Eligibility of Persons Who Entered the United States via Humanitarian Parole

The Department received one comment requesting that the final rule clarify that aliens who entered the United States via humanitarian parole (rather than public interest parole) are eligible for adjustment of status under section 586.

The Department agrees with the commenter. Section 586 requires only that the applicant be paroled into the United States via one of the three qualifying programs. While the Department believes the vast majority of the potential beneficiaries of section 586 were granted public interest parole, some potential beneficiaries were granted humanitarian parole. Such aliens, if otherwise qualified, are eligible for adjustment of status under section 586. This statement is consistent with the proposed regulations at 8 CFR 245.21(a)(2). Therefore, the Department has not amended the final regulations.

The Medical Examination Requirement

One commenter requested that the Department remove the medical examination requirement for adjustment under section 586 in the final regulations. The commenter stated that the examinations are expensive and unnecessary because the aliens have resided in the United States for a long period of time.

The Department believes that the medical examination requirement is not an unusual or unduly burdensome requirement and has decided to retain the examination requirement in the final regulations. Medical examinations are necessary for the applicant to demonstrate that he or she is not inadmissible under section 212(a)(1) of the Act (8 U.S.C. 1182(a)(1)). The fact that aliens have been living in the United States for a long period of time does not change this requirement. Department regulations require the v ast majority of adjustment applicants to undergo a medical examination, regardless of the number of years they have spent in the United States. For example, all applicants adjusting status under section 245(a) of the Act (8 U.S.C. 1255(a)) must undergo a medical examination despite the fact that many such applicants have been residing in the United States in nonimmigrant status for several years.

Making Available the List of Persons Who Entered the United States via Auspices of the Orderly Departure Program (“ODP”)

The Department received one comment requesting that a list of all persons who entered the United States under the auspices of the ODP be made public.

While the Department understands the potential utility of this request, the Department does not disclose such lists of individuals who are potentially eligible for immigration benefits. Although The Privacy Act of 1974, as amended, does not cover non-resident aliens (under 5 U.S.C. 552a(a)(2), the term “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence), Department policy generally forbids the release of personal information regarding groups of individual s. Individuals who wish to obtain proof that they entered the United States via the ODP may so state as part of their application for adjustment of status under section 586, or make a request for the information via the Freedom of Information Act (FOIA). As stated in the proposed rule, the Department likely can verify an alien's assertion that he or she entered via the ODP.

The Use of the IV Tracking Number To Demonstrate Eligibility

The Department received one comment regarding the use of an alien's IV tracking number to demonstrate that he or she was processed through the ODP. The commenter stated that in some cases, the alien will not have a unique identifying IV number, but rather a V number, or an alien registration number.

Aliens processed through the ODP were assigned both IV and V numbers. The IV number was assigned to an alien, and any accompanying family members, at his or her initial registration with the United States Government. Later, a V number was assigned to the alien, and accompanying family members, if he or she was scheduled to depart the program and enter the United States. Finally, some of those aliens granted humanitarian parole in place of public interest parole received alien registration numbers as well. T he Department regulations require only that the applicant demonstrate that he or she was processed via the ODP or one of the other two programs. As stated previously, subject to verification by the Department, those aliens who were processed via the ODP who no longer have any paperwork from the ODP may submit an affidavit to the Department in lieu of the actual documentation. See 8 CFR 245.21(g)(3).

The Question Concerning the Public Charge Ground of Inadmissibility on Form I-485, Application To Register for Permanent Resident or Adjust Status

The Department received one comment stating that the final rule should indicate that applicants for adjustment of status under section 586 are not required to answer question number two on part three of Form I-485, regarding an applicant's use of public assistance. The commenter stated that applicants for adjustment of status under section 586 are exempt from the public charge ground of inadmissibility at section 212(a)(4) of the Act (8 U.S.C. 1182(a)(4)), and so the question is unnecessary.

The Department agrees with this comment and has stated in the proposed rule and will state in policy memoranda that applicants for adjustment of status under section 586 are exempt from section 212(a)(4) of the Act. As such, the commenter is correct in that an answer of “yes” to the specified question cannot result in the denial of the application because the alien is inadmissible under section 212(a)(4) of the Act. However, there are some scenarios where the answer to this question may indirectly affect th e adjudication in ways other than inadmissibility under section 212(a)(4) of the Act, such as when certain types of immigration benefit fraud are suspected. Therefore, full and complete answers to each question on Form I-485, including this question, are required. Another reason for retaining the question on the form is that the Form I-485 remains the same for all adjustment programs. The Department does not create a new form each time Congress creates a new adjustment program. As such, the Department does not want to issue separate instructions for adjustment under section 586. The Department has retained this question on the form.

Employment Authorization Documents

One commenter requested that the Department provide all applicants with employment authorization documents at no charge at the time they submit their applications for adjustment. The commenter also stated that the final regulations should make it clear that the applicants who do not desire employment authorization do not need to submit the application for employment authorization along with the application for adjustment of status.

