Entry of Aliens Needed as Witnesses and Informants; Nonimmigrant S Classification

Federal RegisterAug 25, 1995

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299

[INS No. 1683-94; A.G. Order No. 1986-95]

RIN 1115-AD86

Entry of Aliens Needed as Witnesses and Informants; Nonimmigrant

S Classification

agency: Immigration and Naturalization Service, Justice.

action: Interim rule with request for comments.

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summary: This regulation establishes procedures by which federal and

state law enforcement authorities (``LEAs'') may secure from the

Immigration and Naturalization Service (``the Service'') and the

Department of State (``State'') nonimmigrant classification for alien

witnesses and informants who may eventually be granted lawful permanent

resident (``LPR'') status because of their cooperation. The regulation

is necessary to provide uniform standards and responsibilities for the

admission, stay, monitoring, adjustment and, if necessary, departure of

such alien witnesses and informants and to enable the government to

comply with record-keeping and annual reporting requirements imposed by

Congress.

dates: This interim rule is effective August 25, 1995.

addresses: Please submit written comments in triplicate to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference the INS number 1683-

94 on your correspondence. Comments are available for public inspection

at the above address by calling (202) 514-3048 to arrange for an

appointment.

for further information contact: Katharine Auchincloss-Lorr,

Adjudications Officer, Adjudications Division, Immigration and

Naturalization Service, 425 I Street NW., Room 3214, Washington, DC

20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

On September 13, 1994, the President signed the ``Violent Crime

Control and Law Enforcement Act of 1994.'' Section 130003 of this

legislation, Pub. L. 103-322, creates a new nonimmigrant classification

providing for the admission of alien witnesses and informants who may

obtain LPR status upon completion of specified conditions. Section

130003 specifically establishes section 101(a)(15)(S) of the

Immigration and Nationality Act (``the Act'') and authorizes for each

relevant fiscal year: (1) One hundred (100) nonimmigrant visas for

aliens determined by the Attorney General to possess critical reliable

information on a criminal organization or enterprise, willing to

provide that information to federal and/or state authorities, and whose

presence, upon the Attorney General's determination, is essential to

the success of an authorized criminal investigation or the prosecution

of an individual involved in the criminal organization or enterprise,

and; (2) twenty-five (25) nonimmigrant visas for aliens whom the

Secretary of State and the Attorney General jointly determine possess

critical reliable information about a terrorist organization,

enterprise, or operation, are willing to provide or have provided that

information to federal authorities, will be or have been placed in

danger as a result, and are eligible for a reward under 22 U.S.C.

2708(a). Although these new nonimmigrant classifications would be

designated to be S-1 and S-2, respectively, to correspond with the

statutory designations, the prior utilization of those codes requires

that these designations be, respectively, S-5 and S-6. The spouse,

married and unmarried sons and daughters, and parents of witnesses and

informants in the new nonimmigrant classification may also be granted

nonimmigrant status (designated S-7), if the Attorney General (or,

where required, the Secretary of State and the Attorney General

jointly) considers it appropriate.

Prior to the creation of section 101(a)(15)(S) of the Act, there

was no standard procedure for allowing aliens needed to provide

testimony or information into the United States. With the creation of

the S nonimmigrant classification, Congress has authorized the

admission of a limited number of alien witnesses and informants under

specified conditions and provides for adjustment to LPR status after

the satisfaction of certain conditions.

Regulatory Structure

Briefly stated, the enactment of the provisions creating the S

nonimmigrant classification enables the Service to utilize the

nonimmigrant framework to establish a process so that requesting LEAs

can provide immigration benefits to certain key alien witnesses and

informants. Included in the statutory scheme are reporting requirements

by the alien to the Attorney General and the Attorney General to

Congress.

a. Nonimmigrant Classification

By creating a new nonimmigrant category exclusively for alien

witnesses and informants, Congress has authorized a temporary admission

for a specific purpose, and subjected such aliens to the degree of

scrutiny prior to admission that is imposed on all nonimmigrant

classifications. The Act distributes responsibility for implementing

its nonimmigrant provisions between the Attorney General and the

Department of State; generally, nonimmigrants, including those in S

classification, are subject to the jurisdiction and authority of both

agencies. In formulating this regulation, the Service has worked

closely with the Department of State, which is issuing a complementary

regulation at this time.

With the creation of the S nonimmigrant category, alien witnesses

and informants who intend to reside permanently in the United States

may enter only in S classification. Alien witnesses and informants

intending a permanent stay will no longer be authorized entry in B

nonimmigrant classification. That classification remains available for

eligible witnesses and informants seeking temporary admission, who have

a residence in a foreign country which they have no intention of

abandoning, who will not be employed by a United States entity or seek

employment while in the United States, and who will not be seeking any

of the benefits that flow from S classification.

Similarly, current procedures affecting alien witnesses and

informants seeking to be allowed temporarily into the United States

pursuant to parole authorization are unchanged by this regulation,

except for a new provision defined in 8 CFR 212.14 specifically

providing procedures for an LEA who subsequently will apply for S

classification on behalf of a witness or informant.

An essential component of the admission process for nonimmigrants

who are excludable is the waiver authority accorded the Attorney

General under section 212(d) of the Act. In this legislation, Congress

created a new provision, section 212(d)(1), enabling the Attorney

General to waive all grounds of excludability (except Nazi involvement)

for S nonimmigrants, if it is ``in the national interest to do so.''

Section 212(d)(3) waivers will remain available to witnesses and

informants who are eligible for B-1 classification, pursuant to normal

procedures.

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The statute preserves the Attorney General's right to institute

deportation proceedings for conduct committed after the alien's

admission in or change to S classification, or for conduct or a

condition not disclosed to the Attorney General prior to the alien's

admission in or change to S classification.

b. Controls Imposed by Classification

As a condition for admission and maintenance of status in the

United States, an S nonimmigrant is statutorily required to abide by

any conditions, limitations, or restrictions imposed by the Attorney

General; to file quarterly reports detailing his or her whereabouts and

activities ``as the Attorney General may require,'' and to execute a

form waiving the right to contest any action for deportation instituted

before the nonimmigrant obtains lawful permanent resident status (other

than on the basis of an application for withholding of deportation).

