Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility [62 FR 39417] [FR 27-97]

DOCUMENT NUMBER: FR 27-97

FEDERAL REGISTER CITE: 62 FR 39417

DATE PUBLISHED: July 23, 1997

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 245 and 274a

[INS No. 1676-94]

RIN 1115-AD83

Adjustment of Status to That of Person Admitted for Permanent

Residence; Temporary Removal of Certain Restrictions of Eligibility

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This second interim rule responds to public comments on the first interim rule and also implements various provisions of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. This rule amends the Immigration and Naturalization Service regulations to reflect the new surcharge required of certain persons in the United States who are seeking to apply for adjustment of status pursuant to section 245(i) of the Immigration and Nationality Act.This rule also amends the list of persons prohibi ted from applying for adjustment of status by adding two new categories that were created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In addition, this interim regulation enables the Immigration and Naturalization Service to complete adjudication of timely filed section 245(i) adjustment applications after September 30, 1997.

DATES: Effective Date : This rule is effective July 23, 1997.

Comment Date : Written comments must be submitted on or before September 22, 1997.

ADDRESSES: Written comments must be submitted, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW, Room 5307, Washington, D.C. 20536. To ensure proper handling, please reference the INS number 1676-94 on your correspondence. Comments are available for public inspection at this location by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Gerard Casale, Staff Officer, Immigration and Naturalization Service, 425 I Street, NW, Room 3214, Washington, D.C. 20536, Telephone (202) 514-5014 or Lisa Rainville, Center Adjudications Officer, Vermont Service Center, Immigration and Naturalization Service, 75 Lower Welden Street, St. Albans, VT 05479-0001, Telephone (802) 527-3114.

SUPPLEMENTARY INFORMATION:

Background

Under the Immigration and Nationality Act (the "Act"), an alien seeking to immigrate to the United States normally must obtain an immigrant visa at a United States embassy or consulate abroad. Section 245 of the Act, however, allows certain persons who are physically present in the United States to adjust status to that of lawful permanent resident. Section 245(a) of the Act limits eligibility for adjustment to aliens who have entered the United States after having been inspected and admitted or paroled by an immigration officer. Section 245(c) of the Act, in turn, bars the adjustment of most applicants who have been employed in the United States without authorization; who have not complied with the terms of their nonimmigrant visa; or who are among certain classes of nonimmigrants whose basis for admission precludes them from eligibility for adjustment of status. Many intending immigrants who were physically present in the United States and were ineligible for adjustment of status under the provisions of sec tion 245(a) and 245(c) of the Act had been obliged to depart the United States to obtain immigrant visas and seek admission to the United States as lawful permanent residents. This resulted in an increased burden on United States consulates and embassies abroad. Additionally, aliens physically present in the United States who sought lawful permanent resident status were required to incur the expense and inconvenience of applying for an immigrant visa at a United States consulate or embassy abroad.

Public Law 103-317

To address these problems, Congress enacted section 506(b) of the Department of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act, 1995, Pub. L. 103-317 (August 26, 1994). Section 506(b) of Pub. L. 103-317 added a new section 245(i) to the Act which allows certain persons already in the United States to adjust status, despite the provisions of sections 245 (a) and (c) of the Act, upon payment of a fee in addition to the base filing fee for an adjustment of status application. S ection 245(i) of the Act does not, however, waive other grounds of ineligibility enumerated elsewhere in section 245. The provisions of section 245(i) apply only to applications filed on or after October 1, 1994, and before October 1, 1997. See section 506(c) of Pub. L. 103-317. It should be emphasized that, despite enactment of section 245(i) of the Act, adjustment of status remains the exception, and not the rule, to the normal process of immigrant visa issuance. See 59 FR 51091-100.

On October 7, 1994, the Immigration and Naturalization Service (the "Service") published an interim rule with request for comments which established procedures for filing for adjustment of status pursuant to the provisions of section 245(i) of the Act. See 59 FR 51091-100. The interim rule took effective retroactively on October 1, 1994. Interested persons were invited to submit written comments on or before December 6, 1994. After publication of the interim rule on October 7, 1994, the Service received sev en written comments during the comment period.

On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA") into law. Among other changes, effective September 30, 1996, the IIRIRA established two new groups of aliens who are ineligible to adjust status under section 245(a) of the Act. The present rule, which contains regulatory changes to 8 CFR part 245 mandated by statutory amendments to sections 245(c) and 245(i) of the Act, is being published as a second interim rule to provide the public an opportunity to comment on the Service's interpretation of the new law as well as on the provisions of the first interim rule that remain in effect.