Although as the commenter has stated, many eligible aliens already have employment authorization issued under other provisions of law and thus do not need employment authorization, the proposed regulation provides a means for an alien who desires employment authorization to obtain it. If an alien believes he or she cannot pay the application fee (currently $120), he or she can request a fee waiver when submitting the application. Thus, the Department has retained in the final rule the requirement that those aliens desiring employment authorization file an application for employment authorization and submit the accompanying fee. Another commenter requested that the Department regulations make the adjudication of an application for employment authorization based upon a section 586 adjustment application subject to the 90-day adjudication provision of 8 CFR 274a.13(d). Under these regulations, that is currently the case. With certain exceptions, any application for employment authorization based upon an adjustme nt application filed under 8 CFR part 245--including 8 CFR 245.21 pertaining to adjustment for certain aliens from Vietnam, Cambodia, and Laos--is subject to the 90-day provision of 8 CFR 274a.13(d) per the regulations. See 8 CFR 274a.12(c)(9); 8 CFR 274a.13(d). The current regulations do require that a section 586-based application for employment authorization be adjudicated within 90 days or interim employment authorization must be issued.

Advance Parole Eligibility Requirements

Three commenters raised the issue of advance parole. They requested that the final rule state that the eligibility criteria for obtaining advance parole based on a pending application for adjustment filed under section 586 is the same as the advance parole criteria for adjustment applicants under section 245(a) of the Act (8 U.S.C. 1255). Section 245(a) applicants are generally granted advance parole, in the discretion of the Service, if they have demonstrated “any bona fide business or personal reason.” Se e instructions to Form I-131, Application for Travel Document. Without such a standard, one commenter suggests that the different Service offices will apply varying eligibility standards. The Department does not believe that it needs to articulate such a standard in the regulation. The standard for obtaining advance parole is the same for those obtaining it in connection with an adjustment application filed under section 586 as for those obtaining advance parole in connection with other adjustment programs; the Form I-131 is the same for each program.

The Department's proposed regulations provided the alien with the ability to obtain advance parole, in the discretion of the Service, based on a pending adjustment application under section 586. See section 245.21(i) of the proposed regulations. When these final regulations are effective, the Department will issue guidance to its field officers covering all aspects of this adjustment program, including advance parole. The Department believes this will ensure consistent treatment of applications for advance parole based upon a proper filing for adjustment under section 586.

For those with final orders of removal or more than 180 days of unlawful presence in the United States, the ground of inadmissibility under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) would not bar adjustment under this rule. However, applicants should keep in mind that, should their section 586 application be denied, departure from the United States may amount to a self-deportation, in which case, absent a waiver, they would be inadmissible under section 212(a)(9) of the Act for either three or 10 y ears. In addition, in the case of an applicant over 18 years of age who has accrued more than 180 days of unlawful presence in the United States, such departure would render the alien inadmissible under section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)).

Outreach to Potentially Eligible Aliens

One commenter requested that the Department conduct an outreach program in the native languages of the potential beneficiaries to ensure that those potential beneficiaries with limited English proficiency are aware of the opportunity to adjust status under section 586.

The Department agrees that it is important that all potentially eligible aliens understand the benefits provided under section 586 as well as the eligibility criteria set forth by this provision. Normally, when the Department announces the beginning of such an adjustment program, the Department develops materials explaining the program, the eligibility criteria, the application procedures, and other pertinent issues. This material is distributed to local, national, and other interested media outlets, and al so to non-governmental and community-based organizations. By their very nature, these groups are best suited to provide news and information to specific communities. The section 586 adjustment program will be no exception to this general practice.

Comments Regarding the Regulations Pertaining to the Demonstration of Physical Presence in the United States on a Specific Date

The Department received one comment that the creation of a single section in the regulations regarding the demonstration of physical presence for adjustment applicants who need to demonstrate physical presence in the United States on a specific date should be accomplished via a separate rulemaking.

The Department disagrees with the comment that a separate rule is necessary to create a single section in the regulations regarding the demonstration of physical presence on a specific date. As stated in the proposed rule, Department regulations already contain several similar sections for various adjustment of status provisions containing more or less the same physical presence standards. Rather than continue to create redundant regulations, the Department believes that it is appropriate at this time to br ing the provisions together into one single section of the regulations. Because the applicants for section 586 need to demonstrate that they were physically present in the United States on October 1, 1997, and because the physical presence part of the rulemaking is largely non-substantive and re-organizational in nature, it is an appropriate part of this larger rulemaking.

Comments Regarding Waivers of Criminal Grounds of Inadmissibility

The Final Regulations Regarding the Section 586 Rule Should Be Promulgated Separately Than the Waiver Provisions of Section 212(h) of the Act

The proposed regulations contained a separate section regarding the waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)). The Department received one comment that the proposed regulations regarding the waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)) should be promulgated in a rule separate from the section 586 rule. The Department agrees with this comment and is publishing two separate rules instead of one. An interim final rule regarding waivers under section 212(h) of the Ac t is published elsewhere in this issue of the Federal Register.

May Section 586 Applicants Apply for Waivers of the Criminal Grounds of Inadmissibility?

