Adjustment of Status Under Legal Immigration Family Equity (LIFE) Act Legalization Provisions and LIFE Act Amendments Family Unity Provisions [67 FR 38341] [FR 26-02]

DOCUMENT NUMBER: FR 26-02

FEDERAL REGISTER CITE: 67 FR 38341

DATE OF PUBLICATION: June 4, 2002

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 100, 103, 236, 245a, 274a and 299

INS No. 2115-01; AG Order No.

RIN 1115-AG06

Adjustment of Status Under Legal Immigration Family Equity (LIFE) Act Legalization Provisions and LIFE

Act Amendments Family Unity Provisions

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: On June 1, 2001, the Attorney General published an interim rule in the Federal Register that implemented section 1104 of the Legal Immigration Family Equity Act (LIFE Act) and the LIFE Act Amendments by establishing procedures for certain class action participants to become lawful permanent residents of this country. Persons who may be eligible to adjust status under section 1104 of the LIFE Act and its Amendments are aliens who have filed for class membership with the Attorney General, before October 1, 2000, in one of three legalization lawsuits: (1) Catholic Social Services, Inc. v. Meese , vacated sub nom. Reno v. Catholic Social Services, Inc. , 509 U.S. 43 (1993) ( CSS ); (2) League of United Latin American Citizens v. INS , vacated sub nom. Reno v. Catholic Social Services, Inc. , 509 U.S. 43 (1993) ( LULAC ); or (3) Zambrano v. INS , vacated, 509 U.S. 918 (1993) ( Zambrano ). The interim rule provided a 1-year application period from June 1, 2001, to May 31, 2002, for those aliens applying for adjustment of status pursuant to section 1104 of the LIFE Act. The interim rule also implemented section 1504 of the LIFE Act Amendments by providing for a stay of removal and work authorization for certain spouses and unmarried children of those aliens eligible to adjust status under section 1104 of the LIFE Act.

This rule provides final adoption of the interim rule, with certain amendments as appropriate. This final rule is necessary to ensure that those aliens eligible to apply for legalization benefits under the provisions of the LIFE Act and LIFE Act Amendments are able to do so within the application period. This final rule will provide definitive regulations for all applicants under section 1104 of the LIFE Act and section 1504 of the LIFE Act Amendments.

DATES: This final rule is effective June 4, 2002.

FOR FURTHER INFORMATION CONTACT: Elizabeth N. Lee or Suzy Nguyen, Assistant Directors, Residence and Status Branch, Office of Adjudications, Immigration and Naturalization Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION: On December 21, 2000, former President Clinton signed into law the LIFE Act, Title XI of H.R. 5548, enacted by reference in Public Law 106-553 (Dec. 21, 2000), and the LIFE Act Amendments, Title XV of H.R. 5666, enacted by reference in Public Law 106-554 (Dec. 21, 2000), which provide for numerous different immigration benefits. Section 1104 of the LIFE Act and its Amendments (LIFE Legalization) allow certain eligible aliens to apply for adjustment of status to that of a lawful permanent resident (LPR) under a modified version of section 245A of the Immigration and Nationality Act (Act) (8 U.S.C. 1255a). Aliens who are eligible to apply for adjustment under LIFE Legalization are those who, before October 1, 2000, had filed with the Attorney General a written claim for class membership in the CSS , LULAC , or Zambrano legalization class action lawsuits. In order to qualify for adjustment, aliens must establish that they entered the United States before January 1, 1982, and thereafter resided in continuous unlawful status through May 4, 1988. Aliens must also establish that they were continuously physically present in the United States from November 6, 1986, through May 4, 1988. Furthermore, aliens must demonstrate basic citizenship skills. Finally, aliens must be otherwise admissible to the United States under the Act. LIFE Legalization also provides for a stay of removal or deportation and work authorization for eligible aliens under this law while their adjustment applications are pending. Section 1504 of the LIFE Act Amendments provides that the Attorney General may not remove certain spouses and children of aliens eligible to adjust under LIFE Legalization and shall grant employment authorization to those eligible spouses and children for the period of time in which they have been afforded Family Unity protect ion. Aliens who might benefit from the Family Unity provisions of the LIFE Act Amendments are those who:

(1) Are currently in the United States;

(2) Are the spouse or unmarried child of an alien who is eligible for adjustment under LIFE Legalization; and

(3) Entered the United States before December 1, 1988, and were residing in the United States on such date.

