\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 2002 \ FEDERAL REGISTER FINAL REGULATIONS - 2002 \ 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] \ Establishing class membership application (8 CFR 245a.14)
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Establishing class membership application (8 CFR 245a.14)
Some commenters stated that the Service should not require LIFE Legalization applicants to submit evidence of class membership application. These commenters contended that the Service should have all of the necessary evidence in its databases and administrative files, and that requiring LIFE Legalization applicants to file this evidence is an unfair burden. The Service does believe that aliens who filed a written claim for class membership in
prior to October 1, 2000, will appear in the Service's databases as so registered. If for some reason, however, an applicant who did timely file for class membership does not appear in Service databases, then any documentary evidence of such filing provided by the applicant will be reviewed by the Service. If this documentary evidence is provided with the application, the Service will not need to request such evidence from the applicant, thereby expediting the application process. If the applicant does
not have this documentary evidence in his or her possession, but believes that the Service has this evidence in the applicant's administrative file, the interim regulations at 8 CFR 245a.12(g) provide that applicants could submit a statement to that effect in lieu of the actual documentation. This language has been moved to 8 CFR 245a.12(f) in the final regulations. The Service is not amending the language in the final rule in response to these comments.
Two commenters requested that the Service accept affidavits, letters, and documents from community agencies as evidence of class membership application. It is noted that the interim regulations at 8 CFR 245a.14(e) (8 CFR 245a.14(g) in the final regulations) permit LIFE Legalization applicants to submit "[a]ny other relevant document(s)" in proving class membership application along with those listed under 8 CFR 245a.14(a) though (d) (8 CFR 245a.14(a) through (f) in the final regulations). This regulatory
language does not limit the type of documentation that may be submitted to prove class member application. The Service believes the inclusion of this phrase (other relevant documents) creates a practical, as well as an expansive, definition which encompasses all types of evidence, including those discussed by the commenters. As the Service's interim rule does allow for the submission of the above-mentioned documents, the Service will not amend the regulations in response to these comments.
In addition, the Service clarifies that, where an alien filed a written claim for class membership, he or she is deemed to have also filed a claim for class membership on behalf of a spouse or child who was a spouse or child as of the date the alien (who filed a written claim for class membership) alleges that he or she attempted to file or was discouraged from filing an application for legalization during the original application period. Thus, the definition of "eligible alien" is amended to include a spo
use or child who was a spouse or child as of the date the alien (who filed a written claim for class membership) alleges that he or she attempted to file or was discouraged from filing an application for legalization during the original application period. This in no way implies that such spouses and children will derive adjustment of status based on the LIFE Legalization application of the alien who filed a written claim for class membership. Rather, the spouse or child of the alien who filed the claim f
or class membership will also be considered to be an "eligible alien" who may file a separate application for LIFE Legalization which will be adjudicated based on the merits of such alien's documentation.
Continuous residence (8 CFR 245a.15)
Many commenters expressed concern over the Service's requirement that LIFE Legalization applicants produce evidence of their continuous residence in an unlawful manner prior to January 1, 1982, through May 4, 1988. Several commenters cited the great length of time that has passed since 1982, while others cited LIFE Legalization applicants' unlawful status and fear of discovery, as possible reasons for not having evidence of their residence during this time period. The Service recognizes that LIFE Legaliza
tion applicants will be required to produce documents dated nearly 20 years ago; however, section 1104(c)(2)(B) of the LIFE Act imposes this continuous residence requirement. Therefore, the Service will continue to require LIFE Legalization applicants to document their residence in the United States during the requisite time period.
One commenter suggested that an alien's departure between January 1, 1982, and May 4, 1988, under an order of deportation should not interrupt the alien's continuous residence. The statute clearly provides that departure while a deportation order is in effect ends "continuous residence"; section 245A(g)(2)(B)(i) of the Act states that "an alien shall not be considered to have resided continuously in the United States if, during any period for which continuous residence is required, the alien was outside th
e United States as a result of a departure under an order of deportation." No provision of the LIFE Act revoked this section of the Act. As such, the Service will not amend the final regulations in response to this comment.
