Adjustment of Status of Refugees and Asylees:Processing Under Direct Mail Program [63 FR 30105] [FR 36-98]

DOCUMENT NUMBER: FR 36-98

FEDERAL REGISTER CITE: 63 FR 30105

DATE OF PUBLICATION: June 3, 1998

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 209

[INS No. 1829-96]

RIN 1115-AD73

Adjustment of Status of Refugees and Asylees:

Processing Under Direct Mail Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends the Immigration and Naturalization Service (Service or INS) regulations regarding the filing and processing of applications by alien refugees and asylees to adjust their status to that of lawful permanent residents. This rule expands the Service's Direct Mail Program to require refugees and asylees to file their applications for adjustment of status directly with an INS service center for processing. This procedural change is designed to improve customer service to these applicants .

DATES: Effective date : This interim rule is effective July 6, 1998.

Comment Date : Written comments must be submitted on or before August 3, 1998.

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 20563. To ensure proper handling, please reference INS No. 1829-96 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: Gerard Casale, Staff Officer, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, Telephone: (202) 514-5014, or Ronald E. Johnson, Center Adjudications Officer, California Service Center, Immigration and Naturalization Service, 24000 Avila Road, Laguna Niguel, CA 92677, Telephone: (714) 360-2872.

SUPPLEMENTARY INFORMATION:

Authority

Section 209(b) of the Immigration and Nationality Act (Act) provides that refugees and asylees in the United States may be adjusted to the status of permanent residents.

Background

What Are the Current Procedures for the Adjustment of Refugees and Asylees to Permanent Resident Status?

A. Refugees

The procedure by which refugees acquire permanent resident status is an inspection process divided into three stages, as follows:

(1) A personal interview of each refugee applicant is conducted by an immigration officer outside the United States to determine eligibility for refugee status and admissibility to the United States. Each applicant is questioned under oath and signs a sworn statement concerning admissibility. A medical examination is performed, and security checks, when required, are conducted prior to travel to the United States. Remaining questions of identity, eligibility for refugee status, and admissibility to the Unit ed States are resolved at this time.

(2) The applicant is admitted to the United States as a refugee.

(3) Following a personnel appearance at a local Service office 1 year after the date of admission to the United States, the refugee is inspected, interviewed, and adjusted to the status of a lawful permanent resident.

Refugees are currently required to submit fingerprints and biographic forms which are processed prior to determining there admissibility to permanent resident status. The fingerprints are referred to the Federal Bureau of Investigation (FBI) and the biographic data circulated to the FBI and other agencies to determine if any information exists which would bar the applicant from permanent residence. Responses to these agency checks, positive or negative, must be received prior to admitting the refugee to per manent residence. Once the responses have been received, the inspection and examination interview is conducted (if the applicant has not already been interviewed prior to that receipt). Upon successful completion of the inspection and examination interview, the refugee applicant is granted lawful permanent residence in the United States.

B. Ayslees

The adjustment process for asylee is similar to that for a refugee, with some exceptions. The process by which asylees acquire permanent resident status in the United States has two stages, as follows:

(1) An alien in the United States applies for asylum, followed by an interview before an asylum officer or a hearing before an immigration judge. On the application and during the interview or hearing, the applicant must establish his or her eligibility for status as a refugee.

(2) After 1 year since the grant of asylum, the asylee applies for permanent resident status by filing Form I-485, Application to Register Permanent Residence or Adjust Status, which the Service officer uses to determine the applicant's continuing eligibility for benefits under section 209(b) of the Act. Required fingerprints are generally collected and processed before the applicant appears for interview at a Service office, if an interview is required.

How Can the Service Improve and Streamline This Adjustment Process?

Applications and petitions for immigration benefits, particularly those for adjustment of status and for naturalization, are being filed in record numbers. As a result, processing time for these applications has lengthened significantly. The processing of refugees and asylees for permanent residence consumes a large amount of resources. The Service believes that the refugee adjustment process will be improved by requiring applicants to submit the written information concerning themselves on a single prescri bed form, the I-485, as asylees already do. Use of the Form I-485 will help to ensure a more orderly and efficient process of their applications for permanent resident status; it will also enable the Service to track cases more effectively, respond more quickly to status inquires, and provide better overall service to these applicants.

