Immigrant Petitions; Children of Widows or Widower [60 FR 38947][FR 44-95]

DOCUMENT NUMBER: FR 44 - 95

FEDERAL REGISTER CITE: 60 FR 38947

DATE PUBLISHED: July 31, 1995

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1690-95]

RIN 1115-AD91

Immigrant Petitions; Children of Widows or Widower

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends the Immigration and Naturalization Service ("the Service") regulations by providing clarifying language and procedures for according immigrant status to children of widows or widowers who were not previously eligible for immigration benefits as derivative immediate relatives. This regulation will enhance family well-being by promoting the family unity relationship between the child and his or her widowed mother or father.

DATES: This rule is effective July 31, 1995. Written comments must be submitted on or before September 29, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions, Immigration and Naturalization Service, 425 "I" Street NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1690-95 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: Ramonia Law-Hill, Senior Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 "I" Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: Section 302(a)(2) of the Miscellaneous and Technical Amendments of 1991, Public Law 102-232, dated December 12, 1991, amended the Immigration Act of 1990 and the Immigration and Nationality Act (the Act) so that certain widows and widowers of United States citizens would be considered to be immediate relatives and would be able to petition for themselves. This original language, however, did not extend to the children of widows and widowers. Section 219(b) of the Immigration and Nationality Technical Cor rections Act of 1994 (Technical Corrections Act), Public Law 103-416, dated October 25, 1994, expanded the definition of the term "immediate relative" in section 201(b)(2)(A)(i) of the Act to include the child of an alien who qualifies as a widow or widower. Section 219(b) also amended section 204(a)(1)(A) of the Act so that the child of a widow or widower could be included in the petition filed by the widow or widower. Before these changes, the child of a widow or widower would only be eligible to acquir e immigrant status after the acquisition of immigrant status by the widow or widower, and after the approval of a petition filed by the widow or widower for classification of the child under section 203(a)(2) of the Act. The changes in the Technical Corrections Act now enable the child to be included in the widow or widower's petition and to accompany or follow to join the widow or widower to the United States as a derivative immediate relative. Accordingly, this rule amends 8 CFR 204.2(b)(4) to reflect th e changes to the Act. It should be noted that these derivative benefits do not extend to the unmarried or married sons or daughters of widows or widowers of United States citizens. This regulation reflects that exclusion.

The Service'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. 533 (b)(B) and (d)(3). The reasons and the necessity for immediate implementation of this interim rule are as follows: The statutory provision addressed in this rule became effective October 25, 1994. It was clear that the Congressional intent was to implement this provision immediately and any further delay would be contrary to thi s intent. Moreover, this interim rule confers an immediate benefit upon eligible persons who otherwise would not be eligible for legal admission to the United States as permanent residents. Furthermore, this rule does not impose a penalty of any kind. It is imperative that this interim rule become effective upon publication so that those persons who are entitled to the benefit may apply accordingly.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule merely confers a benefit upon eligible persons and does not impose a penalty of any kind.

Executive Order 12866

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

Executive Order 12612

The regulation will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service certifies that she has addressed this rule in light of the criteria in Executive Order 12606 and has determined that this regulation will enhance family well-being by promoting the family unity relationship between the child and his/her mother or father.

List of Subjects in 8 CFR Part 204

Administrative practice and procedure, Aliens, Immigration, Petitions.

Accordingly, part 204 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

1. The authority citation for part 204 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255; 8 CFR part 2.

2. In § 204.2 paragraph (b)(4) is revised to read as follows:

§ 204.2 Relative petitions.

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(b) * * *

(4) Derivative beneficiaries . A child of an alien widow or widower classified as an immediate relative is eligible for derivative classification as an immediate relative. Such a child may be included in the principal alien's immediate relative visa petition, and may accompany or follow to join the principal alien to the United States. Derivative benefits do not extend to an unmarried or married son or daughter of an alien widow or widower.

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July 21, 1995 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.