290C) in
accordance with paragraph (m)(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.
(6) Effect on applications for adjustment under other provisions of
the law. Nothing in this section shall be deemed to allow any alien who
is in either exclusion proceedings that commenced prior to April 1,
1997, or
[[Page 27831]]
removal proceedings as an inadmissible arriving alien that commenced on
or after April 1, 1997, and who has not been paroled into the United
States, to apply for adjustment of status under any provision of law
other than section 202 of Pub. L. 105-100.
(e) 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
``NACARA--Principal'' or ``NACARA--Dependent'' next to that block. Each
application must be accompanied by:
(1) The fee prescribed in Sec. 103.7(b)(1) of this chapter;
(2) Evidence of commencement of physical presence in the United
States not later than December 1, 1997. Such evidence may consist of
either:
(i) Documentation evidencing one or more of the activities
specified in section 202(b)(2)(A) of Pub. L. 105-100, or
(ii) Other documentation issued by a Federal, State, or local
authority provided such other documentation bears the seal of such
authority, was dated at the time of issuance, and bears a date of
issuance not later than December 1, 1995. Examples of such other
documentation include, but are not limited to:
(A) A State driver's license;
(B) A State identification card issued in lieu of a driver's
license to a non-driver;
(C) A county or municipal hospital record;
(D) A public college or public school transcript; and
(E) Income tax records;
(3) Evidence of continuity of physical presence in the United
States 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 of the authorized
representative of the issuing authority. 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 and 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 checks;
(vii) Credit card statements showing the dates of purchase,
payment, or other transaction; and
(viii) 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;
(4) A copy of the applicant's birth certificate;
(5) A complete Biographic Information Sheet (Form G-325A), if the
applicant is between 14 and 79 years of age;
(6) A report of medical examination, as specified in Sec. 245.5 of
this chapter;
(7) Two photographs, as described in the instructions to Form I-
485;
(8) If the applicant is 14 years of age or older, a police
clearance from each municipality where the alien has resided for six
months or longer since arriving in the United States;
(9) If the applicant is applying as the spouse of another Pub. L.
105-100 beneficiary, 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;
(10) If the applicant is applying as the child, unmarried son, or
unmarried daughter of another (principal) beneficiary under section 202
of Pub. L. 105-100 who is not the applicant's biological mother, copies
of evidence (such as the applicant's parent's marriage certificate and
documents showing the legal termination of all other marriages, an
adoption decree, or other relevant evidence) to demonstrate the
relationship between the applicant and the other beneficiary;
(11) A copy of the Arrival-Departure Record (Form -I-94) issued at
the time of the applicant's arrival in the United States, if the alien
was inspected and admitted or paroled; and
(12) If the applicant has departed from and returned to the Untied
States since December 1, 1995, an attachment on a plain piece of paper
showing:
(i) The date of the applicant's last arrival in the United States
before or on December 1, 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.
(f) Secondary evidence. If the primary evidence required in
paragraph (e)(4), (e)(9) or (e)(10 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 the birth, marriage, or
other 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 202 of Public Law 105-100, 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 (e)(2) and (e)(3) of this
section. However, subject to verification by the Service, if the
documentation specified in paragraphs (e)(2) and (e)(3) 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.
(g) Filing. The application period begins on June 22, 1998. To
benefit from the provisions of section 202 of Public Law 105-100, an
alien must properly file an application for adjustment of status before
April 1, 2000. Except as provided in paragraph (d) of this section, all
applications for the benefits of section 202 of Pub. L. 105-100 must be
submitted by mail to: USINS Texas Service Center, P.O. Box 851804,
Mesquite, TX 75185-1804. After proper filing of the application, the
Service will notify the applicant to appear for fingerprinting as
prescribed in Sec. 103.2(e) of this chapter.
(h) Jurisdiction. Except as provide din paragraphs (d) and (i) of
this section, the director of the Texas Service Center shall have
jurisdiction over all applications for adjustment of status under
section 202 of Public Law 105-100.