One commenter requested clarification of the language at 8 CFR 245a.15(d). This commenter questioned the use of the word "eligible" in the following sentence: "The following categories of aliens, who are otherwise eligible to adjust to LPR status pursuant to LIFE Legalization, may file for adjustment of status provided they resided continuously in the United States in an unlawful status since prior to January 1, 1982, through May 4, 1988." The Service has reviewed this sentence and is confident of its wor
ding. The paragraphs following the sentence quoted above list those categories of nonimmigrants who might be able to establish unlawful residence in the United States. If an alien falls into one of these categories of nonimmigrants, and meets the other eligibility requirements of LIFE Legalization (i.e., he or she applied for class membership in one of the three class action lawsuits prior to October 1, 2000, he or she is admissible as an immigrant, he or she has not been convicted of a felony or of three
or more misdemeanors, etc.), then he or she may file for adjustment of status pursuant to LIFE Legalization. The Service will not amend the final regulations in response to this comment.
Continuous physical presence (8 CFR 245a.16)
Six commenters argued that the standards set out in 8 CFR 245a.16(b) regarding brief, casual, and innocent absences in relation to the continuous physical presence requirement did not allow for case-by-case adjudication. It was never the intent in the interim rule to set out a categorical definition of brief, casual, and innocent absences. The numerical standards were placed in the interim rule so as to serve as a guide to adjudicators. If the number of days the applicant was absent from the United State
s fell below the guidelines, the adjudicator need look no further. If the applicant's trip was greater than 30 days or an aggregate of 90 days, the applicant could provide reasons for why his or her return could not be accomplished within the time period(s) allowed. As such, a case-by-case adjudication is necessitated by the interim rule. However, given the misinterpretation by these commenters, the Service will amend 8 CFR 245a.16(b) so as to remove the standards. Applicants should now be prepared to
offer evidence establishing that absences of any period of time were brief, casual, and innocent.
One commenter stated that the regulations at 8 CFR 245a.16(a) would prevent the submission of Social Security Administration (SSA) or Internal Revenue Service (IRS) printouts as evidence of continuous physical presence. The regulations read, in pertinent part, that evidence "may consist of any documentation issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticat
ing instrument of the authorized representative of the issuing authority." The Service does not believe this language would prevent the submission of SSA or IRS printouts, provided these printouts bear the name of the applicant, are dated at the time they are issued (i.e., when they are printed out by the issuing agency), and are appropriately endorsed by the issuing agency. The Service will not amend the regulations in response to these comments.
Grounds of inadmissibility (8 CFR 245a.18)
Many commenters were concerned about individuals who have contracted a communicable disease of public health significance. LIFE Legalization applicants, like all other applicants for admission to the United States, must be able to establish their admissibility pursuant to section 212(a) of the Act. If a LIFE Legalization applicant is found inadmissible based on any of the health-related grounds described at section 212(a)(1) of the Act, he or she may file for a waiver of these grounds of inadmissibility.
The interim rule does not prohibit this. Consequently, the Service will not amend the regulations based on these comments.
Six commenters stated that the interim rule did not take into account the fact that many LIFE Legalization applicants have not been entitled to employment authorization and therefore may not be able to demonstrate consistent employment history. In this context, the application of the phrase "history of employment" is statutory and is found in the Special Rule for Determination of Public Charge at section 245A(d)(2)(B)(iii) of the Act. The statutory Special Rule is found in IRCA and is incorporated by ref
erence in the LIFE Act. The Service believes that the statutory Special Rule is meant to assist a legalization applicant to prevent a finding of being inadmissible on public charge grounds.
One commenter argues that IRCA and the LIFE Act require that an applicant demonstrate that he or she is not likely to become a public charge; that the LIFE Act interim rule provides that an alien with a consistent employment history is not inadmissible; and that, if the adjudication took place during the original application period (May 5, 1987, to May 4, 1988), the determination of whether a given class member was likely to become a public charge would have taken place when there "was no legal bar to class
members working in the United States, see 8 U.S.C. 1324a." This commenter fails to note that the "employment history" is derived from the statutory Special Rule, and that
sanctions provisions were enacted in IRCA on November 6, 1986. Again, both IRCA and the LIFE Act require that an alien prove that he or she is not likely to become a public charge, clearly a prospective analysis. Both statutes contain the same "Special Rule" to be applied in the public charge analysis and both use the standard of demonstrating "employment history" to overcome a finding that one is likely to become a public charge.
