Pending Applications and the Chinese Student Protection Act

A number of commenters were concerned about the impact of the first interim regulation on individuals who applied for adjustment of status under the Chinese Student Protection Act (CSPA), as well as dependents of CSPA applicants. One commenter suggested that the regulations at 8 CFR 245.1 should be amended to remind Service officers that qualifying family members who are following to join immigrants who adjusted status under the CSPA retain the priority date of a CSPA principal. As the commenter observed, h owever, the issue of priority dates for late-arriving dependents of CSPA principals has already been addressed at 8 CFR 245.9(m). Because statutory and regulatory provisions are already in place for late-arriving dependents of CSPA applicants, there is no need to promulgate further regulations merely to refer interested parties to existing provisions.

Several commenters observed that the provisions of section 245(i) "shall take effect on October 1, 1994." The commenters asserted that, because of this wording, the provisions of section 245(i) should apply not only to applications filed after October 1, 1994, but to any adjustment application pending on that date. They urged the Service to allow applicants for adjustment of status to file motions to reopen or reconsider under section 245(i) of the Act.

The language of section 245(i), however, clearly states that a prospective immigrant under this section "may apply" for adjustment of status. This wording is prospective and not retroactive. Because section 245(i) became effective on October 1, 1994, the plain language of the statute limits the application of section 245(i) to applications for adjustment of status filed on or after October 1, 1994. Therefore, the Service cannot apply the provisions of section 245(i) to applications filed prior to October 1, 1994, or to motions to reopen or reconsider such applications.

A number of these commenters argued that, although applicants who entered without inspection were ineligible for adjustment of status under the CSPA, the provisions of section 245(i) should apply retroactively to any CSPA application pending as of October 1, 1994. One commenter noted that, whole most aliens with pending adjustment of status applications could simply file a new application under section 245(i), CSPA applicants cannot file a new application because of the CSPA's statutory filing deadline of J une 30, 1994. Another commenter urged the Service to reopen or reconsider denied CSPA applications under section 245(i) because "[t]he INS unlawfully stopped advance paroles for Chinese nationals" who had entered without inspection. As stated previously, the provisions of section 245(i) apply only to applications filed on or after October 1, 1994. Further, had Congress intended any special consideration for CSPA applications, such provisions would have been incorporated into the statute. Accordingly, the pr ovisions of the rule have not been changed in response to these comments.