(i) Interview. (1) Except as provided in paragraphs (d), (i)(2),
and (i)(3) of this section, all applicants for adjustment of status
under section 202 of Pub. L. 105-100 must be personally interviewed by
an immigration officer at a local office of the Service. In any case in
which the director of the Texas Service Center determines that an
interview of the applicant is necessary, that director shall forward
the case to the appropriate local Service office for interview and
adjudication.
(2) In the case of an applicant who has submitted evidence of
commencement of physical presence in the United States consisting of
one or more of the documents specified in section 202(b)(2)(A)(i)
through (v) or section
[[Page 27832]]
202(b)(2)(A)(vii) of Pub. L. 105-100 and 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, if the director of the Texas Service Center
determines that the alien is clearly eligible for adjustment of status
under Pub. L. 105-100 and that an interview of the applicant is not
necessary, the director may approve the application.
(3) Upon examination of the application, all supporting
documentation, all relevant Service records, and all other relevant law
enforcement indices, if the director of the Texas Service Center
determines that the alien is clearly ineligible for adjustment of
status under Pub. L. 105-100 and that an interview of the applicant is
not necessary, the director may deny the application.
(j) Authorization to be employed in the United States while the
application is pending. (1) Application. An applicant for adjustment of
status under section 202 of Pub. L. 105-100 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 fee as set forth in Sec. 103.7(b)(1)
of this chapter. The applicant may either submit Form I-765
concurrently with Form I-485 or wait for at least 90 days after
submission of Form I-485.
(2) Adjudication and issuance. In general, employment authorization
may not be issued to an applicant for adjustment of status under
section 202 of Pub. L. 105-100 until the adjustment application has
been pending for 180 days. However, if Service records contain one or
more of the documents specified in section 202(b)(2)(A)(i) through (v)
and (vii) of Pub. L. 105-100, evidence of the applicant's Nicaraguan or
Cuban nationality, and no indication that the applicant is clearly
ineligible for adjustment of status under section 202 of Pub. L. 105-
100, the application for employment authorization may be approved, and
the resulting document issued immediately upon verification that the
Service record contains such information. If the Service fails to
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 Pub.
L. 105-100 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.
(k) 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 202 of
Pub. L. 105-100 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 Assistant Commissioner
for International Affairs; otherwise the Form I-131 must be submitted
to the director of the Texas Service Center, who shall have
jurisdiction over such applications. If any applicant departs the
United States without first obtaining an advance parole, his or her
application for adjustment of status under section 202 of Pub. L. 105-
100 is deemed to be abandoned as of the moment of his or her departure.
(2) Parole authorization for the purpose of filing an application
for adjustment of status under section 202 of Pub. L. 105-100. 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 202 of Pub. L. 105-100 may request parole authorization
for such purpose by filing an Application for Travel Document (Form I-
131) with the Texas Service Center, at P.O. Box 851804, Mesquite, TX
75185-1804. 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 (e) of this section,
except the filing fee, the medical report, the fingerprint card, and
the local police clearances. If the director of the Texas 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. 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.
(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.
(l) Approval. If the director approves the application for
adjustment of status under the provisions of section 202 of Pub. L.
105-100, the director shall record the alien's lawful admission for
permanent resident as of the date of such approval and notify the
applicant accordingly. 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. If an
immigration judge grants or if the Board, upon appeal, grants an
application for adjustment under the provisions of section 202 of Pub.
L. 105-100, the alien's lawful admission for permanent residence shall
be as of the date of such grant.
(m) Denial and review of decision. If the director denies the
application for adjustment of status under the provisions of section
202 of Pub. L. 105-100, the director shall notify the
[[Page 27833]]
applicant of the decision. The director shall also:
(1) In the case of an alien who is not maintaining valid
nonimmigrant status and who had not previously been placed in
exclusion, deportation, or removal proceedings, initiate removal
proceedings in accordance with Sec. 239.1 of this chapter during which
the alien may renew his or her application for adjustment of status
under section 202 of Pub. L. 105-100; or
(2) In the case of an alien whose previously initiated exclusion,
deportation, or removal proceeding had been administratively closed or
continued indefinitely under paragraph (d)(3) of this section, advise
the Immigration Court that had administratively closed the proceeding,
or the Board, as appropriate, of the denial of the application. The
Immigration Court or the Board will then recalendar or reinstate the
prior exclusion, deportation, or removal proceeding, during which
proceeding the alien may renew his or her application for adjustment
under section 202 of Pub. L. 105-100; or
(3) In the case of an alien who is the subject of an outstanding
final order of exclusion, deportation, or removal, 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 (n) of this section.
