Reentry permits, refugee travel documents and advance paroles

Several commenters stated that applicants for asylum should be eligible for a refugee travel document. However, an applicant for asylum is an applicant for a benefit, and does not acquire any status or travel authorization merely as a result of having submitted the asylum application. It would be inappropriate to grant a travel document until a decision is made that the person is eligible for asylum. If an asylum applicant chooses to leave the United States, he or she may apply abroad for refugee status to reenter.

A commenter requested clarification that a refugee travel document may be accepted in lieu of a passport as well as a visa. The final rule clearly refers to the document as a travel document issued pursuant to article 28 of the United Nations Convention of July 28, 1951 for the purpose of travel.

The Service received many comments regarding advance parole. Although this subject needs to be addressed, the Service has decided to defer this action to a separate rulemaking.

A number of commenters addressed the reentry permit provisions of the proposed rule. Most suggested that the proposed provision precluding issuance to most aliens who have been abroad for more than 4 of the last 5 years since becoming a permanent resident was too limiting, did not provide for exceptions, and did not recognize the needs of permanent residents who are employed by multi-national companies on extended assignments abroad.

As was explained in the proposed rule, the Service's intent was to minimize the current broad review by the Government of all the circumstances surrounding a person's absence, and instead focus on the simpler issue of how long he or she has been gone. The language of the rule was written in such a way that a person is able to stay abroad for almost 6 years, with only short trips back to the United States every 2 years, before he or she would become ineligible for a reentry permit. This standard would have m eant some people would not have received a permit, but, again, this ineligibility in and of itself would not have jeopardized permanent resident status.

We believe a clear standard is preferable to an abstract one in which the Government must look at the person's intent, location of domiciles and assets, employment circumstances, and other circumstances of his or her life and make a discretionary decision of whether to issue a permit.

However, upon further consideration, the Service recognizes that there may be those who will be unable to obtain a travel document other than the reentry permit. Therefore, the rule will be modified so that rather than precluding the issuance of the document, any such further issuance will be limited to a validity of one year. This simply means that a person who remains abroad for more than the specified period will thereafter have to return annually to file an application for a reentry permit instead of e very 2 years.

Also, based on the comments received, the Service has revised the list of exceptions to the time limit rule to include permanent residents defined in 8 CFR 211.1(b)(1)(i)(B), 211.1(b)(1)(ii) or 211.1(b)(4), as well as persons employed by a public or national organization of which the United States is a member by treaty or statute, and their dependents. The rule also exempts professional athletes who compete in the United States and worldwide.

Other issues

Several commenters suggested that the Service issue to any applicant for a replacement alien registration card an interim work authorization document while it considers his or her application. However, this would encourage people to file merely to get a document to enter the labor market. Under such circumstances, it would be inappropriate for the Service to give a benefit before having an opportunity to determine if the person is actually eligible for it. Instead, the Service is taking steps to accelerate the processing of this type of application in order to deliver a replacement card more rapidly to those who are eligible.

Several commenters pointed to the situation of permanent residents in exclusion or deportation proceedings, and suggested that the rule should clearly prohibit the confiscation of the permanent resident alien registration card until a final order of deportation or exclusion is entered. The rule has been clarified to indicate that such a person is entitled to evidence of permanent resident status until a final order of deportation or exclusion is entered.

As requested by several commenters, the Service has modified the proposed rule to clearly allow for the concurrent or subsequent filing of an application for further action on an application or petition, and to provide flexibility to incorporate additional, similar processes by revising the form. The Service has also made minor editorial changes in the rule for clarity.

One commenter suggested that to further streamline processing, the Service should require applicants to mail all adjustment of status applications to the INS Service Centers, and eliminate the mandatory interview requirement. The Service has since addressed this issue in a separate rulemaking, which was published in the Federal Register on November 2, 1992 at 57 FR 49374-49375.

It should be noted that most of the Sec. 264 items addressed in the proposed rule were published in the Federal Register on September 20, 1993 at 58 FR 48775-48780, and therefore are not included in this rule.

In addressing filing requirements and procedures, this rule also clarifies the effect of a "bounced" check or other filing fee remittance being returned as not payable.

In accordance with 5 U.S.C. 605(b), the Commissioner of the Immigration and Naturalization Service certifies that this rule will not have a significant adverse economic impact on a substantial number of small entities. This regulation merely sets forth evidentiary rules and processes by which persons may apply for and receive certain immigration benefits and does not alter substantive requirements. This rule is not considered to be a major rule within the meaning of section 1(b) of Executive Order 12291, no r does this rule have Federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612.

