Proceedings Pending Before an Immigration Judge

If an alien (other than an arriving alien who has not been paroled into the United States) is in exclusion, deportation, or removal proceedings before an immigration judge, or if an alien has a motion to reopen or motion to reconsider filed on or before May 21, 1998 pending before an immigration judge, jurisdiction over an application for adjustment of status under section 202 of NACARA shall lie with the Immigration Court. The procedure for filing an application for adjustment under NACARA is described bel ow. If an alien who is not clearly ineligible for adjustment of status under section 202 of NACARA and who has a pending motion to reopen or motion to reconsider files an application for adjustment of status under section 202 of NACARA, the immigration judge shall reopen the alien's proceedings for consideration of the adjustment application. Applications shall be subject to the filing requirements of 8 CFR 3.11 and 3.31.

Proceedings Pending Before the Board

If an alien who is not clearly ineligible for adjustment of status under section 202 of NACARA has a pending appeal with the Board, the Board shall remand the proceedings to the immigration judge for the sole purpose of adjudicating the application for adjustment. The Board shall so remand the case regardless of whether the alien has already filed an application for adjustment of status under NACARA. Further, if an alien has a pending motion to reopen or motion to reconsider filed with the Board on or befor e May 21, 1998, the Board shall reopen and remand the proceedings to the immigration judge for the sole purpose of adjudicating an application for adjustment of status under section 202

of NACARA.

If upon remand the immigration judge denies the application, or the alien fails to file an application for adjustment under section 202 of NACARA, the immigration judge shall return the case to the Board by certification. This will allow the Board to consider the denial of the NACARA application as well as all other outstanding issues from the previously pending appeal or motion. The alien shall not be required to file another Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration J udge (Form EOIR-26), or to pay an appeal filing fee because the immigration judge's certification of the denial to the Board will automatically transfer the immigration judge's decision to the Board.

May an Alien Who Is in Proceedings Before an Immigration Court or the Board of Immigration Appeals Apply for Adjustment of Status Before the Service?

Yes, under certain circumstances. An alien who is in exclusion, deportation, or removal proceedings before an Immigration Court or the Board may move to have the proceeding administratively closed for the purpose of filing an application for adjustment under NACARA. If the Service concurs in such motion, the Immigration Court or the Board, as appropriate, will administratively close the proceedings. Such closure would permit recalendaring of the closed proceedings if, for example, the alien fails to file an application for adjustment of status under NACARA before April 1, 2000, or the Service denies any application for adjustment of status filed by the alien under NACARA. Should the Service deny the application of status filed by the alien under NACARA. Should the Service deny the application, or the alien fail to file the application before April 1, 2000, the Service will move to recalendar the proceedings and the proceedings will be recalendared by the Immigration Court or the Board, as appropriate. In the case of an application denied by the Service, the alien could seek reconsideration of the denied adjustment application in such recalendared proceedings.

What Happens if an Applicant Is the Subject of a Final Order of Removal?

An alien who is the subject of a final order of removal, and who has never filed an application for adjustment of status under section 202 of NACARA with the Immigration Court, must file such application with the Service. However, if such alien has a motion to reopen or a motion to reconsider filed on or before May 2, 1998 pending before an Immigration Court or the Board, then the application for adjustment must be filed with the Immigration Court or with the Board, as appropriate. The mere filing of an app lication for adjustment of status under section 202 of NACARA with the Service or the referral of a denied application to an immigration judge does not stay the execution of the final order of removal. To request that execution of the final order be stayed by the Service, the alien must file an Application for Stay of Removal (Form I-246), following the procedures set forth in 8 CFR 241.6. If the application is referred to the immigration judge, and the Service does not grant a stay of execution of the fina l order, the alien must request that the immigration judge or Board specifically grant a stay of execution of the final order of removal pursuant to 8 CFR 245.13(d)(5)(ii).

When Can an Application Be Filed?

The application period for NACARA benefits begins June 22, 1998 and ends on March 31, 2000.

What Forms and Other Documents Should Be Filed?