The statute renders the alien deportable for conduct committed after

admission or for conduct or a condition that was not disclosed to the

Attorney General prior to admission. Further, in order to maintain

status, the S nonimmigrant may not be convicted of any criminal offense

punishable by a term of imprisonment of 1 year or more after the date

of S classification; change to another nonimmigrant classification; or

be authorized admission for more than 3 years.

The S nonimmigrant may adjust status to that of an LPR exclusively

by means of the new statutory provisions creating the nonimmigrant

classification. These procedures are found in this regulation at 8 CFR

245.11. Finally, the alien may be deported for conviction of a crime of

moral turpitude committed within 10 years after being granted LPR

status under those new provisions. New provisions for the deportation

of alien witnesses and informants have been provided at 8 CFR 242.26.

No alien may be admitted to the United States in S classification more

than 5 years after September 13, 1994, the date of enactment of Pub. L.

103-322.

The numeric limit in the S visa provision indicates a Congressional

determination that the visa benefit be accorded only in extraordinary

circumstances. The legislation is modeled in part after a provision of

the Central Intelligence Agency Act of 1949 (50 U.S.C. 403h)

authorizing LPR status for no more than 100 aliens per year when the

Director of Central Intelligence, the Attorney General, and the

Commissioner of the Immigration and Naturalization Service

(``Commissioner'') determine that the admission of a particular alien

is in the national security interest. The S nonimmigrant provision's

specific numeric limit authorizing issuance of only 125 visas annually

does not include family members. Finally, the Attorney General is

required to report annually to Congress on specific aspects of the S

classification.

c. Classification Process

To facilitate implementation of this legislation and ensure a

thorough awareness of LEA needs, the Service has engaged in a process

of consultation with the principal federal LEAs interested in and

affected by this nonimmigrant classification. With the assistance of

the Department of Justice (``DOJ''), the Criminal Division's Terrorism

and Violent Crimes Section (``TVCS''), the Service solicited and

received written comments on the procedural aspects of how the visa

application, classification, and admission process will work in

practice, and a range of related concerns, from two State Department

components (the Interagency Counterterrorism Rewards Committee and the

Visa Office) and the following DOJ components: the Federal Bureau of

Investigation (``FBI''), the Drug Enforcement Administration (DEA), the

Marshals Service, and the Criminal Division's Organized Crime and

Racketeering Section (``OCRS'') and Office of Enforcement Operations

(``OEO'').

After considering the comments of the principal federal LEAs, the

Service has devised a process for authorizing S nonimmigrant

classification. This process provides federal and state LEAs access to

informants and witnesses, and the benefits of S nonimmigrant

classification, to the extent permitted by the statute while ensuring S

nonimmigrants are appropriately controlled. The Service will develop

procedures to protect the identity of the alien while ensuring

maintenance of adequate control.

The process provides for the use of a new Form I-854, Inter-Agency

Alien Witness and Informant Record, to record the basis of the

nonimmigrant classification, related and prerequisite commitments and

responsibilities, and seat-of-government certification of the need for

the requested alien. The procedures for use of this new Form will bring

uniformity and consistency to the process for authorizing S

nonimmigrant classification for eligible criminal aliens with

information needed by LEAs and provide a basis for control and tracking

of the alien. A fee for the processing of Form I-854 will be proposed

under a separate rulemaking. There will be no initial fee for

processing of Form I-854, although the fee will go into effect as soon

as the Service has responded to comments and a final fee rule has been

issued.

Pursuant to Form I-854, S nonimmigrant classification is predicated

on a relationship between a witness or informant and the LEA that

requests classification. For purposes of this regulation, the term

``LEAs'' refers to the entities authorized to request S nonimmigrant

classification for an alien witness or informant in a given case,

namely state and federal law enforcement authorities, which include the

United States Attorneys' Offices and state and federal courts. Only a

federal LEA may request S-6 nonimmigrant classification, although

either a state or federal LEA may request S-5 nonimmigrant

classification.

Form I-854 request an LEA seeking S nonimmigrant classification for

an alien witness or informant to articulate the reasons why the

presence of the alien is needed and to assume responsibility for the

alien's admission, stay, and departure. In addition to the seat-of-

government certification required for LEAs on Form I-854, where

nonimmigrant classification is for purposes of providing testimony, the

United States Attorney in whose district a case is being prosecuted

must also certify the request on Form I-854.

To provide the Service with information to evaluate the needs,

accomplishments, failures, and effectiveness of the S visa process, the

Service is requiring that all LEA requests related to S nonimmigrant

classification be processed on Form I-854, including requests for

change of nonimmigrant classification to the S category or adjustment

to LPR status. An LEA seeking S nonimmigrant classification for an

alien who is out of status or otherwise in the United States illegally

may file Form I-854 as a means of initiating procedures with the

Service, subsequent to the Criminal Division's certification, in an

effort to have the alien admitted to the United States in lawful

status.

d. Criminal Division Certifications

A central concern of the comments offered by interested LEAs during

the Service's drafting process was, given the limited number of

available S nonimmigrant visas specified under the statute, how

requests for this classification will be evaluated. The regulation

provides that the Criminal Division of the Justice Department will

establish appropriate procedures for receiving and reviewing Form I-854

and determining which applications will be

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forwarded to the Commissioner with a recommendation for approval. The

Criminal Division will be responsible to the Attorney General for

ensuring that the cases forwarded to the Service fall within the annual

numerical limitation.

No Form I-854 request for S nonimmigrant classification for an

alien witness or informant may come to the Service without the Criminal

Division's certification. Before being forwarded by the Criminal

Division to the Service, an application for S-6 nonimmigrant

classification certified by the Criminal Division will be forwarded by

the Criminal Division to the Department of State for the appropriate

certification.

e. Reporting Requirements

To implement the statutory framework, the regulation imposes two

categories of information and reporting requirements on the government.