The information collection requirements contained in this rule have been approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects

8 CFR Part 103

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

8 CFR Part 214

Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.

8 CFR Part 223

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 223a

Immigration, Refugees, Reporting and recordkeeping requirements.

8 CFR Part 248

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 264

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 292

Administrative practice and procedure, Immigration, Lawyers, Reporting and recordkeeping requirements.

Accordingly, under authority 8 U.S.C. 1101, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

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. 522, 522a; 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.

2. In section 103.2 paragraph (a) is revised to read as follows:

Sec. 103.2 Applications, petitions, and other documents.

(a) Filing. (1) General. Every application, petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be executed and filed in accordance with the instructions on the form, such instructions being hereby incorporated into the particular section of the regulations requiring its submission. The form must be filed with the appropriate filing fee required by Sec. 103.7. Such fees are non-refundable and, except as otherwise provided in this chapter, must be paid when the application or petition is filed.

(2) Signature. An applicant or petitioner must sign his or her application or petition. However, a parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian may sign for a mentally incompetent person. By signing the application or petition, the applicant or petitioner, or parent or guardian certifies under penalty of perjury that the application or petition, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct.

(3) Representation. An applicant or petitioner may be represented by an attorney in the United States, as defined in Sec. 1.1(f) of this chapter, by an attorney outside the United States as defined in Sec. 292.1(a)(6) of this chapter, or by an accredited representative as defined in Sec. 292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized party in such a proceeding. An application or petition presented in person by someone who is not the applicant or petitioner, or his or her repre sentative as defined in this paragraph, shall be treated as if received through the mail, and the person advised that the applicant or petitioner, and his or her representative, will be notified of the decision. Where a notice of representation is submitted that is not properly signed, the application or petition will be processed as if the notice had not been submitted.

(4) Oath. Any required oath may be administered by an immigration officer or person generally authorized to administer oaths, including persons so authorized by Article 136 of the Uniform Code of Military Justice.

(5) Translation of name. If a document has been executed in an anglicized version of a name, the native form of the name may also be required.

(6) Where to file. Except as otherwise provided in this chapter, an application or petition should be filed with the INS office or Service Center with jurisdiction over the application or petition and the place of residence of the applicant or petitioner as indicated in the instructions with the respective form.

(7) Receipt date.

(i) General. An application or petition received in a Service office shall be stamped to show the time and date of actual receipt and, unless otherwise specified in part 204 or part 245 of this chapter, shall be regarded as filed when so stamped, if it is properly signed and executed and the required fee is attached or a fee waiver is granted. An application which is not properly signed or is submitted with the wrong fee shall be rejected as improperly filed. Rejected applications, and ones in which the ch eck or other financial instrument is returned as not payable, will not retain a filing date. An application or petition taken to a local Service office for the completion of biometric information prior to filing at a Service Center shall be considered received when physically received at the appropriate Service Center.

(ii) Non-payment. If a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter shall be notified and requested to immediately pay the filing fee and associated service charge within 14 days, without extension. If the application or petition is pending and these charges are not paid, it shall be rejected as improperly filed. If it was already approved, and these charges are not paid, it shall be automatically revoked because it was improperly filed. If it was already denied, revoked, or abandoned, that decision will not be affected by the non-payment of the filing fee. A new fee will be required with any new application or petition. Any fee and service charges collected as the result of collection activities or legal action on the prior application or petition shall be used to cover the cost of the previous rejection, revocation, or other action.

* * * * *

3. Section 103.2 is amended by:

a. Revising the heading for paragraph (b) and paragraph (b)(1);

b. Redesignating existing paragraph (b)(2) as paragraph (b)(18), and revising the paragraph heading to read "Withholding adjudication.";

c. Redesignating paragraph (b)(3) as paragraph (b)(16), and revising in paragraph (b)(16)(i), the reference "(b)(3) (ii), (iii) and (iv)" to read: "(b)(16) (ii), (iii) and (iv)"; and revising in paragraph (b)(16)(ii), the reference "(b)(3)(iv)" to read: "(b)(16)(iv)"; and by

d. Adding new paragraphs (b)(2) through (b)(15), (b)(17), and (b)(19), to read as follows:

Sec. 103.2 Applications, petitions, and other documents.

* * * * *

(b) Evidence and processing. (1) General. An applicant or petitioner must establish eligibility for a requested immigration benefit. An application or petition form must be completed as applicable and filed with any initial evidence required by regulation or by the instructions on the form. Any evidence submitted is considered part of the relating application or petition.

