DOCUMENT NUMBER: FR 5-94

FE DE RA L RE GI ST ER CI TE: 59 FR 1455 - 1466

DATE PUBLISHED: January 11, 1994

BILLING CODE: 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 , 214 , 223 , 223a , 248 , 264 and 292

[INS No. 1324-92]

RIN No. 1115-AC20

Changes in Processing Procedures for Certain Applications and

Petitions for Immigration Benefits

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule streamlines evidence rules and the processes by which persons may apply for and receive certain immigration documents and benefits. The rule is necessary to improve service to the public and to streamline operations.

EFFECTIVE DATE: This rule is effective February 10, 1994.

FOR FURTHER INFORMATION CONTACT: Michael L. Aytes, Director, Service Center Operations, Immigration and Naturalization Service, 425 I Street, NW., room 4014, Washington, DC 20536, telephone (202) 514-3156.

SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service published a proposed rule on December 2, 1991 at 56 FR 61201 as part of a comprehensive initiative to simplify and streamline the filing and processing of applications and petitions for immigration benefits. This initiative has already led to a number of steps which have begun to significantly improve efficiency and the quality of service provided to the public.

A number of comments were received about this proposal. Many were prepared by a working group of interested organizations. The following sections discuss the comments and explain the revisions adopted.

Representation by Another Person

Several commenters opposed the proposed requirement that an applicant or petitioner sing Form G-28, Notice of Entry of Appearance as Attorney or Representative, to show that he or she authorized the representation. For example, one commenter argued that an attorney's indication that he or she represents someone should be accepted as "absolutely definitive evidence" since submission by an attorney where not so authorized would be a violation of his or her ethical and legal obligations, and would subject him or her to disciplinary action and a malpractice suit.

However, a number of other commenters within the industry supported the new requirement. Some pointed out that the form is not only used by attorneys. Others noted that requiring the signature can help combat the unauthorized practice of law. Still others felt that the signature would address potential Privacy Act concerns.

For the reasons given by those supporting the new requirement, as well a those enumerated in the proposed rule, this proposal has been retained. An applicant or petitioner must sign the Form G-28 to definitively indicate to the Service that he or she has authorized the person to represent him or her in the proceeding. The person submitting the Form G-28 must be authorized under 8 CFR part 292 to represent the applicant or petitioner. Where a Form G-28 is submitted that is not properly signed, the applicat ion or petition will be processed as if a Form G-28 had not been submitted.

Notification Procedures

Where an applicant or petitioner has an authorized representative, the Service now mails two copies of each written notice. One goes to the applicant or petitioner, and the other goes to the authorized representative. The proposed rule suggested sending only one notice in such a case, and sending it to the representative. This would have meant that the Service would communicate with the applicant or petitioner through his or her authorized representative if he or she had one.

The commenters pointed to past problems in representatives receiving their copy, and argued that separate notices should be continued as a safeguard. After review, the Service will therefore continue to send separate notices to the applicant or petitioner and his or her authorized representative.

Several commenters also asked that the Service begin sending copies of notices to anyone assisting an applicant or petitioner, and not simply to authorized representatives. However, while the Service cannot limit or control who can assist others in filling out and filing an application or petition, only a person who meets the criteria in 8 CFR parts 1 and 292 can act as the applicant or petitioner's authorized representative and submit a Form G-28. A person who does not meet these criteria cannot represen t the applicant or petitioner, and cannot be notified of any action taken on the application or petition.

Several commenters opposed the proposed modification of when the Service would send a notice by certified mail. After review, this proposal has been withdrawn.

Filing

A number of commenters requested that additional filing instructions be included on forms to eliminate confusion about where to file. Last year the Service began to include such specific information on the new generation of application and petition forms. This process will continue as older versions of forms are replaced or eliminated.

Several commenters asked that application and petition forms be published for public comment since the instructions have the effect of regulation. All form revisions are carefully reviewed to ensure they are consistent with regulations. In addition to informally circulating significant changes to forms for comment, the Service intends to begin to publish form revisions as required and as deemed necessary for effective communications. The Service is committed to revising forms on a more frequent basis to k eep up with ever changing immigration laws and changes in procedures. The Service wants to assist people in learning about immigration benefits for which they may be eligible, and help them understand what is required to file a complete application. This will facilitate quicker processing and minimize the delays and additional processing costs associated with requests for more information or evidence.

