Explanation of Changes

What Changes is the Service Making to its Regulations?

1. Changes in § 103.1

In § 103.1, paragraph (f)(3)(iii)(NN) is amended to remove the Form I-850, Application for Certification for Designated Fingerprinting Services, from the list of decisions of which the Associate Commissioner for Examinations exercises jurisdiction. This change is necessary because the Service is eliminating the DFS certification program.

2. Changes in § 103.2

In § 103.2, paragraphs (a)(1) and (a)(7)(i) are revised to allow the Service to treat as properly filed applications and petitions which require completion of fingerprint cards but which are submitted without the $25 fee for fingerprinting by the Service. Paragraph (a)(7)(ii) is revised to allow the Service to reject applications or petitions as improperly filed if the check or other financial instrument used to pay the fingerprinting fee is returned to the Service as not payable. Paragraphs (b)(9), (b)(10) (i), (b)(13), and (b)(14) are revised to include requests that applicants and petitioners for immigration benefits appear for fingerprinting at a Service office or other location designated by the Service, and to allow the Service to deny the applications and petitions of individuals who fail to appear for fingerprinting. Paragraph (e) is revised to eliminate the DFS program and establish new fingerprinting procedures for applicants and petitioners for immigration benefits.

3. Changes in § 103.7

In § 103.7, paragraph (b)(1) is amended to add the fee for fingerprinting by the Service, and to remove the fee for the Form I-850, Application for Certification for Designated Fingerprinting Services. Charging a fee for fingerprinting is necessary to fund the Service's new fingerprinting program, and the fee is established at $25 per individual who requires fingerprinting. The fee for the Form I-850, Application for Certification for Designated Fingerprinting Services, is being removed because the form rel ates to the DFS program and the Service is canceling the DFS program by publication of this interim rule.

4. Changes in § 204.3 and § 204.4

In §§ 204.3 and 204.4, the Service is amending the regulations to require the Form I-600A, Application for Advanced Processing of Orphan Petition, the Form I-600, Petition to Classify Orphan as an Immediate Relative, and the Form I-360, Petition for Amerasian, Widow or Special Immigrant, filed on behalf of an Amerasian child of a United States citizen to be filed without completed fingerprint cards, and to require the prospective adoptive parents, other adult members of the prospective adoptive parents' hou sehold, and sponsors of Amerasian children to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e).

5. Changes in § 208.7, § 208.10, and § 208.14

In § 208.7, the Service is amending the regulations to clarify that failure to follow requirements for fingerprint processing may affect an asylum applicant's eligibility for employment authorization. In § 208.10, the Service is amending the regulations to include failure to follow the requirements for fingerprint processing as a ground for dismissal of a case or waiver of an adjudication by an asylum officer. In § 208.14, the Service is amending the regulations to permit referral of an asylum application w hen the applicant is deemed to have waived adjudication by an asylum officer.

6. Changes in § 209.1 and § 209.2

In §§ 209.1 and 209.2, the Service is amending the regulations to require refugee entrants and aliens granted asylum to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e) after filing the application, rather than submitting the fingerprints on a completed fingerprint card with the application.

7. Changes in § 244.6

In § 244.6, the Service is amending the regulations to require applicants for temporary protected status to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e) after filing the Form I-821, Application for Temporary Protected Status, rather than submitting the fingerprints on a completed fingerprint card with the application.

8. Changes in § 245.7

In § 245.7, the Service is amending the regulations to require applicants for benefits under section 599E of Public Law 101-167 to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e) after filing the Form I-485, Application to Register Permanent Residence or Adjust Status, rather than submitting the fingerprints on a completed fingerprint card with the application.

9. Changes in § 264.2 and § 264.5

In §§ 264.2 and 264.5, the Service is amending the regulations to require applicants for creation of a record of permanent residence and for a replacement alien registration card to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e) after filing the application, rather than submitting the fingerprints on a completed fingerprint card with the application.

