DOCUMENT NUMBER: FR 60-94

FE DE RA L RE GI ST ER CI TE: 51091 - 51100

DATE PUBLISHED: October 7, 1994

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 , 212 , 217 , and 245

[INS NO. 1676-94]

RIN 1115-AD83

Adjustment of Status to That of Person Admitted

for Permanent Residence; Temporary Removal of Certain

Restrictions on Eligibility

AGENCY : Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule will amend the Immigration and Naturalization Service (Service) regulations to allow certain persons in the United States to adjust status to that of a lawful permanent resident before October 1, 1997. These persons, although immediately eligible for immigrant visa issuance abroad, had been barred from adjustment of status in the United States because they had committed certain administrative violations of United States immigration law. This rule allows prospective lawful permanent res idents to avoid the difficulties and expense of travel to a United States consulate or embassy abroad. It continues, however, to penalize these violators of the immigration laws by requiring most applicants to pay an additional sum in excess of the standard adjustment of status filing fee. After adjusting status, these persons can lawfully live and work in the United States and may later become eligible to seek United States citizenship through naturalization.

DATES: This interim rule is effective October 1, 1994. Written comments must be received on or before December 6, 1994.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536, Attn: Public Comment Clerk. 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 an appointment.

FOR FURTHER INFORMATION CONTACT: Rita A. Arthur, Senior Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

The Immigration and Nationality Act (the Act) allows a person who is neither a citizen nor a national of the United States to live and work in this country for an unlimited period of time if he or she has been granted lawful permanent resident status. It also provides for a grant of lawful permanent resident status on a conditional basis for an initial two-year period, if the residency is based on a recent marriage or on alien entrepreneur status, and allows for the removal of the conditions upon fulfillme nt of certain requirements.

The Act generally requires a qualified intending immigrant to obtain an immigrant visa abroad before seeking admission to the United States for lawful permanent residence. It also allows certain persons who have not obtained an immigrant visa abroad to adjust status to that of a lawful permanent resident after arrival in the United States. As set forth in the Act, most persons seeking adjustment of status must show that they could qualify for immigrant visa issuance abroad and must meet certain additional requirements.

An immigrant visa may be issued only at a United States consulate or embassy abroad. Each prospective immigrant is required to show that he or she is eligible for immigrant classification and has an immediately available immigrant visa number through a qualifying family or employment relationship, or other means. The applicant must also establish that he or she is not included in any of the classes of persons who cannot, by law, be admitted to the United States, or that any basis for inadmissibility has b een waived. After the immigrant visa has been issued, the person may lawfully travel to the United States. A qualified immigrant visa holder becomes a lawful permanent resident upon admission to the United States.

An adjustment of status applicant must be physically present in the United States at the time of application. A person applying under section 245 of the Act, the most frequently used adjustment of status provision, must meet the basic requirements for immigrant visa issuance. Like immigrant visa applicants, the adjustment applicant must prove that he or she is eligible for immigrant classification and has an immediately available immigrant visa number through a qualifying family or employment relationship , or other means. The adjustment applicant must also show that he or she is not included in any of the classes of persons who, by law, cannot be admitted to the United States, or that any basis for inadmissibility has been waived. Section 245(a) of the Act further restricts eligibility for adjustment of status by prohibiting adjustment unless the applicant entered the United States after having been inspected and admitted or paroled by an immigration officer. Section 245(c) of the Act also bars the adjus tment of most applicants who have been employed in the United States without authorization; who have not complied with the terms of temporary nonimmigrant status; or who entered in transit without visa status, under a visa waiver program, or as crewmen. A qualified adjustment applicant becomes a lawful permanent resident upon approval of the adjustment of status application.

The requirements of sections 245(a) and 245(c) of the Act were established to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and bypassing the orderly immigrant visa issuance process abroad. These requirements have caused many persons who are in the United States to be unable to adjust status in this country.

Intending immigrants who could not meet the adjustment requirements have been obliged to leave the country and apply for an immigrant visa at a United States consulate or embassy abroad. They then were immediately eligible for admission as lawful permanent residents upon returning to the United States. By virtue of the requirements of sections 245(a) and 245(c) of the Act, these persons were putatively required to leave the United States and United States consuls abroad have been burdened with immigrant v isa issuance that would not otherwise have been necessary.

Public Law 103-317

Section 506(b) of the Department of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act, 1995, Pub. L. 103-317, was enacted August 26, 1994. It temporarily lifts many of the restrictions on adjustment of status under section 245 of the Act on applications filed on or after October 1, 1994, although it does not affect persons adjusting under other sections of law. This law adds a new section 245(i) to the Act, which allows a person who is physically present in the United States and would otherwise have been eligible for immigrant visa issuance abroad, to adjust status to that of a lawful permanent resident under section 245 of the Act. Applicants may be subject to a financial penalty, since the law requires most persons seeking adjustment of status under the new law to pay an additional sum in excess of the standard adjustment of status filing fee. The provisions of the new section 245(i) of the Act cease to have effect on October 1, 1997.

