Adjustment of Status for Certain Nationals of Nicaragua and Cuba [63 FR 27823] [FR 30-98]

DOCUMENT NUMBER: FR 30-98

FEDERAL REGISTER CITE: 63 FR 27823

DATE OF PUBLICATION: May 21, 1998

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 240, 245, 274a and 299

[INS NO. 1893-97; AG Order No. 2154-98]

RIN 1115-AF04

Adjustment of Status for Certain Nationals of Nicaragua and Cuba

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

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule implements section 202 of the Nicaragua Adjustment and Central American Relief Act (NACARA) by establishing procedures for certain nationals of Nicaragua and Cuba who have been residing in the United States to become lawful permanent residents of this country. This rule allows them to obtain lawful permanent resident status without applying for an immigrant visa at a United States consulate abroad and waives many of the usual requirements for this benefit.

DATES: Effective date : This interim rule is effective June 22, 1998.

Comment date : Comments must be submitted on or before July 20, 1998.

ADDRESSES: Please submit written comments, original and two copies,to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1893-97 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: For matters relating to the Immigration and Naturalization Service--Suzy Nguyen, Adjudications Officer, Office of Adjudications, Immigration and Naturalization Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-5014; For matters relating to the Executive Office for Immigration Review--Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, 5107 Leesbury

Pike, Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

How Does Section 202 of NACARA Affect Nicaraguan and Cuban

Nationals?

The Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of the District of Columbia Appropriations Act, 1998, Pub. L. 105-100 (111 Stat. 2160, 2193), was signed into law on November 19, 1997. As amended, section 202 of NACARA allows certain Nicaragua and Cuban nationals who are physically present in the United States to adjust status to that of lawful permanent resident. In order to be eligible for benefits under NACARA, an applicant must be a national of Nicaragua or Cuba; m ust be admissible to the United States under all provisions of section 212(a) of the Immigration and Nationality Act (the Act), other than those provisions specifically excepted by NACARA; must have been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment is filed (not counting absences totaling 180 days or less); and must properly file an application before April 1, 2000. In addition, certain family members of NACARA beneficiaries are also eligible for adjustment of status under NACARA.

What Are the Benefits of NACARA?

An alien seeking adjustment of status under NACARA is not subject to a number of the requirements to which aliens seeking adjustment under section 245 of the Act may be subject.

First, a NACARA applicant is not required to have been inspected and admitted or paroled into the United States.

Second, a NACARA applicant is not subject to any of the barriers to adjustment contained in section 245(c) of the Act (e.g., the bars against aliens who have accepted or continued in unauthorized employment, aliens who remained in the United States longer than authorized, and aliens admitted as crewmen, in transmit without visa, or under the visa waiver pilot program). Consequently, an alien who would otherwise be ineligible under section 245(c) may apply for adjustment under NACARA.

Third, NACARA applicants are not subject to the immigrant visa preference system requirements contained in sections 201 and 202 of the Act. Hence, neither the worldwide quota restrictions nor the per-country quota restrictions apply.

Fourth, applicants need not demonstrate that they are not inadmissible under paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Act in order to adjust status under section 202 of Public Law 105-100. Accordingly, NACARA allows an otherwise qualified applicant to adjust status under NACARA notwithstanding inadmissibility for likelihood of becoming a public charge, for failure to obtain a labor certification, for failure to meet certain requirements applicable to foreign-trained physician s, for failure to meet certain standards for foreign health-care workers, for entering or remaining in the country illegally, for violating documentary equirements relating to entry as an immigrant, or for accruing more than 180 days of unlawful presence prior to the alien's last departure or removal.

Fifth, unlike those seeking to adjust status under other provisions of law, a NACARA applicant who has been paroled into the United States and is now in exclusion or removal proceedings before an immigration judge is not barred from filing an application for adjustment of status under the provisions of NACARA while in such proceedings.