(2) Submitting secondary evidence and affidavits. (i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner mu st demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

(ii) Demonstrating that a record is not available. Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Depar tment of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where the Service finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.

(3) Translations. Any document containing foreign language submitted to the Service shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English.

(4) Submitting copies of documents. Application and petition forms must be submitted in the original. Forms and documents issued to support an application or petition, such as labor certifications, Form IAP-66, medical examinations, affidavits, formal consultations, and other statements, must be submitted in the original unless previously filed with the Service. When submission is required, expired Service documents must be submitted in the original, as must Service documents required to be annotated to i ndicate the decision. In all other instances, unless the relevant regulations or instructions specifically require that an original document be filed with an application or petition, an ordinary legible photocopy may be submitted. Original documents submitted when not required will remain a part of the record, even if the submission was not required.

(5) Request for an original document. Where a copy of a document is submitted with an application or petition, the Service may at any time require that the original document be submitted for review. If the requested original, other than one issued by the Service, is not submitted within 12 weeks, the petition or application shall be denied or revoked. There shall be no appeal from a denial or revocation based on the failure to submit an original document upon the request of the Service to substantiate a p reviously submitted copy. Further, an applicant or petitioner may not move to reopen or reconsider the proceeding based on the subsequent availability of the document. An original document submitted pursuant to a Service request shall be returned to the petitioner or applicant when no longer required.

(6) Withdrawal. An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted.

(7) Testimony. The Service may require the taking of testimony, and may direct any necessary investigation. When a statement is taken from and signed by a person, he or she shall, upon request, be given a copy without fee. Any allegations made subsequent to filing an application or petition which are in addition to, or in substitution for, those originally made, shall be filed in the same manner as the original application, petition, or document, and acknowledged under oath thereon.

(8) Request for evidence. If there is evidence of ineligibility in the record, an application or petition shall be denied on that basis notwithstanding any lack of required initial evidence. If the application or petition was pre-screened by the Service prior to filing and was filed even though the applicant or petitioner was informed that the required initial evidence was missing, the application or petition shall be denied for failure to contain the necessary evidence. Except as otherwise provided in thi s chapter, in other instances where there is no evidence of ineligibility, and initial evidence or eligibility information is missing or the Service finds that the evidence submitted either does not fully establish eligibility for the requested benefit or raises underlying questions regarding eligibility, the Service shall request the missing initial evidence, and may request additional evidence, including blood tests. In such cases, the applicant or petitioner shall be given 12 weeks to respond to a reques t for evidence. Additional time may not be granted. Within this period the applicant or petitioner may:

(i) Submit all the requested initial or additional evidence;

(ii) Submit some or none of the requested additional evidence and ask for a decision based on the record; or

(iii) Withdraw the application or petition.

(9) Request for appearance. An applicant, a petitioner, and/or a beneficiary may be required to appear for an interview. A petitioner shall also be notified when an interview notice is mailed or issued to a beneficiary. The person may appear as requested by the Service or, prior to the date and time of the interview:

(i) The person to be interviewed may, for good cause, request that the interview be rescheduled; or

(ii) The applicant or petitioner may withdraw the application or petition.

(10) Effect of a request for initial or additional evidence or for interview rescheduling.

(i) Effect on processing. The priority date of a properly filed petition shall not be affected by a request for missing initial evidence or request for other evidence. If an application or petition is missing required initial evidence, or an applicant, petitioner, or beneficiary requests that an interview be rescheduled, any time period imposed on Service processing will start over from the date of receipt of the required initial evidence or request for interview rescheduling. If the Service requests that the applicant or petitioner submit additional evidence or respond to other than a request for initial evidence, any time limitation imposed on the Service for processing will be suspended as of the date of the request. It will resume at the same point where it stopped when the Service receives the requested evidence or response, or a request for a decision based on the evidence submitted.

(ii) Effect on interim benefits. Interim benefits will not be granted based on an application or petition held in suspense for the submission of requested initial evidence, except that the applicant or beneficiary will normally be allowed to remain while an application or petition to extend or obtain status while in the United States is pending. The Service may choose to pursue other actions to seek removal of a person notwithstanding the pending application. Employment authorization previously accorded ba sed on the same status and employment as that requested in the current application or petition may continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the suspense period.

(11) Submission of evidence in response to a Service request. All evidence submitted in response to a Service request must be submitted at one time. The submission of only some of the requested evidence will be considered a request for a decision based on the record.