The first involves behavior by the alien that could lead to loss of

nonimmigrant status or deportability. The Service must be informed

immediately by the responsible LEA of any behavior that renders the

alien deportable. This information includes certain criminal conduct,

failure to report quarterly, or failure to comply with the authorized

terms of the particular S nonimmigrant classification or the adjustment

provisions. The requesting LEA is responsible for supervising,

monitoring, and otherwise accounting for the admitted alien's

compliance with the statutory and regulatory requirements, for

quarterly reporting on ``whereabouts and activities'' and ``other

conditions, limitations, or restrictions imposed.''

Secondly, the statute requires an annual report to the Committee on

the Judiciary of the House of Representatives and the Committee on the

Judiciary of the Senate. The regulation provides that the Justice

Department's Criminal Division, in cooperation with the Service, will

prepare this report evaluating the program's effectiveness.

f. Period of Authorized Stay

The statute explicitly provides that the period of admission on an

alien in S nonimmigrant classification ``may not exceed 3 years'' and

that such period ``may not be extended by the Attorney General.'' For

this reason, the Attorney General has determined that the S

nonimmigrant classification must be limited to situations where an

alien is reasonably expected to provide the desired assistance within

the authorized 3-year period. The Service, therefore, has amended 8 CFR

214.1 accordingly and will require the alien to depart the United

States after the 3-year period. The LEA will be responsible for

ensuring departure. Parole may not be used to extend a period of stay

or to authorize a reentry. However, an S nonimmigrant who departs prior

to adjustment may subsequently be readmitted in the same classification

consistent with the process set forth herein.

g. Change of Status

The regulation at 8 CFR 214.2(t)(12) implements the prohibition in

section 101(a)(15)(S) concerning change of status. Aliens cannot be

admitted in S-5 nonimmigrant classification and change status to S-6

nonimmigrant classification, nor can they change to any other

nonimmigrant classification. Pursuant to new procedures set forth at 8

CFR 248.3(h), aliens in nonimmigrant categories other than S may apply

to and, if eligible, change their status to S nonimmigrant

classification, unless specifically prohibited from so doing by section

248 of the Act.

h. Deportation and Exclusion

Aliens in S nonimmigrant classification will be required as a

condition for admission and stay in lawful nonimmigrant status to

certify Form I-854, waiving their entitlement to a deportation hearing

pursuant to the statute. This rule amends the deportation regulations

at 8 CFR part 242 to include aliens in S nonimmigrant classification.

The exclusion regulations have similarly been amended at 8 CFR 236.10.

Due to the limited nature of this nonimmigrant classification and its

significance to the law enforcement community, deportation and other

procedures that would effectively terminate an alien's S nonimmigrant

classification will not be initiated without the concurrence of the

Assistant Attorney General, Criminal Division.

i. Employment Authorization

An employment authorization document (``EAD'') for S nonimmigrants

will be issued through normal procedures. The regulation specifies

that, pursuant to the terms of 8 CFR part 274a, S nonimmigrants are

authorized to work in the United States and that the LEA may assist the

alien in applying for employment authorization.

j. Criminal Conduct

Section 212(d)(1) of the Act provides that the Service can

institute deportation proceedings against an S nonimmigrant for conduct

committed after the alien's admission into the United States or for

conduct or a condition that was not disclosed to the Attorney General

prior to the alien's classification as a nonimmigrant under section

101(a)(15)(S) of the Act. Accordingly, the Service will take

appropriate steps to remove such an alien.

In addition, section 214(j)(4)(B) of the Act requires, as a

condition for the admission, and continued lawful status, the S

nonimmigrant ``may not be convicted of any criminal offense punishable

by a term of imprisonment of 1 year or more after the date of such

admission.''

The revised parole provisions at 8 CFR 212.14 enable an alien to be

paroled into the United States so that an LEA can secure a guilty plea

and conviction. In such a case, upon the recommendation of an LEA and

the approval of a certified request on Form I-854, the Service may

terminate the parole authorized to such an alien, waive the

nonimmigrant visa requirement as provided under section 212(d)(4) of

the Act, exercise the discretionary waiver authority provided under

section 212(d)(1) of the Act, and authorize the alien's admission into

the United States in S nonimmigrant classification.

The precise meaning of parole in an immigration context is quite

different from the parole with which LEAs are normally familiar. Under

the parole authority provided in section 212(d)(5) of the Act, the

Attorney General has the discretion to permit an otherwise inadmissible

alien to proceed into the United States temporarily and under specific

safeguards. Parole is granted on a case-by-case basis and, if granted,

does not constitute admission into the United States. The paroled alien

does not make an entry as defined by section 101(a)(13) of the Act and,

as a result, is subject to exclusion proceedings (not deportation

proceedings) if the terms and conditions of the parole are violated.

The due process rights of aliens subject to exclusion proceedings are

more limited than those of aliens subject to deportation proceedings.

Parole may be authorized only for emergent reasons or reasons

deemed strictly in the public interest and is available only if the

Service has custody of the alien. It should not be used as a means of

circumventing a waiver of inadmissibility. In an immigration context,

parole is considered, in itself, a form of constructive custody, and is

available only to an alien ``applying for admission to the United

States.'' A request for parole of an alien in exclusion proceedings and

in Service custody must be made pursuant to the terms of 8 CFR 212.5

or, in the case of an alien for which S classification is being sought,

8 CFR 212.14. Due to the

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requirement that the alien be ``applying for admission,'' parole is not

available to aliens who have effected an entry. Aliens who have been

``paroled'' (in the criminal sense) from prison or who are in prison,

and who are deemed to be arriving aliens may not be granted parole

unless the Service has custody.