Comments

The following discussions summarizes the issues which were raised by the commenters in response to publication of the first interim rule and explains the Service's position on those issues.

Conclusion of Application Period

One commenter asserted that the provisions of section 245(i) should apply to all applications properly filed before October 1, 1997, rather than only those applications which have been adjudicated by that date. Upon further consideration of this issue, the Service is persuaded that the commenter's position represents the best reading of these statutory provisions. The first interim regulation provided that, in order to meet the October 1, 1997, sunset date provided in section 506(c) of Pub. L. 103-317, sect ion 245(i) applications should be filed at the earliest possible date to ensure complete processing prior to October 1, 1997. Read together, sections 245(i)(1) of the Act and 506(c) of Pub. L. 103-317, however, provide that an alien may apply to the Attorney General for adjustment of status under section 245(i) through September 30, 1997, and that the Attorney General "may" accept such an adjustment application through September 30, 1997. Section 245(i)(2) of the Act and section 506(c) of Pub. L. 103-317, i n turn, specifically provide that the Attorney General may adjust an alien's status under section 245(i) of the Act only through September 30, 1997. Finally, section 506(d) of Pub. L. 103-317, requires the Service to conduct full fingerprint identification checks through the FBI for all individuals over 16 years of age who adjust status pursuant to section 245(i) of the Act.

In drafting the first interim regulation, the Service adopted the position that, based on the language of section 245(i)(2) of the Act and section 506(c) of Pub. L. 103-317, its authority to complete processing of any properly filed section 245(i) adjustment application would lapse on the October 1, 1997, sunset date. If left to stand, the first interim rule, in effect, would have precluded an alien from filing an application for adjustment of status through September 30, 1997, as is mandated in section 506 (c) of Pub. L. 103-317, since the normal period of time necessary to complete full fingerprint identification checks on adjustment applicants may be 120 days or more. Upon further consideration, the Service now believes that the first interim rule is incompatible with the language of section 506(c) of Pub. L. 103-317 and section 245(i)(1) of the Act, which specifically permit an alien to apply for adjustment under section 245(i) through September 30, 1997. In making this determination, the Service is aware that, upon expiration of section 245(i)(2) of the Act on October 1, 1997, the Attorney General no longer will have the explicit authority to adjust an alien's status under section 245(i) of the Act. We nevertheless conclude that, based on the statutory scheme, Congress gave the Service the implicit authority to complete processing of all adjustment applications which were properly filed in accordance with section 245(i)(1) of the Act prior to the October 1, 1997, sunset. Not only was Congress aware that the Service, as a practical matter, is unable to complete processing of an application for adjustment of status on the date such application is received, but Congress also specifically mandated that the Service not act upon section 245(i) applications until a "full" background check has been conducted on the adjustment applicant. See section 506(d) of Pub. L. 103-317. Clearly, Congress did not intend to permit the filing of what would in effect be a meaningless section 245(i) adjustment application, accompani ed with, in most cases,a substantial additional surcharge, which the Service would be required to deny soon thereafter because of the passage of the October 1, 1997, sunset date.

In short, this second interim rule reconciles any potential inconsistency between sections 245 (i)(1) and (i)(2) of the Act based on section 506(c) of Pub. L. 103-317 by specifically permitting the filing of section 245(i) applications through September 30, 1997, in accordance with section 245(i)(1) of the Act, while recognizing the Service's implicit authority to complete processing of such properly filed applications, even when that processing takes place after September 30, 1997. This second interim rule therefore revises 8 CFR 245.10(c) to allow the filing of adjustment applications pursuant to section 245(i) of the Act through September 30, 1997.

Applications Submitted to the Service After September 30, 1997

The statutory authority for granting benefits, as well as for collecting the surcharge, under section 245(i) of the Act ends on September 30, 1997. See section 506(c) of Pub. L. 103-317. By law, the Service may not a grant the benefits of section 245(i) of the Act to aliens who attempt to file a new application for adjustment of status under that subsection after September 30, 1997. All applications for adjustment of status filed pursuant to section 245 of the Act which are submitted after September 30, 199 7, must be adjudicated pursuant to section 245(a) of the Act. Therefore, in cases where an applicant attempts to file a new section 245(i) adjustment after September 30, 1997, the Service will retain the base filing fee, return any surcharge, and adjudicate the application pursuant to section 245(a) of the Act.

