PART 103-POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS

1. The authority citation for part 103 continues to read as follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

§ 103.7 [Amended]

2. In § 103.7(b)(1), the entry for "Supplement A to Form I-485" is amended by revising the fee of "$ 650.00" to read: "$ 1,000".

3. In § 103.7, paragraph (c)(1) is amended in the last sentence by removing the phrase "except as directed in section 245(i) of the Act".

PART 245-ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

4. The authority citation for part 245 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.

5. Section 245.1 is amended by:

a. Removing "." at the end of paragraph (b)(7), and replacing it with a ";";

b. Removing the "." at the end of paragraph (b)(8), and replacing it with a ";"; and by adding paragraphs (b)(9) and (b)(10), to read as follows:

§ 245.1 Eligibility.

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(b) * * *

(9) Any alien who seeks adjustment of status pursuant to an employment-based immigrant visa petition under section 203(b) of the Act and who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status; and

(10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I) , (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application.

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6. Section 245.10 is amended by:

a. Revising paragraph (a)(6);

b. Revising paragraph (b) introductory text;

c. Revising paragraph (b)(3);

d. Revising paragraphs (c), (d) and (e); and by

e. Adding new paragraphs (f) and (g), to read as follows:

§ 245.10 Adjustment of status upon payment of additional sum under Public Law 103-317.

(a) * * *

(6) Pays an additional sum of $ 1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and

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(b) 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 § 103.7(b)(1) of this chapter. Each application submitted to the Service under the provisions of section 245(i) of the Act on or after October 1, 1994, and before December 29, 1996, must be submitted with an additional sum of $ 650. Each application submitted to the Service under the provisions of section 245(i) of the Act on or after December 29, 1996, must be submitted with an additional sum of $ 1,000. If a determination is made by an officer of the Service on or after December 29, 1996, that an applicant is subject to section 245(i) of the Act, and the Form I-485 is not accompanied by Supplement A to Form I-485 and, if required by section 245(i), the additional sum of $1,000, the applicant will be afforded the opportunity to amend the application by submitting Supplement A, the additional sum of $ 1,000, if required, and any other required documentati on. 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:

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(3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt of approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter.

(c) Application period . The Service may not approve an application for adjustment of status pursuant to section 245(i) of the Act if such application was filed either before October 1, 1994, or after September 30, 1997. If an alien attempts to file an adjustment of status application under the provisions of section 245(i) after September 30, 1997, the Service will accept the application and base filing fee, as set forth in § 103.7(b)(1) of this chapter, return the additional sum of $ 1,000 to the alien, and adjudicate the applic ation pursuant to section 245(a) of the Act. If the alien, in such a case, is not eligible for adjustment of status, the Service will issue a written notice advising the alien of the denial of the application for adjustment of status.

(d) Adjustment application filed on or after October 1, 1994, and before October 1, 1997, without Supplement A to Form I-485 and additional sum . An adjustment of status applicant will be allowed the opportunity to amend an adjustment of status application filed in accordance with § 103.2 of this chapter on or after October 1, 1994, and before October 1, 1997, in order 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 which 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.

(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 pu rsuant to section 245(i) of the Act on or after October 1, 1994, and before October 1, 1997, provided that such new application is accompanied by: the required fee; Supplement A to Form I-485; and additional sum required by section 245(i) of the Act; and all other required initial and additional evidence.

(f) Completion of processing of pending applications . An application for adjustment of status filed subsequent to September 30, 1994, and prior to October 1, 1997, shall be adjudicated to completion by an officer of the Service, regardless of whether the final decision is made after September 30, 1997. The provisions of paragraph (d) of this section regarding amended applications shall apply to all such applications. The Service may consider a motion to reopen or reconsider an application for adjustment of status on the basis of section 245(i) of the Act onl y if:

(1) The application for adjustment of status was filed on or after October 1, 1994, and before October 1, 1997, and

(2) Prior to October 1, 1997, the applicant submitted Supplement A to Form I-485, any additional sum required by section 245(i), and any other required documentation.

(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status . Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engage d, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Ac t.