k. Monitoring and Control

The regulation and the certifications on Form I-854 require that,

as a prerequisite to S nonimmigrant classification, the requesting LEA

assume responsibility, during the period of the S nonimmigrant's

presence in the United States, for the safety of the public and for

keeping the Service appropriately informed of matters that might impact

on the alien's immigration status. Once an alien achieves immigrant

status through adjustment from S nonimmigrant classification to LPR

status, the LEAs responsibility for monitoring and reporting will

cease. In addition, if the Marshals Service assumes responsibility for

the alien, LEA monitoring will be minimal. Further, an alien will

become deportable upon the commission of conduct that violates either

the regulatory requirements or the specified terms and limitations of

the authorized status. In such a case, the LEA should immediately

advise the Service, request that the Service proceed to remove the

alien, and assist with, and verify, the alien's departure. Consistent

with this monitoring responsibility, an LEA is responsible for ensuring

departure, if necessary, and verifying departure in a manner acceptable

to the Service, so that monitoring is formally concluded.

l. Adjustment

Section 245(i) of the Act provides for the ``Exclusive Means of

Adjustment'' of aliens admitted as S nonimmigrants. The Service has

interpreted this to mean that S nonimmigrants may not adjust to

permanent resident status pursuant to section 506(b) of the Departments

of Commerce, Justice, and State, the Judiciary, and Related Agencies

1995 Appropriations Act, Public Law 103-317, which allows most

otherwise ineligible persons to adjust status upon payment of an

additional sum. The provisions for ``Exclusive Means of Adjustment''

for S nonimmigrants provide clearly that these statutory terms and

conditions are to be the exclusive means of adjustment for S

nonimmigrants described in section 101(a)(15)(S) of the Act. Adjustment

of status pursuant to terms other than those specified therein are not

available to aliens in S classification.

In the statute, Congress appears inadvertently to have created a

new, second subsection 245(i) of the Act, which the Service interprets

as an error. There is no indication that Congress intended to repeal or

superseded the provisions of section 506(b) of Public Law 103-317,

enacted one month earlier. The Service regards the establishment of the

second subsection 245(i) of the Act as a numbering error and will

recommend that Congress enact a technical amendment to redesignate the

Crime Bill's provision as subsection 245(j) of the Act.

The regulations, at 8 CFR 212.14(a)(1)(vi) and 214.2(t)(4)(i),

place certain restrictions on the promises LEAs can make to alien

witnesses and informants for whom they seek parole or S nonimmigrant

classification.

Changes to Current Regulations

This interim rule implements section 130003 of Public Law 103-322,

which establishes section 101(a)(15)(S) of the Act. It amends 8 CFR at

parts 208, 212, 214, 236, 242, 245, 248, 274a, and 299 to provide

uniform and consistent application, admission, reporting, control,

deportation, and adjustment criteria for the entry, parole, and stay of

alien witnesses and informants who intend to remain in the United

States.

Other than the changes to 8 CFR 214.2(t) previously discussed, the

following specific changes to Title 8 of the Code of Federal

Regulations are necessary to fully implement this regulation:

8 CFR 208.2 and 208.16 are amended to enable asylum officers to

determine whether an alien classified pursuant to section 101(a0(15)(S)

of the Act is entitled to withholding of deportation.

8 CFR 212.1(m) is added to require that aliens seeking admission in

S nonimmigrant classification must be in possession of appropriate

documents issued by an American consular officer.

8 CFR 212.4(i) is added to enable the Attorney General to determine

pursuant to section 101(a)(15)(S) of the Act whether to exercise the

discretion to waive a ground of excludability, other than under section

212(a)(3)(E) of the Act, if it is in the national interest to do so.

The Service may remove an alien classified as a nonimmigrant under

section 101(a)(15)(S) of the Act for conduct committed after the

alien's admission to the United States or for conduct or a condition

undisclosed to the Attorney General prior to the alien's admission in,

or change to, S nonimmigrant classification.

8 CFR 212.14 is added to specify the process by which LEAs may

obtain parole status for alien witnesses and informants who intend to

apply for S nonimmigrant classification.

8 CFR 214.1(a)(2) is amended to add nonimmigrant classifications

for S-5, S-6, and S-7.

8 CFR 214.1(c)(3) is amended to add a reference to nonimmigrants

defined in section 101(a)(15)(S) of the Act, so that such aliens are

ineligible for an extension of stay beyond a total of 3 years.

8 CFR 236.10 is added to provide exclusion procedures for aliens

requesting admission in S nonimmigrant classification.

8 CFR 242.26 is added to provide deportation procedures for aliens

in S nonimmigrant classification who, as a condition of their admission

and stay in lawful status in the United States, must waive their right

to a deportation hearing and to contest, other than on the basis of an

application for withholding of deportation, any action for deportation

instituted before lawful permanent resident status is obtained.

8 CFR 245.11 is added to set forth the exclusive terms of

adjustment of status to that of lawful permanent resident for an S

nonimmigrant.

8 CFR 248.2(b) is amended by removing the reference to ``or (K)''

to read ``(K), or (S)'' in order to prohibit change of status from S

classification.

8 CFR 248.3(h) is added to set forth procedures for change of

nonimmigrant classification to S classification pursuant to the request

of a law enforcement agency.

8 CFR 274a.12(c) is amended to authorize aliens in S classification

to apply for employment authorization. Pursuant to 8 CFR

274a.12(c)(21), an alien granted S nonimmigrant classification may

apply for employment authorization by filing Form I-765, Application

for Employment Authorization, with the applicable fee.

8 CFR 299.1 is amended to add Form I-854 to the list of prescribed

Service forms.

8 CFR 299.5 is amended to add Form I-854 to the listing of Service

forms approved by the Office of Management and Budget.

Good Cause Exception

The Attorney General has determined that there is good cause for

publishing this as an interim rule. Law enforcement authorities need

access to the benefits provided in this legislation, which cannot be

conferred without these regulatory provisions and the guidance,

controls, and structure they afford. Since prior notice and public

comment with respect to this interim rule are impracticable and

contrary to the public

[[Page 44264]]

interest under these circumstances, there is good cause under 5 U.S.C.

553 to make it effective upon publication. We will consider comments

received within 60 days of publication of this interim rule in the

Federal Register.

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 the rule will not have a significant economic impact

on a substantial number of small entities for purposes of that Act.