What Are the NACARA Requirements Regarding Continuous Physical Presence in the United States

Under the terms of NACARA, eligible applicants must have been physically present in the United States continuously since December 1, 1995. However, they may have been outside of the United States for periods not to exceed 180 days in the aggregate between December 1, 1995, and the date of adjustment of status. A NACARA applicant shall not be considered to have failed to maintain continuous physical presence in the United States by reason of any absences for periods that do not exceed 180 days in the aggrega te. Furthermore, the 180-day cumulative period shall be tolled during an absence authorized pursuant to issuance of an Authorization for Parole of an alien into the United States (Form I-512).

How Can a NACARA Applicant Prove Continuous Physical Presence in the United States?

A NACARA applicant must establish two aspects of physical presence in the United States: commencement on or prior to December 1, 1995, and continuity since that date.

Under section 202(b)(2)(A) of Pub. L. 105-100, as amended, an applicant may prove commencement of continuous physical presence in the United States by demonstrating that on or before December 1, 1995, he or she:

(i) Applied to the Attorney General for asylum;

(ii) was issued an order to show cause under section 242 or 242B of the Immigration and Nationality Act (as in effect prior to April 1, 1997);

(iii) was placed in exclusion proceedings under section 236 of such Act (as in effect prior to April 1, 1997);

(iv) Applied for adjustment of status under section 245 of such Act;

(v) Applied to the Attorney General for employment authorization;

(vi) Performed service, or engaged in a trade or business, within the United States which is evidenced by records maintained by the Commissioner of Social Security; or

(vii) Applied for any other benefit under the Immigration and Nationality Act by means of an application establishing the alien's presence in the United States prior to December 1, 1995.

Normally, such demonstration will be made through submission of a photocopy of a Government-issued document. In some cases, the alien may submit other evidence demonstrating one or more of the above actions, which may be verified through Government records.

Section 202(b)(2)(B) of NACARA also permits, but does not require, the Attorney General to provide by regulation for additional methods by which an applicant could prove commencement of continuous physical presence in the United States. The Department of Justice (Department) is availing itself of this authority to allow a NACARA applicant to submit, as evidence of commencement of physical presence in the United States, other documentation issued by state and local authorities (such as school, hospital, poli ce, and public assistance records). The Department believes that these evidentiary options may well provide sufficient opportunities for qualified applicants to establish commencement of physical presence in the United States without encouraging fraudulent applications. However, in order to ensure that no significant group of eligible aliens is precluded from establishing eligibility for NACARA benefits, the Department is soliciting public comments on the need for any additional methods of establishing comm encement of physical presence in the United States and suggestions as to what those additional methods should be, including whether the documentary standards listed in 8 CFR 245.13(e)(3) for demonstrating continuity of physical presence should also be applied to the requirement for demonstrating commencement of physical presence. Commenters are encouraged to explain which classes of aliens would benefit from the proposal, and how the proposal could be implemented without severely compromising the integrity of the adjudicative process.

The NACARA statute is silent as to the methods by which an applicant may demonstrate the continuity of his or her physical presence in the United States. By regulation, the Department is hereby providing that a NACARA applicant may demonstrate continuity of physical presence in the United States through the submission of one or more documents issued by any governmental or non-governmental authority. Such documentation must bear the name of the applicant, have been dated at the time it was issued, and bear t he signature of the issuing authority. In some cases, a single document may suffice to establish continuity for the entire post-December 1, 1995, period, while in other cases the alien may need to submit a number of documents. For example, a college transcript or an employment record may show that an applicant attended school or worked in the United States throughout the entire post-December 1, 1995, period. On the other hand, an applicant would need to submit a number of monthly rent receipts or electric b ills to establish the same continuity of presence. While the Department neither requires nor wants the applicant to submit documentation to show presence on every single day sinceDecember 1, 1995, there should be no significant chronological gaps in the documentation, either. Generally, a gap of 3 months or less in documentation is not considered significant. Furthermore, if the applicant is aware of documents already contained in this or her Immigration and Naturalization Service (Service) file that establ ish physical presence, he or she may merely list those documents, giving the type and date of the document. Examples of such documents might include a written copy of a sworn statement given to a Service officer, the transcript of a formal hearing, and a Record of Deportable/Inadmissible Alien (Form I-213).

