Executive Office for Immigration Review; Adjustment of Status to That of Person Admitted for Permanent Residence [62 FR 55152] [FR 64-97]

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DOCUMENT NUMBER: FR 64-97

FEDERAL REGISTER CITE: 62 FR 55152

DATE OF PUBLICATION: October 23, 1997

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245

[EOIR No. 119 I; A.G. ORDER No. 2120-97]

RIN 1125-AA20

Executive Office for Immigration Review; Adjustment of Status to That of Person Admitted for Permanent Residence

AGENCY: Executive Office for Immigration Review, Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends the date by which aliens must file and pay for their applications for adjustment of status pursuant to section 245(i) of the Immigration and Nationality act. Such applications are adjudicated by the Executive Office for Immigration Review, including the Board of Immigration Appeals and the Immigration Courts, or the Immigration and Naturalization Service. This rule also clarifies the procedure for paying for such adjustment applications when filed in conjunction with motions to reo pen or reconsider.

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

Comment Date : Written comments must be received on or before December 22, 1997.

ADDRESSES: Please submit written comments to Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: On August 26, 1994, Congress enacted the Department of Commerce, Justice, State, and the Judiciary and Related agencies Appropriations Act of 1995, Pub. L. 103-317. Section 506(b) of this law added a new section 245(i) to the Immigration and Nationality Act (the Act) which allows certain persons already in the United States to adjust status, despite the provisions of section 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.

On July 23, 1997, the Immigration and Naturalization Service (Service) published an interim rule with request for comments (62 FR 39417) concerning adjustment of status applications filed pursuant to section 245(i) of the Act. The supplementary information to the interim rule reiterated that 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. However, timely filed applications may still be adjudicat ed after September 30, 1997. On September 30, 1997, the Executive Office for Immigration Review published a similar rule (62 FR 50999) that enabled the Executive Office for Immigration Review to complete adjudication of timely filed section 245(i) adjustment applications after September 30, 1997.

This program was due to terminate on October 1, 1997. However, on September 30, 1997, Congress extended the program until October 23, 1997. This interim rule reflects that applications filed subsequent to October 1, 1994, and prior to October 23, 1997 or any other such date as Congress may determine in an extension of section 245(i) of the Act, will be adjudicated to completion by an officer of the service or EOIR.

This interim rule makes it clear that the Service and EOIR may consider a motion to reopen or reconsider an application for adjustment of status on the basis of section 245(i) of the Act if the applicant submitted a copy of the application for adjustment of status, a copy of Supplement A to Form I-485, and any other required documentation on or after October 1, 1994, and before October 23, 1997, or any other such date as Congress may determine in an extension of section 245(i) of the Act. However, in order to receive the benefit of a motion to reopen or reconsider that has been granted, the applicant must have remitted to the Immigration and Naturalization Service any additional sum required by section 245(i) (the additional sum is currently $ 1,000) before October 23, 1997, or any other such date as Congress may determine in an extension of this provision. This procedure is different from the procedures previously in effect for filing motions to reopen or reconsider with EOIR and which continue to apply to a ll other motions filed with EOIR. Those individuals who have properly filed motions to reopen or reconsider in order to apply for adjustment of status under section 245(i) but who have not yet paid the required fee, or those individuals whose motions have been granted in the past but who have not yet paid the required fee, must now pay that fee with the Immigration and Naturalization Service before October 23, 1997 or any other such date as Congress may determine in an extension of this provision.

The implementation of this rule as an interim rule, with immediate effect, and with provisions for post-promulgation public comment, is based upon the "good cause" exceptions found at 5 U.S.C. 553b (B) and (d)(3). Immediate implementation of this rule will ensure that all applicants for adjustment of status under section 245(i) are aware of the extended application period and the revised procedures for paying the application fee when submitting a motion to reopen or reconsider.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule affects only those aliens who are applying to adjust their status under section 245(i) of the Immigration and Nationality Act. Therefore, this rule does not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

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 any one 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

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $ 100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

The Attorney General has determined that this rule is not a significant regulatory action under Executive Order No. 12866 and, accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12612

This rule has no federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order No. 12612.

Executive Order 12988, Civil Justice Reform

The rule meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order No. 12988.