Executive Order 12866

This rule is not considered by the Attorney General to be a

``significant regulatory action'' under Executive Order 12866, section

3(f) Regulatory Planning and Review, and accordingly, this rule has not

been reviewed by the Office of Management and Budget.

Executive Order 12612

The regulation herein will not have substantial direct effects on

the states, on the relationship between the federal 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 significant

federalism implications to warrant the preparation of a Federalism

Assessment.

Paperwork Reduction Act

The information collection requirements contained in this rule have

been cleared by the Office of Management and Budget, under the

provisions of the Paperwork Reduction Act. The clearance number for

this collection is contained in 8 CFR 299.5, Display of Control

Numbers.

List of Subjects

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange

programs, Employment, Foreign officials, Health professions, Reporting

and recordkeeping requirements, Students.

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

1. The authority citation for part 208 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.

9701; 8 CFR part 2.

Sec. 208.2 [Amended]

2. In Sec. 208.2, paragraph (a) is amended in the third sentence by

adding the phrase ``and aliens classified pursuant to section

101(a)(15)(S) of the Act,'' immediately after the phrase

``Sec. 253.1(f) of this chapter,''.

Sec. 208.16 [Amended]

3. In Sec. 208.16, paragraph (a) is amended in the first sentence

by adding the phase ``and aliens classified pursuant to section

101(a)(15)(S) of the Act,'' immediately after the phrase

``Sec. 253.1(f) of this chapter,''.

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;

ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

4. The authority citation for part 212 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,

1226, 1227, 1228, 1252; 8 CFR part 2.

5. In Sec. 212.1, paragraph (m) is added to read as follows:

Sec. 212.1 Documentary requirements for nonimmigrants.

* * * * *

(m) Aliens in S classification. Notwithstanding any of the

provisions of this part, an alien seeking admission pursuant to section

101(a)(15)(S) of the Act must be in possession of appropriate documents

issued by a United States consular officer classifying the alien under

that section.

6. In Sec. 212.4, the section heading is revised, and paragraph (i)

is added to read as follows:

Sec. 212.4 Applications for the exercise of discretion under section

212(d)(1) and 212(d)(3).

* * * * *

(i) Alien witnesses and informants.--(1) Waivers under section

212(d)(1) of the Act. Upon the application of a federal or state law

enforcement authority (``LEA''), which shall include a state or federal

court or United States Attorney's Office, pursuant to the filing of

Form I-854, Inter-Agency Alien Witness and Informant Record, for

nonimmigrant classification described in section 101(a)(15)(S) of the

Act, the Commissioner shall determine whether a ground of exclusion

exists with respect to the alien for whom classification is sought and,

if so, whether it is in the national interest to exercise the

discretion to waive the ground of excludability, other than section

212(a)(3)(E) of the Act. The Commissioner may at any time revoke a

waiver previously authorized under section 212(d)(1) of the Act. In the

event the Commissioner decides to revoke a previously authorized waiver

for an S nonimmigrant, the Assistant Attorney General, Criminal

Division, and the relevant LEA shall be notified in writing to that

effect. The Assistant Attorney General, Criminal Division, shall concur

in or object to the decision. Unless the Assistant Attorney General,

Criminal Division, objects within 7 days, he or she shall be deemed to

have concurred in the decision. In the event of an objection by the

Assistant Attorney General, Criminal Division, the matter will be

expeditiously referred to the Deputy Attorney General for a final

resolution. In no circumstances shall the alien or the relevant LEA

have a right of appeal from any decision to revoke.

(2) Grounds of removal. Nothing shall prohibit the Service from

removing from the United States and alien classified pursuant to

section 101(a)(15)(S) of the Act for conduct committed after the alien

has been admitted to the United States as an S nonimmigrant, or after

the alien's change to S classification, or for conduct or a condition

undisclosed to

[[Page 44265]]

the Attorney General prior to the alien's admission in, or change to, S

classification, unless such conduct or condition is waived prior to

admission and classification. In the event the Commissioner decides to

remove an S nonimmigrant from the United States, the Assistant Attorney

General, Criminal Division, and the relevant LEA shall be notified in

writing to that effect. The Assistant Attorney General, Criminal

Division, shall concur in or object to that decision. Unless the

Assistant Attorney General, Criminal Division, objects within 7 days,

he or she shall be deemed to have concurred in the decision. In the

event of an objection by the Assistant Attorney General, Criminal

Division, the matter will be expeditiously referred to the Deputy

Attorney General for a final resolution. In no circumstances shall the

alien or the relevant LEA have a right of appeal from any decision to

remove.

7. Section 212.14 is added to read as follows:

Sec. 212.14 Parole determinations for alien witnesses and informants

for whom a law enforcement authority (``LEA'') will request S

classification.

(a) Parole authority. Parole authorization under section 212(d)(5)

of the Act for aliens whom LEAs seek to bring to the United States as

witnesses or informants in criminal/counter terrorism matters and to

apply for S classification shall be exercised as follows:

(1) Grounds of eligibility. The Commissioner may, in the exercise

of discretion, grant parole to an alien (and the alien's family

members) needed for law enforcement purposes provided that a state or

federal LEA:

(i) Establishes its intention to file, within 30 days after the

alien's arrival in the United States, a completed Form I-854, Inter-

Agency Alien Witness and Informant Record, with the Assistant Attorney

General, Criminal Division, Department of Justice, in accordance with

the instructions on or attached to the form, which will include the

names of qualified family members for whom parole is sought;

(ii) Specifies the particular operational reasons and basis for the

request, and agrees to assume responsibility for the alien during the

period of the alien's temporary stay in the United States, including

maintaining control and supervision of the alien and the alien's

whereabouts and activities, and further specifies any other terms and

conditions specified by the Service during the period for which the

parole is authorized;

(iii) Agrees to advise the Service of the alien's failure to report

quarterly any criminal conduct by the alien, or any other activity or

behavior on the alien's part that may constitute a ground of

excludability or deportability;