10. Changes in § 299.1 and § 299.5

In §§ 299.1 and 299.5, the Service is amending the regulations to remove the Form I-850, Application for Certification for Designated Fingerprinting Services, and the Form I-850A, Attestation by Designated Fingerprinting Service Certified to Take Fingerprints, from the listing of forms. These changes are necessary because the forms relate to the DFS program and, by publication of this interim rule, the Service is terminating the DFS program in order to comply with the new legislation relating to fingerprint ing applicants and petitioners for immigration benefits.

11. Changes in § 316.4

In § 316.4, the Service is amending the regulations to require applicants for naturalization to file a complete application without a fingerprint card, and to appear at a Service office, or other location designated by the Service, for fingerprinting in accordance with the new fingerprinting procedures being established in § 103.2(e) after filing the Form N-400, Application for Naturalization.

12. Changes in § 332.2

In § 332.2, the Service is amending the regulations to remove references to fingerprinting services being provided by non-profit organizations. The change is necessary because the new legislation relating to fingerprinting applicants and petitioners for immigration benefits prohibits the Service from accepting fingerprint cards prepared by any organization other than the Service, registered State or local law enforcement agencies, United States consular offices, or United States military installations abroa d.

13. Changes in § 335.2

The FBI currently performs criminal background checks on applicants for naturalization and notifies the Service of the results of these checks. It has been Service policy to request applicants for naturalization to appear for examination on the application only after receiving such a notice from the FBI. In § 335.2, the Service is amending the regulations to require a definitive response from the FBI on the criminal background check on an applicant for naturalization. A definitive response is defined as a r esponse from the FBI that: (1) An applicant does not have an administrative or criminal record; (2) an applicant does not have an administrative or criminal record; or (3) an applicant's fingerprints cannot be classified for purposes of conducting a criminal background check, despite the FBI's receipt of two properly prepared fingerprint cards. In the case of an applicant whose fingerprints cannot be classified, Service quality assurance procedures require the applicant to submit police clearances to the Se rvice before final adjudication of the naturalization application.

Good Cause Exception

The Service's implementation of this rule as an interim rule, with provision for post-promulgation public comments, is based on the "good cause" exceptions found at 5 U.S.C 553(b)(B) and (d)(3). The reason and necessity for immediate implementation of this interim rule without prior notice and comment is that new legislation prohibiting the Service from accepting fingerprint cards unless prepared by a Service office, a registered State or local law enforcement agency, a United States consular office at a Un ited States embassy or consulate, or a United States military installation abroad, became effective December 3, 1997.

This rule is needed in order to establish the new fingerprinting process for applications and petitions filed on or after December 3, 1997. Accordingly, any delays in the implementation of the new fingerprinting process required by this law will result in unnecessary delays in the filing and adjudication of applications and petitions for immigration benefits, without a corresponding public benefit. Furthermore, Congress addressed its intent to permit the Service to use interim regulatory authority in the ea rly stages of this program. In particular, the Congressional Record of November 13, 1997, at page H10837 notes:

An interim regulation may be employed in the early stages of the program, to implement all aspects of the program, including setting of a fingerprint fee, while the normal studies to justify a fee regulation are being conducted.

For these reasons, the Commissioner has determined that delaying the implementation of this rule would be unnecessary and contrary to the public interest, and that there is good cause for dispensing with the requirements of prior notice. However, the Service welcomes public comment on this interim rule and will address those comments prior to the implementation of the final rule.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule, which provides procedures for the taking and submission of fingerprints under the standards of the new legislation, relates to applicants and petitioners for immigration benefits and does not have a signif icant adverse effect on small businesses. Any adverse economic impact on DFS entities is necessitated by the new legislation which, as of December 3, 1997, prohibits the Service from accepting fingerprint cards unless prepared by the Service, a registered State and local law enforcement agency, a United States consular office at a United States embassy or consulate, or a United States military installation abroad.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect of the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

Executive Order 12612

The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.