Nevertheless, the Service has decided to amend 8 CFR 245a.18. The Service is adding language to the regulations regarding the adjudication of public charge for a LIFE Legalization applicant. In adjudicating the issue of public charge, the Service will automatically apply the Special Rule. Adjudicating whether one is likely to become a public charge is necessarily a prospective analysis. The Special Rule provides for a retrospective analysis in determining the prospect of becoming a public charge. Acco
rdingly, the Service will take into account an alien's employment history in the United States, to include the period prior to the 1986 advent of employer sanctions. Additional language in the regulation will encourage applicants to submit as much information as possible in order to preclude a public charge finding. The analysis will be on a case-by-case basis and will permit the applicant to prove financial responsibility pursuant to any number of ways, to include pointing to the ability to have a sponso
r file a Form I-134, Affidavit of Support, on the applicant's behalf. Anyone can be the sponsor for the Form I-134.
Interviews (8 CFR 245a.19)
Four commenters stated that the interim rule regarding the interviewing of LIFE Legalization applicants implied that they would not be interviewed by an immigration officer in their jurisdiction. The Service did not intend to convey this message when implementing the interim rule. The interim rule at 8 CFR 245a.19(a) stated that "[a]pplicants will be interviewed by an immigration officer as determined by the Director of the Missouri Service Center." All LIFE Legalization applicants who applied for adjus
tment of status from within the United States, and who must appear for a Service interview, will be interviewed by a Service officer at the Service office with jurisdiction over their place of residence. Those LIFE Legalization applicants who applied for adjustment of status from abroad, and who must appear for a Service interview, will be interviewed by a Service officer as determined by the Director of the Missouri Service Center. The Service does not, therefore, believe that the final regulations must
be amended in response to these comments.
One commenter requested that the Service not require interviews of LIFE Legalization applicants. This commenter argued that many LIFE Legalization applicants had already been interviewed when they applied for class membership in one of the three class action lawsuits. While some applicants may not be required to establish basic citizenship skills because they meet one of the listed exceptions, or they have met the requirements in some other fashion (obtained a GED or are enrolled in an acceptable learning
program), there will be many LIFE Legalization applicants who will be required to pass a basic citizenship test at the time of his or her Service interview. Further, in-person interviews are useful to both the Service officer and the applicant. It provides an opportunity for any inconsistencies or gaps in the application to be resolved in a timely manner without having to resort to correspondence through the mail. Moreover, there will be instances where an in-person interview will be necessary because s
hortcomings or discrepancies in an applicant's file cannot be resolved through correspondence (e.g., an applicant does not have sufficient documentation to establish continuous physical presence, but is able to convince a Service officer at an in-person interview that he or she was physically present in the United States). As such, the regulations will not be amended.
Decisions and appeals (8 CFR 245a.20)
Four commenters requested that the Service's final rule provide for the issuance of a notice of intent to deny prior to the denial of any LIFE Legalization application. The interim rule at 8 CFR 245a.20(a)(2) does provide for the notification of a LIFE Legalization applicant if the Service intends to deny his or her application based upon information of which the applicant was not aware. The Service does recognize that applicants who filed for legalization under IRCA did receive a "Notice of Intent to Den
y" prior to the issuance of a denial that clearly notified the applicant of the Service's intent to deny his or her application. While the Service has been and will be following this same procedure for LIFE Legalization applicants, it recognizes that this intention is not clearly delineated in the regulations as presently drafted. As such, the Service has made an amendment to the language at 8 CFR 245a.20(a)(2) in response to these commenters' concerns.
These same commenters also requested that the Service expressly state that all LIFE Legalization applicants whose applications are denied may appeal their decisions to the Administrative Appeals Office. The interim rule at 8 CFR 245a.20(a)(2) clearly states that "a party affected under this part by an adverse decision is entitled to file an appeal . . . to the Administrative Appeals Unit." The Service believes that the interim rule is quite clear that all decisions of denial issued pursuant to LIFE Lega
lization may be appealed. As such, the Service makes no changes pursuant to these comments.