Persons who remain ineligible to adjust status

Section 245(i) of the Act does not waive all requirements for adjustment of status under section 245 of the Act. An applicant must be eligible for immigrant classification and have an immediately available immigrant visa number through a qualifying family or employment relationship, or other means. The person must also show that he or she is not included in any of the classes of persons listed in section 212 of the Act who cannot be admitted to the United States, or must show that any basis for excludabil ity has been waived.

Section 245(i) of the Act also does not waive several other grounds of ineligibility for adjustment of status under section 245 of the Act. An applicant seeking adjustment as an immediate relative of a United States citizen or as a preference alien, but who is not the beneficiary of a valid unexpired visa petition, remains ineligible for adjustment. A person who is currently a lawful permanent resident also continues to be ineligible for adjustment. An applicant who was admitted to the United States as a K-1 fiance(e) but did not marry the United States citizen who filed the petition, or who was admitted as the K-2 child of a fiance(e) parent who did not marry the United States citizen who filed the petition, is also barred from adjusting status under section 245 of the Act. A person who is seeking adjustment based on a marriage entered into while the applicant was under deportation, exclusion, or related judicial proceedings may not adjust status, unless the person provides clear and convincing evidence of a bona fide marriage or has resided outside the United States for two or more years after the marriage.

Payment of additional sum

This temporary adjustment provision continues to encourage intending immigrants who are abroad to comply with the immigrant visa issuance requirements, by making adjustment of status under the new provision much more expensive than immigrant visa issuance abroad. Most applicants for the new benefit will be required to pay the standard adjustment of status filing fee, plus an additional sum of five times the standard filing fee. Thus, persons currently applying for adjustment of status under the provisions of the new section 245(i) of the Act must pay the standard filing fee of $130.00, plus an additional sum of $650.00, for a total of $780.00. Any future modifications of the standard adjustment of status filing fee will change the amount of the additional sum, as well as the total cost.

Persons who can meet all the requirements for adjustment of status under sections 245(a) and 245(c) of the Act will continue to pay only the standard filing fee (currently $130.00 or $100.00 if less than 14 years of age). Section 245(i) of the Act also exempts certain persons applying under the new provision from payment of the additional sum. An unmarried child who is less than 17 years of age when he or she applies for adjustment of status will be required to pay only the standard filing fee (currently $130.00, or $100.00 if less than 14 years of age). The spouse of a legalized alien or the unmarried child under 21 years of age of a legalized alien will also be required to pay only the standard filing fee (currently $130.00, or $100.00 if less than 14 years of age), if the spouse or child qualifies for and has applied for voluntary departure under the family unity program established by section 301(a) of the Immigration Act of 1990.

This additional sum is a penalty dictated by section 245(i) of the Act; therefore, payment of the additional sum will not be waived, except as directed in section 245(i) of the Act. Also, fee waivers may be granted under 8 CFR 103.7(c) only if the applicant substantiates his or her inability to pay the prescribed fee. Since a person applying for adjustment of status under section 245 of the Act is required to show financial resources or income establishing that he or she is not likely to become a public c harge in the United States, a person who can establish a basis for waiving payment of the additional sum would be unlikely to be eligible for adjustment of status under section 245 of the Act. The few adjustment provisions that waive the public charge exclusion ground for a person seeking adjustment of status under section 245 of the Act also provide other waivers that eliminate any need for the applicant to seek the benefits of section 245(i) of the Act.

Application

Each person applying for adjustment of status under section 245 of the Act, including a child, must complete Form I-485. Each applicant must also compile the initial evidence required by that form's instructions. Supplement A to Form I-485 (Supplement A) may then be completed to determine whether the applicant must file under section 245(i) of the Act and whether the additional sum must be paid. This supplementary form asks several questions and provides instructions that allow the applicant to decide wh ether he or she must submit Supplement A and whether an additional sum must be paid.

Each person, including a child, whose eligibility for adjustment of status is based on the provisions of section 245(i) of the Act must file Supplement A. The Form I-485 with fee and the Supplement A with any required additional sum must be filed with the office having jurisdiction over the applicant's place of residence.

Beginning of application period

Section 506(c) of Pub. L. 103-317 states that "(t)he provisions of these amendments to the Immigration and Nationality Act shall take effect on October 1, 1994." These amendments to the Act are not retroactive and cannot be applied to applications for adjustment of status filed before that date. They also cannot be applied to a motion to reopen or reconsider an adjustment of status application if the underlying adjustment application was filed before October 1, 1994. An intending immigrant is not, howeve r, precluded from obtaining the benefits of the new law merely because he or she previously sought to adjust status. If the person meets the requirements for adjustment of status under the provisions of the new section 245(i) of the Act, he or she may file a new application for adjustment of status with fee, accompanied by Supplement A and any required additional sum. The applicant must show that he or she has an immigrant visa number immediately available and meets all other applicable requirements of se ction 245 of the Act on the date the new application is filed.