The Service also believes that the processing of refugee and asylee adjustment applications can be more efficiently managed at a centralized location through the Direct Mail Program. Under the Direct Mail Program, applicants for certain designated immigration benefits mail their applications or petitions directly to an INS service center for processing instead of submitting them to an INS local office. The Service is incrementally expanding the Direct Mail Program to include all applications and petitions, except where it is impracticable to do so. Expansion to Direct Mail is a key element in the Service's strategy to reduce processing times and improve customer service. It is also consistent with the Service's current adjustment of status interview policy, which encourages field personnel to focus resources on interviewing those cases in which in-person examinations are actually needed. The types of adjustment applications selected for the Direct Mail Program have been those with the lowest known fraud risk. However, as an indicator of adjudication quality, the statistical evidence of denial rates for adjustment cases currently being adjudicated by the service centers compares favorably with the overall denial rates for those adjudicated at district offices. Including applications for adjustment of status by refugees and asylees in the Direct Mail Program allows the Service to redirect resources to improve service at local offices while moving closer to the goal of full Direct Mail implementation.

What Does This Interim Rule do?

This interim rule streamlines the processing of request for adjustment of status submitted by refugees and asylees to one centralized location. Under this rule, refugees or asylees are required to mail their Form I-485 applications for adjustment of status directly to the designated service center, at this time the Nebraska Service Center (NSC), for processing. It is believed that the initial filing and data entry for all refugee and asylee adjustment applications can best be accomplished at a single servic e center having the personnel, training, and technical resources to process them efficiently and consistently.

Under this new Direct Mail procedure, the service center will evaluate each application and determine whether an interview is necessary. The Service may decide to adjudicate an application without an interview in cases where the evaluation does not indicate questions concerning the applicant's eligibility for adjustment of status. Service center adjudication officers are trained to refer to the local offices any application that appears to warrant an interview.

The service center will refer to the local offices for interview and adjudication all cases indicating higher risk or complex issues, such as criminal charges, indications of fraud, changes in the country conditions upon which a refugee or asylees status was based, or asylees who had entered the United States without inspection. As an additional tool to monitor the integrity of the adjudications process and any emerging trends affecting the exercise of the Service's interview determination authority, the se rvice center will refer to the local offices for interview a random sample of at least 2 percent of all other refugee an asylee adjustment applications. In all cases where a service center refers an adjustment application to a local office for adjudication, the receiving office will complete and return to the service center an interview referral processing worksheet, which will be reviewed as an indicator for any additional interview referral criteria that should be implemented. Those cases which are referr ed to district offices for interview will be adjudicated by the district directors of those offices.

Other statutory references in §§ 209.1 and 209.2 are being amended to reflect revised sections of the Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 341 of IIRIRA amended section 212(a)(1)(A)(ii) of the Act regarding vaccination requirements for immigrants. The Centers for Disease Control have provided the designated civil surgeons with instructions regarding the vaccination assessment and the vaccination supplement. The Service has determined th at these vaccination requirements do not apply to aliens seeking admission as refugees under section 207 of the Act, but that they do apply to refugees at the time of their application for adjustment to permanent resident status under section 209(a) of the Act, as well as to asylees applying for adjustment under section 209(b) of the Act.

What are the Changes in Refugee Adjustment Processing?

Section 209(a) of the Act states that a refugee must be returned to the "custody" of the Service for inspection and examination. There is no comparable statutory requirement for asylees applying for adjustment of status. The "custody" requirement for refugees applying for adjustment of status can be met if the Service maintains sufficient control over the applicants to make a determination of their admissibility to the United States as immigrants and to institute removal procedures if they should be found t o be inadmissible. Additionally, a procedure that requires refugees to apply for adjustment of status and gives the Service the authority to compel them to appear before an officer of the Service satisfies the requirements of the Act. Although the Service may require refugees seeking adjustment of status to be interviewed by an immigration officer, the Service does not have to interview each and every refugee.