Producing supporting documentary evidence
Many commenters stated that they had already submitted all required evidence in support of their claims to eligibility for legalization. Commenters also expressed concern over what could be a lengthy processing time for any Freedom of Information Act (FOIA) requests to obtain these documents, and then presumably submit them in support of their LIFE Legalization applications. The Service acknowledges that there is a designated time period in which to apply for LIFE Legalization and, as such, all FOIA reque
sts for records of LIFE Legalization applicants will be expeditiously handled. The Service wishes to reiterate that the interim rule at 8 CFR 245a.12(g) advised applicants that, in lieu of the actual documentation, they could submit a statement indicating that supporting documentation is already contained in the Service's records. This language will be moved to 8 CFR 245a.12(f) in the final rule. Also, the Service will be reviewing all previously created administrative files associated with LIFE Legaliza
Regulatory changes deemed necessary by the Service
The interim rule at 8 CFR 245a.12(d)(2) instructed LIFE Legalization applicants to submit a $25 fingerprinting fee if they are between the ages of 14 and 75. Currently, all other applicants for adjustment of status must be fingerprinted if they are between the ages of 14 and 79, inclusive. Upon further consideration, the Service will require all LIFE Legalization applicants between the ages of 14 and 79 to be fingerprinted. This change will bring the fingerprinting requirements for LIFE Legalization appl
icants into alignment with the fingerprinting requirements for all other applicants for adjustment of status. LIFE Legalization applicants should be aware that the December 21, 2001, final rule at 66 FR 65811 raised the fingerprint fee from $25 to $50. LIFE Legalization applicants are subject to this higher fee.
The interim rule at 8 CFR 245a.17(c) provided exceptions for certain LIFE Legalization applicants to the establishment of basic citizenship skills. This final rule will clarify that the age exception (being 65 years of age or older) must be met at the time the application for adjustment of status is filed. Section 1104(c)(2)(E)(i)(I) of the LIFE Act requires that LIFE Legalization applicants meet the requirements of section 312(a) of the Act. Sections 312(b) and (c) of the Act provide for exceptions to
the naturalization citizenship skills if certain criteria are met as of the date of filing. The implementing regulations at 8 CFR 312.1(b) and 312.2(b) also indicate that a person must meet the age requirement in order to meet these exceptions as of the date of filing. Accordingly, the Service will require that any exceptions to the basic citizenship skills requirements based on age must be met at the time of filing.
Section 1104(c)(2)(D)(i) of the LIFE Act provides that an alien must establish that he or she is admissible to the United States as an immigrant except as otherwise provided under section 245A(d)(2) of the Act. Section 245A(d)(2) of the Act references waivers of grounds of exclusion. In particular, section 245A(d)(2)(B)(ii)(II) of the Act references in what capacity section 212(a)(2)(C) of the Act may not be waived. The Service sees a conflict between section 245A(d)(2)(B)(ii)(II) of the Act and section
212(a)(2)(C) of the Act. When originally enacted, IRCA contained a similar admissibility provision at section 245A(d)(2) of the Act barring the waiver of certain grounds in the then-existing section 212 of the Act. However, section 245A(d)(2) of the Act was amended by the Immigration Act of 1990 (IMMACT 90) (Public Law 101-649, section 603(a)(13)(D)) so as to comport with the related changes to section 212 of the Act. Specifically, section 245A(d)(2)(B)(ii)(II) of the Act was amended by IMMACT 90 so as t
o remove the reference to pre-IMMACT 90 section 212(a)(23) of the Act (relating to a controlled substance and trafficking in controlled substance), insert a reference to section 212(a)(2)(C) of the Act, but retain the exception (so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana). What would correlate to the pre-IMMACT 90 section 212(a)(23)(A) of the Act is now listed at section 212(a)(2)(A)(ii) of the Act and would thus be referenced at section 2
45A(d)(2)(B)(ii)(I) of the Act. By its express terms, the exception pertains to "simple possession" and as such the Service makes the interpretation that the exception must be applied to the grounds listed at section 212(a)(2)(A)(ii) of the Act and amends the regulations accordingly.
The application period is established by section 1104(c)(2)(A) of the LIFE Act as "the 12-month period beginning on the date on which the Attorney General issues final regulations to implement this section." Given the number of clarifications provided in this final rule and in keeping with congressional intent to permit eligible aliens an opportunity to apply and to end the litigation, the Service has decided to end the application period 1 year from publication of this final rule in the Federal Register.
As such, the application period commenced with the publication of the interim rule, June 1, 2001, and will end on June 4, 2003.