On June 1, 2001, the Attorney General published an interim rule in the Federal Register at 66 FR 29661. The Attorney General amended the Immigration and Naturalization Service (Service) regulations by adding Subparts B and C to 8 CFR part 245a. Subpart B implemented the LIFE Legalization provisions of the LIFE Act and Subpart C implemented the Family Unity provisions of the LIFE Act Amendments. The interim rule invited interested persons to provide written comments on or before July 31, 2001. The Service received 132 comments during the comment period and has carefully considered all these comments in formulating this final rule. The following is a discussion of the comments and the Service's response.

Comments relating to LIFE Legalization

Fees (8 CFR 103.7)

Five commenters questioned the Service's imposition of a $330 filing fee for LIFE Legalization applications. Many of these commenters argued that the Service disregarded the legislative intent that LIFE Legalization applicants be treated in the same manner that they would have been treated had they filed applications for legalization during the initial application period. 1/ These commenters contended that any alien who is eligible to apply for LIFE Legalization would have been required to pay only a $185 filing fee during the Immigration Reform and Control Act of 1986 (IRCA) legalization application period (the filing fee for the Form I-687, Application to Adjust Status as a Temporary Resident-Applicants, under section 245A of the INA). The Service appreciates that many commenters have concerns regarding what they perceive to be a substantial increase in filing fees for le galization benefits. The Service must note, however, that in addition to the $185 filing fee for the Form I-687, IRCA legalization applicants were required to pay an additional $120 filing fee when applying for LPR status (the filing fee for the Form I-698, Application to Adjust Status From Temporary to Permanent Resident). As such, IRCA legalization applicants paid filing fees totaling $305, just $25 less than the fee imposed by the Service on LIFE Legalization applicants in the interim rule.

That being said, the Service has reconsidered the fee that will be imposed on LIFE Legalization applicants. As was discussed in the supplemental information of the interim rule (66 FR 29665, 29667-68), in developing fees, the Service must comply with guidance provided in the Office of Management and Budget (OMB) Circular A-25. The Service referred to a preliminary draft of its most recent fee review - the FY 2000 Immigration Examinations Fee Account Review- when determining the fee to be levied on LIFE Le galization applicants using the Form I-485, Application to Register Permanent Residence or Adjust Status. That review conducted an in-depth analysis of both direct and indirect costs using an activity-based costing methodology. The draft of the fee review identified the full cost of the Form I-485 to be $330. Since publication of the interim rule, the Service has re-evaluated the FY 2000 Immigration Examinations Fee Account Review and calculated the full cost of the Form I-485 to be $255 instead (see th e Service's final rule published on December 21, 2001, at 66 FR 65811). Accordingly, the application fee for LIFE Legalization applicants is reduced to $255. Any individual who previously filed a LIFE Legalization application and paid the $330 filing fee will receive a refund in the amount of the difference ($75) from the Service. If an individual is due a refund, there is no reason or need for that individual to contact the Service; the refund will be generated without any action from the LIFE Legaliza tion applicant. 2/

Some commenters argued that members of the LULAC class action lawsuit were previously required to pay the original $185 filing fee and they should be credited this amount when filing for LIFE Legalization. The Service does not agree with this conclusion. The LIFE Act provides for certain class action applicants to apply, under a new procedure, for adjustment of status pursuant to section 245A of the Act. Any prior Form I-687 that may have been filed by these class action applicants has no bearing on any Form I-485 that may be filed pursuant to LIFE Le galization. This is a new program with new filing requirements. As such, all aliens applying for LIFE Legalization are subject to the imposition of the full $255 filing fee. Some commenters also criticized the Service's position that none of the fees collected from the filing of LIFE Legalization applications will be used in the enforcement of IRCA's anti-discrimination provisions. As was discussed in the supplementary information of the interim rule (66 FR 29662), section 245A(c)(7) of the Act provided for the allocation of up to $3 million of the application fees for section 245A of the Act to immigration-related unfair employment practices programs. Section 1104(c)(6) of the LIFE Act specifically prohibits the use of any funds collected through this program to be used in such a manner. Consequently, the Service is statutorily prohibited from using any LIFE Legalization application fees for the enforcement of immigration-related unfair employment practices.

Definitions (8 CFR 245a.10)

One commenter wanted the Service to amend the requirement that an applicant must establish he or she filed a written claim for class membership in CSS , LULAC , or Zambrano . Alternatively, this commenter argued that any applicants who had submitted a Form I-687 prior to the enactment of the LIFE Act should be considered by the Service to have already established prima facie eligibility, as well as continuous residence and physical presence requirements. In addition, the commenter argues that anyone who filed a Form I-687 prior to the enactment of the LIFE Act should not have to file a new application pursuant to the LIFE Act. The Service disagrees with these arguments. Se ctions 1104(b) and (c)(2) of the LIFE Act specifically require that LIFE Legalization applicants must have filed a written claim for class membership, and establish continuous unlawful residence and physical presence, basic citizenship skills, and admissibility as an immigrant. Furthermore, usage of the Form I-687 has not been exclusively limited to the CSS , LULAC , and Zambrano lawsuits, and in some cases, the Forms I-687 were not required to be completely filled out or signed by the applicant. Therefore, the fact that an individual may have filed a Form I-687 does not alone establish prima facie eligibility for LIFE Legalization. The Service will not amend the final regulations in response to this comment.