Each applicant for NACARA adjustment of status benefits must file a separate Application to Register Permanent Residence or Adjust Status (Form I-485), accompanied by the required application fee and supporting documents described below. NACARA applicants should complete Part 2 (Application Type) of that form by checking box "h--other" and writing "NACARA--Principal" or "NACARA--Dependent" next to that block. Each application filed must be accompanied by the required initial evidence: (1) a birth certificat e or other record of birth; (2) two photographs as described in the Form I-485 instructions; (3) a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; (4) a report of medical examination; (5) if the applicant is at least 14 years of age, a local police clearance from each jurisdiction where the alien has resided for six months or longer since arriving in the United States; (6) a copy of the applicant's Arrival-Departure Record (Form I-94) or other evidenc e of inspection and admission or parole into the United States, if applicable; (7) one or more of the documents described in section 202(b)(2) of NACARA and 8 CFR 245.13(e)(2) to establish commencement of physical presence in the United States; and (8) one or more of the documents described in 8 CFR 245.13(e)(3) to establish continuity of physical presence in the United States. In addition, the applicant must submit a statement showing all departures from and arrivals in the United States since December 1, 1995. Finally, if the alien is applying as the spouse, child, or unmarried son or daughter of another NACARA beneficiary, the applicant must submit evidence of the relationship (for example, a marriage certificate).

Must the Applicant Be Fingerprinted?

Yes. Upon receipt of the application, the Service will instruct the applicant regarding procedures for obtaining fingerprints through one of the Service's Application Support Centers (ASCs) or authorized Designated Law Enforcement Agencies (DLEAs) chosen specifically for that purpose. Those instructions will direct the applicant to the ASC or DLEA nearest the applicant's home, and advice the applicant of the date(s) and time(s) fingerprinting services may be obtained. Applicants should not submit fingerpr int cards as part of the initial filing.

Is There a Fee for Filing This Application?

NACARA adjustment of status applications must be submitted with the fee required by 8 CFR 103.7(b)(1) for Form I-485 (currently $130 for applicants 14 years of age or older, and $100 for applicants under age 14). If the application is submitted to the INS Texas Service Center, the fee must also be submitted to that center. If the application is submitted to an Immigration Court or the Board of Immigration Appeals, the fee must be submitted to the appropriate local office of the Service in accordance with 8 CFR 3.31. An applicant who is deserving of the benefits of section 202 of NACARA and is unable to pay the filing fee may request a fee waiver in accordance with 8 CFR 103.7(c).

How and Where Should the Application Be Filed?

If the applicant is not in exclusion, deportation, or removal proceedings before an Immigration Court or the Board of Immigration Appeals, the application and attachments must be submitted by mail to: USINS Texas Service Center, P.O. Box 851804, Mesquite, TX 75185-1804. If the applicant is in proceedings pending before an Immigration Court or the Board of Immigration Appeals, or if the applicant has a motion to reopen or motion to reconsider filed on or before May 21, 1998 pending before an Immigration Cou rt or the Board, the application and attachments must be submitted to the Immigration Court with jurisdiction over the case or to the Board if the Board has jurisdiction. In such cases, the fee should be submitted to the Service pursuant to 8 CFR 3.31, as provided above. It should be noted that if the motion to reopen or motion to reconsider is filed after May 21, 1998, jurisdiction over any application for adjustment of status under NACARA lies with the Service, not with EOIR.

Applications for adjustment of status under NACARA may not be submitted to any other Service locations or to any consular posts.

Will an Applicant Filing an Application for Adjustment of Status Under NACARA With the Service Be Required to Appear Before the Service for an Interview?

The decision whether to require an interview is solely within the discretion of the Service. The Service may elect to waive the interview of the applicant. If the application is adjudicated without interview, a notice of the decision will be mailed to the applicant. If an interview is required, the application will be forwarded to the local Service office having jurisdiction over the applicant's place of residence. The applicant will be notified of the date and time to appear for the interview. If an applic ant fails to appear for an interview, the application may be denied in accordance with existing regulations.