How Does an Applicant Establish Admissibility?

The grounds of inadmissibility specified in paragraphs (4) (public charge), (5) (lack of labor certification), (6)(A) (illegal entry), (7)(A) (immigrant not in possession of an immigrant visa or other valid entry document), and (9)(B) (unlawful presence) of section 212(a) of the Act do not apply to NACARA applicants. Additionally, a Nicaraguan or Cuban national present in the United States who has been ordered excluded, deported, or removed from, or who has agreed to depart voluntarily from, the United Stat es may apply for adjustment of status under NACARA.

If a NACARA applicant is inadmissible to the United States under one of the grounds of inadmissibility contained in section 212(a) of the Act other than those specifically excepted by NACARA, but is eligible for an individual waiver of that ground of inadmissibility, he or she may file an application for the waiver concurrently with his or her application for adjustment of status. Adjustment of status may not be granted unless the waiver has first been approved.

How Do the Provisions of NACARA Affect Dependents of Nicaraguan and Cuban Nationals?

The provisions of NACARA also apply to certain dependents. To receive NACARA benefits as a dependent of a NACARA beneficiary, an alien would have to be a national of either Nicaragua or Cuba (but need not necessarily be of the same nationality as the principal beneficiary--a Cuban dependent could qualify through a Nicaraguan principal beneficiary and vice versa); would have to be the spouse, child (i.e., under 21 years of age and unmarried), or unmarried son or daughter (i.e., 21 years of age or older) of a NACARA principal beneficiary at the time of the principal beneficiary's adjustment of status to that of permanent resident; and would have to be admissible to the United States under section 212(a) of the Act (other than those provisions specifically excepted by NACARA). NACARA dependents must be physically present in the United States in order to apply and must properly file an application before April 1, 2000.

Additionaly, an unmarried son or daughter, other than a child as defined in section 101(b)(1) of the Act, would have to have been physically present in the United States continuously since December 1, 1995 (not counting absences totaling 180 days or fewer). Although many qualifying dependents of NACARA principal beneficiaries would be able to receive NACARA benefits in their own right, some would only be able to qualify under the dependent provisions. Examples of otherwise eligible persons who could only qu alify as dependents would include a spouse or child who arrived in the United States between December 1, 1995, and the principal beneficiary's filing date, and a spouse or child who had been absent for an aggregate of more than 180 days.

How Are Dependents Who Do Not Meet NACARA Requirements Affected?

A family member who is unable to qualify for NACARA adjustment of status on his or her own, or as a dependent under the provisions of NACARA, may eventually become eligible for lawful permanent resident status under other provisions of the Act. Examples of such individuals would include a dependent who is not a national of Nicaragua or Cuba, a spouse or child whose relationship to the principal applicant is not established until after the principal applicant is granted permanent resident status, and an unma rried son or daughter over the age of 21 who entered the United States after December 1, 1995. Upon becoming a permanent resident, a NACARA beneficiary could file a visa petition to accord such a dependent immigrant classification under section 203(a)(2) of the Act, thereby enabling the dependent who is not eligible for NACARA benefits to seek immigration to the United States through the normal family-based immigration process.

What Happens if an Applicant Is Already in Exclusion, Deportation, or Removal Proceedings, or Has a Motion To Reopen or Motion To Reconsider Pending Before the Immigration Court or the Board of Immigration Appeals (Board)?

Proceedings Pending Before the Executive Office for Immigration Review (EOIR)

Persons who have proceedings pending before an Immigration Court or the Board, or persons who have a pending motion to reopen or reconsider filed on or before May 21, 1998, shall remain within the jurisdiction of EOIR for the purpose of consideration of applications for adjustment of status under section 202 of NACARA.