However, the Service has decided to establish a definition for "written claim for class membership." During the past 14 years, the courts have provided sufficient periods of time for aliens alleging class membership to come forward and notify the Attorney General that they believe that they meet the class definitions. 8 CFR 245a.14 lists various forms of evidence which would prove notice to the Attorney General. The Service is adding to that list other forms of evidence which would have been issued pursu ant to filing a claim for class membership. The Service is adding Form I-765, Application for Employment Authorization, submitted by an alien who filed for class membership, and an application for a stay of removal submitted by an alien who filed for class membership, and notes that the Service will also evaluate all relevant documents offered by the applicant to establish notice.

Aliens in exclusion, deportation, or removal proceedings (8 CFR 245a.12(b)(1))

Six commenters objected to the requirement of the concurrence of Service counsel before an immigration judge or the Board of Immigration Appeals may administratively close proceedings, arguing that no guidance is provided in the regulations as to when Service counsel will withhold such concurrence. Service counsel will withhold such concurrence if the alien is not prima facie eligible for legalization. Further guidance through the final regulations is not necessary. No amendments to the final regulation s shall be made as a result of this comment.

These same commenters pointed out that an alien with a final order receives an automatic stay of removal by filing an application for LIFE Legalization, and as such argued that concurrence by Service counsel in order to administratively close the matter of an alien currently in proceedings is pointless because the Service could not remove such alien in any event. The Service points to the distinction between administrative proceedings to determine removability and the actual removal of an alien. Should th e Service counsel find an alien in proceedings to be prima facie ineligible for LIFE Legalization benefits, such matter will not be administratively closed. If the alien were ultimately ordered removed, such order will be stayed pending the final outcome of the adjudication of that LIFE Legalization application (see 8 CFR 245a.13(f)). The final regulations shall not be amended in response to these comments.

Filing from abroad (8 CFR 245a.12(c))

One commenter stated that the Service regulations governing application for LIFE Legalization from abroad is not specific enough with regards to procedures such as fingerprinting, interviewing, and parole into the United States. As indicated in the interim regulations, the Service will provide the applicant who applies for LIFE Legalization from abroad with specific instructions after his or her application has been reviewed. The Service is coordinating efforts with other Federal agencies and American con sulates abroad in order to accommodate applicants who file from abroad. Since there are many scenarios for an applicant from abroad (e.g., he or she may reside in an area with an overseas Service office, or in an area with only an American consulate, or in an area remote from either, etc.), the Service will provide each applicant with specific procedures that would best accommodate his or her situation and location. Further, any additional procedural guidelines regarding applications from abroad may be se t via Service policy memos. As such, the final regulations shall not be amended as a result of this comment.

Proof of citizenship skills (8 CFR 245a.12(d)(10))

Five commenters suggested that the Service clarify that a LIFE Legalization applicant may submit proof that he or she is satisfactorily pursuing a course of study to achieve basic citizenship skills at any time during the application process. The commenters stated that the Form I-485 Supplement D, LIFE Legalization Supplement to Form I-485 Instructions, advised applicants that such evidence could be submitted at the time of application, subsequent to filing the application but before the Service interview, or at the time of Service interview. The Service has considered this comment and has made appropriate adjustments to the language at 8 CFR 245a.12(d)(10) to accommodate this suggestion.

Secondary evidence (8 CFR 245a.12(g))

Four commenters questioned the necessity of 8 CFR 245a.12(g). These commenters contended that the section in the interim regulations that described secondary evidence and the Service's acceptance of such evidence is redundant and unnecessary. Upon further review of this section of the interim regulations, the Service finds that much of the language contained in 8 CFR 245a.12(g) is indeed unnecessary, especially when much of that language is contained in 8 CFR 103.2(b)(2). As such, the Service has adopte d these commenters' suggestions and has amended the language at 8 CFR 245a.12(f) and (g).