(12) Effect where evidence submitted in response to a request does not establish eligibility at the time of filing. An application or petition shall be denied where evidence submitted in response to a request for initial evidence does not establish filing eligibility at the time the application or petition was filed. An application or petition shall be denied where any application or petition upon which it was based was filed subsequently.

(13) Effect of failure to respond to a request for evidence or appearance. If all requested initial evidence and requested additional evidence is not submitted by the required date, the application or petition shall be considered abandoned and, accordingly, shall be denied. Except as provided in Sec. 335.6 of this chapter, if a person requested to appear for an interview does not appear, the Service does not receive his or her request for rescheduling by the date of the interview, or the applicant or peti tioner has not withdrawn the application or petition, the application or petition shall be considered abandoned and, accordingly, shall be denied.

(14) Effect of request for decision. When an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the application or petition. Failure to appear for a required interview, or to give required testimony, shall result in the denial of any related application or petition.

(15) Effect of withdrawal or denial due to abandonment. The Service's acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under Sec. 103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new application or petition with a new fee. However, the priority or processing date of a withdrawn or abandoned application or petition may not be applied to a later application petition . Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior application or petition shall otherwise be material to the new application or petition.

* * * * *

(17) Verifying claimed permanent resident status. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States will be verified from official records of the Service. The term official records, as used herein, includes Service files, arrival manifests, arrival records, Service index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Alien Registration Receipt Cards Forms AR-3, AR-103, I-151 or I-551), passports, and reentry permits. To constitute an official record a Service index card must bear a designated immigrant visa symbol and must have been prepared by an authorized official of the Service in the course of processing immigrant admissions or adjustments to permanent resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed by the Service to show admission for permanent residence. Except as otherwise provided in 8 CFR part 101, an d in the absence of countervailing evidence, such official records shall be regarded as establishing lawful admission for permanent residence.

* * * * *

(19) Notification. An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal. Where the applicant or petitioner has authorized representation pursuant to Sec. 103.2(a), that representative shall also be notified. Documents produced after an approval notice is sent, such as an alien registration card, shall be mailed directly to the applicant or petitioner.

* * * * *

4. Section 103.5 is amended by:

a. Revising, in paragraph (a)(1)(i), the reference to "part 242 of this chapter", to read: "8 CFR parts 210, 242, or 245a";

b. Adding, to the end of paragraph (a)(1)(i), a new sentence;

c. Revising the first sentence in paragraph (a)(1)(iii) introductory text;

d. Revising paragraph (a)(1)(iii)(C);

e. Revising paragraphs (a)(2), (a)(3), and (a)(4); and by

f. Adding a new paragraph (a)(8), to read as follows:

Sec. 103.5 Reopening or reconsideration.

(a) * * *

(1) * * *

(i) * * * Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.

* * * * *

(iii) Filing Requirements--A motion shall be submitted on Form I-290A, and may be accompanied by a brief. * * *

* * * * *

(C) Accompanied by a nonrefundable fee as set forth in Sec. 103.7;

* * * * *

(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because:

(i) The requested evidence was not material to the issue of eligibility;

(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.

(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

(4) Processing motions in proceedings before the Service. A motion that does not meet applicable requirements shall be dismissed. Where a motion to reopen is granted, the proceeding shall be reopened. The notice and any favorable decision may be combined.

* * * * *

(8) Treating an appeal as a motion. The official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion.

* * * * *

5. A new Sec. 103.5b is added to read as follows:

Sec. 103.5b Application for further action on an approved application or petition.

(a) General. An application for further action on an approved application or petition must be filed on Form I-824 by the applicant or petitioner who filed the original application or petition. It must be filed with the fee required in Sec. 103.7 and the initial evidence required on the application form. Form I-824 may accompany the original application or petition, or may be filed after the approval of the original application or petition.

(b) Requested actions. A person whose application was approved may, during its validity period, apply for a duplicate approval notice or any other action specifically provided for on the form. A petitioner whose petition was approved may, during the validity of the petition, request that the Service:

(1) Issue a duplicate approval notice;

(2) Notify another consulate of the approved petition;

(3) Notify a consulate of the person's adjustment of status for the purpose of visa issuance to dependents; or

(4) Take any other action specifically provided for on the form.

(c) Processing. The application shall be approved if the Service determines the applicant has fully demonstrated eligibility for the requested action. There is no appeal from the denial of an application filed on Form I-824.