(iv) Assumes responsibility for ensuring the alien's departure on

the date of termination of the authorized parole (unless the alien has

been admitted in S nonimmigrant classification pursuant to the terms of

paragraph (a)(2) of this section), provides any and all assistance

needed by the Service, if necessary, to ensure departure, and verifies

departure in a manner acceptable to the Service;

(v) Provide LEA seat-of-government certification that parole of the

alien is essential to an investigation or prosecution, is in the

national interest, and is requested pursuant to the terms and authority

of section 212(d)(5) of the Act;

(vi) Agrees that no promises may be, have been, or will be made by

the LEA to the alien that the alien will or may:

(A) Remain in the United States in parole status or any other

nonimmigrant classification;

(B) Adjust status to that of lawful permanent resident; or

alien (and any family member of the alien who is 18 years of age or

older) shall sign a statement acknowledging an awareness that parole

only authorizes a temporary stay in the United States and does not

convey the benefits of S nonimmigrant classification, any other

nonimmigrant classification, or any entitlement to further benefits

under the Act; and

(vii) Provides, in the case of a request for the release of an

alien from Service custody, certification that the alien is eligible

for parole pursuant to Sec. 235.3 of this chapter.

(2) Authorization. (i) Upon approval of the request for parole, the

Commissioner shall notify the Assistant Attorney General, Criminal

Division, of the approval.

(ii) Upon notification of approval of a request for parole, the LEA

will advise the Commissioner of the date, time, and place of the

arrival of the alien. The Commissioner will coordinate the arrival of

the alien in parole status with the port director prior to the time of

arrival.

(iii) Parole will be authorized for a period of thirty (30) days to

commence upon the alien's arrival in the United States in order for the

LEA to submit a completed Form I-854 to the Assistant Attorney General,

Criminal Division. Upon the submission to the Assistant Attorney

General of the Form I-854 requesting S classification, the period of

parole will be automatically extended while the request is being

reviewed. The Assistant Attorney General, Criminal Division, will

notify the Commissioner of the submission of a Form I-854.

(b) Termination of parole--(1) General. The Commissioner may

terminate parole for any alien (including a member of the alien's

family) in parole status under this section where termination is in the

public interest. A district director may also terminate parole when, in

the district director's opinion, termination is in the public interest

and circumstances do not reasonably permit referral of the case to the

Commissioner. In such a case, the Commissioner shall be notified

immediately. In the event the Commissioner, or in the appropriate case,

a district director, decides to terminate the parole of a alien witness

or informant authorized under the terms of this paragraph, the

Assistant Attorney General, Criminal Division, and the relevant LEA

shall be notified in writing to that effect. The Assistant Attorney

General, Criminal Division, shall concur in or object to that decision.

Unless the Assistant Attorney General, Criminal Division, objects

within 7 days, he or she shall be deemed to have concurred in the

decision. In the event of an objection by the Assistant Attorney

General, Criminal Division, the matter will be expeditiously referred

to the Deputy Attorney General for a final resolution. In no

circumstances shall the alien or the relevant LEA have a right of

appeal from any decision to terminate parole.

(2) Termination of parole and admission in S classification. When

an LEA has filed a request for an alien in authorized parole status to

be admitted in S nonimmigrant classification and that request has been

approved by the Commissioner pursuant to the procedures outlines in 8

CFR 214.2(t), the Commissioner may, in the exercise of discretion:

(i) Terminate the alien's parole status;

(ii) Determine eligibility for waivers; and

(iii) Admit the alien in S nonimmigrant classification pursuant to

the terms and conditions of section 101(a)(15(S) of the Act and 8 CFR

214.2(t).

alien has been ordered excluded from the United States, the LEA shall

ensure departure from the United States and so inform the district

director in whose jurisdiction the alien has last resided. The district

director, if necessary, shall

[[Page 44266]]

oversee the alien's departure from the United States and, in any event,

shall notify the Commissioner of the alien's departure. The

Commissioner shall be notified in writing of the failure of any alien

authorized parole under this paragraph to depart in accordance with an

order of exclusion and deportation entered after parole authorized

under this paragraph has been terminated.

(d) Failure to comply with procedures. Any failure to adhere to the

parole procedures contained in this section shall immediately be

brought to the attention of the Commissioner, who will notify the

Attorney General.

PART 214--NONIMMIGRANT CLASSES

8. The authority citation for part 214 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,

1281, 1282; 8 CFR part 2.

9. In Sec. 214.1, paragraph (a)(2) is amended by adding the

following nonimmigrant classification entries to the listing of

designations, in proper sequence, to read as follows:

Sec. 214.1 Requirements for admission, extension, and maintenance of

status.

(a) * * *

(2) * * *

------------------------------------------------------------------------

Section Designation

------------------------------------------------------------------------

* * * * *

101(a)(15)(S)(i)........................................ S-5

101(a)(15)(S)(ii)....................................... S-6

101(a)(15)(S) qualified family members. S-7

------------------------------------------------------------------------

* * * * *

10. Section 214.1 is amended by:

a. Removing the ``or'' at the end of paragraph (c)(3)(iv);

b. Removing the ``.'' at the end of paragraph (c)(3)(v), and

replacing it with a ``; or''; and by

c. Adding a new paragraph (c)(3)(iv), to read as follows:

Sec. 214.1 Requirements for admission, extension, and maintenance of

status.

* * * * *

(3) * * *

(vi) Any nonimmigrant who is classified pursuant to section

101(a)(15)(S) of the Act beyond a total of 3 years.

* * * * *

11. Section 214.2 is amended by adding a new paragraph (t) to read

as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(t) Alien witnesses and informants--(1) Alien witness or informant

in criminal matter. An alien may be classified as an S-5 alien witness

or informant under the provisions of section 101(a)(15)(S)(i) of the

Act if, in the exercise of discretion pursuant to an application on

Form I-854 by an interested federal or state law enforcement authority

(``LEA''), it is determined by the Commissioner that the alien:

(i) Possesses critical reliable information concerning a criminal

organization or enterprise;

(ii) Is willing to supply, or has supplied, such information to

federal or state LEA; and

(iii) Is essential to the success of an authorized criminal

investigation or the successful prosecution of an individual involved

in the criminal organization or enterprise.