Readjustment of Lawful Permanent Residents

One commenter noted the language in the preamble to the first interim regulation which states that (a) person who is currently a lawful permanent resident * * * continues to be ineligible for adjustment." See 59 FR 51093. The commenter asserted that this statement was contrary to established case law and added that the statute does not preclude lawful permanent residents from adjusting status under section 245 of the Act. Contrary to this comment, a lawful permanent resident generally may not "adjust" to the same status he or she already holds. The Service recognizes, however, that there exists at least one limited exception to this general rule in the context of an alien in deportation proceedings. See Matter of Gabryelsky, 20 I & Dec. 750 (BIA 1993) (allowing an alien to "bootstrap" eligibility for relief under section 245 and 212(c) of the Act). This should not be construed, however, to mean that any lawful permanent resident, whether or not in proceedings, may apply for adjustment of status under section 245 of the Act. First, the language of the statute itself makes it clear that there is no absolute right to adjustment of status. On the contrary, the Attorney General "may" adjust an alien's status "to" that of an alien lawfully admitted for permanent residence. It is, therefore, within the Attorney General's discretion to determine if it is appropriate to grant such status. In this regard, the Service believes it would be an inappropriate use of its limited resources to accord the same privilege, i.e., permanent residence, to an alien currently holding permanent resident status. In any event, an alien, if otherwise eligible, may change the basis of his or her permanent residence by abandoning such status and obtaining an immigrant visa abroad. Finally, we note that the reference in section 245(a) of adjustment "to that of an alien lawfully admitted for permanent residence" clearly demonstrates that Congress intended aliens to adjust from a different immigration status. Accordingly, the Service will not adopt the commenter's suggestion.

Family Unity

Section 245(i) of the Act and 8 CFR 245.10(b) provide that spouses and unmarried children who are under the age of 21 of aliens who were legalized and special agricultural workers programs are exempt from payment of the additional sum, provided those individuals were qualified for, and had properly applied for, benefits under the Family Unity program. See section 301 of the Immigration Act of 1990, Pub. L. 101-649. One commenter suggested that the first interim rule should clearly specify that persons whose voluntary departure status under the Family Unity program had expired are covered by this provisions. The Service agrees that the statute and regulations require only that such persons are qualified for and have applied for Family Unity benefits. Those persons whose voluntary departure status under the Family Unity program has expired remain exempt from paying the additional sum specified in 8 CFR 245.10(b). It is, therefore, not necessary to amend the regulation.

The same commenter contends that persons eligible for benefits under the Family Unity program who had not yet filed Form I-817,Application for Voluntary Departure under the Family Unity Program, should be allowed to apply for that program concurrently with their application for adjustment of status. The commenter asserted that requiring applicants to file Form I-817 and obtain a receipt before applying the adjustment of status is inefficient for the Service and inconvenient for applicants.

The statutory language limits the exemption of payment of the additional sum of those applicants "who * * * applied for benefits under" the Family Unity program. This explicit use of the past tense precludes consideration of persons who have yet to file and be determined eligible for benefits under the Family Unity Program. Accordingly, there has been no change to the rule in response to this comment.

Another commenter disagreed with the language of 8 CFR 245.10(b)(3), which exempts from payment of the additional sum an applicant who is "(t)he child of a legalized alien, is unmarried and less than 21 years of age" and who was qualified for and had properly applied for benefits under the Family Unity program. The commenter asserted that this definition is too restrictive, contending that section 245(i)(1)(i) of the Act extends benefits to any applicant who "as of May 5, 1988, was the unmarried child (unde r the age of 21)" of legalized alien and had applied for benefits under the Family Unity program.

The Service disagrees with the commenter for the following reasons. The Service recognizes that Congress, in establishing the Family Unity program under section 301 of the Immigration Act of 1990 (IMMACT 90), intended, in part, to ensure that families of legalized aliens are able to remain together until such time as their dependents become statutorily eligible to apply for permanent resident status in the United States. In particular, Congress recognized that such dependents must wait a significant period of time in order for a visa number to become available. Section 301 of IMMACT 90, however, did not address the question of what fee such person must pay in order to apply for adjustment of status. The fee issue, instead, was specifically addressed in section 245(i)(1) of the Act, which clearly provides that the alien must have been an unmarried child both in 1988 as well as at the time he or she applies for permanent resident status in order to be exempt from payment of the surcharge. Further, requiring pa yment of the surcharge from offspring over the age of 21 years if they wish to remain permanently in this country is in no way contrary to Congress' intent to ensure family unification. For this reason, the Service cannot accept the commenter's suggestion, and will continue to follow the plain language of section 245(i)(1)(i) of the Act.

Payment of Additional Sum

One commenter asserted that the first interim regulation required applicants to submit a sum in excess of that required by statute. The first interim regulation requires applicants to submit the standard application fee plus an additional sum equal to five times that fee. The commenter contended that section 245(i) requires applicants to submit the "penalty" portion of the filing fee in lieu of the standard filing fee for adjustment of status applications.

