What Are the Benefits of HRIFA?

An alien seeking adjustment of status under HRIFA is not subject to a number of the limitations on adjustment of status that would otherwise be applicable under section 245 of the Act.

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

Second, a HRIFA 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 transit 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 HRIFA.

Third, HRIFA 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 902 of Public Law 105-277. Accordingly, HRIFA allows an otherwise-qualified applicant to adjust status under HRIFA 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 physicians , for failure to meet certain standards for foreign health-care workers, for entering or remaining in the country illegally, for violating documentary requirements 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 HRIFA applicant who has been paroled into the United States and is now in exclusion or removal proceedings before an Immigration Court is not barred from filing an application for adjustment of status under the provisions of HRIFA while in such proceedings.

What Are the HRIFA Requirements Regarding Presence in the United States?

Under the terms of HRIFA, an eligible principal applicant must have been present in the United States on December 31, 1995. The physical presence requirement contained in HRIFA differs from the one contained in section 202 of NACARA in two key aspects. First, the date from which presence is required is December 31, 1995, instead of December 1, 1995. Second, HRIFA requires that an alien seeking adjustment as a principal applicant have been physically present in the United States on the specific date of Dece mber 31, 1995, while NACARA allowed the applicant to have commenced physical presence at any time on or prior to December 1, 1995.

HRIFA also requires that eligible applicants must have maintained continuous physical presence in the United States since December 31, 1995. However, HRIFA provides for an exception to the requirement of continuous physical presence under which an eligible alien who was present in the United States on December 31, 1995, is permitted to have been outside the United States for a total of up to 180 days in the aggregate since that date, and prior to the date of his or her adjustment of status to lawful perman ent resident, without risk of interrupting his or her continuous physical presence. Except as otherwise provided, however, if an alien has been outside the United States for more than 180 days since December 31, 1995, the alien is not eligible for adjustment under HRIFA.

Furthermore, the Department is providing, by regulation, for three additional circumstances under which an alien may be outside the United States without that time affecting his or her eligibility for adjustment of status under HRIFA:

(1) If the Immigration and Naturalization Service (Service) has granted an alien an Authorization for Parole of an Alien into the United States (Form I-512), then the periods of time during which an alien is absent from the United States pursuant to such an authorization is not counted toward the 180-day cumulative period.

(2) If the Service has granted parole authorization under the provisions of 8 CFR 245.15(t)(2) to an alien for the purpose of traveling to the United States in order to apply for adjustment of status under HRIFA, then the period of time from the date the alien's request for parole authorization is filed at the Nebraska Service Center until the alien is paroled into the United States pursuant to that authorization in not counted toward the 180-day cumulative period.

(3) If the Service has granted parole authorization under the provisions of 8 CFR 245.15(t)(2) to an alien for the purpose of traveling to the United States in order to apply for adjustment of status under HRIFA, then the period of time from the date on which HRIFA was enacted (October 21, 1998) until 30 days from the effective date of this regulation is not counted toward the 180-day cumulative period. The Department is making this provision in order to allow an applicant for such parole authorization ti me to file the application with the Nebraska Service Center.

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

Section 902(b)(1) of HRIFA requires that an applicant must prove presence in the United States on December 31, 1995, but the statute is silent as to the methods by which an applicant may demonstrate his or her presence in the United States on that date. In this rule, the Department is providing that a HRIFA applicant may prove such presence in the United States through submission of evidence demonstrating that on or before December 31, 1995, he or she:

(1) was admitted to the United States in an immigrant or nonimmigrant classification;

(2) was paroled into the United States;

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

(4) was placed in deportation proceedings under section 242 or 242A of such Act (as in effect prior to April 1, 1997);

(5) applied for any benefit under the Act by means of an application establishing his or her presence in the United States;

(6) was issued other documentation by State and local authorities (such as school, hospital, police, and public assistance records), demonstrating the alien's presence in the United States on or prior to December 31, 1995; or

(7) in the case of an applicant seeking classification as a child under section 902(b)(1)(C) of HRIFA, a transcript from a qualified private or religious school.

Normally, an alien may make such a demonstration by submitting a photocopy of a Government-issued document. If the alien is not in possession of such document, but believes that a copy of the document is already contained in the Service file relating to him or her, he or she may submit a statement as to name and location of the issuing Government agency, the type of document and the date on which it was issued.

Because the applicant is required to establish presence in the United States on December 31, 1995, if the documentation submitted relates to a date prior to December 31, 1995, the applicant bears the additional burden of establishing either that he or she did not depart after the date on which presence has been established, or that (if he or she did depart) he or she returned to the United States on or prior to December 31, 1995. Doing so is analogous to proving continuity of presence, and if required, the applicant can meet this initial burden by using the methods described below for proving continuity of presence. While there are no particular criteria for establishing "non-departure," or departure and return, the applicant should be prepared to resolve any doubts that may arise in this regard. The Department solicits comments from interested parties on issues related to this matter.

The Department believes that the evidentiary alternatives for establishing continuity of presence will also provide sufficient opportunities for qualified applicants to establish physical presence in the United States on December 31, 1995, without encouraging fraudulent applications. However, in order to ensure that no group of eligible aliens is precluded from establishing eligibility for HRIFA benefits, the Department is soliciting public comments on the need for any additional methods of establishing co mmencement of physical presence in the United States and suggestions as to what those additional methods should be. 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.

A HRIFA applicant also must demonstrate that he or she was continuously physically present in the United States since December 31, 1995. See HRIFA section 9021(b)(2). As in the case of the physical presence requirement just discussed, however, the HRIFA statute is silent as to the methods by which an applicant can demonstrate that presence. This interim rule provides that a HRIFA 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 the seal or signature of the issuing authority (if the documentation is normally signed or sealed), issued on letterhead stationery, or otherwise authenticated. In some cases, a single document may suffice to establish continuity for the entire post-December 31, 1995, period. 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 31, 1995, period. On the other hand, an applicant would need to submit a number of monthly rent receipts or electric bills 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 since December 31, 1995, there should be no signi ficant chronological gaps in the documentation either. Generally, a gap of 3 months or less in documentation is not considered significant. However, if the adjudicating officer or immigration judge is satisfied as to the continuity of the applicant's presence in the United States, he or she may accept considerably larger gaps in documentation. Conversely, if the adjudicating officer or immigration judge has reason to doubt the applicant's claim, he or she may require additional documentation. Furthermor e, if the applicant is aware of documents already contained in his or her Service file that establish physical presence, he or she may merely list those documents, giving the type and date of the documents. Examples of such documents might include a written copy of a sworn statement given to a Service officer, the transcript of a formal hearing, or a Record of Deportable/Inadmissible Alien (Form I-213).