(2) Alien witness or informant in counterterrorism matter. An alien

may be classified as an S-6 alien counterterrorism witness or informant

under the provisions of section 101(a)(15)(S)(ii) of the Act if it is

determined by the Secretary of State and the Commissioner acting

jointly, in the exercise of their discretion, pursuant to an

application on Form I-854 by an interested federal LEA, that the alien:

(i) Possesses critical reliable information concerning a terrorist

organization, enterprise, or operation;

(ii) Is willing to supply or has supplied such information to a

federal LEA;

(iii) Is in danger or has been placed in danger as a result of

providing such information; and

(iv) Is eligible to receive a reward under section 36(a) of the

State Department Basic Authorities Act of 1956, 22 U.S.C. 2708(a).

(3) Spouse, married and unmarried sons and daughters, and parents

of alien witness or informant in criminal or counterterrorism matter.

An alien spouse, married or unmarried son or daughter, or parent of an

alien witness or informant may be granted derivative S classification

(S-7) when accompanying, or following to join, the alien witness or

informant if, in the exercise of discretion by, with respect to

paragraph (t)(1) of this section, the Commissioner, or, with respect to

paragraph (t)(2) of this section, the Secretary of State and the

Commissioner acting jointly, consider it to be appropriate. A

nonimmigrant in such derivative S-7 classification shall be subject to

the same period of admission, limitations, and restrictions as the

alien witness or informant and must be identified by the requesting LEA

on the application Form I-854 in order to qualify for S nonimmigrant

classification. Family members not identified on the Form I-854

application will not be eligible for S nonimmigrant classification.

(4) Request for S nonimmigrant classification. An application on

Form I-854, requesting S nonimmigrant classification for a witness or

informant, may only be filed by a federal or state LEA (which shall

include a federal or state court or a United States Attorney's Office)

directly in need of the information to be provided by the alien witness

or informant. The completed application is filed with the Assistant

Attorney General, Criminal Division, Department of Justice, who will

forward only properly certified applications that fall within the

numerical limitation to the Commissioner, Immigration and

Naturalization Service, for approval, pursuant to the following

process.

(i) Filing request. For an alien to qualify for status as an S

nonimmigrant, S nonimmigrant classification must be requested by an

LEA. The LEA shall recommend an alien for S nonimmigrant classification

by: Completing Form I-854, with all necessary endorsements and

attachments, in accordance with the instructions on, or attached to,

that form, and agreeing, as a condition of status, that no promises may

be, have been, or will be made by the LEA that the alien will or may

remain in the United States in S or any other nonimmigrant

classification or parole, adjust status to that of lawful permanent

resident, or otherwise attempt to remain beyond a 3-year period other

than by the means authorized by section 101(a)(15)(S) of the Act. The

alien, including any derivative beneficiary who is 18 years or older,

shall sign a statement, that is part of or affixed to Form I-854,

acknowledging awareness that he or she is restricted by the terms of S

nonimmigrant classification to the specific terms of section

101(a)(15)(S) of the Act as the exclusive means by which he or she may

remain permanently in the United States.

(A) District director referral. Any district director or Service

officer who receives a request by an alien, an eligible LEA, or other

entity seeking S nonimmigrant classification shall advise the requestor

of the process and the requirements for applying for S nonimmigrant

classification. Eligible LEAs seeking S nonimmigrant classification

shall be referred to the Commissioner.

(B) United States Attorney certification. The United States

Attorney with jurisdiction over a prosecution or investigation that

forms the basis for a

[[Page 44267]]

request for S nonimmigrant classification must certify and endorse the

application on Form I-854 and agree that no promises may be, have been,

or will be made that the alien will or may remain in the United States

in S or any other nonimmigrant classification or parole, adjust status

to lawful permanent resident, or attempt to remain beyond the

authorized period of admission.

made at the seat-of-government level, if federal, or the highest level

of the state LEA involved in the matter. With respect to the alien for

whom S nonimmigrant classification is sought, the LEA shall provide

evidence in the form of attachments establishing the nature of the

alien's cooperation with the government, the need for the alien's

presence in the United States, all conduct or conditions which may

constitute a ground or grounds or excludability, and all factors and

considerations warranting a favorable exercise of discretionary waiver

authority by the Attorney General on the alien's behalf. The

attachments submitted with a request for S nonimmigrant classification

may be in the form of affidavits, statements, memoranda, or similar

documentation. The LEA shall review Form I-854 for accuracy and ensure

the alien understands the certifications made on Form I-854.

(D) Filing procedure. Upon completion of Form I-854, the LEA shall

forward the form and all required attachments to the Assistant Attorney

General, Criminal Division, United States Department of Justice, at the

address listed on the form.

(ii) Assistant Attorney General, Criminal Division review.--(A)

Review of information. Upon receipt of a complete application for S

nonimmigrant classification on Form I-854, with all required

attachments, the Assistant Attorney General, Criminal Division, shall

ensure that all information relating to the basis of the application,

the need for the witness or informant, and grounds of excludability

under section 212 of the Act has been provided to the Service on Form

I-854, and shall consider the negative and favorable factors warranting

an exercise of discretion on the alien's behalf. No application may be

acted on by the Assistant Attorney General unless the eligible LEA

making the request has proceeded in accordance with the instructions

on, or attached to, Form I-854 and agreed to all provisions therein.

