SECTION 245i REGULATION
(March 26, 2001)
Federal Register: March 26, 2001 (Volume 66, Number
58)]
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[Page 16383-16390]
From the Federal Register Online via GPO Access
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[DOCID:fr26mr01-1]нн
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Rules and Regulations
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having general applicability and legal effect, most
of which are keyed
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which is published
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========================================================================
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language that has been superseded by subsequent legislation.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.
нComment
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:н
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)).
ннн
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 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?
нн
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?
н
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.
ннн
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.
ннн
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?
н
ннYes, 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?
ннн
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.
ннн
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?
ннн
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:
нннн
Form I-130, Petition for Alien Relative,
filed on behalf
of the alien beneficiary;
нннн
Form I-140, Immigrant Petition for Alien
Worker, filed by
an employer on behalf of the beneficiary;
нннн
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
н
нннForm I-526, Immigrant Petition by Alien
Entrepreneur.
ннн
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.
ннн
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.
ннн
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 to the close of business on or before April 30,
2001, or if mailed, be
postmarked on or before April 30, 2001.
ннн
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?
ннн
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.
ннн
``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.
ннн
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.
ннн
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.
ннн
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?
нн
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
ннн
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.
ннн
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.
ннн
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
ннн
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''?
ннн
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?
н
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?
ннн
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 labor certification must have been ``approvable
when filed'' to qualify
the alien beneficiary for grandfathering.
ннн
``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?
ннн
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)?
ннн
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?
нн
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)).
ннн
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?
ннн
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.
ннн
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?
ннн
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.
ннн
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.
ннн
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.
ннн
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 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.
ннн
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.
ннн
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?
ннн
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
ннн
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
ннн
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)).
ннн
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
н
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
ннн
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. 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
н
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:
ннн
$178,300,000 for 2001,
ннн
$99,200,000 for 2002, and
ннн
$91,900,000 for 2003.
ннн
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:
ннн
500,000 Forms I-130;
ннн
50,000 Forms I-140;
ннн
148,500 Forms I-765;
ннн
82,500 Forms I-131; and
ннн
165,000 Forms I-485.
ннн
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:
ннн
121,500 Forms I-765;
ннн
67,500 Forms I-131; and
ннн
135,000 Forms I-485.
ннн
The Service projects that in fiscal year
2003, a total of 300,000
applications will be submitted as follows:
ннн
112,500 Forms I-765;
ннн
62,500 Forms I-131; and
ннн
125,000 Forms I-485.
Executive Order 12866
ннн
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
н
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.
Paperwork Reduction Act
нн
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
нAliens,
Immigration, Reporting and recordkeeping requirements.
нAccordingly,
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
н1.
The authority citation for part 245 continues to read as follows:
ннAuthority:
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:
ннн
a. Revising the section heading;
ннн
b. Removing paragraph (c);
ннн
c. Redesignating paragraphs (a) and (b)
as paragraphs (b) and (c) respectively;
ннн
d. Adding a new paragraph (a);
ннн
e. Revising newly redesignated paragraph
(b) introductory text;
ннн
f. Revising newly redesignated paragraphs
(b)(4), (b)(5), and (b)(7);
ннн
g. Revising newly redesignated paragraph
(c) introductory text;
ннн
h. Revising the phrase ``receipt of approval''
to read ``receipt or
approval'' in the first sentence of newly redesignated
paragraph (c)(3);
ннн
i. Revising paragraph (d);
ннн
j. Revising paragraph (e);
ннн
k. Revising paragraph (f); and
ннн
l. Adding new paragraphs (h), (i), (j),
(k), (l), (m), and (n).
н
The additions and revisions to read
as follows:
Sec. 245.10н Adjustment
of status upon payment of additional sum under
section 245(i).
н
(a) Definitions. As used in this section
the term:
ннн
(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:
ннн
(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
ннн
(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.
ннн
(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.
ннн
(2) Properly filed means:
ннн
(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
ннн
(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.
ннн
(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 applicationfor
adjustment of status under section 245(i) of the Act.
ннн
(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.
ннн
(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:
* * * * *
ннн
(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;
ннн
(5) Properly files Supplement A to Form
I-485 on or after October
1, 1994;
* * * * *
ннн
(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.
ннн
(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:
* * * * *
ннн
(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.
ннн
(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.
ннн
(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.
ннн
(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.
* * * * *
ннн
(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.
ннн
(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.
ннн
(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.
нн
н(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.
ннн
(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).
ннн
(m) Effect of grandfathering on unlawful
presence under section
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.
ннн
(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.
ннн
(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:
ннн
(i) A photocopy of the Form I-94, Arrival-Departure
Record, issued
upon the alien's arrival in the United States;
ннн
(ii) A photocopy of the Form I-862, Notice
to Appear;
ннн
(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);
ннн
(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);
ннн
(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.
ннн
(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:
ннн
(i) A state driver's license;
ннн
(ii) A state identification card;
ннн
(iii) A county or municipal hospital record;
ннн
(iv) A public college or public school transcript;
ннн
(v) Income tax records;
ннн
(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;
н
нн(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;
ннн
(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.
ннн
(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:
ннн
(i) School records;
ннн
(ii) Rental receipts;
ннн
(iii) Utility bill receipts;
ннн
(iv) Any other dated receipts;
ннн
(v) Personal checks written by the applicant
bearing a bank
cancellation stamp;
ннн
(vi) Employment records, including pay stubs;
ннн
(vii) Credit card statements showing the
dates of purchase,
payment, or other transaction;
ннн
(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;
ннн
(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
ннн
(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.
ннн
(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.
ннн
(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.
нDated:
March 20, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-7373 Filed 3-21-01; 3:32 pm]
BILLING CODE 4410-10-P