Employment authorization (8 CFR 245a.13(d)(2))

Five commenters requested that the Service include a timeframe in which Forms I-765, Application for Employment Authorization, must be adjudicated. The Service does not believe that any regulatory language needs to be included in the final rule to address this issue. Employment authorization shall be granted to certain LIFE Legalization applicants pursuant to 8 CFR 274a.12(c)(24). The regulations at 8 CFR 274a.13(d) provide that Forms I-765 filed pursuant to 8 CFR 274a.12(c) (with certain specific exc eptions) be adjudicated within 90 days of receipt. These same regulations provide for the issuance of interim employment authorization if a Form I-765 is not adjudicated within those 90 days. In other words, if a LIFE Legalization applicant applies for, and is eligible for, employment authorization, and does not receive such employment authorization within 90 days of filing, he or she may request interim employment authorization at the Service district office having jurisdiction over his or her place of r esidence. In light of these existing regulations, the Service will not amend the regulations at 8 CFR 245a.13(d)(2).

Travel authorization (8 CFR 245a.13(e))

Four commenters expressed concern for the language at 8 CFR 245a.13(e) relating to the issuance of advance parole. Specifically, these commenters were troubled that the interim rule at 8 CFR 245a.13(e) indicated that the Service shall issue advance parole "pursuant to the standards prescribed in section 212(d)(5) of the Act." Section 212(d)(5) of the Act states, in pertinent part, that the "Attorney General may * * * parole [aliens] into the United States temporarily under such conditions as he may presc ribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit." A review of this reference, especially in light of the language at 8 CFR 245a.13(e)(1) (which indicates that the Service shall approve applications for advance parole filed by any alien eligible for LIFE Legalization), does appear to be too stringent. Accordingly, the Service has amended the regulations in response to these commenters' concerns.

One commenter questioned the Service's requirement that all requests for advance parole be submitted to the lockbox address in Chicago and adjudicated at the Missouri Service Center. The commenter indicated that this filing requirement could pose a problem for those LIFE Legalization applicants who have to travel abroad due to emergent circumstances. The Service appreciates this commenter's concern. Therefore, if a LIFE Legalization applicant must travel abroad due to reasons described in section 212(d)( 5) of the Act, he or she will be allowed to file the Form I-131, Application for Travel Document, with the District Director having jurisdiction over his or her place of residence. Such an alien must demonstrate to the District Director that he or she is an eligible alien who has filed for adjustment of status pursuant to LIFE Legalization and that he or she must travel abroad due to urgent humanitarian reasons. All other Forms I-131 filed by LIFE Legalization applicants must be filed with the Director of the Missouri Service Center. The regulations have been amended accordingly.

Four commenters argued that the interim rule placed an unauthorized evidentiary burden of proof on LIFE Legalization applicants who travel abroad without advance parole. Nothing in the interim rule affects the Service's adjudication of a LIFE Legalization application due to an applicant's travel abroad while the LIFE Legalization application is pending. Section 1104(c)(3)(B) of the LIFE Act states that "the Attorney General shall, in accordance with regulations, permit the alien to return to the United St ates after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness of a close relative or other family need." As the Act directed the Attorney General to issue regulations on the topic, 8 CFR 245a.13(e) was issued. Pursuant to 8 CFR 245a.13(e), an alien who travels abroad will be afforded the opportunity to establish the requirements of section 1104(c)(3)(B) of the LIFE Act to the Service or to an immigration judge.

In addition, the regulation at 8 CFR 245a.13(e)(1) permits each LIFE Legalization applicant to apply for advance parole. 8 CFR 245a.13(e)(2) and (3) encourage applicants to do so, in two different ways. Under 8 CFR 245a.13(e)(2), an alien who goes abroad and returns under a grant of advance parole is presumed to be entitled to return under section 1104(c)(3)(B) of the LIFE Act, unless the Service, having placed the alien in an expedited removal or section 240 of the Act proceeding, proves by a prepondera nce of the evidence that the alien is not eligible for adjustment pursuant to LIFE Legalization. If the alien goes abroad without obtaining advance parole, however, 8 CFR 245a.13(e)(3) provides that the alien must be denied admission and may be removed, unless the alien establishes "clearly and beyond doubt" that he or she filed a timely LIFE Legalization application showing prima facie eligibility, and the alien's absence meets the requirements of section 1104(c)(3)(B) of the LIFE Act.

These commenters object to the "clearly and beyond doubt" standard of proof for 8 CFR 245a.13(e)(3), believing that this standard is impermissibly burdensome on aliens. Section 235(b)(2) of the Act clearly states that the Service must deny admission to an applicant for admission, unless the alien is "clearly and beyond doubt" entitled to admission. The same standard of proof applies in section 240 of the Act proceedings against an applicant for admission (section 240(c)(2)(A) of the Act). Moreover, the Service, under 8 CFR 245a.13(e)(1), must grant advance parole to any advance parole applicant who makes a prima facie showing of LIFE Legalization eligibility.