(B) Advisory panel. Where necessary according to procedures

established by the Assistant Attorney General, Criminal Division, an

advisory panel, composed of representatives of the Service, Marshals

Service, Federal Bureau of Investigation, Drug Enforcement

Administration, Criminal Division, and the Department of State, and

those representatives of other LEAs, including state and federal courts

designated by the Attorney General, will review the completed

application and submit a recommendation to the Assistant Attorney

General, Criminal Division, regarding requests for S nonimmigrant

classification. The function of this advisory panel is to prioritize

cases in light of the numerical limitation in order to determine which

cases will be forwarded to the Commissioner.

the Assistant Attorney General, Criminal Division, to the Commissioner

recommending approval of the application for S nonimmigrant

classification shall contain the following:

(1) All information and attachments that may constitute, or relate

to, a ground or grounds of excludability under section 212(a) of the

Act;

(2) Each section of law under which the alien appears to be

inadmissible;

(3) The reasons that waiver(s) of inadmissibility are considered to

be justifiable and in the national interest;

(4) A detailed statement that the alien is eligible for S

nonimmigrant classification, explaining the nature of the alien's

cooperation with the government and the government's need for the

alien's presence in the United States;

(5) The intended date of arrival;

(6) The length of the proposed stay in the United States;

(7) The purpose of the proposed stay; and

(8) A statement that the application falls within the statutorily

specified numerical limitation.

(D) Submission of certified requests for S nonimmigrant

classification to Service. (1) The Assistant Attorney General, Criminal

Division, shall forward to the Commissioner only qualified applications

for S-5 nonimmigrant classification that have been certified in

accordance with the provisions of this paragraph and that fall within

the annual numerical limitation.

(2) The Assistant Attorney General Criminal Division, shall forward

to the Commissioner applications for S-6 nonimmigrant classification

that have been certified in accordance with the provisions of this

paragraph, certified by the Secretary of State or eligibility for S-6

classification, and that fall within the annual numerical limitation.

(5) Decision on application. (i) The Attorney General's authority

to waive grounds of excludability pursuant to section 212 of the Act is

delegated to the Commissioner and shall be exercised with regard to S

nonimmigrant classification only upon the certification of the

Assistant Attorney General, Criminal Division. Such certification is

nonreviewable as to the matter's significance, importance, and/or

worthwhileness to law enforcement. The Commissioner shall make the

final decision to approve or deny a request for S nonimmigrant

classification certified by the Assistant Attorney General, Criminal

Division.

(ii) Decision to approve application. Upon approval of the

application on Form I-854, the Commissioner shall notify the Assistant

Attorney General, Criminal Division, the Secretary of State, and

Service officers as appropriate. Admission shall be authorized for a

period not to exceed 3 years.

(iii) Decision to deny application. In the event the Commissioner

decides to deny an application for S nonimmigrant classification on

Form I-854, the Assistant Attorney General, Criminal Division, and the

relevant LEA shall be notified in writing to that effect. The Assistant

Attorney General, Criminal Division, shall concur in or object to that

decision. Unless the Assistant Attorney General, Criminal Division,

objects within 7 days, he or she shall be deemed to have concurred in

the decision. In the event of an objection by the Assistant Attorney

General, Criminal Division, the matter will be expeditiously referred

to the Deputy Attorney General for a final resolution. In no

circumstances shall the alien or the relevant LEA have a right of

appeal from any decision to deny.

(6) Submission of requests for S nonimmigrant visa classification

to Secretary of State. No request for S nonimmigrant visa

classification may be presented to the Secretary of State unless it is

approved and forwarded by the Commissioner.

(7) Conditions of status. An alien witness or informant is

responsible for certifying and fulfilling the terms and conditions

specified on Form I-854 as a condition of status. The LEA that assumes

responsibility for the S nonimmigrant must:

(i) Ensure that the alien:

(A) Reports quarterly to the LEA on his or her whereabouts and

activities, and as otherwise specified on Form I-

[[Page 44268]]

854 or pursuant to the terms of his or her S nonimmigrant

classification;

(B) Notifies the LEA of any change of home or work address and

phone numbers or any travel plans;

restrictions on the visa, Form I-854, or any waivers pursuant to

classification; and

(D) Cooperates with the responsible LEA in accordance with the

terms of his or her classification and any restrictions on Form I-854;

(ii) Provide the Assistant Attorney General, Criminal Division,

with the name of the control agent on an ongoing basis and provide a

quarterly report indicating the whereabouts, activities, and any other

control information required on Form I-854 or by the Assistant Attorney

General;

(iii) Report immediately to the Service any failure on the alien's

part to:

(A) Report quarterly;

(B) Cooperate with the LEA;

nonimmigrant classification; or

(D) Refrain from criminal activity that may render the alien

deportable, which information shall also be forwarded to the Assistant

Attorney General, Criminal Division; and

(iv) Report annually to the Assistant Attorney General, Criminal

Division, on whether the alien's S nonimmigrant classification and

cooperation resulted in either:

(A) A successful criminal prosecution or investigation or the

failure to produce a successful resolution of the matter; or

(B) The prevention or frustration of terrorist acts or the failure

to prevent such acts.

(v) Assist the alien in his or her application to the Service for

employment authorization.

(8) Annual report. The Assistant Attorney General, Criminal

Division, in consultation with the Commissioner, shall compile the

statutorily mandated annual report to the Committee on the Judiciary of

the House of Representatives and the Committee on the Judiciary of the

Senate.

(9) Admission. The responsible LEA will coordinate the admission of

an alien in S nonimmigrant classification with the Commissioner as to

the date, time, place, and manner of the alien's arrival.

(10) Employment. An alien classified under section 101(a)(15)(S) of

the Act may apply for employment authorization by filing Form I-765,

Application for Employment Authorization, with fee, in accordance with

the instructions on, or attached to, that form pursuant to

Sec. 274a.12(c)(21) of this chapter.

(11) Failure to maintain status. An alien classified under section

101(a)(15)(S) of the Act shall abide by all the terms and conditions of

his or her S nonimmigrant classification imposed by the Attorney

General. If the terms and conditions of S nonimmigrant classification

will not be or have not been met, or have been violated, the alien is

convicted of any criminal offense punishable by a term of imprisonment

of 1 year or more, is otherwise rendered deportable, or it is otherwise

appropriate or in the public interest to do so, the Commissioner shall

proceed to deport an alien pursuant to the terms of 8 CFR 242.26. In

the event the Commissioner decides to deport an alien witness or

informant in S nonimmigrant classification, the Assistant Attorney