As suggested by many commenters, language has been added to clarify that a child can file an application or petition for himself or herself, in addition to allowing a parent or legal guardian to file. Other commenters suggested that anyone be allowed to file such a petition, pointing to 8 CFR 101.6(b)(1), which permits such a broad group of persons to file petitions for juveniles dependent on a juvenile court in the United States. However, except for these unique circumstances, there is no valid reason to allow a person who has no legal authority over a child to assume the right to act in the child's behalf before the Service. Therefore, this suggestion has not been adopted.

The proposal to allow the filing of photocopies of documents with applications and petitions instead of originals was universally applauded as a significant step in streamlining filing procedures. However, one commenter asked whether each copy would need to be certified that it is exact and unaltered.

Evidence submitted in the context of an application or petition is part of that application or petition. See 8 CFR 270.1. By signing the application or petition form, the person certifies under penalty of perjury that the application or petition, and all evidence submitted with it, is true and correct. The rule has been clarified to indicate that a separate certification for each copy is not necessary.

Several commenters asked that the rule be revised so that in cases where an applicant or petitioner submits an original when he or she could have submitted a copy, the Service would be required to make the copy and return the original.

The Service recognizes that people need to retain original documents for their records. This was one of the primary reasons why the Service made the decision to accept photocopies. However, the Service processes over 4 million applications and petitions each year. In cases where a person chooses to submit originals instead of copies, the Service is not in a position to make the copies for him or her so the originals can be returned.

The proposed rule provided that where the Service determines a need to review the original of a document, the applicant or petitioner would have 30 days to submit the original document. Several commenters suggested that 30 days does not allow enough time, since people might not have the document and would have to get one from the issuing authority. They suggested a 60 or 90-day period instead.

The idea of allowing copies was proposed so applicants and petitioners can file a copy and keep the original, not so they can file a copy because they don't have an original. By filing a copy as part of their application or petition, they are attesting that the copy is true and correct. This would be problematic if they do not have an original. However, to minimize confusion and to standardize the various response periods provided in this rule, the final rule provides 12 weeks, without extension, for subm ission of an original document. If an applicant or petitioner does not submit the requested original document within that 12-week period, the application or petition will be denied for failure to provide the original.

Several commenters asked that the Service begin to accept copies and computer-generated versions of application and petition forms, and to allow filing by facsimile. The Service will accept photocopies and computer-generated versions that are identical to Service forms in all respects, including placement, perforations and fastener holes. We cannot accept facsimiles because they do not meet these requirements. It is essential that the forms not vary in any way from the original since the Service is introd ucing imaging systems and other systems to speed processing that depend on exact form specifications. The Service is also very interested in electronic filing as a way of speeding processing and reducing costs, and is researching various technologies that would allow such filing with fee transmittal.

Initial Evidence

Almost every commenter discussed the initial evidence rules, which proposed that an application or petition filed without the evidence required by the instructions on the application or petition form would be denied, but without prejudice to the later filing of a complete application or petition. A number of commenters agreed that the proposal would reduce the percentage of cases in which the Service has to ask for more evidence during the adjudications process, and thus review twice, and that this would h elp speed overall processing times. Several commenters noted that the additional explanations on the new application and petition forms of what evidence is required will help people to file complete applications and petitions. Others supported threshold standards for filing. However, a number of commenters had serious reservations about the initial evidence requirements described in the proposed rule.

Several commenters suggested that the Service should help applicants and petitioners correct cases that lack the required initial evidence rather than require them to start over and file again. Others suggested the proposed rule did not sufficiently recognize that some people may unintentionally fail to file the required initial evidence. A few suggested that while the Service should deny clearly deficient cases, it should not deny "marginal" cases, but should give those people a chance to correct their c ases.

One commenter suggested that the Service continue to add evidence explanations to its new forms, but only monitor the effect and not implement procedures to deny incomplete applications. Another commenter, who opposed the entire concept of threshold requirements, asserted that allowing the Service to deny an application or petition for lack of initial evidence would give it "unbridled" discretion.

Initial evidence is the evidence necessary to establish a basis for filing and to allow the Service to process the average case through to completion the first time. As indicated by many commenters, it is in the best interest of applicants and petitioners, as well as in the interest of the Service, that an application or petition be complete when first filed so a decision can be entered quickly and correctly, without delays caused by having to go back and ask an applicant or petitioner for more evidence.