Section 245(i)(1)(b)(iii) of the Act states that "(t)he sum specified herein shall be in addition to the fee normally required for the processing of an application under this section" (emphasis added). The placement of this sentence within a subparagraph of the statute may have caused some confusion. Nonetheless, the statute refers to this additional amount not as a "fee" but as a "sum" which is to accompany the application and fee under section 245(i). The Service has no discretion to alter this statutory provision.

One commenter objected to 8 CFR 103.7(c)(1), which states that "[t]he payment of the additional sum . . . may not be waived except as directed in section 245(i)." The commenter contended that section 245(i) of the Act does not address the issue of fee waivers and argued that the Service should take "the standard regulatory approach to fees" found in 8 CFR 103.7(c). Section 245(i) of the Act, however, specifically lists which categories of applicants are not required to submit the additional sum. Unlike the case of other types of petitions and applications filed with the Service, under the plain language of section 245(i) of the Act, the additional sum is specifically mandated by statute. Absent specific statutory authority to waive the surcharge, the Service, therefore, may not waive the additional sum. Accordingly, the Service will not adopt the commenter's suggestion.

Technical Revision to 8 CFR 103.7(c)(1)

This second interim regulation modifies the final sentence of 8 CFR 103.7(c)(1) by removing the words "except as directed in section 245(i) of the Act." As one commenter noted, the first regulation is misleading in that it implies that a statutory exemption of the surcharge equates to a waiver of payment of such surcharge. This technical change clarifies that, under the plain language of the statute, persons listed in section 245(i)(1) (i) through (iii) of the Act are exempt from payment of the surcharge, a nd the Service lacks discretionary authority to waive the surcharge. Since, to date, the Service has not required payment of the surcharge from the individuals listed in section 245(i)(1)(i) through (iii), this technical change, as a practical matter, will have no adverse effect on such persons.

Clarification of Instructions to Supplement A to Form I-485

One of the commenters indicated that the instructions which accompany Supplement A to Form I-485 "seem to suggest that an applicant must be the approved beneficiary of a valid unexpired visa petition in order to file the form." Supplement A clearly does not limit eligibility for adjustment of status to an applicant who is the beneficiary of an approved immigrant visa petition. The instructions to the form specify only that an applicant "have an immediately available immigrant visa number." This language ech oes section 245(i)(2)(B) of the Act, which requires "an immigrant visa [to be] immediately available to the alien at the time the application is filed." Furthermore, apart from its instructions, Supplement A lists a broad spectrum of grounds for eligibility for adjustment of status. Accordingly, no change has been made to the rule as a result of this recommendation.

Interview Waivers

One commenter requested that the Service incorporate language regarding interview waivers into the regulation. However, as the same commenter noted, 8 CFR 245.6 currently allows for a waiver of the interview for adjustment of status applications. Applications filed under section 245(i) of the Act are adjudicated in accordance with the regulations at 8 CFR part 245, which already contain provisions authorizing immigration officers to waive the interview under certain specified circumstances. Further regulato ry language relating to interview waivers would be redundant. Accordingly, the Service will not adopt the commenter's suggestion.

Adjustment as a Means of Relief From Deportation

One commenter urged the Service to clarify that prospective immigrants who qualify for adjustment under section 245(i) may file such an application while they are in deportation proceedings. (While no new deportation cases may be brought after March 31, 1997, section 309(c) of the IIRIRA permits the continuation of deportation proceedings initiated prior to April 1, 1997.) However, under 8 CFR 242.17(a), respondents in deportation proceedings are already permitted to apply for adjustment of status under sec tion 245 of the Act. Additional regulatory language to that effect would, therefore, be redundant. Accordingly, the rule has not been changed in response to this recommendation. It should be noted that the Service published an interim rule on March 6, 1997, effective April 1, 1997, that implemented certain changes to the removal process resulting from the IIRIRA. See 62 FR 10312. The March 6, 1997, regulation provides for adjustment of status in certain circumstances, where appropriate, during removal proceedings.

Fingerprint Checks

One commenter noted that section 506(d) of Pub. L. 103-317 requires fingerprint checks for all applicants for adjustment of status under section 245(i) of the Act who are more than 16 years of age. The commenter suggested that this provision should be included in the regulations to avoid confusion. However, fingerprint checks are covered by 8 CFR 264.1, a regulation not covered by the present rulemaking. While this point is well taken, the Service intends to address this matter in a separate rulemaking. Acc ordingly, the regulation has not been changed as a result of this comment.