(n) Action of immigration judge upon referral of decision 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 (m)(3) of this section, and
under the authority contained in Sec. 3.10 of this chapter, the
immigration judge shall conduct a hearing to determine whether the
alien is eligible for adjustment of status under section 202 of Public
Law 105-100. 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 on the
alien's eligibility for adjustment of status under section 202 of
Public Law 105-100. During such proceedings all parties are prohibited
from raising or considering any other issues, including but not limited
to issues of admissibility, deportability, removability, and
eligibility for any form of relief other than adjustment of status
under section 202 of Public Law 105-100. Should the alien fail to
appear for such hearing, the immigration judge shall deny the
application for adjustment under section 202 of Public Law 105-100.
(2) Appeal of immigration judge 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 judge decision set forth in Secs. 3.3 and 3.8 of this
chapter.
(3) Rescission of the decision of an immigration judge. The
decision of an immigration judge under paragraph (n)(1) of this section
denying an application for adjustment under section 202 of Public Law
105-100 for failure to appear may be rescinded 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 the alien 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 the alien was in Federal or State custody and
the failure to appear was through no fault of the alien.
(o) Transition period provisions for tolling the physical presence
in the United States provision for certain individuals. (1) Departure
without advance authorization for parole. In the case of an otherwise
eligible applicant who departed the United States on or before December
31, 1997, the physical presence in the United States provision of
section 202(b)(1) of Pub. L. 105-100 is tolled as of November 19, 1997,
and until July 20, 1998.
(2) 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 202(b)(1) of Pub. L. 105-100 is tolled while the
alien is outside the United States pursuant to the issuance of the Form
I-512.
(3) 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 (k)(2) of this section, and such application for parole
authorization is granted by the Service, the physical presence in the
United States provisions of section 202(b)(1) of Pub. L. 105-100 is
tilled from the date the application is received at the Texas Service
Center until the alien is paroled into the United States pursuant to
the issuance of the Form I-512.
(Approved by the Office of Management and Budget under Control Number
1115-0221.)
PART 274A--CONTROL OF EMPLOYMENT OF ALIENS
10. 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]
11. In Sec. 274a.12, paragraph (c)(9) is amended in the second
sentence by revising the term ``Employment authorization'' to read:
``Except as provided in Sec. 245.13(j) of this chapter, employment
authorization''.
Sec. 274a.13 [Amended]
12. In Sec. 274a.13, paragraph (d) is amended in the first sentence
by revising the phrase ``Sec. 274a.12(c)(8), which is governed by
paragraph (a)(2) of this section, and Sec. 274a.12(c)(9) in so far as
it is governed by Sec. 245.13(j) of this chapter''.
PART 299--IMMIGRATION FORMS
13. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
14. 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 B'' in proper
numerical sequence, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
[[Page 27834]]
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * *
* * *
I-290C............................ 03-01-98 Notice of Certification.
* * * *
* * *
I-485 Supplement B................ 03-01-98 NACARA Supplement to Form
I-485 Instructions.
* * * *
* * *
------------------------------------------------------------------------
15. Section 299.5 is amended in the table by adding the entry for
Form ``I-485 Supplement B'' in proper numerical sequence, to read as
follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
INS form No. INS form title assigned OMB
control No.
------------------------------------------------------------------------
* * * *
*
I-485 Supplement B............. NACARA Supplement to 1115-0221
Form I-485
Instructions.
* * * *
*
------------------------------------------------------------------------
Dated: May 12, 1998.
<strong>Janet Reno,
Attorney General.</strong>
[FR Doc. 98-13246 Filed 5-20-98; 8:45 am]
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