The initial evidence explanations included in revised application and petition forms are designed to help people know what types of basic evidence they should always submit with their application or petition. The explanations also clarify statutory and regulatory eligibility criteria by translating them into more concrete terms. The question here is what the Service should do when someone files without the required threshold evidence.

The most basic issues in processing an application or petition for an immigration benefit are determining eligibility for the benefit, and treating all applicants and petitioners fairly and equitably. Among other things, this means using processing systems that ensure that cases are not processed in a way that enables one applicant or petitioner to derive an unfair advantage over another applying for the same benefit. For example, this means ensuring that priority dates for immigration and case processing dates are accorded in ways that do not encourage a person to file an incomplete application as a means of stepping in line in front of someone else who waits to obtain all the necessary evidence before filing. It also means establishing processing parameters to minimize instances where the Service has to handle repeatedly an application because basic documents are missing. This increases average processing time, and raises costs which are transferred to all applicants through filing fees.

However, the Service recognizes that these processes must operate in an environment in which a significant number of applicants and petitioners are unfamiliar with the English language and government requirements. The Service's goal is to recognize the needs of the population we serve while setting processing parameters that allow the agency to process applications quickly, correctly and fairly.

In the past, most applications were submitted in person at a local Service office. This provided an opportunity to review the application, and not accept it at that time if it lacked necessary evidence. However, this has led to occasions where discrepancies in local acceptance standards have been alleged. In order to make filing easier as the volume of applications has grown, and to make processing more consistent, the Service has moved towards a mail-in process. Since advance review is not possible in such a situation, there must be clear guidelines for handling cases filed without necessary evidence.

The Service has revised the initial evidence process as a result of the comments received. In general, the Service will not deny a case for lack of initial evidence. An application or petition will be reviewed after fee receipting. If required initial evidence is missing and there is no evidence of ineligibility in the record, the applicant or petitioner will be notified and given 12 weeks from the date of the notice, without extension, to submit the missing initial evidence. However, if the application is pre-screened by INS prior to its submission, such as in a situation where the person files the application in person, and the person insists on filing the application even though necessary initial evidence is missing, the case shall be denied for lack of required initial evidence.

This rule does require that where the Service requests evidence after filing, it must be submitted in one response. In addition, as requested by a commenter, it clarifies that a case that is missing initial evidence will not result in the loss of its priority date until a final decision is made.

This revised process encourages applicants and petitioners to obtain the necessary threshold evidence before filing so that their case can be processed in order and without delay. However, it also allows people who fail to file this threshold evidence a limited period to submit the missing evidence. A time limit of 12 weeks was set because while the Service wants to afford people an opportunity to correct a filing deficiency, we must balance that with ensuring that the process does not encourage people to f ile before they have a complete application or petition.

If an applicant or petitioner does not submit the missing initial evidence within the time limit, the application or petition will be automatically denied for lack of initial evidence. While the rule clarifies that an applicant or petitioner may immediately refile after such a denial, it should be noted that if the subsequent case is filed without the required initial evidence, it may be denied without a grace period.

While this process will normally be sufficient, there are situations where a person's immediate status in the United States hinges on the application or petition, or he or she becomes entitled to a benefit because the case is pending. For example, a person who files for adjustment of status would in certain instances be able to obtain an advance parole to travel based on the pending application. An applicant for an employment authorization document may be entitled to interim employment authorization becaus e the Service cannot make a decision within a certain period. Applying the general process outlined above in such situations would allow a person to obtain interim benefits based on an incomplete application or petition while the Service waits for him or her to submit the necessary initial evidence, or because he or she asks that an interview be rescheduled, delaying processing.

The filing of an application or petition without the required initial evidence, or asking that a case be rescheduled, effectively hampers our ability to make a definitive determination of eligibility. An applicant or petitioner may not be allowed to either inadvertently or intentionally hamper the Service's ability to render a decision and as a result gain a potential or actual benefit. Therefore, the Service considers processing time for any application or petition to refer to time unhampered by the applic ant or petitioner's action or lack of required action. This means there is nothing under the applicant or petitioner's control that hampers our ability to make a final decision.

Under the process outlined earlier, filing an application or petition without required initial evidence hampers the Service's ability to render a final decision. Similarly, requesting a scheduled interview be rescheduled will delay full adjudication of a request for benefits, and will require the Service to duplicate several processing and review steps. The process must balance the need to ensure that persons do not receive undue interim benefits with the need to ensure that any applicable statutory or regu latory processing timeframes are adhered to once we are no longer hampered from making a decision.