To facilitate the extension of the Direct Mail Program to include the adjustment of status of refugees, the Service is amending § 209.1 to require the submission of a Form I-485, without fee to the Service. The application and accompanying documents will be reviewed to determine whether the applicant is admissible to the United States and otherwise eligible of permanent residence, has been physically present in the United States for at least 1 year, and has not already acquired permanent resident status on some other basis.

In requiring refugees seeking permanent residence to submit a Form I-485, the Service constructively places them under its custodial control. At the same time, the direct filing of a Form I-485 with the service center enable the INS to exercise discretion in determining when an in-person interview with the applicant is necessary. With this streamlined process, the Service can enhance customer service and make more effective use of Service resources.

Although this streamlined Direct Mail process requires refugee applicants for permanent residence to file a Form I-485, they will continue to be exempted from a filing fee. In refraining from charging this class of applicants the normal Form I-485 filing fee, the Service is following its established policy of assisting refugees in their settlement and assimilation into American society.

The file of a refugee generally includes the original medical examination report issued by the panel physician prior to the applicant's entry into the United States. The regulations at § 209.1(b) provide that a refugee is not required to repeat the entire medical examination if no medical grounds of inadmissibility arose during the initial medical examination prior to entry. Such refugee applicants for adjustment of status under section 209(a) of the Act need only comply with the vaccination requirement, by submitting a vaccination supplement that has been completed by a designated civil surgeon. The Service is developing special procedures to address concerns about the difficulties encountered by some refugees in complying with the vaccination requirements.

What are the Changes in Asylee Adjustment Processing?

To facilitate the extension of the Direct Mail Program to include applications for adjustment of status filed by asylees, the Service is amending § 209.2 by replacing the phrase "district director" with "director" wherever it appears. These changes permit the Service to assign adjudicative jurisdiction for asylum-based permanent residence applications to either district directors or service center directors.

The Service is amending § 209.2(c) to require filing of an asylum-based Form I-485 with the Service office identified in the instructions accompanying the Form I-485 (which at this time will be the NSC). This amendment allows the Service to more effectively and efficiently respond as its workload changes.

Section 209.2(e) is being amended to allow the Service to review an application for asylum-based permanent residence and determine if a final decision on the application can be made without an interview. In this process, the officer will determine if there are facts or issues that need to be resolved in an interview, or whether the application meets other referral criteria developed by the Service. The application will be transferred to a local office for processing if it is determined that an interview wit h the applicant is necessary. If the local office discovers evidence of fraud in the original application for asylum, or determines that the applicant no longer qualifies as a refugee under section 101(a)(42) of the Act, the evidence will be referred to the Asylum Office having jurisdiction over the applicant's place of residence, for a determination whether asylee status is to be revoked. Once the Asylum Office has resolved the issues regarding revocation, the local office will complete its adjudication of the Form I-485 application.

Medical examinations are not required from aliens who apply for asylum, because they are, by that time, already in the United States and not seeking admission. However, when asylees apply under section 209(b) of the Act for admission to permanent resident status 1 year after having been granted asylum, they must submit the results of a full medical examination, completed by a designated civil surgeon in the United States, as provided in § 209.2(d). This rule amends § 209.2(d) to include the vaccination asse ssment requirement as part of the civil surgeon's examination report.

What Applications are Included in the Direct Mail Process for an Adjustment Application Filed by a Refugee or Asylee?

As of June 3, 1998, the following applications must be mailed to the NSC (see section entitled "Modification of filing instructions on relating forms") instead of being filed with a local INS district office:

(1) Form I-485, Application to Register Permanent Residence or Adjust Status (including adjustment applications submitted by eligible dependents of the principal applicant), if it is being filed on the basis of refugee status or an approved asylum application (Form I-589, Application for Asylum or for Withholding of Deportation);

(2) Form I-643, Health and Human Services Statistical Data for Refugee/Asylee Adjusting Status;

(3) Form I-131, Application for Travel Document, filed on the basis of a refugee or an asylum-based Form I-485; except that an applicant who is seeking advance parole authorization may file the Form I-131 either at a service center or at a district office;

(4) Form I-602, Application by Refugee for Waiver of Grounds of Excludability, filed on the basis of a refugee or asylum-based Form I-485; and

(5) Form I-765, Application for Employment Authorization, filed on the basis of status as a refugee or an asylee.