End of application period

Section 506(c) of Pub. L. 103-317 states that "(t)he provisions of these amendments to the Immigration and Nationality Act shall . . . cease to have effect on October 1, 1997." Applications for adjustment of status under section 245(i) of the Act cannot be granted on or after that date. Prospective adjustment of status applicants who are seeking the benefits of section 245(i) of the Act must file their applications sufficiently in advance of October 1, 1997, to ensure that they can be completed before tha t date. Application processing times vary by location, and persons who will be seeking adjustment of status under the provisions of section 245(i) of the Act during 1997 are encouraged to file as early in the year as possible. Persons who must file after June 1997 should contact the office having jurisdiction over their place of residence for further instructions.

Immediate availability of immigrant visa number

All applicants for adjustment of status under section 245 of the Act must have an immediately available immigrant visa number. "Immediately available" for the purpose of accepting and processing the Form I-485 application filed by a preference alien is defined in 8 CFR 245.1(f) as being not later than the date shown in the current Department of State Bureau of Consular Affairs Visa Bulletin. The Department of State, however, defines "immediately available" as being earlier than the date shown in the curre nt Visa Bulletin. This rule amends 8 CFR 245.1(f) to bring the adjustment of status provision into accordance with the Department of State's definition. It also changes the name of the Visa Bulletin to reflect its current title.

New restriction on immigrant visa issuance abroad

Public Law 103-317 also places a new restriction on the issuance of immigrant visas abroad before October 1, 1997, which has no effect on persons seeking adjustment of status in the United States. Section 506(a) of Pub. L. 103-317 adds a new section 212(o) to the Act, which forbids immigrant visa issuance to certain prospective immigrants, including children, who have been physically present in the United States. Prospective immigrants, except certain spouses and children of legalized aliens, who were not maintaining lawful nonimmigrant status at the time of departure from the United States, will not be eligible for immigrant visa issuance within 90 days of departure from the United States. This new restriction does not apply to the spouse of a legalized alien or the unmarried child under 21 years of age of a legalized alien, if the spouse or child qualifies for and has applied for voluntary departure under the family unity program established by section 301(a) of the Immigration Act of 1990. The new sect ion 212(o) of the Act takes effect on October 1, 1994, and ceases to have effect on October 1, 1997. The Department of State, which has jurisdiction over immigrant visa issuance at United States consulates and embassies abroad, will promulgate regulations implementing this provision of Pub. L. 103-317.

Violent Crime Control and Law Enforcement Act of 1994

The Violent Crime Control and Law Enforcement Act of 1994 (Crime Bill), Pub. L. 103-322, was enacted on September 13, 1994. Section 130003 of the Crime Bill, entitled "Alien Witness Cooperation and Counterterrorism Information" adds a new section 245(i) to the Act. This provision restricts the adjustment of status of certain persons admitted to the United States under a newly established "S" nonimmigrant classification. Congress clearly did not intend to repeal or supersede the provisions of the Departme nt of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act, 1995, Pub. L. 103-317, by adding another section 245(i) to the Act. The Service regards the establishment of the second section 245(i) of the Act as a numbering error and will recommend that Congress enact a technical amendment to redesignate the Crime Bill's provision as section 245(j) of the Act.

The Service's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based on the "good cause" exceptions found at 5 U.S.C. 553(b)(3)(B), (d)(3); see Animal Legal Defense Fund v. Quigg , 932 F.2d 920 (Fed. Cir. 1991). The reasons and necessity for immediate implementation of this interim rule are as follows:

Early implementation will allow persons in the United States to apply for adjustment of status to that of a lawful permanent resident as of the beginning of the statutorily established application period on October 1, 1994. These persons had been ineligible to adjust status and had been obliged to incur the expense and inconvenience of applying for an immigrant visa at a United States embassy or consulate abroad.

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 the rule will not have a significant economic impact on a substantial number of small entities because of the following factors. By temporarily removing certain restrictions on eligibility for adjustment of status, the rule will eliminate inconvenience to a number of individuals currently in the United States who otherwise would have incurred significant monetary expenses by traveling abroad to apply for an immigrant visa at a United States consulate or embassy abroad. It will have no effect on small entities.

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, Sec. 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 regulations adopted herein will not have substantial direct effects 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 assessed this rule in light of the criteria in Executive Order 12606 and has determined that this regulation would enhance family well-being by allowing certain family members, who were formerly precluded from adjusting status, to become lawful permanent residents of the United States without first having obtained immigrant visas abroad.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations (Government agencies), Fees, Forms, Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration, Passports and visa, Reporting and recordkeeping requirements.

8 CFR Part 217

Administrative practice and procedures, Aliens, Nonimmigrants, Passports and visas.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

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