Accordingly, in such circumstances the processing clock will stop with respect to any time limits for adjudicating the request for Service action at the time the Service sends a notice for initial evidence, and it will start over at the time the Service receives the evidence. Similarly, the processing clock will start over when the Service receives a request to reschedule an interview. The clock stops because the lack of required initial evidence or request for rescheduling hampers the Service's ability to make a final decision. It starts over again because to merely have it resume would effectively shorten the Service's processing window because we have to duplicate several processing and review steps because the application or petition was not complete when submitted or because we were asked to reschedule the interview. Having the clock start over also serves to encourage the filing of complete applications, which, as indicated above, is in the legitimate interests of all applicants and petitioners as well as in the legitimate interest of the Service. However, this process also preserves the processing clock concept because it does not suspend the clock indefinitely until we can resume processing.

Since the Service is hampered from making a final decision, interim benefits will not be granted based on a case held in suspense for the submission of requested initial evidence, except that the Service will normally allow the applicant or person the petition is for to remain in the country while an application or petition to extend or obtain status while it is pending. In addition, employment authorization previously accorded based on the same status and employment as that requested in the current applica tion or petition may continue uninterrupted as provided in 8 CFR 274a.12(b)(20) notwithstanding the case being held in suspense for the submission of necessary initial evidence. The Service of course reserves the right to pursue other actions to seek the removal of persons notwithstanding a pending application where required, such as in cases involving fraud or clearly frivolous applications.

This rule also provides for denial where evidence submitted later does not establish eligibility at the time of filing. The evidence must establish that the applicant or petitioner was eligible for the benefit when the application or petition was filed. As suggested, the Service will monitor the rate of cases in which initial evidence is not submitted at the time of filing as a way of determining how we can further clarify form instructions, and to determine if we need to implement other changes, including those originally proposed in the rule, in order to ensure equity and fairness to all applicants and petitioners.

Additional Evidence, Documents and Translations

At times, an application or petition will meet threshold evidence requirements, but the evidence submitted, or other evidence available, rises additional questions. In such instances the Service usually provides the applicant or petitioner an opportunity to respond or to submit additional evidence about the points in question in support of the claim. Several commenters asked that the Service extend the 60-day period provided for response, as least where good cause was demonstrated.

The rule has been revised to provide 12 weeks for such submissions. However, waiting for the applicant or petitioner to respond hampers the Service's ability to make a final decision. Since the applicant has already met the threshold evidence requirements, the processing clock will merely stop as of the date of the request. It will resume at the point where it stopped when the Service receives the requested evidence or a request for a decision based on the evidence submitted.

One commenter asserted that the Service should eliminate the distinction between primary and secondary evidence, and accept any type of credible document with an application or petition. However, historically there have been serious problems establishing the reliability of many kinds of documents. Further, it is important in judging a claim to know whether documents that should normally exist actually do.

For example, a woman who files a petition claiming someone is her adult son. There is no birth certificate or other civil or religious documents from around the time of the birth to support the claim, but she does have several documents issued years later that suggest that he is her son. After analysis the Service may accept the claim, but the fact the birth certificate and other documents dating from the birth do not exist is important to that analysis. We could not adequately review the case if the record was silent about the types of documents that commonly exist. Without evidentiary guidelines, the Service also would not know whether she merely forgot to attach them or whether they did not exist. This would mean the Service would have to go back and ask, delaying processing.

However, as requested by several commenters, the Service has clarified the distinction between primary evidence, secondary evidence and affidavits. The Service has also clarified the rule to indicate that a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. The Service has also revised the rule as requested to allow a person to file evidence showin g that repeated good faith attempts were made to obtain a required document or certification of unavailability along with less definitive evidence.

The above changes will also apply to secondary evidence. However, because secondary evidence and affidavits are inherently less reliable and, consequently, have less probative value than primary evidence, such secondary evidence and affidavits must overcome the fact that more probative primary evidence is unavailable, affidavits must overcome the absence of all other more probative forms of evidence that would normally be available. If the Service concludes that primary or secondary evidence should be avail able, the applicant or petitioner will be asked to obtain it.

Several commenters requested that the rule be revised to only require a translation of the relevant portion of a foreign language document instead of a full translation. However, only requiring an extract leaves to the applicant or petitioner and the translator the judgment of what is germane. The Service has found that in many instances the applicant or petitioner's determination of what is germane is not consistent with the Service's. A full translation is necessary for us to fully analyze documents subm itted.