Yes. Applicants must demonstrate that they are admissible as an immigrant to obtain benefits under section 586, just as they would have to do under other adjustment programs. Although section 586(c) provides that four grounds of inadmissibility do not apply, and provides special rules for waivers of several other grounds, section 586 does not mention the availability of waivers for criminal aliens. Even so, the Department has determined that criminal aliens who are inadmissible under section 212(a)(2) of th e Act may apply for a waiver under section 212(h) of the Act. The Department is aware that many aliens who might otherwise be eligible under section 586 are inadmissible on criminal grounds. The Attorney General has determined to exercise the discretion accorded to him under section 212(h) in connection with applicants under section 586. Because section 212(h) is a general provision applicable to waivers for immigrants, it is appropriate to adopt standards for the exercise of discretion in all cases under s ection 212(h), rather than creating a new standard applicable only to the Indochinese population covered by section 586. Accordingly, the Department is publishing a separate interim rule (published elsewhere in this issue of the Federal Register ) with regard to the Attorney General's authority under section 212(h) of the Act to grant waivers of inadmissibility to criminal aliens.

Application for Adjustment of Status Under Section 586

What Is the Application Period for Adjustment of Status Under Section 586?

The three-year period for submitting applications for adjustment of status under section 586 begins January 27, 2003 and ends January 25, 2006. See 8 CFR 245.21(b)(1). As stated previously, if the 5,000-adjustment limit is reached prior to the end of the application period, the Department will notify Congress and the public of that fact. If the limit is not reached by the end of the three-year application period, only those applications received by the Department on or prior to, or containing a postmark dat ed on or prior to January 25, 2006 will be accepted for processing.

Where Can I File an Application for Adjustment of Status Under Section 586?

Applications for adjustment of status under section 586 should be sent to the following address: INS Nebraska Service Center, P.O. Box 87485, Lincoln, NE 68501-7485.

What Must an Application for Adjustment of Status Under Section 586 Contain?

The regulations at 8 CFR 245.21(b)(2) state what constitutes a proper application under section 586. An alien must be physically present in the United States to apply for adjustment of status under section 586. An applicant must submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with the appropriate application fee contained in 8 CFR 103.7(b)(1). Applicants who are 14 through 79 years of age must also submit the fingerprinting service fee provided for in 8 CFR 103.7(b)(1) . Each application filed must be accompanied by evidence establishing eligibility as provided in 8 CFR 245.21(g); two photographs as described in the Form I-485 instructions; a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; a report of medical examination (Form I-693 and vaccination supplement) specified in 8 CFR 245.5; and, if needed, an application for waiver of inadmissibility. Under Part 2, question h of Form I-485, applicants must write “INDOCHI NESE PAROLEE P.L. 106-429”.

The regulations at 8 CFR 245.21(c), (d), and (e), discuss the additional filing procedures for aliens in removal proceedings, aliens with final orders of removal, and aliens needing waivers of grounds of inadmissibility, respectively.

Regulatory Flexibility Act

The Attorney General, 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 would affect certain individuals from Vietnam, Cambodia, and Laos by implementing the adjustment of status provisions of section 586 of Public Law 106-429. This rule will have no effect on small entities as that term is defined in 5 U.S.C. 601(6).

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 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on 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 the 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, 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 13132

This rule 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988

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

Paperwork Reduction Act

The information collection requirement (Form I-485) contained in this rule was previously approved for use by the Office of Management and Budget (OMB). The OMB control number for this information collection is 1115-0053. This final rule permits certain aliens from Vietnam, Cambodia, and Laos to adjust status. In addition to the evidence required by Form I-485, this rule at 8 CFR 245.21(g)(2) requires applicants to demonstrate that they were physically present in the United States on October 1, 1997, by sup plying the evidence outlined in 8 CFR 245.22. This additional documentation is considered an information collection. Written comments are encouraged and will be accepted until February 24, 2003.

Accordingly, the Service has submitted an information collection request to the Office of Management and Budget (OMB) for emergency review and clearance in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). If granted, emergency approval is valid for 180 days.

All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument, shall be directed to the Immigration and Naturalization Service, Regulations and Forms Services Division, 425 I Street, NW, Room 4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, (202) 514-3291.

Your comments should address one or more of the following four points:

(1) Evaluating whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluating the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhancing the quality, utility, and clarity of the information to be collected; and

(4) Minimizing the burden of the collection of the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Overview of This Information Collection

(1) Type of information collection : New.

(2) Title of Form/Collection : Application requirements for the adjustment of status under section 586 of Public Law 106-429.

(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection : No form number (File No. OMB-27), Immigration and Naturalization Service.

(4) Affected public who will be asked or required to respond, as well as a brief abstract : Individuals. Section 586 of Public Law 106-429 allows certain aliens from Vietnam, Cambodia, and Laos to adjust status to lawful permanent resident. The information collection is necessary in order for the Service to make a determination that the eligibility requirements and conditions are met regarding the alien.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond : 5,000 respondents at 30 minutes per response.

(6) An estimate of the total of public burden (in hours) associated with the collection : Approximately 2,500 burden hours.