Withdrawals, Denials, Appeals and Motions

One commenter opposed the proposed bar to retracting a withdrawal, asserting that an applicant or petitioner may have a legitimate reason for again changing his or her mind. The rule does not question the legitimacy of a change of heart or mind, nevertheless, under the rule, a withdrawal is considered definitive. An applicant or petitioner who withdraws a case and later changes his or her mind again may refile a new application or petition. The Service has clarified this in the rule, and has also clarified that a petitioner may withdraw an approved petition until such time as the beneficiary has been admitted or has adjusted status.

The proposed rule would allow a motion to reopen a case denied for lack of initial evidence, but would preclude a subsequent administrative appeal. One commenter suggested that an appeal should be allowed. However, since the issue is simply whether a stipulated document was or was not submitted, the avenue of a motion is a sufficient safeguard.

Several commenters asked that the proposed rule allowing 30 days to file a motion to reopen or a motion to reconsider be extended to 60 days to give applicants and petitioners time to retain legal counsel and file a response. However, the 30-day period provided is equivalent to that for filing an appeal, which itself was extended several years ago, and thus will not be changed.

One commenter suggested that the proposed rule set the level of proof too high for motions to reopen. The provision has accordingly been revised to clarify the facts that must be demonstrated in the motion. Another commenter asked that the Service use this rulemaking to make all decisions of the Board of Immigration Appeals available to the public. The concern will be referred to the Executive Office of Immigration Review for future consideration.

Change of Status, Extension of Stay and Use of Form I-94

The proposed rule provided that where a person demonstrated eligibility for an extension or change of status, the application could be approved at the discretion of the Service. One commenter asserted that discretion should not enter into the decision. However, sections 214 and 248 of the Immigration and Nationality Act give the Service discretionary authority to approve or deny applications for extension or change of status. In addition, a decision on this type of application, and on most other types of ap plications and petitions, is rarely a simple matter. An alien is not automatically entitled to these types of benefits. The decision to grant a change of status or extension of stay involves weighing various factors, and a judgement by the deciding official of whether to grant the benefit.

In response to a number of comments, this rule allows a worker's dependents to be included in a company's petition where there is only one worker in the petition. This provision will go into effect at the time the form providing for this process becomes available.

A person was previously required to submit his or her original Form I-94, Nonimmigrant Arrival-Departure Record, with an application to extend or change nonimmigrant status so the Service could annotate the Form I-94 with its decision on the application. The rule proposed altering this process in certain cases to permit the filing of a copy of the Form I-94. The notice of decision would serve as evidence of any decision and alteration to the terms of the person's status.

Several commenters supported this idea, suggesting it will eliminate problems with aliens not having evidence of status while their application is pending, and that it will streamline filing. In fact, several asked why it was not being extended to all such applications. However, several others opposed it, arguing that the change would create yet another document employers would have to deal with, further confusing them as to who is authorized to work.

The Service is moving to limit to two the number of INS documents employers are required to examine when a person applies for employment: (a) Form I-551, Alien Registration Card, issued to permanent residents; and (b) Form I-688B, Employment Authorization Document, also called an EAD, issued to persons who can accept employment in the open labor market.

However, after determining that an alien is not otherwise authorized to work, an employer may file a petition to temporarily employ him or her as a nonimmigrant. If the Service approves the petition, we notify the employer. If the alien is not first required to be admitted in the status, and the Service's approval authorizes immediate employment, we include this in the notice. The approval of such a petition does not authorize the alien to work elsewhere, but only for the employer under the terms and condi tions of the approved petition. An EAD is not necessary in such a context since the employer has already determined the alien cannot work unless we approve its petition.

Previously when sending a notice that we had approved such a petition we also made a handwritten notation on the alien's Form I-94. The computer system we are installing to improve service will allow us to replace such handwritten notes with a computer generated notice that can be confirmed by the system. Therefore, the rulemaking proposed simplifying filing requirements and allowing aliens to keep their existing Form I-94 as evidence of their status while their new application is pending.

To eliminate any confusion, we are revising our approval notice to the employer to include a replacement Form I-94 that the employer can review and then give to the employee. In the interim the original Form I-94 must be filed with the petition for annotation. The Service will publish a notice in the Federal Register when the revised approval notice is implemented, at which time only a copy of the individual's I-94 will be required.